WHERE VICTIMS' RIGHTS GO WRONG

Since 1981, the Justice Department's Office for Victims of Crime has
dedicated a week in April to recognizing crime victims' rights. The
week -- this year's observance began yesterday -- is usually marked by
rallies, candlelight vigils and other activities intended to promote
victims' rights and to honor crime victims and those who work on their
behalf.

Victims deserve the recognition that this week provides, and they
deserve sympathy and compensation for their losses. But I am
increasingly concerned about what I believe they do not deserve, which
is the right to serve as de facto prosecutors, a practice that is
quietly insinuating itself into the legal system.

Our desire to increase victims' rights is closely related to our
national obsession with being "tough on crime." While this mantra
makes for good political rhetoric, it often leads to illogical and
irrational criminal justice policies. Being "tough on crime" has led
to harsh mandatory minimum sentences in federal drug cases that have
disproportionately punished minorities. It has resulted in first-time
offenders serving life sentences even though their crimes involved no
weapon and resulted in no physical injuries; in 6-year-olds being
arrested for tantrums at school; and, worst of all, in innocent people
on death row.

Courts have increasingly become more cognizant of the rights of
victims. In 1996, restitution became mandatory for a variety of
federal crimes. In 2002, Congress provided the victims of violent
crimes and sexual abuse the right to speak at a defendant's
sentencing, even though courts already had latitude in any kind of
case to permit victims to speak at sentencing or to receive
information from victims before sentences were imposed. And last year,
the issue reached the Supreme Court in a murder case in which the
victim's supporters had attended the trial wearing buttons that
displayed a picture of the victim (the court avoided addressing
whether such conduct is prejudicial).

The latest manifestation of our "tough on crime" policy comes in the
proposed amendments to the Federal Rules of Criminal Procedure, which
will implement the 2004 Crime Victims' Rights Act. One U.S. district
judge ruled that the statute renders victims "independent
participant[s] in the proceedings" and "commands that victims should
be treated equally with the defendant, defense counsel, and the
prosecutor."

Under the act, victims have the right to be heard in court on
questions of bond, plea agreements and sentencing, and they have the
right to confer with prosecutors about a case. If victims are unhappy
with how a prosecutor or trial court has treated them, they are
permitted to seek relief in the U.S. Court of Appeals, and the
appellate court must rule on their application within 72 hours (an
unprecedented remedy).

Thus, under the act, victims at a minimum become a member of the
prosecution team and, indeed, have significant leverage over the
professional prosecutors. The president and many in Congress support
an amendment for crime victims' rights that would incorporate several
of these points into the Constitution.

While we may support the notion that victims' rights should be at
least as strong as those of defendants, within the context of the
criminal justice system these rights are mutually exclusive. Any
rights provided to the victim must come at the expense of the rights
provided to a defendant. Indeed, providing the victim with a role in
the prosecution assumes a crime has been committed, despite the
bedrock constitutional proposition that the accused is presumed innocent.

When we turn victims into members of the prosecution team, we distort
a process, so carefully constructed more than 200 years ago, that
eschewed vigilante justice or prosecution for personal ends in favor
of prosecution by the sovereign with significant rights afforded to
the accused. We expect prosecutors to make decisions about whom to
prosecute and what types of sentences to seek based on myriad
considerations, including, but far from limited to, the interests of
victims. Where victims play a controlling role in the prosecution, the
consideration of those factors no longer focuses on what is best for
society but rather on what victims need or want as "justice."

I sympathize with individuals victimized by criminals. I understand
their anger, outrage and desire for vengeance, particularly when faced
with the kind of malevolence displayed last week at Virginia Tech.
Securing assistance and compensation for victims is an unquestionable
priority, and we need to promote healing to the greatest extent possible.

But the criminal justice system cannot focus on the victim; rather, it
must follow its rich tradition of protecting society as a whole,
ensuring that justice is achieved in accordance with the Constitution.
As we appropriately focus on improving the plight of crime victims
this week, let's not forget about the plight of the falsely accused or
of the criminal justice system itself.