THE SENATE Judiciary Committee is poised to consider a constitutional amendment to guarantee rights for victims of violent crime. The goal, a criminal justice system that takes victims into account as it proceeds against defendants, is a laudable one. The amendment, however, should not be adopted. The notion of putting victims' rights on a level playing field with defendants' rights may be rhetorically tempting, but it also reflects a fundamental misunderstanding of why defendants have constitutionally enforceable protections in our legal system.
The policy objectives of the amendment are hard to argue with. The amendment would give victims the right to reasonable notice of and the right to be present at any public proceedings stemming from the offense; to testify at hearings for paroles, plea agreements and sentencing; to notice of the release or escape of a perpetrator; to consideration of the victims' interest in a speedy trial; to an order of restitution from the accused and other such accommodations.
All of this can be -- and much of it already has been -- accomplished by law. In a variety of areas, the law still can be strengthened.
The only sense in which victims' rights cannot be fully protected by statute is that as long as victims' rights are not in the Constitution itself, they will yield in that small set of cases where they clash with the rights of the accused. This is often regretable, because most defendants are guilty. But it is also correct.
The reason is that the rights of the accused flow out of the susceptibility of the criminal defendant to often dire actions at the hands of government. The Constitution's logic is that government should not be able to deprive a person of his freedom (let alone his life) without granting certain basic protections necessary to conduct a vigorous defense. In the case of the victim, the government is not contemplating such an action. In fact, the prosecution is representing the victim's interest -- both individually and as a member of the society -- in seeking punishment for the crime committed against that person. In that context, the notion of government-guaranteed rights for the victim is less of a clean fit than it is for the accused.
The criminal justice system can in any number of ways treat victims more sympathetically and respectfully than it does. Enshrining their role in the Constitution is not the best way to do that.