• Victim’s Rights

    Author : October 2, 2017

    In the last election, several states had on the ballot whether to include Victims’ Rights Amendments within their state Constitutions. A similar amendment has been proposed to be included in the U.S. Constitution, without much traction. About twenty states, including California and Illinois, have victims’ rights amendment in their constitution, but there has been resistance across the country in many states. Many states offer the same protections via statute, but not constitutionally – a significant different.

    Victims’ Rights Amendments are typically created in response to the idea that the justice system is more concerned about the constitutional rights of the accused rather than their victims. It is also believed to have been spurred on by the stories, propagated by the media, of offenders who, upon release from prison, go on to attack their original victims or their families. While each state has different provisions, the general idea behind them is the same. Most will require the prosecutors to stay in touch with the victims or their families during the entirety of the prosecution, including post-conviction to keep them updated on parole hearings and the like. Some amendments require any pay that an offender receives while in prison go at least partially to compensate the victims, as well as any royalties from they earn as a result of books sold (if they were derived as a result of their crime). However, this last point has been challenged on multiple occasions as a violation of free-speech rights.

    Critics of these programs are on both sides of the judicial system – prosecutors and defense attorneys. They believe that this would clog the system – already overloaded – with petty crimes, meaning someone whose $100.00 lawnmower was stolen would be on the same legal footing as someone who had been raped. Criminal defense attorneys cited the bias it created in the system, arguing that giving rights to the victims in a criminal case creates an inherent presumption that the defendant is guilty. After conviction, there is a clear victim. But asserting victims’ rights before the defendant has even had a fair trial undermines the presumption of innocence which is the keystone of the criminal justice system in America.

    Protections under the statutory system are more consistent and offer more stability. Using broad constitutional language presents problems: for example, who is a “victim”? Is it parents? Children? Grandchildren? What about employers or best friends? This is an issue that has not been properly defined, nor can it be in the Constitution of most states (because they must provide flexibility over time). Congress grappled with this issue recently when it enacted legislation which required restitution to victims of violent offenses as part of a new terrorism law. Congress created lengthy, specialized language determining who the victim was in order to prevent a mass influx of people claiming victim status for restitution. Constitutional amendments rarely contain this type of language.

    It also allows no room for defenses presented. For example, the battered wife syndrome is a persuasive defense implemented by attorneys who defend individuals who have, for years, suffered endless physical and mental abuse and finally retaliate. In this case, if the wife is found guilty – even with a mitigated sentence – she would be ordered to pay restitution. Most of these victims’ rights amendments are aspirational in nature. No one would disagree that victims should be remembered throughout the prosecution. However, by implementing a constitutional amendment that fails to account for gray areas and nuanced portions of the law, the amendments tend to harm the defense and the legal system itself more than any help it might offer to the victims.

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