Statement of Bruce Fein

Before the House Judiciary Subcommittee on the Constitution

Regarding H.J. Res. 64

Proposing a Victims' Rights Amendment

February 10, 2000

Washington, D.C.

Mr. Chairman and Members of the Subcommittee:

I am grateful for the opportunity to testify on a proposed amendment to the United States Constitution that would dictate an array of victims' rights in federal or state criminal proceedings, H.J. Res. 64. The motivation for the amendment is irreproachable: to guarantee crime victims a minimum opportunity to be heard or to be otherwise involved when the disposition of their predators is in question. But I oppose the amendment, at least at this time, for manifold reasons.

First, it seems gratuitous. Nothing in the Constitution or in United States Supreme Court precedents handcuffs either Congress or the States in fashioning victims' rights statutes. Indeed, both have already exercised that statutory authority. Federal and State victims' rights laws have become commonplaces. And that is no political surprise. Crime victims command almost universal sympathy; they are not some discrete and insular minority needing protection from the majoritarian features of legislation or referenda. The slogan, "I voted against crime victims," is not likely to capture many ballots.

Some amendment proponents urge that state laws are disrespected or otherwise deficient. The first charge may have some truth. The law, prosecutors, and judges are generally backwardlooking. Innovation is resisted because they are creatures of habit and convenience. Victims' rights laws are relatively novel features in the criminal justice system. Those who were trained in an earlier legal culture instinctively shy from embracing the era of victims' rights. But they will die or retire, and be replaced by prosecutors and judges informed by the superceding victims' rights orthodoxies. The problem of inadequate enthusiasm for implementing state or federal laws will solve itself.

The charge of deficient victims' rights laws seems unpersuasive, simply a shorthand for complaining that everything demanded by the victims' rights lobby was not incorporated by various legislative bodies. If the complaint is sound, nothing in the political process suggests that remedies by amending the outstanding statutes will not be forthcoming; thus no federal constitutional amendment is required.

It might be said, however, that a constitutional amendment can do no harm, and, therefore, deserves ratification. But that turns the burden of proof on its head. The Constitution should never be amended except for compelling reasons. Amendments make the sacred document less accessible to ordinary citizen, and create the risk of counterproductive effects that were not foreseen, like the Prohibition Amendment, but which can only be cured by another amendment. Government is an art, not a science. Further, every amendment is a dent in our system of federalism. It removes an issue from the agendas of state governments which can more closely tailor solutions that satisfy their constituents and can serve as laboratories of learning for sister states and the federal government without risk to entire nation. Errors can be corrected by simple legislation, which is nimble compared to the supermajority constitutional amendment stipulations in Article V. Deference to state choice also offers citizens greater opportunities to receive the training and responsibilities of self-government vital to sustaining the culture of democracy. In sum, the Constitution should be left undisturbed absent a great and enduring need; it is not enough that an amendment would do no direct and lethal harm.

The substance of H.J. Res. 64 also seems defective in some respects. Section 1 endows each individual "victim" of a felony or crime of violence with various participatory rights. But nowhere is victim defined. Does it include relatives or friends of a murdered individual or creditors who will be unable to collect debts owing? The amendment is clueless.

The section also entitles each victim to be present at all public proceedings relating to the crime. But if a victim is a prospective witness, sequestration might be necessary to avoid distorted testimony influenced by previous witnesses. Moreover, in cases of mass crimes like the Oklahoma City bombing, a courtroom might lack space for all the victims. It is not clear that access via television would satisfy the proposed amendment.

Section 2 declares that only the "victim or the victim's lawful representative" shall enjoy standing to enforce the rights established by the amendment. There seem at least two difficulties. How is a victim's lawful representative determined? Is it his lawyer? Can it be a layperson? Can there be more than one lawful representative? Must the deputation be in writing? Can it be shown by oral testimony? If the victim is dead, is it his heirs, or the executor or administrator of his estate? The amendment does not even hint at answers.

Section 1 seems to confer rights only on crime victims, not on their lawful representatives. Suppose the victim is dead. Does section 2 entitle his lawful representative to participatory section 1 rights that seem personal to the deceased, such as physical presence at public proceedings relating to the crime?

These problems and ambiguities are much more serious in a constitutional amendment than in a statute because an amending cure to staunch the flood of litigation they would geneerate would be much more arduous and protracted.

Finally, some insist on a victims' rights amendment to give victims a symbolic psychological boost by showing that the nation cares about their plight every bit as much as it cares about constitutional procedural safeguards for criminal defendants. But constitutional amendments should not be trivialized as complements to encounter group therapy. Additionally, criminal defendants are characteristically unpopular, and experience teaches they desperately need constitutional protection from majoritarian whims and prejudices. Crime victims, in contrast, suffer from no such political handicap.

In conclusion, prudence should be the touchstone for all constitutional amendments, and by that measure H.J. Res. 64 has nothing to commend.