The Crime Victim’s Right to Justice

Twelve states have adopted state constitutional amendments protecting a crime victim’s right “to justice.” For example, in 1990, Arizona became the first state in the nation to begin a victims’ rights amendment with a fundamental promise: “To preserve and protect the victims’ rights to justice and due process …” Ariz. Const., art. II, sec. 2.1(A). Since then, eleven additional states have recognized crime victims’ rights “to justice” in their constitutions: California, Florida, Kentucky, North Dakota, Oklahoma, Ohio, Oregon, South Carolina, Tennessee, Utah, Wisconsin.

Steve Twist and Vanessa Kubota have just published an important new law review article, published in the Arizona State Law Journal, explaining how this right to justice creates substantive rights for crime victims. Here’s the abstract:

Since 1990, the Arizona Constitution has promised to “preserve and protect” a crime victim’s rights to “justice and due process.” Eleven states have followed Arizona’s lead, amending their constitutions to include similar language. By starting with the verb “preserve,” these amendments make clear that a victim’s right to justice predates its constitutional recognition.

But what is the victim’s right to justice? Does it have operative legal force? Can a victim assert the right to justice as a free-standing substantive right, untethered to the specific enumerated rights that were enacted in its name? No court has defined the crime victim’s right to “justice” in the constitutional context, much less applied it. Until such jurisprudence is developed, the crime victim’s right to justice, as a matter of state constitutional law, will remain an elusive promise.

This Article explores the origin and meaning of “justice” for crime victims in the context of state constitutional law and general policy, arguing for a return to fundamental principles. A comprehensive interpretation of justice—as the right of each person to receive his or her due under the law—applied fairly, equally, and without discrimination—keeps justice from straying into constricted, outcome-oriented domains, protects defendants’ due process rights, and gives operative meaning to the right to justice for crime victims.

Giving substantive effect to the “right to justice” could have broad implications. As Twist and Kubota explain in the concluding section to their article, the victim’s right to justice could perform parallel work to the defendant’s right to due process. As an illustration of the point, they offer an example of speedy trial rights:

When a motion to continue is being considered, the court must consider the crime  victim’s right to a speedy trial or disposition. The criminal defendant may have a Sixth Amendment right to a speedy trial, but it is unjust to the victim for the vindication of a wrong to take years. After conviction, it is unjust and therefore unconstitutional to delay the filing of post-conviction petitions beyond time limits set by the Legislature.

The crime victim’s right “to justice” also finds an analog in the federal Crime Victims’ Rights Act (CVRA), which promises that victims in federal cases have an enforceable right “to be treated with fairness ….” 18 U.S.C. § 3771(a)(8). But while that right has been part of federal law since 2004, it has received little development in caselaw from federal appellate courts. The victims’ right “to justice” in state constitutions and “to be treated with fairness” in federal law deserve greater exploration.

Twist and Kubota end their article with the hope that it begins “a new conversation, prompting lawyers and judges to expand the horizons of justice and revive a concept that forms the basis of our laws and freedoms.” I join them in urging courts to pay greater attention to open-ended rights for crime victims.