Victims' Rights and the Constitution: Moving from Guaranteeing Participatory Rights to Benefiting the Prosecution Symposium: Thoughts on Death Penalty Issues 25 Years after Furman v. Georgia.

Authors

Robert P. Mosteller

Abstract

Supporters of victims’ rights can be broadly grouped into three categories according to their basic goals. One category seeks to guarantee participatory rights in a governmental process (“Participatory Rights”). A second category of support for the victims’ rights amendment comes from those who are animated by a pro-prosecution, anti-defendant perspective on criminal law and procedure (“Prosecutorial Benefit”). The third group supporting victims’ rights is comprised of those who demand greater protection and support for victims by the government (“Victim Protection and Aid”). The first serious attempt to amend the United States Constitution on behalf of crime victims happened in 1982. Yet direct efforts to amend the federal constitution were not begun immediately. The proposed amendment would give standing to the victim or their representative to assert the rights laid out in the amendment. It also granted Congress the power to enforce the amendment by appropriate legislation. The Senate Judiciary Committee approved Senate Joint Resolution 44 in July 1998. This resolution, which went to the Senate for consideration, carried the discrete flaw which needs correction if it is to help minimize the damage done to the existing criminal procedure protections. The amendment’s provisions must make it clear its purpose it to guarantee crime victims’ Participatory Rights, not to provide Prosecutorial Benefits by diminishing the defendant’s rights. Despite statements expressing interest in this clarity, the drafters of Joint Senate Resolution 44 did not offer any provision to accomplish this purpose, or to explain how the proposed amendment was intended to interact with existing defendant’s rights. Although some detrimental recasting of the conflict in criminal litigation will inevitably occur if the amendment is enacted regardless of the specific language. A provision reaffirming the rights guaranteed by the Constitution would help direct the amendment toward serving the legitimate function of enhancing Participatory Rights.

Publisher

St. Mary's University School of Law

Recommended Citation

Robert P. Mosteller, Victims' Rights and the Constitution: Moving from Guaranteeing Participatory Rights to Benefiting the Prosecution Symposium: Thoughts on Death Penalty Issues 25 Years after Furman v. Georgia., 29 St. Mary's L.J. (1998).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol29/iss4/9