III. Victims and a Federal Constitutional Amendment
The move to enact federal legislation to protect the rights of violent crime victims and in particular an amendment to the United States Constitution has a long history and support from both liberals and conservatives. On June 25, 1996, President Bill Clinton voiced his position on such proposed legislation:
I have supported the goals of many constitutional amendments since I took office, but in each amendment that has been proposed during my tenure as President, I have opposed the amendment either because it was not appropriate or not necessary. But this is different. I want to balance the budget, for example, but the Constitution already gives us the power to do that. What we need is the will and to work together to do that. I want young people to be able to express their religious convictions in an appropriate manner wherever they are, even in a school, but the Constitution protects people’s rights to express their faith.
Two hundred twenty years ago, our Founding Fathers were concerned, justifiably, that government never, never trample on the rights of people just because they are accused of a crime. Today, it’s time for us to make sure that while we continue to protect the rights of the accused, government does not trample on the rights of the victims.
Until these rights are also enshrined in our Constitution, the people who have been hurt most by crime will continue to be denied equal justice under law. That’s what this country is really all about—equal justice under law. And crime victims deserve that as much as any group of citizens in the United States ever will. (Office of the Press Secretary, the White House, 1996)
Almost 7 years later, on May 9, 2002, President George W. Bush voiced similar support for the victims of crime. In a speech at the Department of Justice, President Bush gave his support to a federal constitutional amendment for violent crime victims:
The victims’ rights movement has touched the conscience of this country, and our criminal justice system has begun to respond, treating victims with greater respect. The states, as well as the federal government, have passed legal protections for victims. However, those laws are insufficient to fully recognize the rights of crime victims. Victims of violent crime have important rights that deserve protection in our Constitution. And so today, I announce my support for the bipartisan Crime Victims’ Rights Amendment to the Constitution of the United States. As I mentioned, this amendment is sponsored by Senator Feinstein of California, Senator Kyl of Arizona—one a Democrat, one a Republican. Both great Americans.
This amendment makes some basic pledges to Americans. Victims of violent crime deserve the right to be notified of public proceedings involving the crime. They deserve to be heard at public proceedings regarding the criminal’s sentence or potential release. They deserve to have their safety considered. They deserve consideration of their claims of restitution. We must guarantee these rights for all the victims of violent crime in America.
The Feinstein-Kyl Amendment was written with care, and strikes a proper balance. Our legal system properly protects the rights of the accused in the Constitution. But it does not provide similar protection for the rights of victims, and that must change.
The protection of victims’ rights is one of those rare instances when amending the Constitution is the right thing to do. And the Feinstein-Kyl Crime Victims’ Rights Amendment is the right way to do it. (Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary on the 2002 Victims’ Rights Amendment, 2002)
Although the proposed amendment had 24 cosponsors, including a majority of the members of the subcommittee, and it had also been endorsed by President Bush and by Attorney General Ashcroft, it failed to pass. As a statutory alternative, as mentioned above, the Justice for All Act of 2004 was enacted to protect crime victims’ rights.
The Justice for All Act accomplishes a number of major goals. As noted by the Office for Victims of Crime (2004),
The Act adds new victims’ rights and modifies some of the existing rights. Most notable is the new right of victims to be reasonably heard at any public proceeding involving release, plea, or sentencing. The Act also requires prosecutors to advise victims that they can seek the advice of an attorney with respect to the rights established by the Act. Although the Act does not provide grounds for a new trial, it allows victims to file motions to reopen a plea or a sentence in certain circumstances.
For purposes of the Act, a victim is “a person directly and proximately harmed as a result of the commission of a federal offense or an offense in the District of Columbia.” This language expands the definition of victim in the “Services to Victims” section of the Victims of Crime Act, which allows such services only for those who suffered “direct physical, emotional, or pecuniary harm.”
Some of the specific elements of the Justice for All Act are to amend the federal criminal code to grant crime victims specified rights, including a number of rights that relate to victim compensation and the criminal justice process. The specific rights include (1) the right to be reasonably protected from the accused; (2) the right to reasonable, accurate, and timely notice of any public court proceeding or any parole proceeding involving the crime, or of any release or escape of the accused; (3) the right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding; (4) the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; (5) the reasonable right to confer with the attorney for the government in the case; (6) the right to full and timely restitution as provided in law; (7) the right to proceedings free from unreasonable delay; and (8) the right to be treated with fairness and with respect for the victim’s dignity and privacy (Office for Victims of Crime fact sheet, http://www.ovc.gov/publications/factshts/justforall/content.html#3).