Criminals are generally despised, and cops are
not universally beloved. But one participant in the criminal
justice system has no enemies: victims of crime. They’re the Sara
Lee of American politics. Everybody doesn’t like someone, but
nobody doesn’t like victims.
The movement to protect this group has achieved one success
after another. Every state has laws specifying the rights of
victims, and 33 have constitutional provisions as well.
In November, Illinois voters will decide whether to add a
victims’ rights section to the state constitution. Last year, a
U.S. House committee held hearings on a federal constitutional
amendment, which got a favorable mention in the 2012 Republican
Party platform. It’s hard to find anyone who opposes the idea.
It’s an idea better in the abstract, though, than the concrete.
You might forget that providing justice for victims is one of the
central purposes of the entire criminal justice system. There is
nothing wrong with acknowledging and accommodating the interests of
those harmed by lawbreakers. But there are pretty narrow bounds on
what more can and should be done on their behalf.
The Illinois law is typical in establishing the right of victims
to be notified of court proceedings, be present at trials, get
restitution and present statements about how the crimes have
affected them. But critics say it lacks an effective enforcement
Attorney General Lisa Madigan says some victims are denied what
the law promises. The state constitution explicitly prevents them
from going to court to appeal decisions by trial judges, leaving
She’s undoubtedly right. But the cold truth is that a
constitutional amendment wouldn’t make much difference.
Sometimes witnesses aren’t invited to attend plea hearings
because the government doesn’t want to reveal that the defendant
has agreed to implicate other bad guys. Including the victim, said
a 2008 report by the U.S. Government Accountability Office, “could
compromise the investigation, as well as bring harm to the
defendant and others.”
Victims are often barred from trials because they plan to
testify. That’s not something to lament: Witnesses are normally
kept out of the courtroom until they take the stand, to prevent
them from tailoring their testimony (deliberately or unconsciously)
in response to what other witnesses say.
The point is not to shaft the victim. It’s to achieve a fair
trial for the defendant by fostering accurate evidence. If victims
were guaranteed the right to be present throughout, one consequence
would be more erroneous convictions. It’s hard to see how the
victim of a crime benefits from sending the wrong person to
The amendment doesn’t actually change the Illinois rules on
victim attendance at trials. It remains up to the judge. The
difference is that the victim could appeal the decision to a higher
court. But in real life, appeals courts give broad deference to the
judges who preside at trials. A victim who asks for relief will
rarely get it.
Not many are likely to request it. The reason police avoid
illegal searches is because they know that if they arrest a
suspect, a defense lawyer will demand that the incriminating
evidence be thrown out. But most victims aren’t going to hire
lawyers to assert their rights. For most, the recourse afforded in
this amendment will be of no use.
The federal victims’ rights law is instructive. The government
provides a complaint process for those who feel their rights were
ignored, but the GAO unearthed only 11 complaints over three
years—none of which were validated.
The federal law allows victims to file appeals when court
decisions go against them. But it’s rare for appeals to be filed
and exceptionally rare for them to succeed.
Prosecutors would also be allowed to act on behalf of victims.
But that raises the other real problem with victims’ rights
protections: the expense and time they require of prosecutors and
Official victim advocates cost money, which is money that can’t
be spent catching criminals or prosecuting them. A dollar spent on
victims is a dollar taken from some other vital criminal justice
task. If victims get higher priority, something else will have to
get a lower priority—resulting in fewer arrests, fewer prosecutions
or more clogged court dockets.
None of those effects will deter crime. And sometimes the best
thing for victims is to avoid creating more of them.