The Victims' Rights Movement Began With a 1982 Presidential Task Force

Read the caption of any criminal case. The People v. Smith. The State v. Jones. United States v. Doe. Look carefully at who is in the name, and then notice who is not. The person the crime was committed against is not a party. He is a witness, a source of evidence, a name in the file. For most of American history, the justice system has treated him accordingly.

That arrangement is older than the republic and it has a logic. Criminal law is public law. The state prosecutes because a crime is an offense against the community and not merely a private quarrel, and this principle saved us from the blood feud and the private vendetta. But a good principle carried too far turns into an oversight. In 1982 a presidential task force pointed at the oversight and said so in plain English. What followed over four decades is one of the quiet successes of conservative reform, and it deserves to be told in order.

The premise, defined

Start with definitions. A victim in this context is a person who suffers direct or threatened physical, emotional or financial harm as a result of a crime. Victims' rights are the legal entitlements that person holds in the criminal process: to be notified, to be present, to be heard, to receive restitution and to be treated with dignity. They are not the right to decide the case. The prosecutor still decides whom to charge, and the judge or jury still decides guilt. Nothing in the victims' rights movement, properly understood, replaces the public prosecution with private revenge.

That distinction matters because opponents often argue against a position nobody holds. Let me state the actual claim in three premises.

1. A crime injures a person before it offends the state.
2. A justice system that processes the case while ignoring the person injured has lost sight of why it exists.
3. A system can restore that person to a place in the process without compromising the rights of the accused or the independence of the prosecutor.

I will defend all three.

1982: the task force

On April 23, 1982, President Ronald Reagan signed Executive Order 12360, establishing the President's Task Force on Victims of Crime. It was chaired by Lois Haight Herrington, a prosecutor who later served in the Justice Department, and it held hearings in several cities, taking testimony from victims, prosecutors, police, judges and advocates.

The final report, dated December 1982, made 68 recommendations. Its opening has become one of the most quoted lines in the field, and I will paraphrase it rather than risk misquoting: the task force said the criminal justice system had lost its balance, and that it had come to treat the victim as an afterthought, to be used as a witness and then discarded. The criminal, in contrast, had a team of lawyers and a body of constitutional protections. Both sides of that comparison were true. The Constitution rightly protects the accused, and the Bill of Rights is largely a list of protections against the state's power. But nothing in the text of the Constitution forbids the state from also treating the victim decently.

The recommendations covered a wide range. They urged that victims be notified of court proceedings and of the release of offenders. They called for victim impact statements at sentencing, restitution as a routine part of sentences, better treatment of victims of sexual assault, protection from intimidation and training for police and prosecutors. And the task force proposed one thing that was bolder than the rest: a constitutional amendment.

The amendment that did not pass

The task force recommended adding language to the Sixth Amendment, which now protects the accused's rights at trial. The proposal would have given victims the right "to be present and to be heard at all critical stages of judicial proceedings." The drafters' aim was not to subtract from the accused's rights. It was to add the victim's right beside them.

The amendment did not pass Congress in 1982 or in the decades that followed. Attempts continued into the 1990s and early 2000s, with versions introduced by senators of both parties. Supporters argued that statutes would never protect victims reliably, because a statute can be outweighed by a defendant's constitutional claim, and only a constitutional provision could stand on equal footing. Opponents argued, among other things, that amending the Constitution was a heavy tool for a problem that statutes might solve, and that the language could burden the accused. Neither side was acting in bad faith.

What happened in the absence of an amendment is the instructive part: the movement went state by state and statute by statute, and over time it won most of what the task force asked for.

The Victims of Crime Act of 1984

Congress acted first on the money. On October 12, 1984, President Reagan signed the Victims of Crime Act, known as VOCA. Its central creation was the Crime Victims Fund, a pool of money in the Treasury to pay for services to victims, such as compensation programs run by the states and assistance programs for counseling, shelter and advocacy.

The design deserves attention, because it is the kind of thing conservatives usually like. The fund is financed not by general tax revenue but by money collected from offenders: criminal fines, forfeited bail bonds, special assessments and penalties paid by convicted federal defendants. The people who commit federal crimes fund the services for the people they hurt. That is a rough but sensible application of the principle that the wrongdoer should bear the cost of the wrong. Some detail of how the fund works has changed over the years, and the amounts it distributes have varied, so I will leave out figures. If you want the current numbers, the Office for Victims of Crime at the Justice Department publishes them.

In the same period, Congress had passed the Victim and Witness Protection Act of 1982. It established guidelines for fair treatment of federal victims and witnesses and strengthened restitution. Between the two laws the federal government had set the template.

The states: a bill of rights at a time

The task force's other great legacy was a cascade of state action. Some states had acted even earlier, and after the task force's report many states followed with statutes and then with constitutional amendments of their own. By the end of the twentieth century a large number of states had added some form of victims' rights provision to their constitutions. The details differ. Some give victims a right to be notified. Some guarantee a right to be present and heard at sentencing. Some provide for restitution. The enforcement mechanisms differ as well, and enforcement is where the whole matter has often succeeded or failed. A right without a remedy is advice.

That is the central practical insight. A promise to treat victims with dignity has to say what happens if the court or the prosecutor does not. The federal statute's answer came in 2004.

The Crime Victims' Rights Act of 2004

After the amendment effort stalled, Congress passed a statute. The Crime Victims' Rights Act, enacted on October 30, 2004, as part of the Justice for All Act and codified at 18 U.S.C. 3771, was sponsored in the Senate by Jon Kyl and Dianne Feinstein, a Republican and a Democrat, which says something about the breadth of the movement. It gave crime victims in federal cases a list of enforceable rights, among them the right to be reasonably protected from the accused, the right to reasonable, accurate and timely notice of public court proceedings, the right not to be excluded from those proceedings, the right to be reasonably heard at proceedings involving release, a plea or sentencing, the right to confer with the government's attorney, the right to full and timely restitution, and the right to be treated with fairness and respect for dignity and privacy.

The act did something its predecessors had not. It authorized the victim or the prosecutor to assert the rights in court and, if the district court denied them, to seek review in the court of appeals by a petition for a writ of mandamus. It gave the rights a procedure. Congress later added further rights, including a right to be told of plea agreements and deferred prosecution agreements. I describe the structure of those rights in more detail in A Crime Victim Belongs in the Courtroom, Not Out in the Hallway, and the practical steps in What to Do if You Are a Crime Victim, Your Rights Step by Step.

Marsy's Law and the states that followed

In November 2008, California voters approved Proposition 9, the Victims' Bill of Rights Act of 2008, commonly called Marsy's Law. It was named for Marsalee Nicholas, a young woman killed in 1983, killed by a former boyfriend. Her brother, Henry Nicholas, later helped fund campaigns to put similar measures before voters. The California measure added a long list of rights to the state constitution, including rights concerning notice, participation, restitution and parole hearings.

Other states followed in the years after with ballot measures and legislative amendments carrying the Marsy's Law name or similar language. Not every effort succeeded. Courts in a couple of states, including Montana and Kentucky, struck down such amendments on procedural grounds relating to how the measures were put to voters. That is worth knowing, because it shows that victims' rights are not a partisan fashion but a matter of careful drafting, and that the courts will test the work.

The movement has also drawn serious criticism from people who support the principle, and we should state it. Prosecutors and defenders sometimes object that broad constitutional rights can conflict with the rights of the accused or complicate the administration of justice, and some have pointed to unintended effects, such as the way a list of rights can be used to shield information from the public about an incident. The right response to those criticisms is better drafting, not repeal.

The objection, stated fairly

The best case against all of this runs as follows. The criminal process is a contest between the state and the accused, and its protections exist to guard the innocent from the state's power. The more roles you add to the process, the more you risk turning a trial into a referendum on feelings, tilting the scales toward conviction and enlarging the pressure on prosecutors and judges. A victim is not a neutral party and does not carry the burden of proof.

Here is the answer, point by point.

1. The accused's protections are unchanged. No victims' rights statute that I am aware of touches the presumption of innocence, the burden of proof, the right to confront witnesses or the right to counsel. The rights it creates are about notice, presence, voice and restitution.
2. The state already has a stake, and it is not the victim's. The prosecutor represents the public, and a prosecutor's interests can diverge from the victim's. A prosecutor may drop a case for resource reasons, accept a plea the victim thinks is too lenient, or fail to tell the victim a hearing is scheduled. The victim's voice is a check on that divergence.
3. Voice is not a vote. The victim speaks. The judge decides. The Constitution's guarantees are unaffected by the fact that the person hurt is permitted in the room.
4. The Founders knew private prosecution. In the colonial period the line between a private complaint and a public prosecution was far thinner than it is today, and victims often initiated and conducted cases. The twentieth-century model of strictly public prosecution was a change, and it is reasonable to ask whether it went too far.

What it means now

When a family sits in a courtroom and hears that the person who harmed them has been sentenced, and when they were told in advance that the hearing would take place, and were allowed to say what the harm had cost them, something has been restored that no verdict can supply on its own: the acknowledgment that they were there.

It is a conservative principle. It is the principle of the moral order, that wrongs have victims and that victims have standing. It is the principle of restitution, that the one who caused harm should bear its cost. And it is the principle of limited, accountable government, that the state's power to prosecute is held in trust for the people it serves.

For the related argument on sentencing, see A Crime Victim Belongs in the Courtroom, Not Out in the Hallway, and for how enforcement and sentencing policy interact, see The Case Against Cashless Bail Starts With the Victim, Not the Defendant. A broader view of what we know about crime itself is in The Crime Survey That Asks Victims Instead of Asking Police Departments.

The case in brief

1. President Reagan's 1982 Task Force on Victims of Crime found the criminal process had left out the person the crime was done to, and its report made 68 recommendations.
2. The task force proposed a victims' rights amendment to the Constitution that never passed, so the movement went through statutes: the Victim and Witness Protection Act of 1982 and the Victims of Crime Act of 1984.
3. VOCA created the Crime Victims Fund, paid by offenders' fines and penalties rather than by general taxes.
4. The Crime Victims' Rights Act of 2004 gave federal victims enforceable rights, and California's Marsy's Law of 2008 started a wave of state constitutional measures, some of which courts struck down on procedural grounds.
5. Victims' rights add a voice to the process and leave the protections of the accused untouched.

What you can do: look up your state's victims' rights provisions on your legislature's website and call your county prosecutor's victim-witness office to learn what notice they provide.