Victims' Rights Groups Near A Constitutional Showdown

Oklahoma City bombing fuels movement; trial displays its power.

Victims of violent crime often say they are victimized twice. First by the criminal, then again by the judicial system that has more built in protections for the defendants than for them.

That simmering frustration has been the catalyst for America's victims' rights movement, which has quietly emerged as a highly influential lobbying force. It may even have enough momentum to win passage of a constitutional amendment.

At the core of this latest effort, pushed by some 8,000 organizations, are families of victims of the Oklahoma City bombing. Indeed, their presence at the trial in Denver this week - over the presiding judge's objections - is testament to their influence.

"They don't give up. They are organized. They are relentless," observes Sen. Jon Kyl (R) of Arizona, who along with Sen. Dianne Feinstein (D) of California, introduced the amendment last January. The measure has been making steady progress, picking up a broad base of support in Congress, at the White House, and among the voting public. Attorney General Janet Reno, also pushing the amendment, says it is "the best means to protect the rights of violent-crime victims."

The amendment's upward trajectory in this session of Congress is evidence of the lobby's growing influence, which swelled in the wake of the Oklahoma City bombing. Supporters range from the well-known Mothers Against Drunk Driving to smaller local or regional entities like The Native American Family Violence Prevention Project. Groups with a wider focus, like the National Organization for Victim Assistance, serve as national resources for the smaller ones.

What they all have in common is a perceived just cause and almost universal sympathy. The groups are buoyed by popular anger and propelled by frustration over other high-profile attacks like the World Trade Center bombing and the abduction and murder of Polly Klaas. They are winning big victories and small ones.

Carolyn McCarthy, widowed by gunman Colin Ferguson, who killed her husband and crippled her son in a Long Island train car, won a seat in Congress last fall campaigning on an anti-gun platform.

"I had been a victim 30 years ago, the kind of crime you didn't talk about for shame," says Marsha Kight. When Ms. Kight's daughter, Frankie Merrill, was killed in the Oklahoma City bombing, Kight focused her anger into securing more rights for victims. She established an Internet site for the Murrah building survivors. Last week she testified before the Senate Judiciary Committee in support of the amendment.

The influence of the Oklahoma victims' rights efforts was illustrated last month. For 11 days, Oklahoma survivors lobbied Congress to override the decision of presiding Judge Richard Matsch in the bombing trial - and won. Both houses of Congress passed bills clarifying the Victims Rights Act of 1990. Contrary to Judge Matsch's original ruling, victims and survivors can now watch or attend the trial and still testify during the sentencing phase of the proceedings if a conviction is reached.

"There was a sense of outrage in Congress by those who said, we wrote laws so victims wouldn't have to go through this," says John Stein, deputy director of the National Organization for Victim Assistance. Founded in 1975, it is one of the oldest national organizations in the victims movement. NOVA backs a victims' right amendment.

SINCE it was written in 1789, the Constitution has been amended only 27 times. There have been dozens of failed amendment attempts in recent Congresses alone, including an anti-flag-burning measure and term limits. But without an equal counterbalance to the full weight of the victims' movement, experts say this amendment could pass.

As it is shaping up, the amendment would establish an $8 million notification system, warning victims of the release or escape of prisoners and alerting them to court action involving the defendant in their case, such as a court appearance or sentencing. It would codify greater job protection for those seeking time off to attend a trial. And it gives prosecutors broader authority to keep in jail defendants deemed dangerous.

But popular sentiment does not an amendment make, according to constitutional scholars opposed to the measure. "There are examples where the Constitution has been amended taking into account popular sentiment," observes constitutional expert Kermit Hall at Ohio State University. "The 18th Amendment installing prohibition had a good deal of grass-roots support. So did the 21st Amendment which repealed it," he notes.

Professor Hall predicts the amendment will fail because states, in his opinion, are better suited to create and enforce the individual application of victims' rights.

Civil rights advocates, including the American Civil Liberties Union, fear defendants rights will be pushed aside. A group of law professors sent a letter to the Senate Judiciary Committee expressing concern that a provision in the amendment would be particularly egregious. If victims are guaranteed a final disposition of their case "free from unreasonable delay," a defendant's ability to prepare for trial could be squeezed.

Others, such as Sen. Edward Kennedy (D) of Massachusetts, say the Constitution is not a forum to legislate policies, no matter how popular. Senators Kennedy and Patrick Leahy (D) of Vermont plan to introduce, as early as next week, the Crime Victims Empowerment Act. The bill seeks to legislate the same rights for victims without altering the Constitution.

Despite that effort, the amendment is likely to come up for a vote in committee early next month and is expected to reach the Senate floor.

"It will be very difficult for people to vote against this when it reaches the Senate floor," says Senator Kyl. He says the rough edges have been sanded off in 46 rewrites of the legislation. "At the end of the day, it's the only way to truly balance the scales of justice and give victims the same degree of rights as the defendant, even though we take nothing from the defendant," he says.