Factsheets: Constitutional Rights for Crime Victims

• Overview
• History of the Victims’ Rights Amendment Effort
• Why Victims Need Constitutional Rights
  • Strength
  • Permanence
  • Enforceability
  • Uniformity
• The Process
• The Progress So Far
• Endnotes

Overview

The rights of crime victims have only begun to be recognized in the law during the last two decades. Prior to that, crime victims had no rights during the criminal justice process. They did not have to be informed of court proceedings or of the arrest or release of the defendant, they had no right to be present during the trial or other proceedings, and they had no right to make a statement to the court at sentencing or at other hearings.

Today, states have passed many laws that protect the rights of crime victims. In addition, 32 states have included crime victims’ rights in their state constitutions. Constitutional rights for victims remains a principal goal of the crime victims’ movement.

The scope of victims’ rights amendments varies from state to state. Many are limited to victims of felonies or victims of violent offenses. A few specifically extend to victims of juvenile offenders. Most give the legislature final authority to define the scope of the amendment.

In general, the amendments give victims rights to: be informed of proceedings and events, such as the release of the defendant; attend the trial and other proceedings; be heard at critical points in the criminal justice system, such as sentencing or parole hearings; and be awarded restitution from a convicted offender. Some state amendments include fewer rights, while others are much broader.

History of the Victims’ Rights Amendment Effort

The first public call for a crime victims’ rights constitutional amendment was in 1982, when a nine-member task force appointed by President Ronald Reagan recommended that the Sixth Amendment of the U.S. Constitution be augmented to include the rights of crime victims. After holding a series of public hearings in various parts of the country, and learning firsthand of the callous treatment of crime victims by the criminal justice system, the Task Force noted that: "The victims of crime have been transformed into a group oppressively burdened by a system designed to protect them."

Following the release of the Task Force’s recommendations, national crime victims’ rights leaders began to study the feasibility of implementing the Task Force’s recommendation to modify the U.S. Constitution. Those leaders first considered potential road blocks. Still a young movement, they were concerned that failure to amend the U.S. Constitution would result in a serious setback for crime victims’ rights nationwide. The group of national advocates decided to proceed first at the state level, securing victims rights in state constitutions, before addressing the U.S. Constitution and mounting a national campaign.

Members of the group decided to form an organization called Victims’ Constitutional Amendment Network (Victims CAN), and they began to work with advocates at the state level to amend state constitutions, testifying at legislative hearings, assisting in the development of promotional materials, and developing a network of experienced victim advocates. That work continues today.

Why Victims Need Constitutional Rights

Victim advocates work to give crime victims’ rights constitutional protection in order to increase the strength, permanence, and enforceability of victims’ rights. In addition, at the federal level a constitutional amendment would provide a measure of uniformity to crime victims’ rights.

Strength

Rights that are guaranteed by a constitution are stronger than rights that are merely set out in statutes. No state law is valid if it violates a provision of a state’s constitution; no state law or state constitutional provision, and no federal law, can violate a provision of the United States Constitution.

Enshrining the rights of crime victims in state and federal constitutions also places those rights on a par with the rights of criminal defendants. In those few instances where the rights may be argued to conflict — for example, where a victim’s right to attend the trial is said to interfere with a defendant’s right to a fair trial — the defendant’s right would no longer automatically outweigh the rights of crime victims; courts would be required to evaluate any claimed or actual conflict of rights on a case-by-case basis to balance the interests of both.

Victims’ rights would also be strengthened by the increased familiarity that comes with constitutional protection. Not only would judges, prosecutors, defense attorneys, and other actors in the criminal justice system become more aware of victims’ rights when they become constitutional rights, but the general public would also become familiar with the rights of crime victims. Today, almost every citizen is aware of the constitutional rights of criminal defendants, and most can name one or more of those rights. When victims’ rights are made a part of the Constitution, it is likely that the average citizen will also be aware that crime victims have rights. When members of the public have a general expectation of legal rights if and when they become victims of crime, they will be more likely to demand those rights.

Permanence

Still another reason that victim advocates work to incorporate victims’ rights into constitutions is to give those rights a degree of permanence. Ordinary statutes can be changed at any time by the legislature. In contrast, it is relatively difficult to change the constitution of a state or the United States. (See "The Process" below.) Therefore, once crime victims’ rights are incorporated into a constitution, they are likely to remain there indefinitely.

Enforceability

Giving victims’ rights constitutional protections generally makes those rights enforceable. If an official or a state agency violates a constitutional right, a court usually has the power to order that official or agency to comply with the constitution.

Uniformity

In addition to the foregoing, there is an additional reason victim advocates are seeking to place victims’ rights in the U.S. Constitution: uniformity. While every state has legal rights for crime victims, and more than half have state constitutional provisions for victims’ rights, those rights vary greatly in scope and strength. A victims’ rights amendment to the U.S. Constitution would provide a basic floor of rights for all crime victims, no matter the location of the crime.

The Process

In most states, a constitutional amendment must be passed by each house of the legislature by a 2/3 majority. This must usually be done at least twice, often with a legislative election between votes. Identical language must be passed each time. The amendment is then presented to the voters at a general election for ratification. Thus, in most states the process of adopting a constitutional amendment takes several years.

The Progress So Far

Today, 31 states have constitutional provisions that address crime victims' rights. Those states are Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin.

Montana amended its constitution in 1998, broadening the principles underlying the criminal justice system to include restitution to crime victims. However, since this amendment did not affirmatively provide any rights to crime victims, it is not included in the list of states with victims’ rights amendments.

Several more states are currently working on victims’ rights amendments. At the same time, advocates have begun to work for a federal crime victims’ rights constitutional amendment. With a majority of states recognizing victims’ rights in their constitutions, many advocates felt the time was right to turn attention to the federal level.

In 1996, a victims’ rights constitutional amendment to the U.S. Constitution was introduced in Congress. By the end of 1998, a version of that amendment had been passed out of the Senate Judiciary Committee, but did not reach the full Senate for a vote. Another amendment is expected to be introduced in 1999.

Copies of each state’s crime victims’ rights amendment, and the text of the proposed federal amendment, can be found on the website of the National Center for Victims of Crime, at [1] http://www.NCVC.org. You may also call the National Center for Victims of Crime at (202) 467-8700 to request a copy of a state’s victims’ rights amendment and to find out how you can get involved in the effort to bring constitutional protection to victims of crime.

Endnotes

1. President’s Task Force on Victims of Crime, Final Report, 1982, p. 114.
2. In addition, Oregon amended its constitution to include rights for crime victims in 1996. However, that amendment was invalidated by the state’s Supreme Court, on technical grounds related to the process of amending the constitution. Advocates in Oregon are continuing efforts to pass another victims’rights amendment.

Montana amended its constitution in 1998, broadening the principles underlying the criminal justice system to include restitution to crime victims. However, since this amendment did not affirmatively provide any rights to crime victims, it is not included in the list of states with victims’ rights amendments.

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Copyright © 1999 by the National Center for Victims of Crime. This information may be freely distributed, provided that it is distributed free of charge, in its entirety and includes this copyright notice.

[1]: http://www.ncvc.org/

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