The Rise of the Victims’-Rights Movement

... The movement usually dates its origins to 1975, when, with the aid of the Heritage Foundation, a lawyer named Frank G. Carrington published a book called “The Victims.” But the movement really began in 1966, when Carrington founded Americans for Effective Law Enforcement, to protest what’s known as the due-process revolution. Between 1961 and 1966, the Warren Court issued a series of decisions that protected the rights of defendants, producing the Exclusionary Rule, which deems evidence obtained without a search warrant inadmissible; the requirement that police notify suspects of their rights; and the provision of court-appointed attorneys for defendants who can’t afford them. Carrington and other law-and-order conservatives, led by the California governor Ronald Reagan, argued that liberals on the Supreme Court, on judges’ benches, and in the legal academy were soft on crime. “For Law and Order” became a slogan of Richard Nixon’s 1968 Presidential campaign. “As we look at America, we see cities enveloped in smoke and flame,” Nixon said, accepting the Republican nomination. “We hear sirens in the night.”

Against the noisiness of a (criminal) minority, Nixon posited the silent, victimized majority, a note his Administration sounded over and over. The minority had more rights than the majority; a balance had been lost. This led to talk of victims, whose voices needed to be heard. In 1970, Spiro Agnew complained that “the rights of the accused have become more important than the rights of victims in our courtrooms.” In 1971, Lewis Powell, whom Nixon had nominated to the Supreme Court, wrote that “the victims of crime have become the forgotten men of our society.” By 1972, when the Warren Court ruled the death penalty to be essentially unconstitutional, Carrington had coined the term “victims’ rights.” His book “The Victims” amounted to a manifesto against the Warren Court. William F. Buckley’s brother James, a U.S. senator, supplied a foreword, which called for the restoration of the death penalty and complained about “a severe imbalance in favor of the rights of those accused of crime over the rights of those victimized by crime and of the public at large.”

This historical, restore-the-balance argument—the central tenet of the victims’-rights movement—is both superficially right and profoundly wrong. For centuries, criminal trials were, like civil ones, contests between individual parties: Victim v. Defendant. By the early modern era, the state had become the prosecuting party in criminal trials, which then took the form of Crown v. Defendant (and, in the United States, of State v. Defendant). As John Locke pointed out, this change was foundational to civil society, in which, “all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties.” Wherever people yield to public authority the judgment and punishment of crime, Locke wrote, “there and there only is a political, or civil society.”

During the centuries when victims were gradually excluded from criminal proceedings, defendants didn’t have much of a role, either. Generally, defendants were not allowed counsel before the eighteenth century and could not offer sworn testimony before the end of the nineteenth century; most trials, in any case, lasted only about twenty minutes. Against the fearsome power of the state, defendants are nearly powerless, which is why most rules of evidence are designed to protect them, a principle central to the founding of the United States and embodied in the Fourth, Fifth, Sixth, and Eighth Amendments and, later, in the Fourteenth. The rights of defendants are protections against the state, not harms done to victims. ...