Victims Versus Suspects

In the 1960s, the Supreme Court recognized that people accused of crimes were imbued with constitutional rights, which the states were obliged to respect. In the course of a few years, the Warren Court applied the exclusionary rule to the states, prohibiting the introduction of evidence seized in violation of the Fourth Amendment; it fashioned the Miranda warnings to protect the Fifth Amendment right to remain silent and prevent coerced confessions; it required prosecutors to disclose exculpatory evidence; and it held that states must provide indigent defendants with lawyers at both the trial and appellate levels.

These rulings are commonly and stupidly derided for elevating legal technicalities over questions of guilt: With the exception of the exclusionary rule (which is quite flexible and all too easily avoided), these "technicalities" focus precisely on the question of guilt. Coerced confessions are inherently unreliable; prosecutorial misconduct, like failure to disclose evidence exonerating the defendant, leads to wrongful convictions, as does the denial of competent counsel to poor defendants.

But ensuring the integrity of the trial process has never been a high political priority. Legislators and judges intent on being perceived as "tough on crime" pass laws or issue rulings that increase the likelihood of conviction but not the reliability. Indeed, some rules, like those limiting federal appeals of state court convictions, facilitate unreliable convictions--convictions of innocent people or defendants whose guilt was never proven. Few voters seem to care. The reforms demanded by the Warren Court were undermined by Richard Nixon's law-and-order campaign of the late 1960s, the ongoing war on drugs, and a widespread tendency to presume the guilt of people prosecuted for crimes. In a different world, the Warren Court decisions could have inspired increased respect for the rights of criminal suspects; instead they helped spark a movement to create countervailing rights for crime victims.

In the past 30 years, the victims' rights movement has generated some welcome reforms, notably the extension of services to crime victims in localities across the country and the renewed prosecutorial attention to victims' concerns. In addition, all the states have adopted legislation or constitutional amendments recognizing the interests of victims in criminal proceedings. Still, Congress is anxious to declare its allegiance to crime victims, partly to affirm its abhorrence of criminal suspects. So for several years the Senate has been threatening to pass the crime victims' rights amendment to the Constitution. It would give victims of violent crimes a right to be present at all public proceedings, a right to be heard regarding negotiated pleas and release from custody, a right to consideration of their interest in a trial "free from unreasonable delay," and a right to restitution from the convicted offender.

What's wrong with these rights? Putting principle aside, for the moment, consider the practicalities: Offering federal constitutional rights to crime victims will greatly complicate and impair prosecutions, which is why the victims' rights amendment has encountered opposition from some prosecutors (including a federal prosecutor in the Oklahoma City bombing case). Granting crime victims vaguely defined rights to speedy trials may pressure prosecutors into trying cases before they are ready; requiring victims to be present during all trial proceedings will often conflict with the need to sequester witnesses since the victims of crime often testify against their alleged attackers; mandating that victims be heard on plea negotiations may lead to delays and possibly more trials (and perhaps fewer convictions since delay often benefits the defendant). Problems like these will be exacerbated in cases involving multiple victims, with multiple prosecutorial agendas of their own. What's a prosecutor to do if one victim urges him to negotiate a plea and another demands that he proceed to trial?

The practical problems posed by the victims' rights amendment are, however, less daunting than its repressive ideology. It attacks the presumption of innocence. When we identify and legally empower a victim before conviction, we assume that a crime has been committed, although that is sometimes disputed at trial (think of an acquaintance rape case); we also assume the veracity and reliability of the self-proclaimed victim. It's worth noting that the victims' rights amendment is opposed by many feminist advocates for battered women (including the NOW Legal Defense and Education Fund) because in cases involving domestic violence, the identity of the victim is not always clear. Women who strike back against their abusers are sometimes prosecuted and offer claims of selfdefense: These women should not "lose their 'victim' status once they have defended their lives and become defendants," the National Clearinghouse for the Defense of Battered Women asserts. It argues that additional time, money, and energy devoted to helping crime victims should be used to increase support and services for victims outside the courtroom, not to invent questionable constitutional rights within it.

But victims' rights advocates tend to perceive the rights of defendants and the interests of victims as elements in a zero-sum game. Many don't simply want to increase victim services; they want to decrease defendants' rights and reorient criminal trials so that the victim, not the defendant, occupies center stage. "How might serious crimes ... be resolved differently if the victims, rather than the offenders, were the center of attention?" Judith Herman asked rhetorically in a recent issue of The American Prospect ["Just Dignity," January 31, 2000]. "What if the courtroom drama were a dialogue between the victim and the community about restitution rather than a duel between the prosecution and the defense about punishment?"

Questions like these presume the defendant's guilt. The prosecutor and defense are not engaged in a "duel about punishment"; they're engaged in a duel about guilt. Should we determine the restitution owed by the defendant to the victim before we have determined her guilt? What if the victim is lying or mistaken about the identity of the defendant? (Eyewitness identifications, for example, are notoriously unrelia-ble.) What if police falsify evidence against the defendant; what if the prosecutor has concealed evidence of the defendant's innocence?

Defendants occupy the center of attention in criminal trials because they're the ones being prosecuted. The rights conferred upon criminal suspects are limitations on the power of the state to kill or imprison its citizens. The Bill of Rights reflects the founders' belief that government could not be trusted to exercise its police powers fairly. It reflects the understanding that power is easily abused and that individuals cannot protect themselves against the state without rights that prosecutors are required to respect.

Crime victims have a strong moral claim to be treated with respect and compassion, of course; but they should not be imbued with constitutional rights equivalent to the rights of defendants (their liberty and their lives are not at stake), and they should not expect their need to be "healed" or "made whole" by the trial to take precedence over the defendant's right to dispute allegations of guilt. Once guilt has been adjudicated, victims have an appropriate role in sentencing, but even then, courts concerned with equal justice have to guard against letting bias for or against the victim determine punishment. We should, for example, be wary of victim impact statements, which describe the effects of a crime on the victim or the victim's family. These statements can easily favor defendants whose victims lack family or friends to speak for them. The bias they introduce into the sentencing process is especially troubling in capital cases. Should killing a homeless, friendless person be less of a crime than killing someone well-loved by his family and community?

Victims' rights advocates generally view therapy for the victim as a primary form of justice, but in the criminal courts, the demands of therapy and justice conflict. Some crime victims, for example, may find cross-examination traumatic, but it is essential to the defense--and to the search for truth. The victim's credibility must be tested; inaccuracies or inconsistencies in her story must be revealed. Taking a cue from the therapeutic culture, victims' rights advocates tend to impute virtue to victimhood, but, of course, it is sometimes misplaced. Taking the presumption of innocence seriously means that we can never take an accusation at face value.

It's hard to argue with the desire to reform trials in order to help victims heal--unless you consider the consequences. Because the victims' rights amendment decreases the rights of defendants, it's not simply a grant of rights to crime victims; it's a grant of power to the state. Victims need and deserve services, but with nearly two million people already behind bars, the state needs no more power to imprison us. ยค