THE SENATE JUDICIARY Committee recently held a hearing on a constitutional amendment designed to ensure rights in criminal proceedings for victims of violent crime. This is a bad idea whose time, unfortunately, may have come. The proposed amendment -- promoted by Sens. Jon Kyl (R-Ariz.) and Dianne Feinstein (D-Calif.) -- has been kicking around for years in various forms. All of these had grave problems, and the current version is no exception. But it has strong support from the Bush administration, and who is going to speak up against victims? Unless senators are willing to stand on principle, this could be the year a dangerous amendment gets sent to the states for ratification.
The amendment would guarantee victims "reasonable and timely notice" of any proceedings and the right to be present and "reasonably to be heard" at such hearings as sentencing, clemency and parole. It would also guarantee the victims the right to seek restitution from their assailants. These rights could be restricted only if "a substantial interest in public safety or the administration of criminal justice" or a "compelling necessity" required it.
All of this may sound reasonable. But the problems with the proposal are profound. For one thing, its key terms all go undefined, starting with "victim." Moreover, it doesn't say what happens if a victim's right is infringed. In fact, it specifies that no suits for damages can take place for violations of victims' rights, nor can courts order new trials. So the amendment could either create a series of rights with no plausible remedies or -- worse yet -- allow victims to interfere in continuing trials to try to assert their rights. Either way, it would take years of litigation simply to know what this amendment means, years of litigation that will pit victims against prosecutors and complicate the already difficult task of convicting criminals.
Proponents of the amendment object, and with good reason, to the insensitive manner in which victims sometimes are treated by the criminal justice system. Both the law and America's legal culture generally have seen victims and their concerns as beside the point. This has improved in recent years, particularly at the federal level, and it could stand further improvement. But there are times when the needs of victims and the rights of defendants clash irreconcilably. As discomfiting as these situations can be, it is proper for victims' rights to yield in such circumstances. The Constitution gives rights to defendants to ensure that the government cannot arbitrarily deprive anyone of life, liberty or property. By contrast, the government is not prosecuting victims or contemplating their punishment. It is, rather, representing their interest in seeing perpetrators punished. The irony of the victims' rights amendment is that by formally elevating victims' status within the justice system, it would compromise the government's ability to accomplish such punishment effectively and justly.