Growing citizen distrust is a serious problem facing the nation’s criminal justice system—and, as a result, our democracy. Over the last decade, we have seen arguments coming from both sides of the political divide about politicization, unfair charges, and unjust results. These concerns about politicization are not tied to one Administration or the other but have been growing for years.

The usual solution offered is to increase the professionalization of the system, bring in more lawyers or judges and insulate them from political pressures and the like. Or to place more emphasis on historic norms that often seem to shift, depending on who is assessing those norms.

A more viable solution is not to turn to the “professionals” but to increase participation by ordinary citizens—those who have the most at stake in the criminal justice system: crime victims and their families. Such an approach is broadly democratic, as it removes power from the government (whoever might be in control). A more victim-centric system places power in the hands of those who have less incentive to politicize outcomes and more incentive to focus on violent and other clearly non-political crimes.

It is not widely understood that our nation’s criminal justice system originated from a system that placed power not in the hands of the government but in the people. At the time of the Founding, America’s justice system, inherited as it was from English common law, was largely driven by private prosecutions. When a crime was committed, a “hue and cry” went out and townspeople joined together to apprehend the offender and, with the victim, bring him before a magistrate. The victim then proceeded with the prosecution. The role of the government was essentially a negative one, in which the Attorney General had the authority to ask that an unfair or unfounded prosecution be dismissed through the writ of nolle prosequi.

This system of private prosecution lasted well into the nineteenth century. As late as the 1830s, Alexis De Tocqueville observed in Democracy in America that the offices of “public prosecutors are not numerous.”

Over time, that victim-driven system faded away, perhaps under the weight of increasing urbanization and centralization of government powers. As the government’s power grew, it acquired a virtual monopoly over the means of the investigation and prosecution of crimes.

This government control over criminal processes had dire consequences for crime victims. Whenever a crime is committed, three interests are always involved: the accused’s, the victim’s, and those of the rest of us. A legal system that marginalizes victims’ interests creates a structural imbalance. And indeed, injustices resulted from a government monopoly that recognized only the interests of the accused and the rest of us. Crimes against certain classes of victims were often ignored or under-enforced. In the hands of the government, victims too often became just another piece of evidence. Imagine a system in which the parents of a murdered child are denied access to the trial, not given notice of proceedings, or blocked from being heard at sentencing. These and many more were the conditions of America’s mid-twentieth century justice system. And these injustices gave rise to the alienation of victims and, more broadly, to distrust of the criminal justice system.

But injustice in America has a way of yielding to social change. And so it was with the vanishing of crime victims’ rights. Since the 1970s, a modern crime victims’ rights movement has re-emerged, advocating for a more inclusive role in the system for victims (and, in homicide cases, for their families). Reorienting the criminal justice system in this way does not mean increasing the general punitiveness of the system. Instead, increasing the focus on crime victims means refocusing the system on the core cases that the criminal justice system should address—and the ones least likely to be politicized.

The victims’ rights movement has been an important democratizing pressure on the justice system for the last forty years. Beginning in the mid-1980s, the movement began promoting state constitutional and statutory rights for victims. By the mid-1990s, about two-thirds of the states had their own constitutional amendments protecting victims’ rights and all states had victims’ rights statutes. These reforms resulted in victims receiving notices of critical hearings in their cases and having the right to be present and heard at appropriate stages in the process.

Since then, victims’ rights advocates have begun focusing on a new generation of victims’ rights enactments—so-called “Marsy’s Laws” that contain a more precise listing of rights and stronger enforcement mechanisms. California passed the first Marsy’s Law amendment to its state constitution in 2008, and eleven other states have added amendments since then. When voters have been asked to vote on state constitutional amendments, they have overwhelmingly supported them—including voters from both major political parties and different voting blocs and interests. Few issues bring Americans together more closely and directly than the campaign for victims’ rights.

These new amendments respond to the problem that victims’ rights are still denied in some parts of the country. And without clear precision in defining victims’ rights, many victims—proceeding without legal counsel—have difficulty asserting their rights.

Enforcing victims’ rights laws does not infringe on the constitutional rights of those accused or convicted of crimes. Criminal justice is not a zero-sum game. Victims can be heard in the process without depriving defendants of any rights. These rights have only served to increase the legal protections of all Americans, giving them “a voice not a veto” in the process.

Change has been coming, but not overnight and not always easily. Too often, the legal system remains hidebound by a recent past that made the victims the “forgotten person” in criminal justice. A renewed commitment to balance in the system must arise. Giving more power to the people, in the form of proven and enforceable rights for victims, is a democratizing reform that should continue. Every state should adopt a strong and enforceable constitutional amendment protecting crime victims’ rights.

Ultimately, the United States Constitution should also be similarly improved by adding a Victims’ Rights Amendment. Such an amendment was first proposed in 1982 by a President’s Task Force and later endorsed by Presidents Bill Clinton and George W. Bush. A victims’ rights amendment empowers people, not the government—by allowing victims and their families to confer with prosecutors, object to all-too-common plea agreements, and be heard by judges at sentencing. By shining a spotlight on what might otherwise be viewed as routine, bureaucratic processes, victims and their families perform a valuable checking function on government actors. Indeed, such rights help to restrain government in the best tradition of our dual virtues of liberty and order. 

Expanding rights for victims harkens back to the best traditions of democracy, by increasing direct citizen participation in the process. In other words, victim-empowered participation is part of our democratic tradition that should be encouraged. By building on values that lie at the center of our democracy, victims’ rights can help restore trust in our nation’s criminal justice processes.