The Crime Victims' Rights Movement's Past, Present, and Future (Part III - the Future)

Efforts to expand and amplify victims' voices in criminal proceedings are justified and likely to continue into the future.

This is the third and concluding post serializing my comprehensive law review article on the past, present, and future of the crime victims' rights movement.  Earlier I blogged about the movement's past and present. In this post, I look to the future. The movement seems likely to push for—and achieve—additional measures for asserting and enforcing victims' rights. And it is time for the movement to renew its advocacy for a federal constitutional amendment protecting victims' rights.

Back in 1973, the U.S. Supreme Court stated in expansive dicta that "in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." (Linda R.S v. Richard D., 410 U.S. 614.) Whatever the validity of that conclusion in 1973, more than a half-century later it is no longer correct. Even at the time, the Court's conclusion ignored this country's long history of private prosecution, with victims directing and even initiating criminal prosecutions. And in the last several decades, the crime victims' rights movement has created specific victims' interests in criminal prosecutions, with victims' bills of rights and other enactments giving victims a clear right to participation.

Today the public demands that victims play an important role in criminal justice processes. This view was well described in a Justice Department report regarding victims' rights: "When a person is harmed by a criminal act, the agencies that make up our criminal and juvenile justice systems have a moral and legal obligation to respond. It is their responsibility not only to seek swift justice for victims but to ease their suffering in a time of great need."

Exactly how the criminal justice system should respond to crime victims and their suffering remains a work in progress, with differences evident from jurisdiction to jurisdiction. But the basic contours of these responses are similar—as captured in a "victim participation model" first described by law professor Douglas Beloof. Today, the criminal justice processes in the federal system and all fifty states extend rights to crime victims, although the enforcement of these rights varies. Generally speaking, for felony and other important criminal cases, crime victims can be heard at appropriate points in the process, most commonly at sentencing through victim impact statements. Victims also are generally entitled to notice of court proceedings and to be able to attend court proceedings. Victims are also frequently given the right to confer with prosecutors and can sometimes shape a prosecutor's decision to file (or not file) criminal charges. Thus, victims now possess the right to participate in the criminal justice process.

These participatory rights are described in Beloof's victim participation model, which helps to reveal the fallacy in equating the crime victims' rights movement with crime control issues. No doubt, the movement's critics can point to examples of victims' advocates pressing for punitive measures that may (or may not) be excessive. But these efforts are not properly categorized as part of the modern victims' rights agenda. Instead, as clarified by Beloof's third model—the victim participation model—these efforts would best be described as part of a separate crime control agenda (as captured in Professor Packer's famous crime control vs. due process models). As Beloof explains, the victim participation model recognizes each victim as an individual and allows that individual's voice to be heard. But whether to be heard—that is, whether to participate and exercise rights—is left to each individual victim. And what the victim says is likewise left to the individual victim. For example, the victim may seek a punitive sentence or a lenient one. But the point of the crime victims' rights movement is that the victim is heard, not that the victim achieves a punitive or merciful objective. It is for this reason that mandatory minimum sentences are not part of the victims' rights movement's agenda.

Against the backdrop of the advances in victims' rights, victims will undoubtedly  continue to play an important role in American criminal justice proceedings in the future. But it is interesting to consider how the victim's role might continue to evolve. As I explain at length in my article, the victims' rights movement will, no doubt, work to shore up weaknesses in existing victims' rights regimes. And in considering the future trajectory of crime victims' rights, further expansion of victims' rights seems most likely—and is easiest to justify—where two conditions exist: first, where victims' claims will not interfere with recognized and legitimate interests of criminal defendants; and, second, where the cost is not prohibitive. If so, the future will likely bring significant expansions of crime victims' rights. Victims' rights do not generally interfere with defendant's rights. And victims' rights are generally not extremely costly.

Regarding potentially harming defendant's interests, the bulk of the victims' rights agenda seeks procedural protection of victims' rights to be heard—to have a "voice, not a veto." Victims can be given a voice without harming the rights of criminal defendants.  The victims' movement has not pushed for giving victims a voice in trials, focusing on other proceedings. And defendants do not have a legitimate interest in silencing victims in these other proceedings. For example, at sentencing, it has long been the law that a judge is free to consider all information that might have some bearing on the appropriate sentence.

In the 1990s, a federal victims' rights amendment to the U.S. Constitution was under consideration—and supported by some strong defenders of defendants' rights. Harvard law professor Laurence Tribe, for example, joined me in concluding that the proposed federal victims' rights amendment would "add[] victims' rights that can coexist side by side with defendants.'"

Most victims' rights initiative are largely cost-free, as they simply involve allow victims to participate in existing processes. But the future seems likely to bring attention to one important area where crime victims' rights could impose at least some modest costs: the victim's right to legal counsel. In America today, a serious obstacle to victims' rights enforcement, even in states with strong victims' rights protections, is the difficulty victims have in securing legal counsel. Ever since the Supreme Court's 1963 decision in Gideon v. Wainwright, indigent criminal defendants have been promised legal assistance. In contrast, crime victims are generally not provided legal counsel at state expense. Indeed, many state enactments specifically exclude such a possibility, presumably because of political compromises by victims' advocates to move victims' enactments forward. The issue of providing at least some victims' legal counsel to help with pressing legal issues needs to be revisited.

Other significant targets for improving victims' rights also exist, particularly in the area of enforcing victims' rights. While Marsy's Law and other state efforts have helped to improve the enforcement of crime victims' rights, those efforts have not comprehensively guaranteed protections for crime victims. Of course, the current landscape of victims' rights in the United States—which occurs against the backdrop of federalism and varying state practices—is a patchwork quilt. Some states have effective regimes in place, while others do not. It continues to be straightforward to find examples of victims who are unable to enforce their rights in state (and federal) criminal processes.

As a result, the victims' rights movement seems likely to seek—and should seek—one overarching goal: a federal victims' rights amendment. Since first proposed by the President's Task Force in 1982, a federal amendment has remained the movement's greatest objective. Even though considerable progress has been made in the last several decades toward improving victims' rights, that progress has been uneven and incomplete. As a recent analysis concluded, crime victims' rights are too often underenforced, "due mainly to the lack of effective implementation of victims' rights laws. Issues such as the lack of professional knowledge, the lack of enforcement mechanisms, strict eligibility criteria for compensation, existence of varying definitions of victim across jurisdictions, and the limited scope of most crime victim legislations, all undermine the effort to protect victims successfully and achieve a global recognition of the status of victims in the criminal justice system."

In one fell swoop, a federal constitutional amendment would not only achieve "global recognition" of victims but also respond to many of the problems that currently hamper victims' rights efforts. As I have argued elsewhere, the values undergirding a federal amendment "are widely shared in our country, reflecting a strong consensus that victims' rights should receive protection. Contrary to the claims that a constitutional amendment is somehow unnecessary, practical experience demonstrates that only federal constitutional protection will overcome the institutional resistance to recognizing victims' interests. And while some have argued that victims' rights do not belong in the Constitution, in fact a victims' rights amendment would addresses subjects that have long been considered entirely appropriate for constitutional treatment."

Using state constitutional amendments as models for language, it is possible to carefully draft a federal amendment so as to protect victims' interests in the system without harming defendants' and others' interests. Congress last held hearings on the amendment in 2013 and 2015. With the increasing success of the victims' rights movement in advancing state constitutional amendments, it is time for the movement to make a new push for a comprehensive federal amendment.

If you have found my series of posts interesting, you can read my entire article on the victims' rights movement here.  Tomorrow, I will be presenting the article at a symposium hosted by the University of Pacific Law Review -- which will be live-streamed here, starting at 8:30 a.m. Pacific time.