Law Professor's Letter to Congress Page 14 Mr. Anthony Thompson NYU School of Law Professor Mary Twitchell University of Florida College of Law Professor William Van Alstyne William and Thomas Perkins Professor Duke University School of Law Professor Eugene Voloch University of California at Los Angeles School of Law Associate Professor Heathcote W. Wales Georgetown University Professor Burton Wechsler American University, Washington College of Law Professor Robert Weisberg Stanford Law School Mr. Charles D. Weisselberg Clinical Professor University Southern California Law Center Mr. Harry Wellington Dean and Professor New York Law School Professor Robin West Georgetown University Law Center Professor Welsh S. White University Pittsburg School of Law Professor Stephanie Wildman School of Law University of San Fransisco Professor David Williams School of Law, Indiana University--Bloomington Professor Susan H. Williams Indiana University--Bloomington School of Law Dear Senators Hatch and Biden and Representatives Hyde and Conyers: I have read the letter from law professors, dated September 4, 1996, attacking the proposed Victim's Rights Constitutional Amendment. Although I share many of the broad views set forth in the letter -including the views that the Constitution should not be amended without a strong need and that the constitutional rights of persons accused of crime should not be sacrificed in order to serve other values - I do not believe the letter makes a convincing or even a coherent case for its ultimate conclusions. The case for the proposed amendment need not rest on some nebulous notion that the playing field must be balanced as between criminal defendants and crime victims. It rests on the twin propositions (1) that victims have important human rights that can and should be guaranteed protection without endangering the genuine rights of those accused or convicted, but (2) that attempts to protect these rights of victims at the state level, or through congressional legislation, have proven insufficient (although helpful) in light of the concern - recurring even if misguided that taking victims' rights seriously, even when state or federal statutes or state constitutions appear to require doing so, will somehow be unfair to the accused or to others even when no actual constitutional rights of the accused or of anyone else would be violated by respecting the rights of victims in the manner requested. The proposed amendment would, in essence, counteract this problem. If and when the proposed amendment is reported out of committee for floor debate, I will prepare a rejoinder to the professors' letter, taking into account the specific language that the Senate and House Committees ultimately recommend. Indeed, I wish I had the time even now to address in greater detail the points made in that letter - both the points explaining the authors' general opposition to the idea of any such amendment, and the points elaborating the authors' misgivings Senators Hatch and Biden, and Representatives Hyde and Conyers September 11, 1996 about what they evidently assume the amendment will say. But other commitments preclude my doing so at this time; and, in any event, the professors' letter is obviously directed at a proposal that differs in various relevant details from the latest draft of which I am aware, and it would make much more sense for me to respond to objections that have taken into account what your respective committees recommend to Congress than to respond to objections that quite transparently miss the mark. In the meantime, I am taking the liberty of attaching a brief memorandum dated June 27, 1996, that I prepared well before the most recent round of drafting took place, on the broad topic of why an amendment along these lines ought to be adopted, and why the standard objections (that states have ample authority to protect victims without this amendment, that Congress could also do so by simple legislation, that the amendment would endanger the rights of defendants and the needs of law enforcement, etc.) are superficially plausible but ultimately misguided. Please feel free to make whatever use you wish of that memorandum and of this letter. Beginning with the premise that the Constitution should not be amended lightly and should never be amended to achieve short-term, partisan, or purely policy objectives, I would argue that a constitutional amendment is appropriate only when the goal involves (1) a needed change in government structure, or (2) a needed recognition of a basic human right, where (a) the right is one that people widely agree deserves serious and permanent respect, (b) the right is one that is insufficiently protected under existing law, (c) the right is one that cannot be adequately protected through purely political action such as state or federal legislation and/or regulation, (d) the right is one whose inclusion in the U.S. Constitution would not distort or endanger basic principles of the separation of powers among the federal branches, or the division of powers between the national and state governments, and (e) the right would be judicially enforceable without creating openended or otherwise unacceptable funding obligations. I believe that a properly drafted victims' rights amendment would meet these criteria. The rights in question-rights of crime victims not to be victimized yet again through the processes by which government bodies and officials prosecute, punish, and release the accused or convicted offender- - are indisputably basic human rights against government, rights that any civilized system of justice would aspire to protect and strive never to violate. To protect these rights of victims does not entail constitutionalizing the rights of private citizens against other private citizens; for it is not the private citizen accused of crime by state or federal authorities who is the source of the violations that victims' rights advocates hope to address with a constitutional amendment in this area. Rather, it is the government authorities themselves, those who pursue (or release) the accused or convicted criminal with insufficient attention to the concerns of the victim, who are sometimes guilty of the kinds of violations that a properly drawn amendment would prohibit. Pursuing and punishing criminals makes little sense unless society does so in a manner that fully respects the rights of their victims to be accorded dignity and respect, to be treated fairly in all relevant proceedings, and to be assured a meaningful opportunity to observe, and take part in, all such proceedings. These are the very kinds of rights with which our Constitution is typically and properly concerned. Specifically, our Constitution's central concerns involve protecting the rights of individuals to participate in all those government processes that directly and immediately involve those individuals and affect their lives in some focused and particular way. Such rights include the right to vote on an equal basis whenever a matter is put to the electorate for resolution by voting; the right to be heard as a matter of procedural due process when government deprives one of life, liberty, or property; and various rights of the criminally accused to a speedy and public |