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Abstract

One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three decades, including in more recent years, and twice passed the Senate Judiciary Committee. Despite the apparent strong support among members of Congress and the public, the bills have not progressed further, but it seems likely that there will be additional future efforts to pass similar bills. Adoption of the VRA, or any federal legislation mandating recognition of victims’ rights at both the federal and state levels, raises federalism concerns.

This Article undertakes a fresh and critical examination of the federalism implications of the VRA, and of the arguments by both its supporters and critics, and concludes that application of the functional arguments in favor of federalism suggests that the VRA should not be passed. More generally, the Article sets out criteria that will guide policymakers in deciding when, if ever, to require all states to follow a uniform victims’ rights regime, by way of the VRA or some other means. This article does not argue that the federal government has no role to play in the application or development of victims’ rights under state law, and explains that federal statutes permit interested victims to meaningfully participate in federal habeas proceedings.

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