No to the Victims' Rights Amendment

We've lobbied against the Victims Rights Amendment for several years. The Washington Times has an article on it today, one for which we were interviewed on behalf of the National Association of Criminal Defense Lawyers (NACDL) a few months ago.

The D.C.-based National Association of Criminal Defense Lawyers also opposes an amendment. The group, which represents more than 38,000 lawyers, claims an amendment would give "undue power" to influence and impede the decisions of judges and prosecutors in courts nationwide, said Jeralyn Merritt, a spokeswoman for the association. "At great financial cost, it would leave us with a judicial system no longer dedicated to determining guilt or innocence, but preoccupied with airing rage and seeking retribution," Ms. Merritt said.

Here's why we oppose it: (from our 1997 article):

  • Its package of government-guaranteed entitlements for crime "victims" for an opportunity to fully participate and object to bail and plea bargains at the accusatory stage of the proceedings, before a defendant has been found to be the perpetrator of the crime, effectively undermines the presumption of innocence which lies at the very core of our criminal justice system.
  • It greatly adds to the powers of accusation against which the unpopular citizen accused must defend -- governmental and private -- and substantially increases the risk of injustice.
  • It is so ambiguous that it fails to provide a workable definition of the key terms "victim" and "crime of violence." This will result in substantially unnecessary, and costly, litigation over rudimentary standing issues -- further clogging already over-burdened courts.
  • It thrusts the ventilation of victims' hurt and anger to the center of all public criminal proceedings, threatening to overwhelm the courts' ability to fairly and effectively perform important administrative and judicial functions on behalf of not only the citizen accused, but all users of the publically financed justice system -- including victims of crime.
  • It constitutionally and inflexibly forbids judicial deployment of the ancient rule of witness sequestration. Of course, this rule is a crucial protection measure against the tailoring of witness testimony to statements heard from a previous witness, and is a crucial aid in detection of testimony that is less than candid. Wigmore himself refers to sequestration in his famous treatise on evidence as ". . . one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice."

NACDL is not "anti-victim." In fact, the organization has consistently urged that victims of crime be treated with dignity, fairness and respect. However, NACDL submitted testimony to Congress opposing the amendment as unnecessary, unwise, and dangerous.

NACDL past President Robert Fogelnest best articluated the position:

"The greatest good we can do for victims of crime is to decrease their numbers. Rather than loading more work and more expectations on courts and prosecutors, we need more education, more drug addiction treatment and more alternatives to imprisonment that enable defendants to work. In short, we need an effective crime prevention policy, not another press opportunity for politicians."

Prosecutors, not just defense lawyers, oppose this proposed contstitutional amendment. The time for action is now. Contact your Senators and Congresspersons. Remind them that the United States Constitution they are sworn to uphold is sacred, and Congress should not be treating it like a "rough draft," to be edited at the whim of political might. You can quickly call any of your Senators through the Senate switchboard operator, (202) 224-3121; and any of your Representatives through the House switchboard operator, (202) 225-3121.

NACDL's official position on the Victim's Rights Amendment is this:

NACDL opposes a Victims’ Rights Amendment, which would grant crime victims undue power to influence and impede the decisions of judges and prosecutors in courts across the country.

Without question, victims of crime should be treated with dignity and respect throughout the criminal justice process. But proposals that would amend the Constitution to provide numerous entitlements to crime victims, so that they might determine the pace and development of criminal cases, are inimical to the primary obligations of our criminal justice system. NACDL stands alongside the majority of crime victim advocacy groups, Chief Justice William Rehnquist, the National Sheriff’s Association, hundreds of law school professors and constitutional scholars, and countless other thoughtful observers of America’s justice system in opposition to the ill-considered proposal for a Victims’ Rights Amendment to our nation’s charter.

Victims of crime already have many participatory and other rights in criminal proceedings as a result of state and federal legislation. A Victims’ Rights Amendment to the Constitution would signal a radical break with over 200 years of jurisprudence and practice, critically altering the balance between state and federal power in these matters. At great financial cost, it would leave us with a judicial system no longer dedicated to determining guilt or innocence, but preoccupied with airing rage and seeking retribution.

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