AT FIRST GLANCE, the concept of victims’ rights seems to offer the closest thing yet to a consensus on the problem of crime. Here at last is ideological common ground, which explains why a proposed constitutional amendment writing victims’ rights into our nation’s charter has attracted wide support. Introduced in the Senate in January by Jon Kyl (R-Ariz.) and Dianne Feinstein (D-Calif.) and sponsored in the House by Henry Hyde (R-Ill.), the proposed victims’ rights amendment reads like a miniBill of Rights for the large majority of Americans who are victimized by criminals at some point in their lives.
The amendment’s twelve paragraphs outline rights that are Madisonian in scope — which is only fair, given the broad range of judicially minted criminals’ liberties they are meant to counteract. A victim would have the right to notification of, and a hearing at, the trial and parole proceedings; adjudication of the case without unreasonable delay; notification of the offender’s release or escape; consideration of the victim’s safety when authorities contemplate releasing the offender; notification of these rights; and standing to assert them in court. Twenty-seven states enshrine such rights in their constitutions.
The victims’ rights amendment has earned impressive bipartisan backing, including an election-year endorsement by President Clinton last June and inclusion in both parties’ 1996 platforms. In a press conference last month promoting the amendment, Sen. Feinstein even trotted out an artfully hedged endorsement from the legal Left’s man of a thousand faces, Harvard law professor Laurence Tribe: “Although there is legitimate room for disagreement about the wisdom of any proposed amendment, I believe this provision deserves a place in the Constitution of the United States.”
Notwithstanding these conversions, there remains on the left, both in academia and politics, some resistance to acknowledging victims’ rights as a legitimate component of the legal process. Most law review articles taking up the subject treat victims’ rights as an atavism on the order of cannibalism or stoning. There is also a stubborn, unspoken assumption among a goodly portion of leftists that the real victims in the criminal-justice system are those whom an unjust, racist society has conscripted into a life of crime.
The Democrats’ new enthusiasm for the victims’ rights amendment may be merely a product of polls and political calculation. A slightly less cynical, and perhaps more convincing, explanation is genuine remorse for the brutal side effects of the criminals’ rights revolution of the 1960s. To liberals, victims’ rights can serve as reparations of sorts to Americans on the receiving end of the crimes that became more numerous after the Warren court revamped criminal procedure. Tribe’s statement to the press endorsing the amendment hints at this view: “Too often, [victims’] rights are ignored or overridden in the mistaken belief that respecting the rights of victims would compromise the rights of the accused or the safety of the public. Because that belief, however misguided, is grounded in the way some people interpret the Constitution as currently written, only a properly drafted constitutional amendment can overcome the inertia that too often leaves the victims of crime unprotected.” Tribe’s is an articulate, if convoluted, plea for greater compassion toward the victims of crime — the victims, that is, of the ongoing social experiment inaugurated by the Warren court and its intellectual tutors.
The conservative case for victims’ rights might seem straightforward by comparison. It is not. Some on the right embrace this cause seemingly from despair at the prospect of reversing the revolution in criminals’ rights. According to these beleaguered souls, the best we can hope for is a somewhat more equitable distribution of rights between criminals and their prey. There are also plenty of folks on the right who support victims’ rights on the basis of the generally accurate and healthy intuition that anything making it marginally harder for criminals to beat the rap can’t be all bad.
But there is a more principled conservative argument for victims’ rights. It derives from the fact that victims of crime traditionally had a central role in the Anglo-American criminal-justice process, which they lost only relatively recently. Until just before the American Revolution, the legal system in the colonies followed the ancient principle — ingrained in English law since the Middle Ages — that the victim drove the criminal-justice process. The victim could initiate and manage the proceedings against the alleged offender, just as a modern civil plaintiff supervises his own case. Victims privately financed prosecutions, hiring their own detectives and attorneys. Prosecutors were hired guns whose job was to exact retribution — usually money — from the miscreant.
This system ended with the rise of public prosecutors in the 18th century, a function of the growing power of the state. By the time the Minutemen began firing in Lexington, public prosecution was becoming entrenched in the colonies, and the role of the victim was reduced accordingly.
The great crime wave of the past thirty-five years has spurred an overdue reappraisal of the role of victims in the criminal-justice system. The new solicitude for victims enhances both justice and mercy. As the eminent Victorian jurist Sir James Fitzjames Stephen observed of the old system of private criminal prosecutions, the proposed reform would give “a legal vent to feelings in every way entitled to respect.”
The most pessimistic view of the victims’ rights movement is that it reflects the belief, both popular and sobering, that the best approximation of justice to be had in modern America is secured by standing in line at the national rights cafeteria and demanding a serving. With society merely the sum total of individual rights, civic life becomes a race to acquire and stockpile the most rights, which may then be used for self-gratification or to ward off the losers in the competition.
Conservatives must be wary any time they take up the language of rights; and victims’ rights, for all their political potency, are no exception. Seen in its best light, this agenda is an attempt to restore to his place in the criminal-justice system an indispensable party, the victim — an attempt inspired by what has been learned in the last two centuries. If we must use the parlance of the day and market these reforms as “rights,” it remains true, nevertheless, that the root of our crime problem is a rights-happy radical individualism inimical to conservatism correctly defined. While the victims of crime deserve their day in court, the solution to the crime problem is not a protracted competition with the judicial branch over who can grab the most rights. We do our society no favors in the long run by bestowing creative new rights on select classes or tribes.
Moreover, merely salving the mental wounds of crime’s victims without helping to prevent other citizens from suffering a similar fate is an unacceptable response to chronically high crime rates from a society that can and must do better. The victims’ rights agenda must supplement rather than replace tough crime-control policies, including essential judicial reforms. It is here that conservatives will part company with Sen. Feinstein and Prof. Tribe and engage in what will surely be an epic battle for the safety and soul of America.
Viewed in proper historical context, victims’ rights represent more than the conservative entry in the great American rights race. They are the restoration of a valuable tradition jettisoned without sufficient thought and brought back in limited form to ensure a fuller conception of justice. Even so, the victims’ rights agenda must not detract from the essential task of crime prevention. Today’s unacceptably high crime rate is the product of a pervasive disregard at all levels of government for our most important civil right — that of personal security: the right not to become a victim in the first place.
Andrew Peyton Thomas is deputy counsel to the governor of Arizona.
