Keep phony victims' rights amendment out of the Constitution

April 20, 2004|By Steve Chapman

CHICAGO - Americans cherish and revere the Constitution. But often their attitude brings to mind the Broadway show I Love You, You're Perfect, Now Change. The only thing many of them like more than the Constitution is the opportunity to fix its grievous flaws. The latest suggestion for improvement stems from a belief that it shortchanges the needs of crime victims.

The entire criminal justice system, of course, could be seen as a giant apparatus set up to vindicate the interests of crime victims. Every year in the United States, we arrest more than 13 million suspects and keep more than 1.4 million offenders in prison. All those police, prosecutors, judges, parole officers and prison guards are there mainly to detect, investigate, prosecute and punish criminals for what they do to their victims.

But critics say the system often abuses the people it's supposed to protect. And they insist that the only way to ensure fairness to victims is to enshrine their rights in the Constitution. President Bush has endorsed the amendment. Sen. John Kerry has not.

Americans are often prone to seeing a problem and concluding, "There oughta be a law." In this instance, though, there already is a law - actually, a multitude of laws. Every state has passed legislation to protect victims' rights, and at least 33 have installed such provisions in their state constitutions.

But Republican Sen. Jon Kyl of Arizona, cosponsor of the amendment, says these efforts have been a bust. He says one study found that even in states with strong measures in place, 44 percent of victims weren't alerted to the sentencing hearings, and nearly half weren't notified of plea negotiations.

Why don't existing laws do the job? Because, says Mr. Kyl, "criminal defendants have a plethora of rights that are protected by the Constitution that are applied to exclude victims' rights." The only way to correct the imbalance is to give victims' rights equal status.

But where are the constitutional provisions that work against victims?

Defendants do have a right to a speedy public trial by jury, to be represented by a lawyer, to avoid self-incrimination and so on. But nothing in the Constitution prevents authorities from informing victims of proceedings, from letting them speak during trials, sentencing and parole hearings, from alerting them when an assailant is about to be released, or from requiring criminals to pay restitution. Those are the victims' rights specified in the constitutional amendment, all of which can be (and often are) safeguarded without the drastic step of altering the nation's charter.

Supporters complain that some courts have been so eager to ensure the defendant a fair trial that they bar victims from the courtroom. But that happens only before a victim is scheduled to testify, and it's simply meant to prevent victims from tailoring their testimony (intentionally or not) to match what other witnesses say. By protecting the truth-seeking function of a trial, the practice works to the benefit of victims - who, after all, gain absolutely nothing from sending the wrong person to jail.

If we want to abolish this custom, despite its virtues, we don't need an amendment. Robert Mosteller, a Duke University law professor, says many states allow victims to be present throughout a trial even if they are going to testify. The practice of excluding victims until they testify, Mr. Mosteller notes, "is generally a matter of statutory or common law" and "rarely even approaches constitutional significance."

Victims' rights, it's true, have not always been enforced. But that's partly because they're a new concept and take some time to be fully implemented. And it's partly because they are administered by large, fallible government bureaucracies trying to keep track of a lot of people and information, sometimes without adequate funds.

Amending the Constitution won't make the bureaucracies less fallible. The obvious way to do that is to make them pay for their mistakes by letting victims collect damages when their rights are ignored. But this proposal explicitly forbids that remedy. It's all bark and no bite.

Unless, of course, the opponents hope to curtail the protections we grant to those accused of crimes. The supporters deny that, but they also decline to include a section stating that the amendment wouldn't diminish any existing guarantees.

So maybe the amendment would be an attack on long-standing constitutional rights, or maybe it would be an ineffectual piece of symbolism.

Either way, we're better off without it.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

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