The Champion, National Association of Criminal Defense Lawyers
June, 1997

Constitution Is Not a 'Rough Draft:' Help Us Defeat Victims' Rights Amendment

By Jeralyn E. Merritt, Esq.,
Co-Chair/Vice-Chair, NACDL Legislative Committee (1995-2001)

The proposed "Victims' Rights Amendment" to the Constitution still looms in this Congress. The leading version is S.J. Res. 6, co-sponsored in the Senate by Dianne Feinstein (D-CA) and Jon Kyl (R-AZ). A hearing was held on this proposal during national crime victims' week, on April 16, 1997. NACDL is not "anti-victim." In fact, we have consistently urged that victims of crime be treated with dignity, fairness and respect. However, we submitted testimony opposing the amendment as unnecessary, unwise, and dangerous.

We are not alone. Among those sharing it are a host of diverse persons and organizations, including: President-Elect of the American District Attorneys' Association William Murphy; Virginia Commonwealth Attorney Bob Humphreys; Cato Institute Director of Constitutional Studies Roger Pilon; Former Reagan Justice Department Deputy Attorney General Bruce Fein; Murder Victims' Families for Reconciliation; National Network to End Domestic Violence; National Clearinghouse for Defense of Battered Women; and over 400 of the most esteemed law professors from across the nation. Also raising substantial concerns about the amendment are: the NOW Legal Defense Fund; President of the Board of Directors of the Conference of State Court Chief Justices, Iowa Chief Justice Arthur McGiverin; and the Committee on Criminal Law of the Federal Courts' Judicial Conference of the United States.

The Framers did not envision amendments to the fundamental, national Constitution, unless necessary. But there is no necessity here -- no federal crisis and no breakdown in state experimentation. Indeed, 29 states now have state constitutional amendments. And almost every state has passed legislation providing numerous rights to crime victims. The federal code looks quite similar, increasingly so. There is the "Victim and Witness Protection Act of 1982," as well as the "Victims of Crime Act of 1984," establishing the Department of Justice Office of Victims of Crime to administer the Crime Victims Fund that provides victim services nationwide. In 1990, Congress passed the "Victims' Rights and Restitution Act," followed in 1994 by the "Victims' Bill of Rights" provisions in that year's "Omnibus Crime Act." It adopted mandatory restitution and other victims' rights as part of the 1996 "Effective Death Penalty and Anti-Terrorism Act." fn.3 There is of course a federal "Speedy Trial Act," broad enough to compel courts to consider the interests of victims in setting criminal trial dates. And over the past ten years, nearly $700 million in grants have been appropriated to crime victims across the country through the federal victims' assistance program.

The proposed "Victims' Rights Amendment" wholly mistakes the intent of the framers of the Bill of Rights to our Constitution. The foremost purpose of the Bill of Rights is to restrain the power of the majority and its elected government to act against an individual. As one author put it: "The Bill of Rights was designed to protect personal liberties from governmental infringement, not to protect private individuals from each other." fn.4 Some of the major particular problems with the proposed national amendment are these:

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's Immediate Past President Robert Fogelnest summed it up well: "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."

The Victims' Rights Amendment movement is organized, powerful and well-funded. The citizen accused is not. Who speaks for the accused? We do! As criminal defense lawyers dedicated to the principles of due process and justice for those accused of crime, and to fairness and integrity in the administration of criminal justice, we must speak out.

Don't stay silent and turn the page. Pick up the dictaphone, the telephone or start typing. A short letter or call to your congresspersons and senators will suffice. You need to reach out and urge them to vote against this unnecessary and dangerous constitutional amendment. 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. Or 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.

National Association of Criminal Defense Lawyers (NACDL)
(202) 872-8600 / FAX(202) 872-8690 /

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