    [Senate Hearing 107-944]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 107-944

       S.J. RES. 35, PROPOSING A VICTIMS' RIGHTS AMENDMENT TO THE UNITED
                              STATES CONSTITUTION

    =======================================================================

                                    HEARING

                                   before the

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JULY 17, 2002

                                   __________

                              Serial No. J-107-94

                                   __________

             Printed for the use of the Committee on the Judiciary

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                                WASHINGTON : 2003
    ____________________________________________________________________________
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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah,
    JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
    HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
    DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
    RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
    CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
    RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
    MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
    JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
           Bruce A. Cohen, Majority Chief Counsel and Staff Director
                      Sharon Prost, Minority Chief Counsel
                    Makan Delrahim, Minority Staff Director
                                     ------

                        Subcommittee on the Constitution

                    RUSSELL D. FEINGOLD, Wisconsin, Chairman
    PATRICK J. LEAHY, Vermont            STROM THURMOND, South Carolina
    EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
    CHARLES E. SCHUMER, New York         JON KYL, Arizona
    RICHARD J. DURBIN, Illinois          MITCH McCONNELL, Kentucky
                     Robert Schiff, Majority Chief Counsel
                     Garry Malphrus, Minority Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................     1
        prepared statement...........................................    71
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California.....................................................     5
    Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    98
    Thurmond, Hon. Strom, a U.S. Senator from the State of South
      Carolina.......................................................   155

                                   WITNESSES

    Bird, Arwen, Director, Survivors Advocating for an Effective
      System, Portland, Oregon.......................................    16
    Gillis, John W., Director, Office for Victims of Crime,
      Department of Justice, Washington, D.C.........................    10
    Goldscheid, Julie, General Counsel, Safe Horizon, New York, New
      York...........................................................    21
    Orenstein, James, Baker and Hostetler, LLP, New York, New York...    28
    Pilon, Roger, Director, Center for Constitutional Studies, Cato
      Institute, Washington, D.C.....................................    23
    Roper, Roberta, Executive Director, Stephanie Roper Committee and
      Foundation, Inc., Upper Marlboro, Maryland.....................    17
    Twist, Steven J., General Counsel, National Victims
      Constitutional Amendment Network, Scottsdale, Arizona..........    26

                             QUESTIONS AND ANSWERS

    Response of Arwen Bird to a question submitted by Senator Leahy..    39
    Responses of John Gillis to questions submitted by Senator Leahy.    41
    Response of Julie Goldscheid to a question submitted by Senator
      Leahy..........................................................    53
    Response of Roberta Roper to a question submitted by Senator
      Leahy..........................................................    56

                           SUBMISSIONS FOR THE RECORD

    American Civil Liberties Union, Washington, D.C., news release
      and attachment.................................................    57
    Bird, Arwen, Director, Survivors Advocating for an Effective
      System, Portland, Oregon, statement............................    65
    Bolton Refuge House, Inc., Gerald L. Wilkie, Executive Director,
      Eau Claire, Wisconsin, letter..................................    66
    California District Attorneys Association, Lawrence G. Brown,
      Executive Director, Sacramento, California, letter.............    67
    Colorado Organization for Victim Assistance, Nancy Lewis,
      Executive Director, Denver, Colorado, letter...................    69
    Federal Law Enforcement Officers Association, Richard J. Gallo,
      President, Lewisberry, Pennsylvania, letter....................    70
    Ferres, Donna J., Fort Myers, Florida, letter....................    73
    Fraternal Order of Police, Grand Lodge, Steve Young, National
      President, Washington, D.C., letter............................    75
    Gillis, John W., Director, Office for Victims of Crime,
      Department of Justice, Washington, D.C.........................    76
    Goldscheid, Julie, General Counsel, Safe Horizon, New York, New
      York...........................................................    84
    International Union of Police Associations, AFL-CIO, Dennis J.
      Slocumb, International Executive Vice President, Alexandria,
      Virginia, letter...............................................    92
    Kight, Marsha A., Arlington, Virginia, letter....................    93
    Marquis, Joshua, District Attorney, Clatsop County, Astoria,
      Oregon:
        July 15, 2002, letter........................................   100
        July 16, 2002, letter........................................   102
    McCann, E. Michael, District Attorney, Milwaukee County,
      Milwaukee, Wisconsin, letter...................................   103
    Mothers Against Drunk Driving, Wendy J. Hamilton, National
      President, Irving, Texas.......................................   104
    National Association of Police Organizations, Inc., William J.
      Johnson, Executive Director, Washington, D.C., letter..........   105
    National Clearinghouse for the Defense of Battered Women,
      Philadelphia, Pennsylvania, statement..........................   106
    NOW Legal Defense and Education Fund, Washington, D.C., statement   112
    Orenstein, James, Baker and Hostetler, LLP, New York, New York,
      prepared statement.............................................   114
    Parents of Murdered Children of New York State, Inc., Odile
      Stern, Executive Director, Fire Island, New York, statement....   130
    Perkins, Joseph, San Diego Union-Tribune, San Diego, California:
        April 19, 2002, editorial....................................   132
        June 12, 2002, editorial.....................................   131
    Pilon, Roger, Director, Center for Constitutional Studies, Cato
      Institute, Washington, D.C., prepared statement................   133
    Preston, Bob, Littleton, Colorado, letter........................   139
    Roper, Roberta, Executive Director, Stephanie Roper Committee and
      Foundation, Inc., Upper Marlboro, Maryland, prepared statement.   141
    Russell, Susan S., Warren, Vermont, letter.......................   146
    Safe Horizon, Gordon J. Campbell, Chief Executive Officer, New
      York, New York, letter.........................................   151
    Southern States Police Benevolent Association, Inc., H.G. "Bill"
      Thompson, Director, Governmental Affairs, McDonough, Georgia,
      letter.........................................................   154
    Tribe, Lawrence, Ralph S. Tyler, Jr. Professor of Constitutional
      Law, Harvard University Law School, Cambridge, Massachusetts:
        March 14, 2002, letter.......................................   162
        Boston Globe, March 29, 2002, editorial......................   160
    Twist, Steven J., General Counsel, National Victims
      Constitutional Amendment Network, Scottsdale, Arizona, prepared
      statement......................................................   164
    Vermont Center for Crime Victim Services, Judy Rex, Executive
      Director, Waterbury, Vermont, letter...........................   204
    Western Governors' Association, Hon. Jane Dee Hull, Governor of
      Arizona, Chairman, Denver, Colorado, letter....................   205

       S.J. RES. 35, PROPOSING A VICTIMS' RIGHTS AMENDMENT TO THE UNITED
                              STATES CONSTITUTION

                                  ----------

                            WEDNESDAY, JULY 17, 2002

                                  United States Senate,
                              Subcommittee on the Constitution,
                                    Committee of the Judiciary,
                                                       Washington, D.C.
        The Subcommittee met, pursuant to notice, at 10:02 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Russell D.
    Feingold, Chairman of the Subcommittee, presiding.
        Present: Senators Feingold, Feinstein, and Kyl.

    OPENING STATEMENT HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM
                         THE STATE OF WISCONSIN

        Chairman Feingold. This hearing will come to order. Good
    morning, and welcome to this hearing of the Senate Judiciary
    Committee's Subcommittee on the Constitution. I want to thank
    everyone for being here today.
        This hearing concerns Senate Joint Resolution 35, a
    proposed victims' rights amendment to the United States
    Constitution. I agreed to hold this hearing at Senator
    Feinstein's request, and I did so even though I oppose her
    proposed amendment. But I did it because I agree with her goal
    to protect and enhance the rights of victims of crime.
        I share the desire to ensure that those in our society who
    most directly feel the harm callously inflicted by criminals do
    not suffer yet again at the hands of a criminal justice system
    that ignores victims. A victim of a crime has a personal
    interest in the prosecution of the alleged offender.
        Victims want their voices to be heard. They want, and
    deserve, to participate in the system that is designed to
    redress the wrongs that they and society have suffered at the
    hands of criminals. But I think Congress should proceed very
    carefully when it comes to amending the Constitution.
        After thinking long and hard about this issue, I am just
    not convinced that an amendment to the Constitution is
    necessary to protecting the rights of victims--a goal we all
    share. I believe that Congress can better protect the rights of
    victims by ensuring that current State and Federal laws are
    enforced, by providing resources to prosecutors and the courts
    to allow them to enforce and comply with existing laws, and
    also by working with victims to enact additional Federal
    legislation.
        In the 207-year history of the United States Constitution,
    only 27 amendments have been ratified, just 17 since the Bill
    of Rights was ratified in 1791. Two of the 17 concerned
    prohibition and so they, in effect, canceled each other out.
    Yet, literally hundreds of constitutional amendments have been
    introduced in the past few Congresses.
        To change the Constitution now is to say that we have come
    up with an idea that the Framers of that great charter did not.
    Yes, there are occasions when we need to bring the Constitution
    up to date, as with granting women the right to vote and
    protecting the civil rights of African Americans after the
    Civil War.
        But it is difficult to believe that the basic calculus of
    prosecutor, defendant, and victim has changed much since the
    founding of the Republic. There was some debate on this when we
    considered the amendment on the floor in the last Congress, but
    I think it is fairly well established that public prosecutions
    were the norm when the Constitution was written and adopted.
        I also believe that it is impossible to foresee the needs
    of all victims. Statutes are a better, more flexible, and
    faster response than amending the Constitution. For example,
    Congress enacted a statute after the Oklahoma City bombing and
    created a victims' compensation program after September 11, and
    now we are in the process of amending that statute to cover
    victims of other terrorist attacks.
        But unlike statutes, constitutional amendments cannot be
    easily modified. If this amendment were to be ratified and if
    some new development in the law were to require a change to the
    amendment, we would once again need to get approval of two-
    thirds of the members of each House of Congress and then
    ratification by three-fourths of the State legislatures. This
    is a real problem because there are numerous uncertainties
    about the effect of this amendment. Even the sponsors have
    rewritten the entire amendment since the last time it was
    considered by the Senate not too long ago.
        I might add, however, that of all the constitutional
    amendments that I have considered since I became a Senator,
    this one is perhaps the least troubling because the goal is so
    laudable. In fact, as I have noted before, as a Senator in the
    Wisconsin State Senate I voted in favor of amending the
    Wisconsin State Constitution to include protections for
    victims. Thirty-three States now have a State constitutional
    protection for victims, and every State in the country has
    statutes to protect victims.
        But the Wisconsin State Constitution, like a number of
    other State constitutions, appropriately clarifies that the
    rights granted to victims cannot be reduce the rights of the
    accused in a criminal proceeding. Unfortunately, the proposed
    victims' rights amendment before us today does not contain a
    similar provision. That has been the source of significant
    debate in past years.
        Proponents of the amendment have argued that the rights of
    the accused are not undermined by giving victims constitutional
    rights. Yet, they have steadfastly refused to add a clause such
    as that contained in the Wisconsin State victims' rights
    amendment to make it absolutely clear that this is the case.
    They have never provided a convincing justification for that
    refusal, in my opinion.
        Finally, I would just note that I am also concerned that a
    victims' rights amendment could jeopardize the ability of
    prosecutors to investigate their cases, to prosecute suspected
    criminals, and to balance the competing demands of fairness and
    truth-finding in the criminal justice system.
        So, today, I look forward to hearing from our witnesses on
    the issue of whether it is necessary for Congress to take the
    rare and extraordinary step of amending the Constitution to
    protect the rights of victims.
        Now, let me turn to the distinguished ranking member and
    one of the main authors of this proposal for his opening
    remarks, Senator Kyl.

      STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
                                ARIZONA

        Senator Kyl. Thank you, Senator Feingold, and I welcome all
    of the witnesses. I think that since we have had a number of
    hearings, our views are quite well known and it is probably
    more appropriate that we hear from the various witnesses that
    we have today.
        But since the text of the amendment is slightly different
    than what we dealt with earlier I would like to comment just a
    little bit about that and respond to a couple of the points
    that the Chairman made, and then turn this over to my
    colleague, Senator Feinstein, who has been working with me
    shoulder to shoulder for I don't know how many years now in
    this effort. I think we have come a long way, but it is clear
    we still have a way to go.
        Let me just state that a couple of our witnesses today will
    make the case, I think, for the amendment as being needed to
    protect victims' rights. The question that Senator Feingold
    raises is, of course, the question for this Committee, namely
    is it necessary to elevate those rights to Federal
    constitutional protection. It is a legitimate question, it is a
    serious question, and it is the one that has, I suspect, been
    the primary focus of our colleagues over the last several
    years.
        There is, in my view, ample evidence to support the
    proposition that the statutes and constitutional amendments
    that exist today in the States have not done the job. There are
    many statements from the previous administration--Department of
    Justice officials, including the Attorney General, Janet Reno--
    that back that up.
        Let me just cite two statistics from a study that was done
    by the Department of Justice. It analyzed the States, like my
    own State of Arizona, that have some of the strongest
    protection for victims' rights of any State. And, remember, the
    States are where 99 percent of the action is, because most
    serious crimes of aggravated assault, sexual assault, murder,
    and so on, are violations of State law and those cases are
    tried in State courts. There aren't very many cases tried in
    Federal courts of that kind, so essentially we are talking
    about State prosecutions.
        According to this report of the National Institute of
    Justice, even in States that gave strong protection to victims'
    rights, fewer than 60 percent of the victims were notified of
    the sentencing hearing and fewer than 40 percent were notified
    of the pre-trial release of the defendant.
        The report concluded, and I am quoting now, ``Enactment of
    State laws and State constitutional amendments alone appears to
    be insufficient to guarantee the full provision of victims'
    rights in practice.'' That is the problem. We all have our
    hearts in the right place here, but as a practical matter it
    just doesn't happen. It isn't happening at the State level. And
    until rights are elevated to the level of full U.S.
    constitutional protection, I don't think they will be given the
    degree of importance and enforced to the extent that we intend
    for them to be.
        Now, there were some questions raised about the text that
    we had introduced before. Notwithstanding the fact that it
    passed the full Judiciary Committee by a bipartisan vote of 12
    to 5, there were some questions, and so we worked over the
    course of last winter with the experts in the field to rewrite
    the text to provide the same rights, but to do it in a form
    that was more consistent with what we are all familiar with as
    amendments to the Constitution. And I think we have done it in
    this text. President Bush recently announced his support for
    this exact text, and in doing so he said the amendment was
    written with care and strikes a proper balance.
        One of the experts that has helped us with this from the
    beginning is Laurence Tribe, a law professor from Harvard. I
    have come to have great respect for his brilliance in these
    matters, and frankly a lot of the textual change was the result
    of his suggestions.
        It is therefore perhaps not surprising that he has written
    a letter commenting upon the text that we finally introduced,
    praising the greater brevity and clarity of the amendment and
    saying, ``That you achieved such conciseness, while fully
    protecting defendants' rights''--let me underline that--``while
    fully protecting defendants' rights and accommodating the
    legitimate concerns that have been voiced about prosecutorial
    power and presidential authority is no mean feat. I think you
    have done a splendid job at distilling the prior versions of
    the victims' rights amendment into a form that would be worthy
    of a constitutional amendment.''
        Now, that is the concern that I had when victims first came
    to me. I said, how can we write this in a way that is worthy of
    being part of the U.S. Constitution? I think we have done that
    now and I feel much better about the language as a result of
    the changes that we made over the winter.
        There is a predicate assumption here in the current text
    that goes to this question of protecting the defendant's
    rights. And while you should not in an amendment reiterate
    something that is already provided for in terms of other
    rights, the predicate assumption is, and I quote--this is the
    very first line of the very first section of the article--``The
    rights of victims of violent crime, being capable of protection
    without denying the constitutional rights of those accused of
    victimizing them, are hereby established,'' et cetera.
        We have placed that recognition of defendants' rights in
    such a prominent place in response to legitimate questions that
    have been raised by people such as the Chairman today. I hope,
    therefore, that that predicate assumption will reduce people's
    concerns about somehow adversely impacting defendants' rights.
        There will be much more to be said. I think the witnesses
    here can respond to questions better than I. As I said, my
    views are well known on this. This amendment has had a large
    degree of support--both party platforms in the last national
    election called for the adoption of a Federal victims' rights
    constitutional amendment.
        You have a group of organizations, from Mothers Against
    Drunk Driving, Parents of Murdered Children, the National
    Organization of Victim Assistance, the Stephanie Roper
    Foundation--we are going to hear from Roberta Roper here, I
    think, a little bit later on--Arizona Voice for Crime Victims,
    one of my favorite groups, Crime Victims United, and other
    victims groups that are strongly in support, as are law
    enforcement groups, like the National Association of Police
    Organizations, the International Union of Police Associations,
    the Federal Law Enforcement Officers Association, and others.
    Thirty-nine State attorneys general have signed a letter, and
    on and on.
        So I think it is time for us to translate this strong
    support into political support here in the United States
    Senate. I would note that the amendment is moving forward in
    the U.S. House of Representatives. That is important, since we
    know that both bodies will have to approve it.
        I am very hopeful that whatever questions and concerns are
    raised--and I concede that the Chairman raises very serious
    questions here, legitimate questions--that we are able to move
    this amendment to the floor of the U.S. Senate so that we will
    at least have an opportunity to vote on it. We weren't able to
    vote on it before. Senator Feinstein and I had to pull it back
    from the floor. I hope that this time we will at least have an
    opportunity to have a vote and advance the cause of victims'
    rights another step or two, if not to reach all the way to a
    final victory in this year.
        Mr. Chairman, I would really like to hear from the
    witnesses, but, before that, from my colleague-in-arms who has
    been such a strong supporter and has given a great deal of not
    just energy, but moral support to this effort, Senator
    Feinstein.
        Chairman Feingold. Senator Kyl, I will turn to Senator
    Feinstein in a moment. Let me first say that we will have a
    vote at about 10:30, as I understand it, and I will recess the
    hearing just long enough so I can run over and vote and come
    straight back.
        I am pleased to turn to Senator Feinstein now. I must say
    that this is an impressive bipartisan effort by two of the most
    serious and very dedicated members of the Committee and the
    Senate. I like bipartisan combinations, especially with
    Senators from Arizona. I am a big fan of it. I just regret that
    I cannot, at least at this point, support what you are doing,
    but I do admire the way you have worked together.
        With that, I will turn to Senator Feinstein.

      STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
                          STATE OF CALIFORNIA

        Senator Feinstein. Well, thanks very much, Mr. Chairman,
    and thank you so much for having this hearing. Senator Kyl
    mentioned some of the organizations that are here. I wonder if
    the victims that have come, some of you from very far away,
    would just stand so that I might know who you are.
        [Several persons stood.]
        Senator Feinstein. I just want to say thank you, Roberta. I
    want to say thank you very much for being here. It means a lot
    to us. Thank you so much.
        I believe very passionately in this. I first got involved
    in this amendment in 1982. It was called the Victims' Bill of
    Rights and California was the first State to pass it. I
    supported it, and at the time it was very controversial and it
    passed overwhelmingly. Since then, some 32 States have passed
    victims' rights constitutional amendments. I often say to
    people, when you watch big trials you will see a victim in the
    courtroom and the reason generally is because the State has
    passed such an amendment.
        It is a pretty simple amendment, and the rationale for the
    amendment was when our country was founded, when we were 13
    colonies and essentially less than 4 million people, victims
    did have rights. Victims hired a sheriff, victims often
    prosecuted the case.
        Then, in the mid-19th century, in the 1850s, when the
    concept of the public prosecutor was evolved, the victim was
    less out, so that a victim as not noticed of a trial, a victim
    had no right to be present during the trial. As a matter of
    fact, the defense attorneys fast learned that what they wanted
    to do was very often subpoena victim and say they were going to
    use them specifically to keep them out of the courtroom so that
    there could be no sympathy that that victim would elucidate.
        The victim today is not even noticed if their attacker is
    released from jail or prison. What we have had is that many
    victims are victimized a second time by the attacker because of
    this.
        I was called by a young woman in San Francisco when I was a
    supervisor and when I was a mayor. It was a terrible case.
    Someone had gone into her home, had killed her husband, raped
    her, broke her arm, broke her jaw, tied her up, and set the
    house on fire. She survived, and the only reason the
    perpetrator was convicted was because she was there to testify
    against him.
        Well, to this very day, she has changed her name and she
    lives in anonymity. She would call me every year when he would
    come up for parole and say, please help me; I have to keep him
    in, I live in dread, I know he is going to come after me. Her
    pseudonym was Annette Carlson, and I don't know if he has ever
    been paroled or not, but I do know this: No victim should ever,
    ever have to live like this.
        So that is sort of the passion that has fueled me in this
    debate, and it is has been very interesting to me because on
    the floor I have heard, well, what we drafted last time was too
    long; well, it doesn't mention the defendant.
        The whole point is that the judge has to balance these
    rights, and the judge can balance them. As Senator Kyl pointed
    out, in the predicate to the constitutional amendment we point
    out that the intent is not to adversely impact a defendant's
    rights.
        The rights are pretty simple: the right to receive notice.
    What is wrong with that? Nothing. The right to be present in
    the courtroom. A victim should have that right. The right to
    make a statement; the right to restitution, if ordered by a
    judge; the right to be considered for the timeliness of the
    trial. We all know that one of the things that happens is you
    stall the trial. Witnesses disappear, evidence gets cold, a
    case is harder to make.
        The right to know when your attacker is released. Why? So
    you can protect yourself. The right to restitution, if ordered
    by a judge. Pretty simple rights. I believe that virtually
    every American, if this were put to a vote, would be in support
    of these basic rights.
        We also heard the last time we did this that, well, we
    should pass a statute; a statute is going to handle. But,
    ladies and gentlemen and members of the Committee, we have
    already found that a statute won't handle this, and I would
    like to give you the Oklahoma City bombing case as an example.
        In that case, two Federal victims' rights statutes were not
    enough to give victims of this bombing a clear right to be
    present and to testify, even though one of the statutes was
    passed with the specific purpose of allowing the victims to do
    just that.
        Let me quote from one of these statutes, the Victims of
    Crimes Bill of Rights, passed in 1990 by the House, by the
    Senate, and signed by the President, and it says, ``A crime
    victim has the following rights: the right to be present at all
    public court proceedings related to the offense, unless the
    court determines that testimony by the victim would be
    materially affected if the victim heard other testimony at
    trial.''
        That statute further states, ``Federal Government officers
    and employees engaged in the detection, investigation, or
    prosecution of crime shall make their best efforts to see that
    victims of crime are accorded the rights.'' The law also
    provides that this section does not create a cause of action or
    defense in favor of any person arising out of the failure to
    accord a victim these rights.
        Now, you would think that would be enough, but it wasn't,
    because in spite of this law, the judge in the Oklahoma City
    bombing case ruled, without any request from Timothy McVeigh's
    attorneys, that no victim who saw any portion of the case could
    testify about the bombing's impact at a possible sentencing
    hearing.
        The Justice Department asked the judge to exempt victims
    who would not be factual witnesses at trial, but who might
    testify at a sentencing hearing about the impact of the bombing
    on their lives. The judge denied the motion.
        The victims were then given until the lunch break to decide
    whether to watch the proceedings or remain eligible to testify
    at a sentencing hearing. In the hour that they had, some of the
    victims opted to watch the proceedings. Others decided to
    leave, to remain eligible to testify at the sentencing hearing.
        Subsequently, the Justice Department asked the court to
    reconsider its order in light of the 1990 Victims Bill of
    Rights. Bombing victims then filed their own motion to raise
    their rights under the Victims Bill of Rights. The court denied
    both motions.
        With regard to the victims' motion, the judge held that the
    victims lacked standing, and this is the crux. The judge stated
    that the victims would not be able to separate the experience
    of trial from the experience of loss from the conduct in
    question. The judge also alluded to concerns about the
    defendant's constitutional rights, the common law, and rules of
    evidence.
        The victims and the Justice Department separately appealed
    to the Court of Appeals for the Tenth Circuit. That court ruled
    that the victims lacked standing under Article III of the
    Constitution, because they had no legally-protected interest to
    be present at trial and thus had suffered no injury, in fact,
    from their exclusion.
        The victims and the Department of Justice then asked the
    entire Tenth Circuit to review that decision. Forty-nine
    members of Congress, all six attorneys general in the Tenth
    Circuit, and many of the leading crime victims organizations
    filed briefs in support of the victims, all to no avail.
        The Victims Clarification Act of 1997 was then introduced
    in Congress. That Act provided that watching a trial does not
    constitute grounds for denying victims the chance to provide an
    impact statement. This bill passed the House 414 to 13. It
    passed the Senate by unanimous consent. Two days later,
    President Clinton signed it into law, explaining that, quote,
    ``When someone is a victim, he or she should be at the center
    of the criminal justice process, not on the outside looking
    in,'' end quote.
        The victims then filed a motion asserting a right to attend
    the trial under the new law. However, the judge declined to
    apply the law as written. He concluded that, and I quote, ``Any
    motions raising constitutional questions about this legislation
    would be premature and would present questions and issues that
    are not now ripe for decision,'' end quote.
        Moreover, he held that it could address issues of possible
    prejudicial impact from attending the trial by interviewing the
    witnesses after the trial. The judge also refused to grant the
    victims a hearing on the application of the new law, concluding
    that his ruling rendered their request moot. The victims then
    faced a painful decision: watch the trial or preserve their
    right to testify at the sentencing hearing. Many victims gave
    up their right to watch the trial as a result.
        Now, what is the point? The point is that there is no
    statute that you can pass that will give victims sufficient
    standing under Article III to satisfy a court, and therefore a
    constitutional amendment becomes vital if victims are going to
    have any standing to assert any rights that they might be
    given.
        So I say that to really make it clear, because I have been
    hearing over and over and over again that a statute will do it.
    Well, Members, we have tried a statute. We have tried it twice
    and both times the statute effectively was null and void in the
    court, and certainly in the appellate court.
        So if we do believe--and I do passionately--that a victim
    of a violent crime should have the right to receive notice, to
    be present, to be heard, to know when their attacker is
    released, and to restitution if ordered by a court, there is
    only one way to get there and that is through the Constitution
    of the United States of America.
        Thanks, Mr. Chairman.
        Chairman Feingold. Thank you, Senator Feinstein.
        I am going to make just a couple of comments and then start
    our first panel. In fact, I am pleased to welcome our patient
    first panel member. I welcome the Honorable John Gillis,
    Director of the Justice Department's Office for Victims of
    Crime. Director Gillis is a co-founder of Justice for Homicide
    Victims and the Coalition of Victims' Equal Rights. He also
    served four years as a member of the California State Bar
    Association's Crime Victims and Corrections Committee.
        I thank you for joining us today. I do note that we just
    received your testimony, I understand, just a little bit ago.
    In quickly reviewing it, I saw the reference, of course, to the
    fact that my State, Wisconsin, has a victims' rights
    constitutional amendment, which I supported as a State Senator.
        But I would reiterate that that had an explicit provision
    that essentially required that in no way can the constitutional
    amendment derogate or limit the existing rights of criminal
    defendants. I would suggest that that is different and much
    stronger than what the two Senators here have proposed.
        The Senator from Arizona talks about a predicate
    assumption. Now, that is a good opportunity to go back to our
    grammar lessons and to review exactly what that means, but that
    is not the same as a clear statement, a direct statement that
    defendants' rights cannot be undercut.
        In fact, the language says, ``being capable of protection
    without denying the constitutional rights of those accused of
    victimizing them.'' That, to me, isn't a statement of law. That
    is a statement of fact, which I think isn't even necessarily
    always true. I don't think it is always the case,
    unfortunately, that you can easily balance the rights of
    victims and the rights of defendants. That is a serious
    problem.
        All this is is a statement of fact, which I think is, in
    fact, incorrect in some cases. I think in most cases it is
    correct, and that is why I certainly support strong statutes
    that would protect the rights of victims.
        I would suggest that the very example that Senator
    Feinstein uses, the Oklahoma City case, proves that it is not
    the case that this amendment would guarantee that the rights of
    defendants are not limited. The judge in this case obviously
    was concerned, whether he was right or wrong on the merits,
    that what could happen here would in some way diminish the
    rights of the defendants.
        So I think that is why this has to be victims' rights
    statutes that go up against a constitutional protection for
    defendants' rights, with the understanding that I certainly
    agree with the Senators that there is far more that can be done
    to protect the rights of victims through the statutes and that
    it needs to be done. So I would simply offer that because of
    the statements that have been made at this point and the fact
    that we got this testimony just recently.
        With that, I am going to just briefly recess the hearing.
        Senator Kyl. Excuse me, Mr. Chairman. Before you do that,
    could I ask unanimous consent to put three items in the record?
    One is a letter to Senator Feinstein from Joshua Marquis,
    District Attorney in Astoria, Oregon. Another is an e-mail from
    Stephen Dole, President of Crime Victims United of Oregon. And,
    third, is a very moving statement by Susan Russell, who is
    here, a resident of Vermont who was herself a victim of a very
    brutal and violent crime and who has made a very compelling
    statement in support of our amendment. I would like her
    statement to be made part of the record at this point, as well.
        Chairman Feingold. Without objection.
        Senator Thurmond asks that his statement be submitted for
    the record, as well. I will enter his statement into the record
    and we will hold the record open for one week for any
    additional Senators.
        [The prepared statement of Senator Thurmond appears as a
    submission for the record.]
        Chairman Feingold. Senator Feinstein?
        Senator Feinstein. I would like to submit a statement by
    Professor Larry Tribe, the National Association of Police
    Organizations, the California District Attorneys, the Western
    Governors Association, the International Union of Police
    Associations, and a number of victims, if I might.
        Chairman Feingold. Without objection.
        With that, we will briefly recess.
        [The Subcommittee stood in recess from 10:35 a.m. to 10:54
    a.m.]
        Chairman Feingold. Thank you for your patience again, and
    now I look forward to the testimony of Director Gillis.
        You may proceed.

    STATEMENT OF HON. JOHN W. GILLIS, DIRECTOR, OFFICE FOR VICTIMS
           OF CRIME, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

        Mr. Gillis. Thank you, and good morning, Chairman Feingold
    and distinguished members of the Subcommittee. As a crime
    victim, a law enforcement officer, former Chair of the
    California Board of Prison Terms, and a citizen who works to
    uphold justice and advocates for victims' rights and services,
    I am honored to have this opportunity to present the views of
    the administration on the proposed amendment to the
    Constitution of the United States to establish fundamental
    rights for victims of violent crime.
        The administration strongly supports the concept and
    substance of the victims' rights amendment and the rights it
    will secure for victims of violent crime. There is broad-based
    support for the amendment all across the country. Democratic
    and Republican leaders, liberal and conservative scholars, and
    Americans of every persuasion have rallied in support of this
    important cause.
        As the Director of the Justice Department's Office for
    Victims of Crime, or OVC, I am committed to enhancing the
    Nation's capacity to assist crime victims and to providing
    leadership in an ongoing effort to change attitudes, policies,
    and practices, with a determination to promote justice and
    healing for victims of crime.
        Immediately following my confirmation by the U.S. Senate as
    Director of OVC, I began meeting with crime victims, victim
    advocates, and representatives of national victim organizations
    to identify emerging issues and unmet needs of victims across
    the United States.
        Not surprisingly, time and again victims attending the
    roundtable discussions have shared the agony they have suffered
    at the hands of criminals and their disappointment in learning
    the realities of our criminal justice system's view of and
    response to crime victims. Victims discussed not being notified
    of key events and, when notified, how they were not allowed to
    speak at critical stages like post-arrest release, bond
    reduction hearings, plea agreement proceedings, sentencing, or
    parole.
        I know firsthand the personal, financial, and emotional
    devastation that violent crime exacts on its victims. As a
    survivor of a homicide victim, I testify before you today with
    the unique advantage of understanding the plight that victims
    and their families face in the criminal justice system. I know
    the players and their responsibilities, and my experience has
    given me the ability to work within the system. More typically,
    however, when a person is victimized by crime, he or she is
    thrust into a whole new world in which the State's or the
    government's needs take priority.
        Chairman Feingold, as you know, on April 16 President Bush
    announced his support for an amendment to the United States
    Constitution to protect the rights of crime victims. As the
    President so eloquently stated, ``Too often, our system fails
    to inform victims about proceedings involving bail and pleas
    and sentencing, and even about the trials themselves. Too
    often, the process fails to take the safety of victims into
    account when deciding whether to release dangerous offenders.
    Too often, the financial losses of victims are ignored. And too
    often, victims are not allowed to address the court at
    sentencing and explain their suffering, or even to be present
    in the courtroom where their victimizers are being tried. When
    our criminal justice system treats victims as irrelevant
    bystanders, they are victimized for a second time.''
        Although more than 27,000 victims' rights laws have been
    enacted, victims' bills of rights have been passed in every
    State, and 32 States have passed constitutional amendments
    protecting victims' rights, victims still struggle to assert
    basic rights to be notified, present, and heard.
        The 32 existing State victims' rights amendments and other
    statutory protections differ considerably across the country.
    Further, there is no uniformity in the implementation of
    victims' rights laws in these States. A recent study, funded by
    the National Institute of Justice, found that even in States
    with strong victims' rights laws, only about half of all
    victims surveyed were notified of plea negotiations and
    sentencing hearings, a notice that is critical if they are to
    exercise their rights to seek restitution and to inform the
    court of the impact of the crime on them.
        Even in States with strong victims' rights laws or ratified
    victims' rights constitutional amendments, a victim's ability
    to assert his or her rights may be nullified by judicial
    decisions. State victims' rights laws lack the force of Federal
    constitutional law, and thus may be given short shrift. Federal
    law, however, directly covers only certain violent crimes,
    leaving non-Federal crimes to State prosecution and State law.
        Senator Feinstein has already discussed the Oklahoma case,
    but just to recap, a U.S. District Court judge presented
    victims with the choice to either attend the trial or speak at
    sentencing, despite Federal law that provides victims a right
    to be present at all court proceedings related to the offense.
        The victims and several national organizations filed an
    appeal to reverse the judge's ruling. However, the U.S. Court
    of Appeals for the Tenth Circuit affirmed the judge's ruling,
    which effectively barred from the courtroom the victims who
    intended to speak at sentencing. Congress thereafter
    intervened, passing legislation prohibiting the U.S. district
    judge from ordering victims excluded from the trials of the
    defendants.
        A Federal constitutional amendment is the only legal
    measure strong enough to rectify the current imbalance and
    inconsistencies among victims' rights laws, and can establish a
    uniform national floor for victims' rights. A Federal amendment
    to the United States Constitution is the vehicle by which
    compliance with victims' rights laws can be enforced.
        The passage of a Federal constitutional amendment will
    provide the means to make victims' rights a reality. The
    amendment will not abridge the rights of defendants or
    offenders, or otherwise disrupt the delicate balance of our
    Constitution. The protection of victims' rights is one of those
    rare instances when amending the Constitution is the right
    thing to do. With bipartisan support, we can balance the scales
    of justice for victims by establishing in the U.S. Constitution
    our basic rights. Crime victims encourage your support in our
    struggle for human dignity and fair treatment.
        That concludes my statement, and I would welcome the
    opportunity to answer any questions you might have.
        Chairman Feingold. Thank you, sir, and I will start with
    the first round. This proposed amendment has a section giving
    the attorneys for victims a right to be heard in court, and
    then lists exceptions to the amendment based on a compelling
    interest or a substantial interest in public safety or the
    administration of criminal justice.
        In other words, this amendment practically dictates that a
    dispute between a prosecutor and the victim must be resolved
    with a fact-finding hearing that would have the prosecutor
    cross-examining the very victim the prosecutor is trying to
    protect. It also means a hearing where the attorney for the
    victim will be cross-examining Government witnesses, which
    could potentially create inconsistent statements for the
    defendant's attorney to use at a later trial.
        Doesn't this amendment then in some ways simply set up a
    potential showdown in court between victims and prosecutors,
    and isn't it a showdown that sometimes the guilty will be able
    to use to their advantage?
        Mr. Gillis. In my experience as a law enforcement officer
    and working as a detective for many years, when victims were
    brought to court, when they appeared in court, they were just
    automatically excluded from court.
        I must talk about my personal experience, also. After the
    murder of my daughter, when I appeared at court I wanted to
    know what was going on in court. I was not a percipient
    witness. There was nothing that I could have testified to in
    court that would have hurt the offender or the perpetrator, but
    still I was automatically excluded from the courtroom
    proceedings.
        This is the process that goes on all across the United
    States, where victims are not able to go into court to hear
    what is taking place, when, in fact, they are not a percipient
    witness. But it does give the district attorney or the trier of
    fact an opportunity to interview that victim to find out
    whether or not they are percipient witnesses, and if they are
    and it would have an impact on the perpetrator, then they could
    be excluded.
        Chairman Feingold. If the purpose of this amendment is to
    effect the rights of victims at the Federal level, isn't it
    true that the Attorney General's guidelines for victims and
    witnesses provide at least as extensive rights in the Federal
    criminal justice system as those that are listed in the
    amendment?
        Mr. Gillis. It does not give the victim standing as far as
    the Constitution is concerned, and I think that is what we are
    trying to do with the amendment.
        Chairman Feingold. But it does outline all the various
    specific goals and protections that are wanted vis-a-vis the
    amendment. Isn't that right?
        Mr. Gillis. It does outline those things, but still the
    victim does not have standing when it comes to the
    Constitution.
        Chairman Feingold. Obviously, one of the central questions
    here, as I have raised and Senator Kyl has raised, is is this
    really a problem needing a constitutional amendment, or isn't
    it true that in many cases isn't more really an issue of
    ensuring that prosecutors will do what they should do, which is
    to pick up the phone and do what is asked of them, like
    notifying victims of court dates, sentencing hearings, and
    release dates for offenders? Isn't there a lot of the answer in
    getting prosecutors to do what they should do in this
    situation, as opposed to having to actually pass a
    constitutional amendment?
        Mr. Gillis. I wish that was the only thing. However, it is
    somewhat arbitrary, and you will find that arbitrariness from
    prosecutor to prosecutor, from county to county, from State to
    State. The victim cannot be assured that they will have the
    right to receive that information.
        Chairman Feingold. I thank you, sir, and I will turn now to
    questions from Senator Kyl.
        Senator Kyl. Thank you, Mr. Chairman. Thank you very much,
    Mr. Gillis, for being here representing the Department of
    Justice and the administration.
        Let me ask you a fairly straightforward question. Do you
    believe that defendants' rights would be adequately protected
    by State and Federal statutes?
        Mr. Gillis. Not without the constitutional inclusion, if
    they were not included in the Constitution.
        Senator Kyl. If there were no Federal constitutional rights
    guaranteed for defendants, would states, and I will even add
    State constitutional provisions, but Federal and State statutes
    and State constitutional provisions alone, without Federal
    constitutional protection--would those State statutes and
    Federal statutes be enough, in your view, to protect
    defendants' rights?
        Mr. Gillis. I don't believe so.
        Senator Kyl. Is there anything to indicate a difference
    between defendants and victims?
        Mr. Gillis. No.
        Senator Kyl. Is that perhaps one of the reasons why we are
    here supporting a constitutional amendment for victims' rights?
        Mr. Gillis. That is correct.
        Senator Kyl. Let me read something that the predecessor
    Attorney General said and ask if you agree, a statement that
    then-Attorney General Janet Reno made. She said, ``Several of
    the rights we would guarantee in such an amendment,'' meaning a
    victims' rights amendment, ``would provide law enforcement with
    additional benefits on top of the benefit of victims' increased
    resolve to participate in the process. If victims are notified
    of public proceedings and allowed to attend, they will be able
    to alert prosecutors to distortions of fact in defendants' and
    defense witnesses' testimony. Allowing victims to be heard
    during critical phases of the trial will increase the
    likelihood that courts will engage in better decisionmaking.
    Victim testimony can provide courts with additional relevant
    information and impress upon them that an actual human being
    has suffered as a result of a defendant's conduct. Having had
    an opportunity to be heard, victims will likely be better able
    to accept a court's decision, whatever it may be. Notice of
    release of the defendant or offender will enable victims to
    take precautions that may prevent the commission of more crime.
    By holding offenders financially responsible through
    restitution for the harm they caused, they will be more clearly
    required to acknowledge and accept responsibility for that
    harm.''
        Is that a statement from the previous administration that
    you can subscribe to?
        Mr. Gillis. Yes, definitely.
        Senator Kyl. So there are benefits, in addition to the
    direct benefits for victims and victims' families, to the
    administration of justice generally and even to the prosecutors
    in the prosection of a case?
        Mr. Gillis. That is correct, yes.
        Senator Kyl. Again, I thank you very much. I note that the
    administration's strong support for this amendment has given a
    lot of impetus to a renewed effort around the country by
    victims' organizations who were feeling that perhaps they had
    been forgotten, but with this new degree of support, there is a
    new resolve to try to push this process along. Therefore, I
    very much appreciate your involvement and I appreciate the
    President's support for our amendment. Thank you for being here
    today.
        Chairman Feingold. Thank you, Senator Kyl.
        Senator Feinstein?
        Senator Feinstein. Thanks very much, Mr. Chairman. I would
    like to enter into the record a new opinion from the Court of
    Appeals of Maryland in the case of Sherri Rippeon and John
    Dobbin, Jr. This was filed July 9, 2002, so it is a very new
    circuit court opinion.
        This is the case of the parents of a murdered infant who
    unsuccessfully sought in the Circuit Court for Howard County to
    enforce provisions of Maryland's victims' rights law. The
    judges found that, ``The appellants' case lacks the
    justiciability required to resolve the issues raised here.'' It
    says, ``Specifically, we find that this appeal is moot and
    affirm the decision of the court below.''
        The opinion goes on to point out, ``Only the defendant may
    appeal the final judgment and sentence. Victims must seek
    enforcement of their rights in the only way provided under the
    Maryland Code, and that is by filing for leave to appeal in a
    separate proceeding.'' That is on the question of standing.
        It also makes another point here, and I found it, but I
    just lost it, but effectively that they have no standing. I
    can't find the exact wording, but I would like to, if I might,
    enter this into the record.
        Chairman Feingold. Without objection.
        Senator Feinstein. Mr. Gillis, I want to thank you very
    much for your support, for your testimony, and really for the
    active help of the Justice Department and the administration.
    I, for one, am very grateful for that.
        Let me ask this question: How often do you believe will a
    victim's constitutional right actually conflict with a
    defendant's right, and can you indicate to us what you think
    those specific situations might be?
        Mr. Gillis. I would be hard-pressed to come up with a
    situation where I think the victim's rights would conflict with
    those of the perpetrator. Nothing comes to mind. The offender's
    rights are well-protected under the Constitution. If the
    victim's rights were protected under the Constitution, I see
    that there would be no conflict.
        Senator Feinstein. I happen to agree with that. It happens
    all the time. I mean, in the First Amendment, for example,
    press are allowed in a courtroom. If there is a question, the
    judge certainly considers it and balances the rights. I don't
    see either why this is a different situation. I know you have
    had access to the courtroom. I have, as well.
        Let me just thank you very much for your testimony.
        Mr. Gillis. Thank you.
        Chairman Feingold. Thank you, Director. I would just make
    the comment that if there is no conflict with defendants'
    rights, I am puzzled why we need a organization amendment. What
    is the barrier that the Constitution is going to erect to the
    assertion of these rights in a statute? That is puzzling to me.
        At this time, without objection, I will introduce into the
    record editorials and statements from organizations in
    opposition to the proposed amendment.
        I thank you very much, Director, and we will turn to our
    next panel of witnesses.
        [The prepared statement of Mr. Gillis appears as a
    submission for the record.]
        Senator Kyl. Mr. Chairman, could I just, for the record,
    read one statement in? It doesn't go directly to Mr. Gillis'
    testimony, but it does go to the comment you just made.
        Chairman Feingold. Senator Kyl.
        Senator Kyl. Thank you. Harvard Law Professor Laurence
    Tribe I referred to before and quoted with respect to the
    language of our amendment. He speaks to the protection of
    defendants' rights, I think, and the insufficiency of State
    statutes as also relevant. He testified before this Committee
    in 1999 that, ``Existing statutes and State amendments are
    likely, as experience to date sadly shows, to provide too
    little real protection whenever they come into conflict with
    bureaucratic habit, traditional indifference, sheer inertia, or
    any mention of an accused's rights, regardless of whether those
    rights are genuinely threatened.''
        Since he is not here to testify in person, I thought it was
    important to have that statement in the record.
        Chairman Feingold. Well, I respect Professor Tribe very
    much. All I can say is if that is the case, I don't know why we
    wouldn't include an explicit provision in the constitutional
    amendment that says that this will not derogate from
    defendants' rights.
        Senator Kyl. I think if Senator Feinstein and I thought
    that would win your vote and the vote of other opponents to
    support the amendment, we would be much more inclined to
    consider it.
        Chairman Feingold. As I have indicated in previous years, I
    am willing to discuss some of that with you. In fact, I
    offered, I believe, an amendment in the previous consideration
    of this along these lines which I believe was opposed. So this
    is a serious matter.
        I have indicated that I believe this amendment is not by
    any means an outrageous proposal. It is less troubling to me
    than some of the other constitutional amendments that I have
    seen proposed here, but I regret that after all these concerns,
    all we have here is what you described as a predicate
    assumption, as opposed to a direct statement that this will not
    undercut the basic rights of defendants that have been embodied
    in our Constitution for over 200 years.
        Senator Feinstein. Does that offer still exist? We would be
    happy to sit down and talk with you.
        Chairman Feingold. I will sit down and talk.
        Senator Feinstein. I don't look at this as a predicate. It
    is in Article I of the amendment and if we can strengthen it,
    we would be delighted to do that.
        Chairman Feingold. I know that this attempt has been made
    in the past and I will be happy to sit down and discuss it
    again.
        Senator Feinstein. Thank you.
        Chairman Feingold. It is a very serious matter and I know
    you take it seriously, as well.
        Now, we will turn to the second panel of witnesses. As we
    get organized, I will introduce the first witness. Our first
    witness is Ms. Arwen Bird. Ms. Bird is the co-founder and
    Executive Director of Survivors Advocating for an Effective
    System, in Portland, Oregon. Ms. Bird has worked as a legal
    assistant for both prosecuting and defense attorneys in Oregon.
        I thank you for joining us today and you may proceed with
    your testimony.

    STATEMENTS OF ARWEN BIRD, SURVIVORS ADVOCATING FOR AN EFFECTIVE
                        SYSTEM, PORTLAND, OREGON

        Ms. Bird. Thank you. Good morning, Chairman Feingold,
    members of the Senate Judiciary Committee. Thank you for this
    opportunity to testify.
        My name is Arwen Bird and I am the Director of SAFES,
    Survivors Advocating for an Effective System. I become before
    you to add the voice of crime survivors to the many groups
    opposed to Senate Joint Resolution 35, the Victims' Rights
    Amendment.
        Survivors Advocating for an Effective System was founded
    three years ago by myself, a survivor of a DUI crash, and two
    other women, both of whom survived the murder of a loved one.
    Our mission, in part, is to empower survivors to advocate for
    restorative justice, the concept of a balanced restorative
    approach to crime. This is why I am here today.
        As advocates for survivors of crime, SAFES works to ensure
    that we participate in and are heard by our criminal justice
    system. We believe that survivors have the right to
    restitution, compensation, and services to help us heal after
    victimization. We are actively working with State agencies and
    fellow advocates to make certain that survivors have access to
    all of these provisions. However, amending the United States
    Constitution is not necessary to guarantee the rights of crime
    survivors.
        Crime survivors want to be heard, we want to feel safe, and
    we want our criminal justice system to hold offenders
    accountable. If you, members of the United States Senate, want
    to help survivors heal after crime has occurred, fund programs
    and agencies designed to help survivors get back on their feet
    after victimization. Increase Federal funding for State
    agencies that are working directly with survivors of crime.
    Consider the concept of a parallel system of justice proposed
    by Susan Herman, of the National Center for Victims of Crime,
    where survivors, regardless of the status of the offender,
    could get the assistance they need to get their lives back in
    order. Work to enforce the rights of crime victims that are
    already guaranteed. Do not spend your time and energy degrading
    the rights of accused people. That does nothing to help us.
        The provisions in this amendment are aimed at involving
    survivors in the criminal justice system. In a general sense,
    we agree with this aim. Moreover, we believe that considering
    the perspective of crime survivors is necessary to a balanced
    criminal justice system.
        However, including our perspective and facilitating our
    participation can be ensured through Federal statutes. Every
    State already has at least statutory rights for survivors, and
    many States have constitutional amendments. A Federal amendment
    would do nothing to improve upon these rights. Greater effort
    should be made in enforcing these existing laws rather than
    creating new ones.
        As survivors of crime who are also United States citizens,
    we benefit from the fundamental protections that are guaranteed
    through our State and Federal constitutions. the Federal Bill
    of Rights ensures certain protections for all citizens. This
    includes those who have been victimized by crime. The amendment
    before you would do nothing to improve upon our rights as
    survivors. Sadly, this amendment would only erode our rights as
    citizens.
        Thank you for hearing my testimony today and I look forward
    to answering any questions you may have.
        [The prepared statement of Ms. Bird appears as a submission
    for the record.]
        Chairman Feingold. Thank you very much, Ms. Bird. We
    appreciate your testimony.
        Our next witness is Roberta Roper. Ms. Roper is Co-
    Chairperson of the National Victims Constitutional Amendment
    Network, and Executive Director of the Stephanie Roper
    Committee and Foundation, a Maryland victim advocacy
    organization.
        Ms. Roper, we welcome you to the panel. Thank you for being
    here and you may proceed.

    STATEMENT OF ROBERTA ROPER, EXECUTIVE DIRECTOR, STEPHANIE ROPER
        COMMITTEE AND FOUNDATION, INC., UPPER MARLBORO, MARYLAND

        Ms. Roper. Good morning, Mr. Chairman. I am honored today
    to speak for everyday Americans who place their trust in our
    system and their dependence on government to do the right thing
    for justice. But most importantly, I speak for those whose
    voices can no longer be heard--our sons, our daughters, our
    parents, our spouses, our brothers and sisters and friends.
        In the course of my testimony, I ask you to remember this
    important lesson, that any one of us can become a victim of
    crime and suffer the secondary victimization that I will
    describe in some of the examples. I ask you to hear my
    testimony as a parent, as a spouse, as a brother or sister, and
    ask how you would want your loved one to be treated should they
    become a victim of crime and suffer the consequences that most
    of these folks have.
        I want to be clear. Providing crime victims with protected
    rights in our Constitution is not a complicated legal issue. It
    is a human rights issue that deserves ensuring that these basic
    human rights to fundamental fairness are protected under the
    Constitution. These are rights that every person accused or
    convicted of crime deserves and enjoys. Yet, everyday Americans
    are appalled and disbelieving to learn that, unlike criminal
    defendants, they have no similar rights.
        Let us also be clear about the need for this amendment.
    There are those who say the Constitution is a sacred document
    that should never be amended. I ask you to remember the wisdom
    of our Founding Fathers. The Framers of the Constitution
    understood that the document they were creating would need to
    change as the needs of society require change. They were
    creating a more perfect Union, not a perfect one.
        That wisdom allowed our Constitution to abolish slavery and
    to provide voting rights to women. Those human rights could not
    be sufficiently protected by State or Federal laws. Likewise,
    victims' rights cannot be sufficiently protected by State or
    Federal laws.
        There are those who say we should focus on strengthening
    existing laws. Well, we can tell you that more than two decades
    of effort in securing State and Federal laws are evidence of
    the failure to provide victims with sufficiently protected
    rights, and laws enacted by this Congress are the best evidence
    of this failure, as has been cited earlier, with the Victim
    Allocution Clarification Act of 1997. Federal laws, no matter
    how strong, will only apply to a small section of victims, not
    the vast majority of victims.
        The whole history of our Nation has taught us that basic
    human rights must be under the Constitution. As we have heard,
    the language today has been carefully crafted to protect the
    rights of the accused, while enabling victims and survivors of
    criminal violence to have minimal rights.
        I speak to the need for this amendment from personal
    experience, as well as after 20 years of advocacy and service
    to thousands of crime victims in my home State of Maryland.
    Like many advocates, the catalyst for my action was my family's
    experience with the criminal justice system when our oldest
    child, our beloved daughter Stephanie, was kidnapped, brutally
    raped, tortured and murdered in 1982 by two strangers who came
    upon her disabled car on a country road near our home.
        Like countless victims and survivors of that era, we
    discovered that, unlike our daughter's killers, we had no
    rights to be informed, no rights to attend the trial, and no
    rights to be heard at sentencing. Place yourself in that
    nightmare. Imagine how you would feel to be shut out of the
    trial of the accused of your loved one for no good cause.
        We were subpoenaed as the State's first witnesses, but
    simply recalled a last family meal and the automobile our
    daughter was driving. Did we know the individuals charged? Did
    we have knowledge of the events that led to our daughter's
    abduction and murder? Did the State advocate for our right to
    remain in the courtroom, or did the judge ask if there were
    reasons to sequester us? The answer to all those questions was
    no.
        Rather, the rule on witnesses was invoked, unchallenged,
    and imposed. Instead of hearing the truth and seeing justice
    imposed, we were banished from the most important event of our
    lives. Finally, at sentencing, we hoped to use what was then
    being proclaimed as the first victims' rights law; that is, a
    victim impact statement at sentencing. Instead, the defense
    objected on the grounds that anything I had to say was
    emotional, irrelevant, and probable cause for reversal on
    appeal. After a lengthy bench conference, the court agreed.
    While our daughter's convicted killer had unlimited
    opportunities for himself and others to speak to the court on
    his behalf, we were silenced. No one could speak for Stephanie.
        Like countless other families then and now, we struggled
    not only with the devastating effects of the crimes committed
    against our loved ones, but the consequences that were in many
    ways worse, being shut out of the criminal justice system we
    depended upon and trusted.
        In trying to rebuild our broken lives, the greatest
    challenge we faced was trying to preserve hope for our children
    when the system we had taught them to believe in had failed us.
    That challenge is forever etched in my mind by the memory of
    the day one of our sons came home from school, explaining that
    he could no longer pledge allegiance to the flag with his
    classmates because liberty and justice for all did not include
    us.
        You may conclude that because this happened 20 years ago,
    this would surely not happen today. You would also correctly
    conclude that the progress that has been made has been
    revolutionary, both on the State and Federal level, and
    constitutional amendments passed in so many States. The sad
    reality remains that victims' rights are paper promises, too
    often ignored, too often denied.
        None of the State or Federal laws are able to match the
    constitutionally-protected rights of offenders. Studies also
    demonstrate that the system's bias against victims is even more
    pronounced against racial minorities and the poor, who
    constitute the largest group of victims of violence.
        I want to give you some examples of victims, some of whom
    are here today, whose rights have been violated. One is Dawn
    Sawyer Walls. Dawn was six months pregnant and the manager of a
    convenience store when a robber with a sawed-off shotgun
    ordered her to lie face down as he emptied the store's cash
    drawer. In violation of Maryland law, Dawn was not notified
    when a plea agreement was struck. As a result, and in violation
    of Maryland law, she was not present in court to give a victim
    impact statement. She was not able to ask for restitution from
    the offender. The disposition was characterized as a good
    outcome, and besides, she was told, you didn't suffer physical
    injuries. The trauma of that event had a severe financial
    impact on her because she was unable to return to work.
        Teresa Baker is also present. When her only son was
    murdered, she was present in court, had fulfilled the
    notification request, and heard the court impose a sentence of
    30 years when the offender pleaded guilty to second-degree
    murder. She heard the judge impose the maximum sentence, except
    no one explained to Teresa that under the terms of the American
    Bar Association plea the convicted offender would be freed in
    less than three years. She only learned about his release by
    chance. That painful discovery prompted Teresa to ask why she
    wasn't told the truth of the terms of the plea agreement and
    the release.
        Cecelia and Dexter Sellman are also here. Their son was an
    honor roll student when he was shot down and killed by two
    young men. The Sellmans trusted the system and relied on it to
    bring them a measure of justice, and asked for restitution, not
    for revenge, not to replace their loss, but for some of their
    out-of-pocket expenses and to hold the offenders accountable.
    The State flatly told Cecelia that they would not request
    restitution. This is a violation not only of victims' rights
    under Maryland law, but an obligation of the prosecuting
    attorney.
        Sherri Rippeon and John Dobbin were mentioned by Senator
    Feinstein, and the opinion that has been submitted into the
    record. Their experience is the most compelling, powerful
    example of why this amendment is needed, and it is a recent
    decision, having coming out on July 9.
        Two-and-a-half years ago, their infant daughter, Victoria
    Rose, died of blunt force trauma inflicted by their
    babysitter's boyfriend. They sought compliance with Maryland
    law, as required, filed a notification request form, were
    excluded from the trial as observers even after they filed a
    pro se demand for rights form, and then took remedial action
    that applies under Maryland law; that is, filing leave to
    appeal.
        As you have heard, the Maryland Court of Special Appeals
    has given them yet another failure, saying that on the one hand
    these victims are the proper parties and have sought
    enforcement of their rights in the only way provided under
    Maryland law, but at the same time has failed to give them an
    effective remedy, saying that the issue must be dismissed as
    moot.
        How would a victims' rights amendment help them? First of
    all, history has shown that once a right is in the
    Constitution, it is applied. That is why defendants have no
    trouble exercising their rights. But with an amendment and if
    their rights were not applied, Congress and the State could
    provide emergency proceedings.
        It is important to stress that the amendment before you has
    little to do with the punishment of offenders or increasing or
    decreasing funding for victim services, but everything to do
    with how we treat people. Treating crime victims with respect
    and not excluding them from the proceedings arising from the
    crimes committed against them are separate and distinct.
        I would point out Marsha Kite, who is here, because Marsha
    Kite was a survivor of an Oklahoma City bombing victim who was
    excluded from observing the trial and excluded from providing a
    victim impact statement because she opposes capital punishment.
        There are those who have also said we should just include
    Federal incentives for better funding. Does anyone truly
    believe that we should be dependent on the whim of Federal
    incentives for funding?
        Chairman Feingold. Ma'am, I am going to have to ask you to
    conclude.
        Ms. Roper. I will.
        Chairman Feingold. I should have said that people should
    limit their statements to five minutes. I did not do that, so I
    have given you over ten minutes.
        Ms. Roper. I am sorry.
        Chairman Feingold. It is an important statement, so please
    continue.
        Ms. Roper. I just want to conclude that I ask you to listen
    to the people of this country. We ask you to remember that the
    Constitution belongs to the people. Let the Constitution
    protect the people of this Nation.
        Thank you very much.
        Chairman Feingold. Thank you, Ms. Roper, for your powerful
    statement. Of course, your entire statement will be included in
    the record, and we appreciate your testimony.
        [The prepared statement of Ms. Roper appears as a
    submission for the record.]
        Chairman Feingold. Our next witness is Julie Goldscheid.
    She is the General Counsel for Safe Horizon, a non-profit
    victims assistance organization. Ms. Goldscheid once served as
    a senior staff attorney for the now Legal Defense and Education
    Fund, and has extensive experience arguing gender-motivated
    violence cases.
        It is my pleasure to welcome you, Ms. Goldscheid, and you
    may proceed.

     STATEMENT OF JULIE GOLDSCHEID, GENERAL COUNSEL, SAFE HORIZON,
                           NEW YORK, NEW YORK

        Ms. Goldscheid. Thank you. Good morning, Mr. Chairman,
    Senator Kyl, Senator Feinstein, and thank you for providing
    Safe Horizon the opportunity to testify today.
        As you heard, I am Julie Goldscheid. I am General Counsel
    of Safe Horizon, which is the Nation's leading victim
    assistance organization. Our mission is to provide support,
    prevent violence, and promote justice for victims of crime and
    abuse, their families and communities.
        Safe Horizon assists over 250,000 crime victims each year
    through over 75 programs located in all five boroughs of New
    York City. Everyday, in our family and criminal court programs,
    our police programs, our domestic violence and immigration
    legal services programs, our domestic violence shelters, and
    our community offices, our staff of over 900 inform victims
    about their rights, support them with counseling and practical
    assistance and, when necessary, advocate to ensure that their
    rights and choices are respected.
        In the aftermath of the September 11 terror attacks, we
    have provided crisis intervention, support counseling,
    information and referrals, and service coordination. We have
    distributed nearly $100 million in financial assistance to over
    45,000 victims.
        While we are ardent supporters of victims' rights, we
    oppose the proposed victims' rights amendment out of a concern
    that it will not enhance and, in fact, could impair crime
    victims' abilities to meaningfully participate in the criminal
    justice system.
        Our opposition is informed by the victims we serve, who are
    primarily people of color living in economically depressed
    urban neighborhoods and who face complex challenges in
    asserting their rights. Enhancement and vigorous enforcement of
    State protections and Federal statutory rights rather than a
    constitutional amendment is the best way, in our view, to
    advance their concerns.
        As you have heard this morning, every State, including New
    York, has enacted statutory or constitutional protections for
    crime victims. While in some cases those provisions could be
    improved, victims' overwhelming need is for enforcement of
    existing rights. Statutory frameworks requiring officials to
    take steps such as notifying victims about court proceedings
    can be enhanced and must be fully enforced, and services for
    victims need support.
        When so much remains to be done to enforce existing
    victims' rights provisions and to expand the services so vital
    to victims, we find it difficult to justify the extensive time
    and resources needed to pass a Federal constitutional
    amendment.
        Moreover, while our clients' interests and rights such as
    notice and participation are critical, they are not the same as
    the concerns of defendants who face the potential loss of
    fundamental rights and liberty. The risk of unwarranted State
    power is a particular concern for those, like many of our
    clients, whose experience is compounded by race, gender, or
    other forms of discrimination. In fact, many of our clients
    strongly support vigorous safeguarding of defendants'
    constitutional rights.
        Safe Horizon is particularly concerned about the potential
    impact of the proposed amendment on the approximately 200,000
    domestic violence victims we serve every year. Batterers
    frequently make false claims of criminal conduct which often
    result in the true victim's arrest.
        Under the proposed amendment, a batterer could be accorded
    victim status and could benefit from all the proposed
    constitutional rights. The same concern applies to cases in
    which domestic violence victims strike back at their batterers
    in self-defense, as well as to dual arrest cases or cases
    resulting from misapplication of mandatory arrest or mandatory
    prosecution policies.
        We should learn from the history of victims' rights reform
    that flexible frameworks are essential to serving victims'
    needs. Mandatory arrest laws are one case in point. They were
    first enacted in response to widespread reports that police
    failed to take domestic violence cases as seriously as similar
    cases involving similar violence between strangers. This led to
    dual arrests, and primary aggressor statutes were enacted in
    response. This illustrates the way that statutory approaches,
    which provide the flexibility to make changes, are needed to
    respond to this problem. A Federal Constitution, which takes
    years to modify, does not.
        Our position regarding the proposed amendment remains firm
    in the aftermath of the September 11 attacks. If anything, our
    experience serving the range of victims affected--family
    members, injured people, displaced residents, displaced
    workers--highlights the need to strengthen statutory
    protections, mandate enforcement of existing laws, and support
    the range of services and benefits crime victims need.
        We are particularly concerned about clients who are
    undocumented, who seek assurance that they won't be penalized
    as a result of seeking assistance from private and government
    agencies. These experiences reinforce the importance of
    carefully balancing defendants' and victims' rights.
        In conclusion, the proposed constitutional amendment may be
    well-intentioned, but good intentions do not guarantee just
    results. After careful consideration, we have concluded that
    the proposed amendment would be at best symbolic and at worst
    harmful to some of the most vulnerable victims.
        Safe Horizon looks forward to working with all those
    concerned about victims' rights to advance legislative and
    policy responses that most fully respond to victims' needs.
        Thank you. I would be pleased to answer any questions.
        [The prepared statement of Ms. Goldscheid appears as a
    submission for the record.]
        Chairman Feingold. Ms. Goldscheid, thank you very much for
    your testimony.
        Our next witness is Roger Pilon. He is the Vice President
    for Legal Affairs and the Founder and Director of the Center
    for Constitutional Studies at the Cato Institute. He served in
    the State and Justice Departments in the Reagan administration
    and has taught at Stanford's Hoover Institution.
        Mr. Pilon, welcome and thank you for being here. You may
    proceed.

     STATEMENT OF ROGER PILON, DIRECTOR, CENTER FOR CONSTITUTIONAL
               STUDIES, CATO INSTITUTE, WASHINGTON, D.C.

        Mr. Pilon. Well, thank you very much, Mr. Chairman, and
    thank you for inviting me.
        Mr. Chairman, distinguished members of the Committee, I am
    here to testify in opposition to this amendment. In doing so,
    however, I want to be very clear that I support entirely the
    aims of those who support this amendment. It is just that I
    don't think that this is the best way to go about it.
        I would ask that my prepared testimony be entered into the
    record, Mr. Chairman.
        Chairman Feingold. Without objection.
        Mr. Pilon. I am going to approach the issue somewhat
    differently in my oral remarks.
        Are victims of crime too often forgotten by America's
    criminal justice system? Absolutely. No one doubts that victims
    of crime face a daunting legal situation. In places where
    municipal services are barely working such as in the District
    of Columbia, crimes often are not even investigated. But in
    most places, once investigators take over a case, victims are
    remembered only when they are useful to the case. That leaves
    crime victims to fend for themselves.
        What is it victims want? Basically, there are two things.
    They want, first, to be made whole insofar as that is possible,
    and in most cases they want wrongdoers punished. Unfortunately,
    our system as it has evolved is stacked heavily toward the
    second goal, which leaves victims on their own.
        There was a time centuries ago, as Senator Feinstein
    mentioned in her opening remarks, when crime was treated mostly
    as a personal matter. Victims prosecuted wrongdoers in a way
    that focused primarily on righting the wrong and on making the
    victim whole again. When the king started taking over the
    prosecution, however, and prosecuting for a breach of the
    king's peace, all of that changed. The focus shifted from the
    victim's interest to the public's interest.
        Thus, today we have two proceedings. The State prosecutes
    those charged with crimes and, if they are found guilty, locks
    them up to punish and to preserve the peace. Once that is done,
    the victim can bring a civil action against the wrongdoer, but
    the chances of being made whole by someone locked away are
    usually slim.
        Still, it is important to keep in mind that a crime leads
    to the possibility of two legal proceedings--the State's action
    against the accused in the name of the people, to punish and
    preserve the peace, and the victim's action against the
    accused, to be made whole again. Recall the O.J. Simpson case.
    Even when the State failed in its effort to get a conviction,
    the victims were able to secure a civil judgment.
        The problem, however, is that the State today is the
    dominant figure. At every turn, its interests trump the
    interests of the victim. Unless you are lucky enough to be
    wronged by a wealthy criminal, the king goes first and you get
    the scraps. As a practical matter, of course, that may be the
    best we can do in many cases, especially where the aim of
    getting a violent criminal off the streets indeed should trump
    the individual interest.
        But too often, in cases that lend themselves to it, the
    system fails to search for creative remedies that would take
    the interests of the victim into account first. The victim is
    simply forgotten in the name of putting the criminal away. It
    may be time, then, to rethink our entire approach to crime.
        In many cases, we may want to put the victim first, not the
    State. Among other things, that would bring what is really at
    issue into focus. It is not simply that the criminal committed
    some abstract wrong against the people. More important, he
    committed a real wrong against a real person. He needs to take
    responsibility for that and for the damage that now needs to be
    repaired to the extent that is possible. In short, we need to
    get real about crime, to bring criminal and victim face to
    face.
        Each crime, however, is unique. Some will lend themselves
    to such an approach, others will not. That suggests that we
    need to be flexible, to learn from experience, and to be as
    close to the individuals involved as possible. But that is
    precisely why we don't want to do this through a constitutional
    amendments. Amendments, which are difficult to enact and
    difficult to retract, set things in stone. Statutes, by
    contrast, can be easily changed with experience. Fortunately,
    most States have addressed this issue today.
        But amendment supporters say the problem is deeper, that
    there is a constitutional imbalance between the rights of
    defendants and the rights of victims. The Constitution lists
    numerous rights of defendants, they say, but is silent about
    victims. That is true, but not without reason, which takes us
    to the very purpose and structure of the Constitution.
        As the Declaration makes clear, the fundamental purpose of
    government is to secure our rights, including rights against
    criminals. Toward that end, the Constitution authorizes power,
    but it also limits power, nowhere more clearly than toward
    defendants. The Founders wanted a government strong enough to
    carry out its function, but they also wanted it not to violate
    rights in the process of doing so.
        In fact, they were especially concerned to limit the police
    power of government, the power to secure rights, for they knew
    from experience that in the name of so basic and worthy an end,
    great abuse might occur. That is why they left the police power
    almost entirely in the hands of the States, where it was closer
    to the people.
        It would be anomalous, then, to have a Federal
    constitutional amendment addressing the rights of crime victims
    when there is so little Federal power to begin with to address
    the problem of crime. It would be one thing if, in connection
    with its police power, the Federal Government were required to
    attend to the rights of victims. But except in limited
    circumstances, there is no general Federal police power. Thus,
    the constitutional rights of defendants makes perfect sense.
    They are restraints on government power. The Federal Government
    may enforce customs laws, for example, but it can't do it by
    introducing evidence gained from warrantless searches.
        Given the defensive way we constituted ourselves, then, it
    is not surprising that the rights of crime victims are not
    explicitly in the Constitution, but that doesn't mean they are
    not there. The Seventh Amendment invokes the common law, and
    the rights of victims are at the core of that law.
        Thus, the primary way victims vindicate their rights is
    through the civil, not the criminal law. It is the state's
    business to protect us from criminals and to punish them. It is
    our business to vindicate our rights to be made whole.
    Vindication may be achieved partially through the criminal
    proceeding, of course, for most victims have an interest, and
    even a right, in seeing criminals punished. But that forum
    belongs primarily to the people, whose interests and rights may
    not be identical to those of the victim.
        Sometimes, the prosecutor will want to put a criminal away,
    for example, but other times he may want to plea-bargain to
    reach other, more dangerous criminals who are of no concern to
    the victim. It is crucial, therefore, that there be two forums,
    criminal and civil, for there are two sets of interests at
    issue and they are not always harmonious.
        In my prepared testimony, Mr. Chairman, I go through some
    examples of the conflicts between those two sets of interests.
    I would refer you to that and I will just sum up right now by
    first raising a point that has been raised in these
    proceedings, namely, that we need to elevate these rights to
    the constitutional level and that will ensure that they are
    protected. That will not ensure that they are protected. After
    all, property rights are there in the Constitution and they are
    violated every day by no less than the Federal Government.
        Even the First Amendment is not immune to attack from--dare
    I say, Mr. Chairman--this Congress with respect to such matters
    as campaign finance.
        Chairman Feingold. Now, you are getting in trouble.
        [Laughter.]
        Chairman Feingold. It sounded good before that.
        Mr. Pilon. But I digress. There is, in short, a disturbing
    air of aspiration about this amendment. Like the generous
    legacy in a pauper's will, it promises much, but delivers
    little. Clearly, rights without remedies are worse than
    useless; they are empty promises that, in time, undermine
    confidence in the document that contains them; here, the
    Constitution.
        Remedies ordinarily are realized through litigation. One
    wants to know, therefore, how victims will or might litigate to
    realize their rights and what their doing so implies for other
    rights in our constitutional system. Several scenarios under
    this amendment are possible. None is clear. Yet all, by virtue
    of being constitutionalized, may make the plight of victims not
    better, but worse.
        We owe more than empty promises to those for whom the
    system has already failed. What we owe victims is a better
    opportunity, where appropriate, to confront those who have
    wronged them so that they might work out a plan of restitution
    for the benefit of both victim and criminal. That will take
    enlightened legislation and enlightened prosecutors, and that
    is the business primarily of the States. It is not the business
    of a constitutional amendment.
        Thank you.
        [The prepared statement of Mr. Pilon appears as a
    submission for the record.]
        Chairman Feingold. Thank you, Mr. Pilon, for your
    interesting perspective.
        Our next witness is Steven Twist. Mr. Twist is General
    Counsel for the National Victims Constitutional Amendment
    Network, in Scottsdale, Arizona. He also serves as Vice
    President for Public Policy for the National Organization for
    Victim Assistance and is an adjunct professor of law at the
    College of Law at Arizona State University.
        Thank you for testifying, Mr. Twist, and you may proceed.

    STATEMENT OF STEVEN J. TWIST, GENERAL COUNSEL, NATIONAL VICTIMS
         CONSTITUTIONAL AMENDMENT NETWORK, SCOTTSDALE, ARIZONA

        Mr. Twist. Mr. Chairman, let me begin by thanking you for
    your opening remarks and for your willingness to renew a
    dialogue with us on the appropriate text for an amendment. We
    certainly want to engage in that dialogue with you and we very
    much appreciate it.
        If this indeed is a pauper's will, as Mr. Pilon has
    suggested, it is hard to see how it could be such an assault on
    the Bill of Rights at the same time. I would say to my good
    friend that when a woman who is raped is not given notice of
    the proceedings in her case, when the parents of a murdered
    child are excluded from court proceedings that others may
    attend, when the voice of a battered woman or child is silenced
    on matters of great importance to them and their safety, on
    matters of early releases and plea bargaining and sentencing--
    when these things happen, it is the government and its courts
    that are the engines of these injustices.
        Sadly, what prevents the elimination of these injustices
    all across our country, what prevents the establishment of some
    very simple rights to notice and presence and a simply voice at
    some key proceedings from becoming the law of the land for all
    Americans is simply fear, fear or change, a hide-bound clinging
    to the status quo even as the opponents of the amendment
    acknowledge that the status quo is unjust and doesn't often
    enough protect the rights of victims.
        Also, Mr. Chairman, it evidences a profound distrust of our
    courts to be able to strike fair balances in giving full effect
    to the rights of victims and the rights of defendants in every
    criminal case. I daresay were the critics of S.J. Res. 35 to
    apply the same psychology of fear of change and the same
    standards of precision to the Constitution itself, the Framers
    in Philadelphia would be ordering iced lattes during this
    afternoon's break in debate and the Bill of Rights would be a
    distant, unreachable dream.
        When exactly is a person the accused under the terms of the
    Constitution? Why is there no definition of a speedy trial?
    What process exactly is due under the Constitution? What
    exactly is an unreasonable search, and when is cause probable?
    No constitutional amendment will meet the precision called for
    by the critics, and I suspect they know that because in the end
    fear frustrates change and it is change they oppose.
        For crime victims, the struggle for liberty--and it is
    that, liberty--has gone on long enough. Too many for too long
    have been denied basic rights to fairness and human dignity.
    The rights we seek are modest. Indeed, our opponents rarely
    oppose them in the abstract. But without grounding in our
    fundamental charter, they are not meaningful or enforceable or
    beyond the sweep of shifting judicial or legislative winds.
        The critics say let the States pass laws, let them even
    pass State constitutional amendments, but the U.S. Constitution
    is too important a document to trifle with mere crime victims.
    Doubtless, you will hear, and indeed have heard these words
    today, but they have no answer when confronted with the real
    cases across this country where State laws, even State
    constitutional amendments, and even Federal statutes simply
    don't work.
        Much of the criticism that we have heard is ungrounded in
    the real world of the courts, where I live and practice
    representing crime victims everyday. We have heard, Mr.
    Chairman, that the rights that we propose will degrade the
    rights of the accused. No less a constitutional scholar than
    Laurence Tribe has said that is simply not the case.
        We have heard and will hear that the rights that we seek,
    the simple rights to notice and presence and an opportunity to
    be heard, undermine and threaten law enforcement or
    prosecution. I would submit, Mr. Chairman, that those critics
    look to Arizona, look to California, look to places where
    victims are regularly involved in the process. No such dreadful
    consequences, dire consequences occur.
        Victims are afforded rights to be present, to be heard on
    plea agreements. In Arizona, the right to be heard at pleas has
    not dramatically in any way affected the number of cases that
    go to trial or the number of pleas that are accepted. Victims
    are empowered by this right, and that is all we seek. I say to
    the critics, Mr. Chairman, look at the country and the real
    world. Don't speculate about fear. Look at the real world where
    these cases exist.
        One final comment, Mr. Chairman. In response to what I just
    said, it may be said, well, Mr. Twist, if these are working in
    the States, then why do we need to amend the fundamental
    charter of our country?
        I would say to those who would raise that question, because
    these need to be the law of the land, the birthright of every
    American from Maine to California. These rights need to follow
    crime victims wherever they go, and the only way to do that--
    and it is the same insight that James Madison had when he
    offered the Bill of Rights--the only way to do that is to make
    them part of the character of the Nation, part of the
    fundamental law, so that they truly will become a part of our
    culture. They are not today and, sadly, as Ms. Roper's stories
    prove, they will not be until we have constitutional rights.
        Thank you.
        [The prepared statement of Mr. Twist appears as a
    submission for the record.]
        Chairman Feingold. Thank you, Mr. Twist.
        Our final witness is James Orenstein. Mr. Orenstein is a
    former Assistant United States Attorney for the Eastern
    District of New York and served as an Associate Deputy Attorney
    General during the Clinton administration. He is now an
    attorney in private practice and an adjunct professor at
    Fordham University and New York University. While serving at
    the Department of Justice, Mr. Orenstein worked with sponsors
    and supporters of versions of the victims' rights amendment.
        We welcome you to the panel today, sir, and you may
    proceed.

     STATEMENT OF JAMES ORENSTEIN, BAKER AND HOSTETLER, NEW YORK,
                                NEW YORK

        Mr. Orenstein. Thank you, Mr. Chairman, and Senator Kyl,
    Senator Feinstein. Thank you for allowing me to testify before
    you today.
        As a Federal prosecutor for most of my career, I have been
    privileged to work closely with a number of crime victims, as
    well as talented lawyers on all sides of this issue, to make
    sure that any victims' rights amendment will provide real
    relief for victims of violent crimes without jeopardizing law
    enforcement.
        I think it may be possible to do both, but I also believe
    that there are better solutions that do not carry the severe
    risks to law enforcement inherent in using the Constitution to
    address the problem. In particular, I believe that the current
    bill will in some cases sacrifice the effective prosecution of
    criminals to achieve marginal improvements for their victims.
        In the 20 years since President Reagan received the
    disturbing report of his task force, Congress has enacted a
    variety of statutes that ensure crime victims' rights in the
    criminal justice system. One of those, in my view, effectively
    addressed the problem in the Oklahoma City case, where I was
    one of the prosecutors. No victim was excluded for having
    witnessed prior proceedings as a result of that statute.
        More importantly, for purposes of discussing whether the
    Constitution should be amended, I don't believe that anything
    that happened before or after that amendment, or particularly
    after, would have changed by virtue of this amendment being
    ratified. In one case, the judge decided that the defendant's
    fair trial right would be violated by a witness' testimony.
    That wouldn't change under this amendment.
        In addition to the Federal statutes that Congress has
    passed, every single State has enacted its own victims' rights
    laws. They have not uniformly adopted the full panoply of
    protections that this body provided, so therefore the principal
    benefit to be gained by this amendment is not the elimination
    of the injustices that Ms. Roper and Mr. Twist described, which
    are in any event a violation of law.
        What an amendment would do would be to provide uniformity,
    gained by empowering Congress to override State laws and bring
    local practices into line. That same result, however, could
    likely be achieved through the use of the Federal spending
    power to give States proper incentives to meet uniform national
    standards.
        But unlike reliance on legislation, using the Constitution
    to achieve such uniformity carries the risk of irremediable
    problems for law enforcement. I want to stress that, in my
    view, the potential risks to law enforcement are not the result
    of simply recognizing the legal rights of victims. Prosecution
    efforts are generally more effective if crime victims are
    regularly consulted during the course of the case.
        There are, however, some cases, typically in the organized
    crime and prison settings, where the victim of one crime is
    also the offender in another. In such cases, this amendment
    could harm law enforcement. For example, when a mob soldier
    decides to cooperate with the government, premature disclosure
    of his cooperation can lead to his murder and compromise the
    investigation. Under this amendment, such disclosures could
    easily come from crime victims who are more sympathetic to
    criminals than to the government.
        When John Gotti's underboss, Salvatore Gravano, decided to
    cooperate--and I was one of the prosecutors in that case--he
    initially remained in a detention facility with Mr. Gotti and
    was at grave risk if his cooperation became known. Luckily,
    that did not happen, but the victims who would have been
    covered by this amendment had it been in effect at the time--
    relatives of gangsters whom Gravano had murdered on Gotti's
    orders--would almost certainly have notified Gotti if they
    could have done so.
        Now, I have heard supporters of this amendment answer that
    this problem can be solved simply by closing a cooperator's
    guilty plea to the public. However, under the First and Sixth
    Amendments, as well as relevant Federal regulations, it is
    extraordinarily hard to do that. As a result, the need for
    discretion is usually handled by scheduling such guilty pleas
    simply without notice to others and at times when the courtroom
    is likely to be empty. But that kind of pragmatic problem-
    solving cannot work under this amendment.
        In the prison context, incarcerated offenders who assault
    one another may have little interest in working with
    prosecutors to promote law enforcement, but they may have a
    very real and very perverse interest in disrupting prison
    administration by insisting on the fullest range of victims'
    services that the courts will make available. Some of these
    services could force prison wardens to choose between cost-and
    labor-intensive measures to afford incarcerated victims their
    participatory rights and foregoing the prosecution of offenses
    committed within prison walls. Either of these choices would
    undermine the safety of prison guards.
        The risk to law enforcement thus arises not from the
    substantive rights accorded to crime victims, but rather from
    using the Constitution to recognize those rights. There are two
    basic ways in which the current bill could undermine the
    prosecution and punishment of offenders.
        First, it may not adequately allow for appropriate
    exceptions to the general rules. Second, its provisions
    regarding the enforcement of victims' rights may harm
    prosecutions by delaying and complicating criminal trials. Both
    types of problems are uniquely troublesome where the source of
    the victims' rights is the Constitution.
        As I have explained in my written testimony, there are
    particularly aspects of the wording of the current proposal
    that could particularly harm law enforcement. One example is
    using the word ``restrictions'' rather than ``exceptions'' in
    Section 2. It might deprive prosecutors and prison officials of
    the flexibility needed for safe and effective enforcement.
        But beyond specific language problems, it is important to
    note that some problems are created by the very fact that the
    current version of the victims' rights amendment discards some
    of the carefully crafted language that was the product of years
    of study and reflection that this Committee approved when it
    favorably reported S.J. Res. 3 in the year 2000. The difference
    between exceptions and restrictions is just one such problem
    and there are others in my written statement.
        Our criminal justice system has done much in recent years
    to improve the way it treats victims of crime and it has much
    yet to do. The Crime Victims Assistance Act, sponsored by
    Senator Leahy and Chairman Feingold and several members of this
    Committee, is a good example of legislation that should be
    enacted, regardless of whether you also amend the Constitution.
        But by adopting the legislative approach now, you may well
    find that the potential harm to law enforcement inherent in a
    constitutional amendment need not be risked. We must never lose
    sight of the fact that the single best way prosecutors and
    police can help crime victims is to ensure the capture,
    conviction, and punishment of criminals. In my opinion, as a
    former prosecutor, the proposed constitutional amendment
    achieves the goal of national uniformity for victims' rights
    only by jeopardizing effective law enforcement. By doing so, it
    ill-serves the crime victims whose rights and needs we all want
    to protect.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Orenstein appears as a
    submission for the record.]
        Chairman Feingold. Thank you, Mr. Orenstein, and all the
    witnesses. Now, we will begin five-minute rounds of questions.
        I first would like to underscore a point that was
    illustrated by the testimony that we just heard. There is not a
    single victim's voice on the question of a constitutional
    amendment. Actually, as Ms. Roper noted, in the 20 years since
    the loss of her daughter, great progress has been made in the
    area of victims' rights. It sounds as though the problem that
    Ms. Roper has identified isn't necessarily one needing a
    constitutional fix, but I think it is one requiring legislators
    to continue to write laws addressing the real problems of
    victims.
        I again want to reiterate with all of the witnesses that
    this goal of guaranteeing victims' rights is extremely
    important and is one that we all support. It does lead to my
    first question, though, for Ms. Bird and Ms. Goldscheid.
        Both of you talked about the need for increased resources
    and enforcement of existing victims' rights, not a
    constitutional amendment. Can you provide us with examples of
    legislation that might address the needs of victims better than
    this proposed constitutional amendment?
        Let's begin with Ms. Bird.
        Ms. Bird. Well, in my statement I talked about increased
    funding for services. I think that from my own experience as a
    crime survivor having difficulty navigating the system, what it
    came down to was victims assistance offices actually helping me
    navigate the system, individuals in those offices being willing
    to spend the time with me to be able to kind of help me through
    the system.
        That is not a matter of the laws that were already
    existing. It is a matter of the people that were there, so
    legislation that would increase funding for prosecutors'
    offices, for perhaps agencies that are external from the
    government to be able to work directly with crime survivors.
        Chairman Feingold. Thank you, Ms. Bird.
        Ms. Goldscheid?
        Ms. Goldscheid. I would agree with that suggestion.
    Legislation both at the Federal and at the State level that
    would increase funding for services, both in law enforcement
    offices and with not-for-profits that work with law enforcement
    offices to help victims, goes a long way toward helping enforce
    victims' rights.
        Also, some aspects of the Leahy-Kennedy bill that I think
    was referenced earlier, would be helpful and could promote
    uniformity within the Federal system. There are examples at the
    State level that we could talk about as well. I would be happy
    to work with any members of the Committee on legislation that
    they would be interested in working on.
        Chairman Feingold. Thank you. Again, Ms. Goldscheid, you
    said in your remarks that one of the reason for Safe Horizon's
    opposition to this amendment is because of the effect it will
    have on domestic violence victims. I understand you have dealt
    with thousands of domestic violence victims, mostly women.
        Can you say a bit more about how a constitutional amendment
    aimed at helping the victims of domestic violence could
    actually end up hurting them?
        Ms. Goldscheid. What we have seen in the context of
    domestic violence law reform is that as protections have been
    enacted to help domestic violence victims, in some cases they
    are also used by the offenders. As I mentioned before, for
    example, mandatory arrest laws sometimes have been used to lead
    to dual arrests.
        Batterers sometimes make retaliatory arrests. They make
    complaints through the criminal justice system that can lead to
    battered women, instead of being treated as victims in the
    system, becoming criminal defendants. When battered women are
    treated as criminal defendants, and particularly if they have
    an arrest record, that frequently has very serious
    implications, for example, for child custody, which are very
    difficult to undo. One particular problem with a constitutional
    amendment is that batterers could assert new constitutional
    rights as victims, whih could add to their arsenal of coercive
    tactics and further abuse the true victims.
        One of our concerns is that if we raise victims' rights to
    the level of constitutional protection, the litigation that
    arises from any conflict will be much more complex, and when we
    have battered women who are criminal defendants, the issues
    they face will be even more complicated and hard to untangle,
    particularly if batterers attempt to assert new victims'
    constitutional rights.
        Chairman Feingold. Thank you, Ms. Goldscheid.
        Mr. Orenstein, you did a good job talking about a couple of
    cases and situations that you have been involved in. Senator
    Feinstein discussed a case in Maryland in which the victims
    attempted to reopen the sentencing phase.
        What adverse impact could the amendment have on the
    sentences of criminal defendants and society's desire to
    prosecute and punish criminals? Specifically, could you talk
    about the ramifications of the amendment on sentencing cases
    involving multiple victims and on plea negotiations in complex
    multi-defendant cases?
        Mr. Orenstein. Well, in multiple-victim cases there is
    inevitably a problem for the prosecuting authority of keeping a
    large number of people involved and seeking their views. It is
    just logistically a problem.
        I think in the Oklahoma City case, it was a problem. I am
    sure in the Moussaoui case it is a much bigger problem, but it
    is a problem that prosecutors are eager to address and to find
    ways to work around. But in a case where there are thousands of
    victims, a constitutional amendment that gives the right to be
    heard at sentencing could actually make it virtually impossible
    to get to the end of sentencing.
        Now, I am sure everybody who supports an amendment wants a
    reasonable way of dealing with that situation. I don't doubt
    anybody's bona fides on that, and I know victims groups often
    say we want a voice, not a veto. The problem is this amendment
    doesn't allow exceptions. It allows some restrictions, but that
    is different, and this is why it is so important to try a
    statutory approach rather than a constitutional one.
        It is important to find a way that allows you enough
    flexibility so that in a case like that you can respect the
    victims' rights in a way that makes sense for their interests
    as a group, as well as each individual, and protect law
    enforcement's interest in getting to sentencing and achieving
    the right sentence.
        Chairman Feingold. Thank you for that answer.
        We will turn to Senator Kyl for his questions.
        Senator Kyl. Thank you, Mr. Chairman.
        Mr. Orenstein, you are just plain wrong when you say that
    this amendment doesn't allow exceptions, what you just said. I
    refer you to Section 2, beginning with line 19: ``These rights
    shall not be restricted, except when and to the degree dictated
    by a substantial interest in public safety or the
    administration of criminal justice or by compelling
    necessity.''
        Nobody would allow those kinds of exceptions for the
    protection of defendants' rights, but they are explicitly
    provided for victims' rights because we are well aware of the
    many situations that have been hypothesized as perhaps calling
    for some need for the court to provide an exception with
    multiple defendants, with the battered spouse. All of these
    hypotheticals, as you know because of your previous
    involvement, were vetted through the Department of Justice. As
    a result, we worked with Attorney General Reno to provide these
    explicit exceptions. So you are wrong when you say there are no
    exceptions.
        Now, I have never heard so many fantastic hypotheticals in
    my life, and I think that Steve Twist is right when he says
    that the Bill of Rights would never have been enacted if we had
    considered them with the same degree of concern that has been
    reflected here.
        To the comments of Ms. Bird and Ms. Goldscheid that we need
    better enforcement of existing statutes, I say, yes, we do. But
    I also heard a definition of insanity once, which is that you
    think things will change if you keep on doing the same thing.
    That is why we have said for ten years now they are not
    changing. We have Department of Justice studies that say they
    are not changing, and unless you make a change, you can't
    expect a different result.
        To my good friend, Roger Pilon, three quick comments.
    Rights without remedies are empty promises. You are exactly
    right, and if that doesn't characterize the status quo, I don't
    know what does.
        Secondly, there is a difference between the defendants and
    the victims, and you are absolutely correct in this regard. And
    I think the Chairman and other serious students of the law have
    made this point, but I think it overlooks a couple of things,
    and that is that there is an application of state power or
    coercion involved here not just with respect to the defendants
    but with respect to victims.
        When the judge literally removes you from the courtroom
    because you are a victim, that is the exercise of state power
    no less than it is with respect to a defendant.
        As to the corollary with respect to the difference between
    victims and defendants, namely that there is a consequence of
    state action with respect to the defendants--I mean you might
    even go to jail--I think the failure to appreciate that there
    is also a consequence to the victim is one of the most
    fundamental problems with the debate that we are having. It
    reveals something. It reveals an inability to appreciate that
    there are consequences to victims for their denial of rights in
    our system of justice.
        I don't know what we can do to bring it home to opponents
    that there are these real consequences, except to be personally
    involved and having to suffer through one of these things and
    then you appreciate the consequences. But it is hard unless you
    have been there, I guess.
        So while I appreciate the theoretical points, and I really
    do--you are a serious thinker--I believe that we are failing to
    appreciate something here about the consequences to victims,
    and that is why they say they are victimized a second time. It
    is the state's inability to protect them the first time and the
    actual involvement in the victimization the second time that is
    the thing that we are most concerned about here.
        I got carried away here and I really meant to ask Steve
    Twist to comment on the problem that people perceive about
    these various exceptions and basis for the language that we put
    in the amendment to try to deal with those exceptions, because
    we recognized that we wanted to have flexibility, which is
    another word that one of you was talking about. There is,
    therefore, flexibility here and the ability of courts to deal
    with this.
        Mr. Twist. Mr. Chairman, Senator Kyl, fundamentally I think
    the critics of S.J. Res 35 distrust the courts of our country
    to be able to reach correct decisions when there are issues of
    conflict.
        There is no provision in the Constitution that says when
    the defendant's right to a fair trial comes up against the
    press' right in the First Amendment that the defendant's right
    shall prevail in all cases. But we have a body of law that the
    courts have well developed that set out the parameters for
    fully protecting the defendant's right to a fair trial, and at
    the same time protecting the First Amendment interests to an
    open trial. These are the things that courts do.
        We have allowed explicitly in the language of S.J. Res. 35
    for these exceptions to be recognized when interests of public
    safety, when interests of the administration of criminal
    justice, or other compelling necessity will require exceptions.
    It is explicitly written into the text.
        Fundamentally, I think our critics can take some confidence
    in renewing their trust in the court system because the courts
    will handle these cases very appropriately and very properly.
        Chairman Feingold. Thank you.
        I will move to my second round, and let me first say my
    friend, Jon Kyl, is an enormously respectful and good
    colleague. In fact, he and I were arguably among the only civil
    participants on the Phil Donahue Show last night, which was a
    tough discussion about similar issues. But I am going to take
    somewhat strong exception to his suggestion that people who
    question this constitutional amendment sort of just don't get
    it.
        I voted for a constitutional amendment to the Wisconsin
    State Constitution. I didn't demand at the State level that it
    only be done through statute. I felt that it was appropriate in
    Wisconsin, given the nature of State constitutions, to do it as
    a constitutional amendment. The Federal Constitution and the
    Bill of Rights, though, is a very different thing. So there is
    no disagreement in this room about how terrible the denial of
    the rights of victims is. Everyone agrees on that, and I want
    to reiterate that.
        In fact, Mr. Orenstein, I would like you to have the
    opportunity to respond to Senator Kyl's forceful comments about
    your comments about there not being exceptions, if you would
    like to do that at this time.
        Mr. Orenstein. Let me start by saying I hope I am wrong
    because if this amendment becomes law, we all agree we need the
    flexibility we have been discussing. Here is my point: In the
    previous version that I was involved in working on when I was
    with the Justice Department, the language of S.J. Res. 3 was,
    ``Exceptions to the rights established by this Article may be
    created only when necessary to achieve a compelling interest.''
        In the current version, ``exceptions'' has been discarded
    and it says no restrictions may be allowed, except in certain
    situations. So if an individual's right as a victim to speak at
    a sentencing hearing, for example, were curtailed because there
    were so many, such as the case that Senator Feingold was
    talking about before, the victim might say, ``You can't shut me
    out from speaking just because there are so many. That is not a
    restriction on my right; that is a complete exception to the
    right.''
        The argument in support of that position would be whatever
    ``restrictions'' may mean in this amendment, the one thing we
    know it doesn't mean, because it was taken out from the earlier
    version, is ``exceptions.'' So there must be some other
    meaning, such as a reasonable limitation on my time or subject
    matter, but not an absolute exception to my right to speak.
    That is what I am concerned about when I say this has
    restrictions, but not exceptions.
        Chairman Feingold. Thank you.
        Mr. Pilon, I am concerned that this amendment does not do
    what the victims' rights amendment I voted for in Wisconsin
    does, as I have talked about, namely protect the rights of the
    accused. The Wisconsin victims' rights amendment states,
    ``Nothing in this section or in any statute enacted pursuant to
    this section shall limit any right of the accused which may be
    provided by law.''
        Now, assuming that the proposed constitutional amendment
    before us today is ratified, would you be opposed to including
    language like the language in the Wisconsin victims' rights
    amendment that would protect the constitutional rights of the
    accused? I would also invite you to respond to any other
    comments that have been made, Mr. Pilon.
        Mr. Pilon. Well, thank you, Mr. Chairman. I think you are
    absolutely right to point to the categorical language in the
    Wisconsin amendment, as distinct from the non-categorical
    language in the current version of this amendment.
        I would respectfully respond to Senator Kyl's respectfully-
    raised points regarding my testimony, in particular his second
    point about there being a real difference between the rights of
    defendants and the rights of victims, and that nevertheless
    there are real consequences not simply to defendants, but to
    victims of the present system. I couldn't agree more with that.
        In fact, I suppose the most real of those consequences
    arises when the prosecution fails, when the accused, whom the
    victim knows to be the perpetrator of the crime, is able to be
    found not guilty, for whatever reason. Then there is the
    failure of the system in the starkest form. Yet, that is our
    system of justice and I don't think that there is a great deal
    that you can do about that. Those kinds of cases will occur.
        The O.J. Simpson case that I mentioned is one that suggests
    that the prosecution failed, because at the civil level it
    didn't. That is why, again, I pointed to our bifurcated system
    of justice. We have a criminal proceeding, we have a civil
    proceeding, and I think that those who propose this amendment
    are looking too much at the criminal proceeding to do what
    should, in fact, be done in the civil proceeding.
        I would finally conclude to you, Senator Kyl, that as a
    member of the party that stands strongly for federalism and
    federalist principles and for the doctrine of enumerated powers
    and for the principle that there is no general Federal police
    power, it is anomalous, at least, to have an amendment of this
    kind when there is so little Federal criminal jurisdiction. As
    the Chairman said, most of this takes place at the State level
    because that is where most crimes are prosecuted. Therefore,
    there is a real anomaly with having an amendment of this kind
    in the Federal Constitution.
        Chairman Feingold. Thank you, Mr. Pilon. That concludes my
    second round.
        Senator Kyl, do you have additional questions?
        Senator Kyl. Yes.
        Mr. Pilon, would you concede that there is a similar
    anomaly with respect to the protection of the defendant's
    rights by the numerous amendments in the Federal Constitution?
        Mr. Pilon. No, and I will tell you why, because there is
    some Federal criminal jurisdiction attendant to enumerated
    powers. Commerce Clause----
        Senator Kyl. Excuse me, but should it only relate to the
    Federal jurisdiction?
        Mr. Pilon. Therefore, with respect to those cases, even
    before the ratification of the 14th Amendment and the
    incorporation of the Bill of Rights against the States--even
    before that, there were Federal prosecutions, therefore the
    need to ensure that defendants were protected in those areas
    where there was Federal criminal prosecution, limited though
    they be.
        Senator Kyl. How about a corollary right for victims?
        Mr. Pilon. I suppose you could say that with reference to
    those few----
        Senator Kyl. Then we will incorporate it via the 14th
    Amendment, like the Supreme Court has done.
        Mr. Pilon. Well, yes, you could do it, but again this is
    mostly a State matter. Then we come back to the practical
    points, to wit, that there is so much uncertainty as we venture
    out into this area that either you have to write a
    constitutional amendment that is so vague--and that is the
    direction we have been moving in this; if you will look at the
    difference between S.J. Res. 3 and S.J. Res. 6, it is moving to
    greater and greater generality.
        Eventually, you have an amendment that says we stand for
    good things. Of course, that can mean anything one wants it to
    mean, and the greater you move to generality, the more you
    invite the kind of judicial chicanery that I know you and I
    would both like to eschew.
        Senator Kyl. Mr. Twist?
        Mr. Twist. Thank you, Mr. Chairman, Senator Kyl. I have
    been dying to make the same point that in the real world of the
    courts in which I represent crime victims, the difference
    between having Federal constitutional rights and State
    constitutional rights, or State statutes on the other hand, is
    all the difference in the world.
        Even in Arizona, where we have a strong constitution and
    where more often than not it works, the times it doesn't work
    result in great injustice. I have cited cases in my testimony
    and I appreciate it being included in the record. I can offer
    more.
        To Mr. Pilon, who says these rights are not rights against
    a government and therefore are somehow different than the
    rights of defendants, I simply invite him to come to a
    courtroom and see what it is like when a victim is kicked out
    of the courtroom because the judge orders it, or a victim is
    silenced because the power of the state comes down on her and
    says to her, you may not speak, where others may speak.
        I invite him or any of our critics to come to a courtroom
    where the power of the state is felt so palpably on the
    shoulders of victims who do not get to be present, who do not
    get to be heard at critical stages. That is why I am so
    grateful to you, Mr. Chairman, for opening up and renewing the
    opportunity for a dialogue on these issues because it is a
    matter of civil rights and you are a champion for civil rights,
    and these ought to be fundamental birthrights of every
    American, the law of the land. And the only way to make them
    the law of the land is to put them in the Constitution of the
    United States.
        Senator Kyl. Thank you for that.
        Mr. Pilon, you know, because I have slight libertarian
    leanings myself, that the idea of civil remedies is not
    altogether uninteresting to me. But there are some things
    like--and I am talking about consequences to victims now--when
    the victim doesn't receive notice of release or escape from
    jail, when a civil remedy is going to be an after-the-fact
    remedy and probably not very satisfactory if something very bad
    happens. So there are some times when that is not going to be
    satisfactory, it seems to me.
        Might I just ask you, Steve Twist, just to briefly relate
    to the reason--Mr. Orenstein made the fine point about the
    difference between the ``exception'' and ``restriction''
    language, if I understood it correctly, and I just wondered if
    you could explain the reason for the three different exceptions
    or restrictions that we have provided in here.
        Mr. Twist. Mr. Chairman, Senator Kyl, I think a fair
    reading of the express sentence in Section 2 which you quoted
    is that restrictions may not be allowed, except--emphasis on
    the word ``except''--when three conditions are met: public
    safety interests, administration of criminal justice issues, or
    other compelling necessity.
        Those are intended specifically to allow for flexibility
    both in the statutory implementation and in the later court
    jurisprudence that develops, exactly the kind of flexibility
    that Mr. Orenstein rightfully says is necessary. If that
    sentence were stricken from the amendment, exceptions would
    still be allowed. No right in the Bill of Rights is absolute.
    Mr. Orenstein made the point himself about the First Amendment.
        We know that there is a body of law that will develop that
    will hopefully, to the greatest extent possible, give full
    effect to the rights of defendants and the rights of victims.
    As everyone concedes, the rights that we seek in S.J. Res. 35
    far more often than not in no way intrude on the defendant's
    constitutional rights.
        Chairman Feingold. Thank you. With that, I will bring this
    hearing to a close. I think we would all agree this has been a
    thoughtful and engaging debate on whether protecting the rights
    of victims--a goal that we all share--requires an amendment to
    the Constitution. I think everyone's participation reflected
    the incredibly serious issue of what happens to victims and
    their rights, and also the very serious matter of talking about
    amending the United States Bill of Rights.
        Thank you all for coming. That concludes the hearing.
        [Whereupon, at 12:25 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
        [Additional material is being retained in the Committee
    files.]

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