The Constitution dodged a bullet in the Senate last week when the sponsors of a victims' rights bill agreed to substitute statutory language for a constitutional amendment. The bill, which would grant victims of federal crimes certain procedural rights during the prosecution of the accused, easily passed the Senate with only one dissenting vote and is expected to clear the House.
While this might sound like a rights-enhancing proposal, in fact it could undermine the presumption of innocence and other due process rights of those accused of a federal crime. It is too bad the Senate was in such a hurry to move the legislation along. The power to take away someone's liberty was recognized by the founders as enormously dangerous and easily abused. In response, the Bill of Rights has as a primary objective ensuring a fair process to anyone accused of wrongdoing. But the Crime Victims' Rights Act, S 2329, would essentially make victims third parties to the action.
The bill would grant victims of any federal offense the right to be reasonably heard at any proceeding, including those involving a plea. This is likely to lead to a spike in the number of cases that go to trial, as victims tend to object to plea agreements. It also could interfere with the ability of prosecutors to make judgments about trading leniency for information that might lead to more serious prosecutions. Moreover, by injecting the victim into the early proceedings, such as a bond hearing, the presumption of innocence is eroded by implying, before any conviction, that the victim has a valid grievance against the accused.
Fair trial rights would also be compromised by allowing the victim to be present during the entire trial, even if he or she will be a witness in the case. Typically witnesses are barred from the proceedings so their testimony isn't tainted by what they hear.
Aside from the principles at stake, there are practical problems with the bill. Is it really possible to notify every victim at every stage of a criminal matter? The bill says that when there are multiple victims of the same crime, "the court shall fashion a procedure" to handle it. But what exactly is a court to do when one victim rejects a plea bargain that another supports? What kind of new and costly burdens will this place on the federal system?
Florida as well as 32 other states already have constitutional amendments protecting victims rights, and those states without a constitutional provision have extended protection by statute. But many of those measures are not nearly as sweeping as that proposed by the Senate. Under the act, victims would be able to demand that their rights are respected by appealing any denials directly to a federal appeals court. This could force delays in legal proceedings. And while the bill explicitly rejects the possibility that there could be a new trial if a victim's rights were ignored, apparently other proceedings such as plea agreements, sentencing hearings and bail may be relitigated - a condition that would clearly undermine a defendant's rights.
The provision of justice is not left in the hands of victims because their overriding desire for vengeance may blind them to the need for accuracy and fairness. Yet, Congress is on the verge of allowing victims to play the role of backseat drivers in the prosecution of federal crimes. This risks opening the process to even greater emotion and distorting justice in the end.
