Federalism, Federal Courts, and Victims’ Rights

Abstract

A striking development in American criminal justice in the past forty years is the widespread adoption and acceptance of the rights of victims, at both the federal and state levels. A notable exception to this innovation has been the repeated, unsuccessful attempts, continuing to the present day, to pass a Victims’ Rights Amendment to the U.S. Constitution. The considerable scholarly literature on the VRA has not rigorously examined the putative need for the VRA from a federalism perspective, a task this article undertakes. The article examines the history of the victims’ rights movement, and of the repeated attempts to pass the VRA. We argue that both supporters and critics of the VRA have not convincingly addressed federalism issues raised by the potential adoption of the VRA. In contrast, we argue that functional principles of federalism suggest that the VRA and nationalization of victims’ rights is unnecessary. On the other hand, we argue that there is one way that the federal government can recognize state development of victims’ rights. In habeas corpus actions in federal court, challenging state court convictions, we argue that victims of state crimes should be permitted and encouraged to participate in those proceedings, in ways not generally permitted to date.

Keywords: criminal justice, Victims’ Rights Amendment, victim's rights movement, constitutional law, federalism, federal courts, habeas corpus

JEL Classification: K14, K41, Kk19