Victims and Due Process

Originally Published January 4, 2009 by yours truly on the BDL Victim Rights Blog.

Victim by definition denotes injury. Most criminal laws in the United States are based on the Jeffersonian ideal that we have a right to life, liberty, and ownership of property. The Fifth Amendment to the U.S. Constitution states that no one can be “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Criminal defendants since the ratification of the Constitution have enjoyed the protections of the due process clause, and rightfully so. Without enforcement of these protections, it would be more likely that an innocent man would be punished while the guilty man remains free. However, there are many today who believe that this clause was intended only to protect a criminal defendant, and that all men and women are entitled to this protection only when accused of some crime. These people say that a victim of crime has no place within the criminal justice system, and that the defendant’s rights must in every instance be protected even at the expense of the victim’s constitutional rights. When a criminal takes another’s life there is no due process of law, even in the criminal law system the victim is not allowed representation. The prosecuting attorney does not represent the victim directly. Listening to survivors of homicide recount their stories, the trials that took place prior to a Crime Victim Bill of Rights in that state (Homicide is mostly governed by state law in the U.S.) show the extent of the division between prosecutors and the victims of crime. In several instances the prosecuting attorneys never contacted the victim, and those that did made it clear that they did not need input. At that time a Victim Advocate’s main duty was to prepare witnesses (most of whom were not victims of the crime). The victim of the crime was right where the defendant wanted: on a deserted island where no one could hear from or see the injured party.

Justice Benjamin Cardozo in his opinion in Snyder v. Commonwealth of Massachusetts states, “Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Mass., 291 U.S. 97, 122 (1934). This concept of justice is slowly being restored. In 1982, President Reagan commissioned a task force to examine the issues of crime victims in the criminal justice system. The report led to states amending their constitutions to reflect rights that the state needed to preserve for crime victims. Things are better than they were in the 1980s, but there is still injustice out there. Whether it is in the violation of state constitutional rights, or in rights not yet protected by law, injustice is injustice and should be remedied.