Victims of crime have an obvious interest in the American criminal-justice process. At certain junctures in that process, their voices should be heard. The rights of victims to attend trials and participate in sentencing or parole hearings are recognized in 20 state constitutions and numerous statutes throughout the country.
So, is there a need for a victims' rights amendment to the United States Constitution?
President Clinton last week said "yes." His opponent this November, Bob Dole, is also on record in favor. Few subjects have more political appeal than victims' rights. But more than political appeal has to be at stake to justify altering the country's basic charter.
The president, usually a critic of efforts to amend the Constitution, argues that victims' rights raise a concern that defies normal statutory remedy: namely, the Constitution's tilt toward protecting the rights of the accused. Only an amendment can adjust the balance, Mr. Clinton says.
That, however, begs a question. Why do the Bill of Rights, and the due- process guarantees elsewhere in the Constitution, focus on the accused? Because their authors were acutely aware that government's police powers all too easily slide toward oppression. The state will always have the preponderance of power; so a constitutional wall was built to protect the individual.
If constitutional jurisprudence starts to embrace individuals' claims against other individuals - victims against criminals, say, or homeowners against the executives of polluting corporations - the Constitution would veer in a different direction, away from its fundamental purpose of preventing abuse of governmental power.
Do the concerns raised by crime victims and their advocates carry an equal weight, impelling their enshrinement in the Constitution?
The argument is made that under current law the rights of the accused will always trump the rights of the victims. In some instances, there may be good reason for that, as when a judge orders a change of venue to assure a fair trial. The Oklahoma City bombing trial is a case in point. Many victims will probably find it hard to attend.
If a victims' rights amendment were enacted, what would happen in a case in which a defendant is found not guilty, but the victim later claimed the prosecutor had ignored his newly-enshrined constitutional rights? Does the judge order a retrial? If so, wouldn't this amount to double jeopardy?
In most states today, prosecutors and judges are finding ways to include victims in the legal process. Victims' advocates are often available to inform people what they can do, and to guide them through the system; victim-impact statements often play a role in sentencing. Parole decisions have been reversed because the victim wasn't heard. As a concept, victims' rights is gaining ground. This fall, additional states will probably add a victims' rights amendment to their constitutions through voter referenda.
The balance, in other words, is being adjusted, without the extraordinary step of changing the US Constitution. With the full weight of popular and political opinion behind them, victims' rights will be honored. That can rarely be said of the rights of the accused.