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.”

April 27, 2000

Dear Senator Feinstein:

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.

Sincerely yours,

Laurence H. Tribe