- The Washington Times - Monday, April 19, 2004

The Senate should balk at cluttering the Constitution when it votes next Friday on a crime victims’ rights amendment (VRA).

To forgo the VRA is not to cherish victims’ rights less, but to venerate the brevity and accessibility of the Constitution more. Amendments are appropriate only when flexible and adaptable statutes would be insufficient to achieve a compelling objective; or, to protect discrete and insular minorities from political oppression. Neither reason obtains for the VRA.

Crime victims deserve and evoke legal sympathy. Every state and the District of Columbia feature statutes that endow victims with participatory rights in the criminal justice system. Further, 33 states have amended their state constitutions by overwhelming majorities to protect crime victims.

Congress has enacted a cornucopia of victim-friendly statutes since 1982, including a right to restitution, victim impact statements, and a victims’ Bill of Rights. According to the latter, federal law enforcement agencies must treat putative victims with fairness and respect; protect them from accused offenders; provide them notice of court proceedings; offer opportunities to attend public sessions under certain conditions and to confer with government prosecutors; and transmit information about the conviction, sentencing, imprisonment, and release of the offender.

A crime victim’s authenticity remains in doubt, it should be remembered, unless and until the accused is convicted.

As I previously testified before the Senate Judiciary Committee: “Crime victims have no difficulty in making their voices heard in the corridors of power; they do not need protection from the majoritarian political process, in contrast with criminal defendants whose popularity characteristically ranks with that of Gen. William Tecumseh Sherman in Atlanta, Ga.” A recent vignette from Lake County, Mich., corroborates the political hazards of slighting crime victims. In September 2003, a county prosecutor was recalled by voters angry over a lenient plea bargain that had outraged the family of a murder victim: a 23- to 50-year sentence for the killer. The prosecutor’s explanation he was seeking to avoid costly trials on a penurious $200,000 annual budget proved unavailing.

VRA proponents insist statutory rights are second-class rights compared with constitutional rights enjoyed by the accused. Statutes fortified by strong pubic sentiments, however, command virtual constitutional sanctity. The 1964 Civil Rights Act, the 1965 Voting Rights Act, the National Labor Relations Act, and the Sherman Antitrust Act are illustrative. As to the latter, the Supreme Court in United States vs. Topco Associates (1972) amplified: “Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.”

Moreover, the elevation of victims’ rights from a statutory to a constitutional plateau does not guarantee greater effectiveness. The 14th and 15th Amendment rights of blacks, for instance, slept for 80 years in the chambers of prosecutors and judges because of public indifference. In any event, government officers are every bit as bound by oath to obey statutes as to comply with the Constitution.

VRA crusaders speciously argue victims’ constitutional rights in criminal prosecutions should reasonably mirror those of the accused. Unlike a putative victim, a criminal suspect confronts the loss of life, liberty, or property and a formidable arsenal of government investigatory and prosecutorial weapons. The victim, moreover, may seek damages from the defendant, including restitution, in parallel civil proceedings a la the O.J. Simpson wrongful death judgments.

History has also demonstrated a government propensity to persecute by overzealous prosecutions. The Declaration of Independence denounced King George III, “For transporting us beyond the seas to be tried for pretended offenses.”

Former Attorney General and Associate Justice of the Supreme Court, Robert Jackson, worried that prosecutors are routinely tempted to pick a man to indict for personal or ideological reasons, and then to scour the books to pin an offense on him, in lieu of discovering a crime and then searching for the culprit. To blunt the potential for vindictive or wrongful convictions, the Constitution endows defendants with a modest array of rights, for example, proof beyond a reasonable doubt, jury unanimity, and the right to counsel. Crime victims, however, can point to no corresponding history of government oppression. Indeed, they are the contemporary darlings of state legislatures and Congress.

The VRA would also vitiate the truth-finding objective of trials by injecting victim concerns that could undermine the impartiality and reliability of verdicts. The amendment would require judges in jury selection, evidentiary rulings, or jury instructions to “consider the victim’s safety, interest in avoiding unreasonable delay, and just and timely restitution from the offender.” It would permit victims who intend to testify to avoid sequestration, a customary requirement to foil the tailoring of witness stories. Sequestration has been celebrated by an icon in the law of evidence, however, as “one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.”

Thus, the biblical Apocrypha relates how Daniel exonerated Susanna of adultery by sequestering two accusing elders and eliciting conflicting answers as to where the alleged crime occurred.

Much additional mischief besets the VRA, but their telling must be forgone as a concession to the shortness of life. The proposed amendment should be smartly defeated.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.

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