WASHINGTON, November 3, 2014 — With the 2014 Midterm Elections in sight, voters should have no doubts that the old saying “the devil is in the details” holds true. Where short, superficial political ads cannot be trusted to reveal what kind of an elected official a candidate will be, the wording of ballot measures determines if a particular piece of legislation will help or hurt voters.
Voters in Illinois face five ballot measures with two that offer changes to the State Constitution. One of these Constitutional Amendments supposedly improves the State Bill of Rights for crime victims. To the average voter, a “yes” vote would appear most advantageous, yet a “no” vote would likely be more prudent.
Unfortunately, the rephrasing of the victims’ rights under section 8.1.a.4 from a victim has the right to “make a statement to the court at sentencing” to a victim has a right to“…be heard” likely undermines the right of victims to freely express how the alleged actions of the accused have affected them. This is particularly important during sentencing and when calculating restitution.
Because laws must be written in very explicit language, vague phrasing leaves what should be a guaranteed “right” to multiple interpretations. As such, advocates of victims’ rights would like to see victims given the explicit right to make some sort of “impact statement,” because the phrasing “heard” can be interpreted in several ways.
Should a prosecutor interpret “heard” to mean a victim must only be given a chance to say something at a post arraignment hearing, victims will not actually have a right to tell their side of the story; instead, the victim would be limited by what the prosecutor wants. In essence, the vagueness of the phrasing means victims would not actually have a guaranteed right.
On the other hand, the proposed changes to the Illinois Constitution do offer additional protections for victims of crimes during the prosecution and after the incarceration of the perpetrator of a crime, but it does little to actually empower victims. Under 8.1.b, victims are given the right to assert their rights enumerated in the proceeding section, yet the Amendment fails to provide legal representation for victims.
Those accused of crimes are guaranteed the right to a lawyer, which the government must provide at no cost to the accused. This is important because the legal system is nearly impossible to navigate without a well-trained advocate. Just as legal complexities often stand in the way of people freely asserting their First Amendment rights to free speech or their Second Amendment rights to bear arms, the ability of victims to effectively assert their rights will likely hinge on legal representation.
A victim who can afford to pay for her or his own legal advocate still has to face the broad interpretation of those rights due to the phrase “heard.” Thanks to 8.1.d, which makes it clear Illinois is not liable for the violations or the costs associated with the assertion of a victim’s rights, there is little to no legal recourse available for a victim who feels her, or his, rights as a victim have been violated.
Although the US Constitution offers quite a few protections for those accused of crimes, as well as those who have been convicted of a crime, there are no enumerated rights for the victims of crimes. Consequently, a victim’s Bill of Rights that encompasses legal representation for victims as well as the right to make a victims impact statement should be welcome on both the Federal and State level.
The proposed changes to the Victims’ Bill of Rights of Illinois are misleading to the point they would likely do more harm to victims than good. Moreover, the proposed changes demonstrate exactly why voters need to clearly understand the impact of ballot measures.