A Needed Constitutional Amendment

Many of you probably heard about the more than 10,000 fugitives who were picked up over the last week or so, many of whom were wanted for violent crimes. The round-up was a result of an effort led by U.S. Marshals nationwide.

According to the AP, officers from “960 federal, state and local law enforcement agencies took part in the concentrated search, which coincided with Crime Victims Rights Week,” and the “dragnet caught 10,340 people, some of whom had two or more outstanding arrest warrants.”

Did you know that more than 5 million violent crimes are committed every year in this country? Crime victims’ freedoms and rights first are trampled on by criminals who have no respect for civilized society, and second are trampled on by our nation’s courts — courts that ignore the rights of victims. A balance between victims’ and defendants’ rights, which once existed, must be reestablished. The current and growing inequality is creating a greater disrespect for the law because the law is not just. Legislative remedies have been tried and have failed; as the 1982 President’s Task Force on Victims of Crime concluded, the only option that will work to restore the rights of the innocent is to pass a constitutional amendment.

The drafters of the Constitution did not include specific rights for victims of crime as they did for people accused of crimes, but that’s not too surprising if you think about it: there wasn’t a need for listing such specific rights because victims were parties to the legal actions against their perpetrators. The rights of victims were dramatically altered with the advent of government-paid public prosecutors in the mid-1800s. Since then, the government, not the victims, has been the party litigating against criminals in court. This move was made to ensure that criminals would be punished even when their victims could not, or would not, prosecute them.

Unfortunately, one side-effect of replacing victims with public prosecutors has been that the victims have been forced to the sidelines. Victims are no longer an integral part of the process, and as victims’ rights diminish so do the incentives to report crime and to cooperate with the prosecution. Many States have addressed this issue with statutes to protect victims’ rights — and dozens of states have adopted constitutional amendments. What makes victims’ rights protection difficult is trying to determine the best legislation to use to provide such protection — history shows us that the potency of statutes is rapidly decreasing. Judges strike them down as unconstitutionally interfering with the rigthts of criminals, or they simply ignore them.

That’s why, back when I worked for the Senate Republican Policy Committee (RPC), we actively pushed for the passage of a Crime Victims Constitutional Amendment. Conservative Republican Sen. Jon Kyl and liberal Democratic Sen. Dianne Feinstein tag-teamed on a great amendment that I still hope will one day be passed.

It’s about time we thwarted activist judges and amended the Constitution. I offer the language of an amendment once offered by Kyl and Feinstein:

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SECTION 1. A victim of a crime of violence, as these terms may be defined by law, shall have the rights:

  • to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime;
  • to be heard, if present, and to submit a statement at all such proceedings to determine a conditional release from custody, an acceptance of a negotiated plea, or a sentence;
  • to the foregoing rights at a parole proceeding that is not public, to the extent those rights are afforded to the convicted offender;
  • to reasonable notice of a release or escape from custody relating to the crime;
  • to consideration of the interest of the victim that any trial be free from unreasonable delay;
  • to an order of restitution from the convicted offender;
  • to consideration for the safety of the victim in determining any conditional release from custody relating to the crime; and
  • to reasonable notice of the rights established by this article.

SECTION 2. Only the victim or the victim’s lawful representative shall have standing to assert the rights established by this article. Nothing in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling, except with respect to conditional release or restitution or to provide rights guaranteed by this article in future proceedings, without staying or continuing a trial. Nothing in this article shall give rise to or authorize the creation of a claim for damages against the United States, a State, a political subdivision, or a public officer or employee.

SECTION 3. The Congress shall have the power to enforce this article by appropriate legislation. Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest.

SECTION 4. This article shall take effect on the 180th day after the ratification of this article. The right to an order of restitution established by this article shall not apply to crimes committed before the effective date of this article.

SECTION 5. The rights and immunities established by this article shall apply in Federal and State proceedings, including military proceedings to the extent that the Congress may provide by law, juvenile justice proceedings, and proceedings in the District of Columbia and any commonwealth, territory, or possession of the United States.

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If we are going to claim that we want to save the helpless from the judiciary, then an amendment like this is what we need.

More on the debate over this amendment next week.

(Editor’s note: This Two Cents is adapted from a piece I wrote for the RPC.)


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