Laurence
Tribe holds a chair in Constitutional Law at Harvard law school, and is an
eminent proponent of the school of Constitutional law popularly associated with
the ”Warren Court.”
I
have previously set forth my reasons for supporting S. J. Res. 3, the proposed
Victims’ Rights Amendment now under consideration in the Senate, and
little purpose would be served by my repeating those reasons here. I
understand the objections some have raised to the proposed amendment and have
enormous respect for many who oppose the measure, but on balance I am persuaded
that the considerations favoring the amendment outweigh those against it, even
placing an appropriately skeptical thumb on the scale’s negative side.
I
am writing to address one consideration in particular that is highlighted by
the proposed Crime Victims’ Assistance Act, S. 934, whose sponsors, many
of whom are my good friends, evidently hope by this federal statute to obviate
the need for the proposed constitutional amendment. I favor S. 934’s
enactment, at least in principle. I assume that closer study of its detailed
provisions than I have been able to undertake would disclose ways in which it
might be improved, but minor technical flaws or even design defects in the
contemplated statute would be beside the point and are not my focus here.
After all, detailed problems with the statute’s terms could be cured by
redrafting and would not in themselves explain why only an amendment to the
Constitution could meet the need for fuller national protection of
victims’ rights.
My
concerns are different ones. First, I am concerned that, as the authors of S.
934 doubtless realized given how they wrote their bill, it does nothing
directly for the vast majority of crime victims – those victimized by
violations of state or local rather than federal law. To be sure, S. 934 would
offer the states money for pilot projects and the like, and money of course
helps, but the basic reasons for the dramatic underprotection of state crime
victims are more attitudinal than fiscal: even when states enact victims’
rights measures of their own in response to pressures from constituents, there
is a tendency to ignore or underenforce such rights whenever they appear to rub
up against either the rights of the criminally accused or the needs or wishes
of the prosecution.
And
I do mean to say ”appear to rub up against,” for the problem I have
in mind arises in those situations where a careful analysis would reveal that
the seeming conflict between victims’ rights and the rights of the
accused or the interests of the state is a false or a readily avoidable one.
The mere brandishment of the banners of defendants’ rights or of
prosecutorial needs too often suffices to push the needs and interests of
victims – to be notified, to observe, to be heard, to have their views
considered, to achieve closure, to be compensated if possible – into the
background. Rather than creatively and determinedly seeking ways to protect
victims’ rights in ways that manage fully to respect the genuine rights,
privileges, and needs both of the accuser and of the accused, state and local
officials are understandably but unfortunately tempted to relegate victims and
their rights to second-class status or to shelve them altogether, treating as
merely hortatory and aspirational provisions of law enacted with something much
stronger and more operational in mind.
State
statutory and constitutional provisions cannot overcome this phenomenon so long
as the only parties whose rights receive federal constitutional recognition,
recognition that reinforces and amplifies traditional habits of mind at the
state and local levels, are the defendants in criminal prosecutions. And S.
934, which obviously could not touch the actual conduct of state and local
criminal investigations, prosecutions, and adjudications, is manifestly
incapable of affecting this pervasive tendency.
Indeed
– and this is my second major concern – even in the federal
criminal context within which S. 934 would operate, the proposed statute would
take effect against the background of a legal culture in which the very notion
of ”victims’ rights” has traditionally been dismissed either
as a vague metaphor or as an atavistic throwback to a primitive era of private
justice. In a federal universe within which victims are pervasively perceived
as mere passive beneficiaries of government protection – as bystanders to
the majesty of the criminal process rather than as entitled participants in
that process – a merely statutory codification of certain
”rights,” removable by the grace of the same Congress that bestowed
them, is most unlikely to effect the pervasive attitudinal change that is so
badly needed. When push comes to shove, even where adequately protecting
victims does not in truth entail any abridgment of the federal constitutional
rights of criminal defendants or of the needs of government prosecutors to
protect the public and vindicate the law, any superficially plausible protest
from either the prosecution’s table or the defense bar is likely to shove
victims and their S. 934 rights back into the shadows, from which a federal
judiciary steeped in precisely the same legal culture is unlikely to rescue
them.
Evidence
of the depth and pervasiveness of this basic attitude, and of the view that to
defend the rights of victims is to engage in a primitive exercise in
emotionalism, incompatible with the structure of our adversary system of
justice and with the rational character of the modern bureaucratic state, is
the ferocity and generality of the opposition to a constitutional amendment to
protect victims’ rights, at least among the elite and especially in the
supposedly enlightened circles with which I like to think I associate.
I
can count on the fingers of one hand the number of ostensibly
”liberal” lawyers and scholars who do not look askance when they
learn of my support for this amendment. Friends who otherwise respect me and
admire my work have a difficult time, it seems, assimilating the notion that a
liberal champion of defendants’ rights – something I think I have
been all my life – should take seriously the idea that the victims of
violent crime actually have ”rights” that the Constitution should
compel government to take seriously and to treat with respect, rather than
merely being the unfortunate – well, victims – of criminal
predations that the state is charged with combating, in a system where the only
”rights” worth naming and treating as such of course belong to
those unfortunate enough to find themselves on the wrong end of the machinery
of criminal justice.
With
all respect, I do not share that perspective. Rather, I regard its deeply
ingrained nature as the principal argument for the conclusion that statutory
measures will never fully suffice.
Permit
me to add one point before closing: I want to address the argument that S. 934
should not be faulted for failing to reach state proceedings because, after
all, it is designed only to operate at the federal level, and because either
state statutes or state constitutional provisions or perhaps federal civil
rights-like legislation enacted under Section 5 of the Fourteenth Amendment
could fill the state and local gap that S. 934 necessarily leaves unfilled.
That
argument is flawed first, because it fails entirely to come to terms with the
basic reasons, set forth above, that merely statutory measures would be unable
to combat the deeply rooted attitudinal problems confronting victims and their
claims of right; and second, because, insofar as it assumes broad congressional
power to act under Section 5 of the Fourteenth Amendment, it is simply ignorant
of the series of decisions in the 1990s and reaching into 2000, beginning with
the invalidation of the Religious Freedom Restoration Act and continuing with
the invalidation of provisions of the Patent Reform Act and the Age
Discrimination in Employment Act, in which the modern Supreme Court has
dramatically curtailed the legislative authority of Congress to use its Section
5 power to protect interests that Congress, but not yet the Court, is prepared
to recognize as constitutional rights, or even to protect Court-recognized
constitutional rights in circumstances, or by means, not shown in the
legislative record to be ”necessary.”
In
sum, although S. 934 represents an intelligent step in the much-needed strategy
of operationalizing and institutionalizing the rights of victims, neither by
itself nor as part of a series of measures, both federal and state, can it hope
to provide a satisfactory substitute for the more fundamental constitutional
step represented by S. J. Res. 3, a step that I consider not only wise but
necessary despite – and (paradoxically) in part because of – its
current lack of appeal for ”the usual suspects” on the criminal
justice scene, both in the defense and civil liberties bars and among
prosecutors and their champions.
I
hope you find these observations to be of some use, and I apologize for my
inability to get them to you sooner. I wish you well in the difficult effort
to obtain passage of this amendment by the requisite two-thirds vote and,
should you succeed in that respect, in the onerous effort to win its
ratification by the requisite three-fourths of the state legislatures.