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Chris Field is Editor of Human Events Online [go to Field index]

TWO CENTS
Protecting Crime Victims
A Constitutional Amendment Is the Way to Go...
[Chris Field] 4/25/05

Last week in this space I offered the idea that if we want to get serious about protecting the rights of crime victims in this country, we need to pass a Crime Victims Constitutional Amendment.

Of course, not everybody supports the idea that Congress and the American citizenry need to amend the Constitution in order to protect victims from abuse by the court system. And if you read my piece last week, you know that this is not just a conservative Republican issue (though most supporters have been conservative GOPers): right-wing Sen. Jon Kyl (Ariz.) and California lefty Sen. Dianne Feinstein cosponsored such an amendment. But did you know that former President Clinton and former A.G. Janet Reno also supported it?

Opponents of this amendment have come up will all sorts of excuses not to support putting victims' rights in the Constitution, but they seem a bit shaky.

For example, many people have said they oppose this amendment because they have a strong general bias against amending the Constitution. They advocate so strongly for preserving the sanctity of the Constitution that it seems no amendment would ever be appropriate. Surely hesitancy about amending the Constitution is understandable, and amendments should not be done on a whim. However, when it is necessary, as it is in this case, Congress must protect the rights of Americans. The Constitution is not so fragile that it cannot be amended. In fact, the opposite is true -- the Constitution is so strong that it can be amended and even provides the way to do so when necessary. The Founding Fathers determined that the importance of being able to amend the Constitution was so great that the provision was given an entire article, Article V, outlining the process.

Liberal opponents love to point out that the Constitution has been amended only 27 times, including adding the Bill of Rights, and have used that as an excuse for opposing this amendment. Though this claim is literally correct, the Constitution has actually been amended and reinterpreted thousands of times by Supreme Court and lower court rulings. For example:

• the Roe v. Wade ruling radically amended the Constitution when the Supreme Court proclaimed that it had discovered the "constitutional" right of women to abort their unborn children "emanating" in the Constitution's "penumbra."
• the Supreme Court effectively amended the Constitution in its Texas v. Johnson and United States v. Eichman decisions, in which it ruled that burning a flag is expressive conduct that is protected by the 1st Amendment.
• --in the Lawrence v. Texas, the Supreme Court discovered the heretofore unknown constitutionally protected right to homosexual sodomy.

Judges aren't the only ones rewriting the Constitution -- Congress has too. Democrats, for example, repeatedly have attempted to subvert the 2nd Amendment right to keep and bear arms. Interesting that so many liberal Democrats say they are offended at the notion of a constitutional amendment to protect the rights of the five million Americans who are annually victimized by criminals, many of whom are armed criminals, but at the same time they do not hesitate to try to take firearms out of the hands of law-abiding Americans. They are willing to distort the Constitution so Americans will be unable to protect themselves, and they oppose amending the Constitution to give the unarmed victims of violent criminals the right to be heard in court.

Many claim the amendment is unnecessary because the rights of victims are already implicitly protected. Using that logic, was the 1st Amendment really that necessary? The freedom of speech is obviously vital for the maintenance of liberty in a representative republic such as ours. I, for one, am thankful that the Constitution prevents the government from abridging the freedom of speech: without it judges and legislators would regularly infringe on that right. There are several rights we consider self-evident that are expressly and properly addressed and protected in the Constitution.

Some say this amendment would be unfair to the accused. Supposedly victims who are called as witnesses will give biased testimony. Don't forget that the defendant has that same opportunity to hear and tailor testimony. Others say that it would be too expensive if society had to pay to protect victims' rights -- again, a double standard. Society pays for defendants' rights, including attorneys, transcripts, and transportation. Why are opponents concerned about the potential of paying to protect the rights of victims? The amendment I cited last week does not require victims to attend trials; it states only that the government may not deny them the right to participate if they so choose.

Several opponents of this amendment claim that a federal statute would be as effective as a constitutional amendment. They either are ignorant of or ignoring the history and nature of federal statutes. In 1990, Congress passed the Victim's Rights and Restitution Act, protecting the rights of crime victims, most notably the right to attend and be involved in court proceedings. Then, 10 years ago this week, on April 19, 1995, the Murrah Federal Building in Oklahoma City was bombed, killing 168 people and wounding many more. The court cases that stemmed from that event were long and involved, and many victims desired to attend. According to the Victims' Rights and Restitution Act they were to be afforded that right, but as time went on it became apparent that those rights were going to be largely ignored. In response, Congress passed the Mandatory Victims Restitution Act in 1996, which reaffirmed restitution rights of victims, and passed the Victim Rights Clarification Act in 1997, which amended the Federal criminal code to prohibit a court from ordering any victim of an offense to be excluded from the trial.

All of those laws were for naught. The victims of the bombing were given a choice by the judge: They could either attend the trial or the sentencing, but not both. The judge could not plead ignorance in this case. He could not even state that there was a precedent: these were statutes aimed directly at this case, and the judge blatantly disregarded them.

The danger of using statutory protections for victims is that the constitutional rights of the accused outweigh any Federal or State statutes or any State constitutions, and, therefore, will overshadow victims' rights until there is a constitutional amendment. According to the Department of Justice, even in states that have strong protections for victims' rights, fewer than 60% of victims are notified of the sentencing hearing and fewer than 40% are notified of the pretrial release of the defendant. A constitutional amendment is the only legal measure strong enough to rectify these inconsistencies.

Judicial atrophy is another issue. Theoretically, a constitutional amendment should be unnecessary, but the major players in America's criminal justice system -- prosecutors, public defenders, and judges -- have ignored the concerns of the victims in deference to habit and a view that the rights of defendants are superior. To expect those people who have casually disregarded victims for years to suddenly begin respecting victims because of a new statute is a pipedream.

We need this amendment in order to set a national floor of rights for all victims of violent crimes. History gives me no reason to believe that any other solution will work.

(Editor's note: This Two Cents is adapted from a piece written by Chris Field for the Senate Republican Policy Committee.) tOR

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