What's Wrong With Victims' Rights?
If victims get higher priority, something else will have to get a lower priority-resulting in fewer arrests, fewer prosecutions or more clogged court dockets.
Criminals are generally despised, and cops are not universally beloved. But one participant in the criminal justice system has no enemies: victims of crime. They're the Sara Lee of American politics. Everybody doesn't like someone, but nobody doesn't like victims.
The movement to protect this group has achieved one success after another. Every state has laws specifying the rights of victims, and 33 have constitutional provisions as well.
In November, Illinois voters will decide whether to add a victims' rights section to the state constitution. Last year, a U.S. House committee held hearings on a federal constitutional amendment, which got a favorable mention in the 2012 Republican Party platform. It's hard to find anyone who opposes the idea.
It's an idea better in the abstract, though, than the concrete. You might forget that providing justice for victims is one of the central purposes of the entire criminal justice system. There is nothing wrong with acknowledging and accommodating the interests of those harmed by lawbreakers. But there are pretty narrow bounds on what more can and should be done on their behalf.
The Illinois law is typical in establishing the right of victims to be notified of court proceedings, be present at trials, get restitution and present statements about how the crimes have affected them. But critics say it lacks an effective enforcement mechanism.
Attorney General Lisa Madigan says some victims are denied what the law promises. The state constitution explicitly prevents them from going to court to appeal decisions by trial judges, leaving little recourse.
She's undoubtedly right. But the cold truth is that a constitutional amendment wouldn't make much difference.
Sometimes witnesses aren't invited to attend plea hearings because the government doesn't want to reveal that the defendant has agreed to implicate other bad guys. Including the victim, said a 2008 report by the U.S. Government Accountability Office, "could compromise the investigation, as well as bring harm to the defendant and others."
Victims are often barred from trials because they plan to testify. That's not something to lament: Witnesses are normally kept out of the courtroom until they take the stand, to prevent them from tailoring their testimony (deliberately or unconsciously) in response to what other witnesses say.
The point is not to shaft the victim. It's to achieve a fair trial for the defendant by fostering accurate evidence. If victims were guaranteed the right to be present throughout, one consequence would be more erroneous convictions. It's hard to see how the victim of a crime benefits from sending the wrong person to prison.
The amendment doesn't actually change the Illinois rules on victim attendance at trials. It remains up to the judge. The difference is that the victim could appeal the decision to a higher court. But in real life, appeals courts give broad deference to the judges who preside at trials. A victim who asks for relief will rarely get it.
Not many are likely to request it. The reason police avoid illegal searches is because they know that if they arrest a suspect, a defense lawyer will demand that the incriminating evidence be thrown out. But most victims aren't going to hire lawyers to assert their rights. For most, the recourse afforded in this amendment will be of no use.
The federal victims' rights law is instructive. The government provides a complaint process for those who feel their rights were ignored, but the GAO unearthed only 11 complaints over three years—none of which were validated.
The federal law allows victims to file appeals when court decisions go against them. But it's rare for appeals to be filed and exceptionally rare for them to succeed.
Prosecutors would also be allowed to act on behalf of victims. But that raises the other real problem with victims' rights protections: the expense and time they require of prosecutors and police.
Official victim advocates cost money, which is money that can't be spent catching criminals or prosecuting them. A dollar spent on victims is a dollar taken from some other vital criminal justice task. If victims get higher priority, something else will have to get a lower priority—resulting in fewer arrests, fewer prosecutions or more clogged court dockets.
None of those effects will deter crime. And sometimes the best thing for victims is to avoid creating more of them.
