Eugene Volokh, Crime and Punishment, MSNBC's glennreynolds.com,

July 3, 2003

Congress is yet again considering a proposed constitutional amendment to protect the rights of victims of violent crime:

A victim of violent crime shall have the right to reasonable and timely notice of any public proceeding involving the crime and of any release or escape of the accused; the rights not to be excluded from such public proceeding and reasonably to be heard at public release, plea, sentencing, reprieve, and pardon proceedings; and the right to adjudicative decisions that duly consider the victim’s safety, interest in avoiding unreasonable delay, and just and timely claims to restitution from the offender.  These rights shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity.

Senators Kyl and Feinstein are cosponsors, so it seems to be something of a bipartisan effort.

Though I’m a pretty solid law-and-order Republican, I oppose this amendment.  I say this even though I fully agree that the law should protect crime victims -- something that the laws of all states already aim to do in various ways.

Victims’ rights, I believe, should continue be protected by state laws, and not by a federal constitutional amendment.  The citizens of each state are now free to choose what level of protection to give crime victims -- and, after all, voters know they may one day become crime victims, so voters and legislators have plenty of incentive to provide ample protection.  The Framers designed our Constitution to allow this sort of state-based approach, and they were right to do so.

Now some people believe in federalism because of an abstract notion of state sovereignty and states’ rights; I don’t.  I feel that I’m much more an American than a Californian, and injuries to the dignity of California as a quasi-sovereign state don’t much move me at an abstract level.  That’s why I don’t in principle oppose the federal government doing various things that it does better than state governments.  And while I do think that concentrating extra power in federal hands is usually more dangerous than concentrating it in state hands, that’s not much of an issue with regard to this particular proposal.

But I do think federalism is valuable here, for two practical reasons.

The first is that conditions—crime rates, government resources, citizen attitudes—do vary considerably from state to state.  Constitutional rights aren’t free:  They require the government to spend time, effort, and money providing extra hearings, longer hearings, restitution enforcement systems, and the like.  These resources may well be taken from other parts of the law enforcement system.  A prosecutor who’s involved in a victim’s rights hearing isn’t involved in prosecuting other cases; and when there’s a shortage of prosecutors, there may be more plea bargains, so that criminals get out of jail earlier and then victimize still more people.

Californians may be willing to run this risk in many cases, or appropriate more money to fund these programs.  Citizens of Vermont, given their budgetary and moral priorities, might prefer to have narrower programs.  Is there really that compelling a reason for Californians to impose their preferences on Vermonters, or vice versa?  (Conversely, if the costs I suggest are tiny, then presumably Vermonters would adopt these victims’ rights proposals on their own, with no need for a federal amendment.)

The federal victims’ rights amendment might possibly be broader than state legislation could be, if it aims to cut back some defendants’ rights contained in the federal Fourth, Fifth, Sixth, and Eighth Amendments.  But even if you think that defendants’ rights have been read too broadly, it’s not clear that the Victims’ Rights Amendment will change that, because it seems to preserve existing rights:  “The rights of victims of violent crime,” it says, are “capable of protection without denying the constitutional rights of those accused of victimizing them.”  And if that’s not so, and the drafters do want to cut back some existing rights, then they should make this much more explicit and well-defined.  If some parts of the Bill of Rights are to be changed, that should be done forthrightly, with lots of open debate, rather than through vague language that seems to deny any attempt to reduce the existing protections.

Second, the proposed amendment isn’t just a grant of extra rights to victims.  It’s also a transfer of decisionmaking power from elected state legislators in 50 states to (ultimately) the nine U.S. Supreme Court Justices.  It will be federal judges, after all, who get to decide what constitutes “reasonably [being] heard,” “du[e] consider[ation],” “unreasonable delay,” “just and timely claims,” “substantial interest,” or “compelling necessity.”

Now I don’t want to malign federal judges; they’re generally good people, and while they make mistakes, so do state legislators.

But state legislators’ mistakes aren’t that hard to correct—all it takes is enacting a new statute.  And because we have 50 states, legislators and voters in one state can see what’s being done in other states, and what works and what doesn’t.  The result is a sort of evolution through human selection:  Laws that prove too costly, too vague, or counterproductive can get replaced.  Laws that prove effective can be adopted in other states.  And as time goes on and new needs arise, state legislatures can adapt to these needs.

The constitutional decisions of federal judges, on the other hand, are very hard to change.  A new constitutional amendment to fix specific problems would only pass if it got votes from 2/3 of the House, 2/3 of the Senate, and 3/4 of the state legislatures.  The courts might be persuaded to reverse themselves if their decisions prove impractical, but they’re usually reluctant to do so.  (Every so often we hear about the Supreme Court reversing its own precedents, as in last weeks sexual rights decision, but that’s actually pretty rare.)

I’m not trying to romanticize state legislators:  They’re often wrong, and they’re often slow to admit they’re wrong.  The evolution that I describe operates slowly and imperfectly.  I just think that, for all its flaws, the state legislative process will on balance yield sounder results than the federal judicial process.

Some people say that the Constitution should be venerated, and that the work of the wise Framers shouldn’t be sullied by frequent amendment.  I don’t really buy this.  The Framers were wise, but they made their share of mistakes; and they surely couldn’t anticipate everything that would happen over the next 200 years.  (They didn’t even fully anticipate the advent of political parties -- as a result, the original system of electing the President, a very important item of the constitutional scheme, was so badly broken that it had to be changed by the Twelfth Amendment just 17 years after the Constitution was drafted.)  Moreover, the Framers were wise enough to provide for the Constitution to be amended, so they certainly didn’t envision their work as holy and unchangeable.

Still, one of their core judgments was indeed sound:  Not everything should be done by the federal government, whether by the federal Congress or federal judges.

In some rare cases, where the nation’s stability demands it, or where fundamental human rights are in imminent jeopardy, the Constitution might need to be amended to provide a national standard.  That’s why the Civil War amendments, for instance, prohibit race discrimination, and protect the freedom of speech and other rights that we have found are vital for our survival as a strong and decent nation.

But though there may be some faults in the way some states protect certain victims’ rights, there’s nothing comparable to the disaster and oppression that prompted those Amendments.  At most, there’s honest and reasonable disagreement between states on difficult questions related to balancing the interests of victims, the interests of criminal defendants, and the limited resources of the state government.

These disagreements should be resolved by state legislators (or, in some states, by voters operating through the initiative process).  They shouldn’t be turned over to unelected federal judges.