Victims' Bill of Rights

History

Unlike the constitutional protections that are explicitly articulated in the Bill of Rights, particularly the Fourth, Fifth, and Sixth Amendments, for persons accused of crimes, the framers of the Constitution did not include rights for crime victims. Commentators note that one explanation for what might otherwise seem a significant oversight is that the framers were schooled in the English legal tradition of the time, which included the criminal law process of private prosecution. As the term suggests, under the English system, crime victims often initiated and prosecuted criminal cases against their offenders. Colonists brought to the United States this English common law tradition. Accordingly, in the colonies, victims were able to exert rights and power in the criminal justice process.

In the decades after the ratification of the Constitution and the Bill of Rights, however, public prosecution displaced private prosecution, and the state took control of the criminal justice system. As society came to believe that crime injured both the individual victim and the state, victims were gradually excluded from meaningful participation in the criminal justice process. It developed that their primary roles were to report crimes to the police and serve as witnesses at trial.

Proponents of victims' rights cite the foregoing history and also suggest that the victims' rights movement was an inevitable response to U.S. Supreme Court decisions in the 1960s recognizing that persons accused of crimes had constitutional rights that the state was obliged to respect. During that period, the Court applied the exclusionary rule to the states, prohibiting the introduction of evidence seized in violation of the Fourth Amendment, fashioned the Miranda warning to protect the Fifth Amendment right to remain silent, required prosecutors to disclose exculpatory evidence, and held that states must provide indigent defendants with lawyers at both the trial and appellate levels. To some, the increasing emphasis on protecting the rights of the criminally accused relegated the crime victim to the role of just another piece of evidence. And victims themselves began to complain that they were being shut out of the system and left to fend for themselves.

The Victims' Rights Movement

The 1970s saw the blossoming of the victims' rights movement. The early emphasis was on ensuring government assistance to victims of crime. Victim compensation programs were also developed and implemented. Gradually the focus shifted to ensuring that victims had rights in the criminal justice process. In 1980, Wisconsin became the first state to enact a Crime Victims' Bill of Rights. Many states followed Wisconsin's lead by adding victims' rights amendments to their state constitutions and enacting legislation designed to promote and protect victims' rights. Generally these included the right to notice of public court proceedings and the right to attend them, the [Page 1681]right to be heard on the issues of bail, pleas, sentencing, and parole, the right to notice of release or escape, the right to proceedings free from unreasonable delay, the right to an order of restitution, the right to protection from the defendant, and the right to be notified of these rights.

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