Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

The Case for the Crime Victims’ Rights Amendment

Mark Jansen


September 28, 2012

By Mark Jansen

Earlier this year, Representatives Trent Franks (R-Ariz.) and Jim Costa (D-Calif.) proposed a federal constitutional amendment to protect crime victims’ rights.  It would create a national minimum standard that protects victims’ rights to fairness, respect, and dignity, including: the right to reasonable notice of public proceedings related to the offense, the right not to be excluded from such proceedings, to be heard at such proceedings and to be free from unreasonable delay, the right to reasonable notice of release or escape of the accused, the right to restitution and standing to assert these rights, without denying the constitutional rights of the accused. 

Although federal statutes and state constitutions and statutes currently protect victims’ rights to varying degrees, the federal Victims’ Rights Amendment (VRA) deserves the support of principled pluralists.  The VRA furthers public justice by (1) correcting historical misunderstandings about the role of crime victims, (2) establishing a just standard for all states to follow and (3) respecting the equally important roles of the accused.

Many readers may be surprised to learn that in colonial America, criminal law was primarily enforced by crime victims who acted as their own investigators and prosecutors or paid others for the same.  As a party to the prosecution, victims were informed of and fully participated in all court proceedings. Thus, victims’ essential rights were naturally secured through the structure of the criminal system, explaining why the Bill of Rights to the U.S. Constitution only enumerates rights for the accused.  

Starting around the American Revolution, this privatized system of law enforcement slowly and quietly changed to a public system with government-employed police and prosecutors. The state replaced the victim as the central party to a criminal case, relegating victims to the role of witness while disregarding their interests in being notified of or participating fully in court proceedings. Moreover, the constitutional focus on the accused left later generations with the historical misunderstanding that victims’ rights are inferior to or necessarily in conflict with the rights of criminal defendants.

After decades of Supreme Court opinions on defendants’ rights (especially the application of the 4th, 5th, 6th, and 8th amendments to the States), the 1970s ushered in the Crime Victims’ Rights Movement, culminating in the 1982 Report of the President’s Task Force on Victims of Crime. This report concluded that the criminal justice system had “lost an essential balance” and recommended a federal constitutional amendment. 

The VRA will help correct the historical misunderstanding of crime victims by establishing a national standard that, similar to defendants’ constitutional rights, can be enforced by the Supreme Court.  In addition to nurturing a culture and court system which respects victims’ rights, the VRA’s provisions will also further core standards of justice, articulated in the Guidelines for Government and Citizenship of the Center for Public Justice.

As the Center’s Guideline on Political Community states, “governments have the right and the power to enforce public laws for the good of all.” In order to uphold the common good of the political community, as the Center’s Guideline on Government argues, public justice demands that citizens be protected from domestic injustice.  The consequences of criminal offenses, a form of domestic injustice, should include both retributive punishment (e.g., prison, probation) and restorative practices (e.g., victim restitution and reconciliation), as stated in the Center’s Guidelines on Government and Security and Defense

Applying these principles to the issue of justice for victims of criminal offenses suggests that the VRA will promote justice and the common good.  First, when victims have a right to be notified, present and heard at critical proceedings, they are more likely to pass on potentially critical information to courts, such as the true danger of a defendant being considered for pre-trial release or post-conviction sentencing. When courts have better access to this information, they are better equipped to protect victims and the wider community.  

Second, when victims have the right to notice of the defendant’s release or escape, they are better protected from further domestic injustice potentially inflicted by the accused in retaliation for assisting in prosecution.  Third, when victims have the right to be free from unreasonable delay, they can combat unnecessary or overly lengthy proceedings meant to buy time for anxious defendants or wear down victims.  Appropriately speedy proceedings will, in turn, promote the goal of quicker and fuller reconciliation for all parties.  Finally, when victims have the right to be compensated for losses directly attributable to the offense, the goal of restitution is furthered by returning victims to their pre-crime status. 

Finally, the VRA furthers public justice by acknowledging the equally important interests of criminal defendants.  The amendment specifically states that victims’ rights are “ . . . capable of protection without denying the constitutional rights of the accused.”  This language is important not just for legal purposes, but because it avoids a common pitfall in American political thought: that citizens must take sides on any political issue that involves the rights and responsibilities of numerous people or institutions. The VRA honors this approach.

Accordingly, principled pluralists should support the 30 year movement to pass a Victims’ Rights Amendment to the federal Constitution.

—Mark D. Jansen works as a county prosecutor in Arizona and participated in the Center for Public Justice Civitas program in faith and public affairs in 2009.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”