[Senate Hearing 108-189]
[From the U.S. Government Publishing Office]
S. Hrg. 108-189
PROPOSED CONSTITUTIONAL AMENDMENT TO PROTECT CRIME VICTIMS, S.J. RES. 1
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
APRIL 8, 2003
__________
Serial No. J-108-8
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
89-328 DTP
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Makan Delrahim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 9
Feingold, Hon. Russel D., a U.S. Senator from the State of
Wisconsin...................................................... 10
prepared statement........................................... 109
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 3
prepared statement........................................... 111
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 116
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 124
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5
prepared statement........................................... 126
WITNESSES
Campbell, Collene, Councilwoman, San Juan, Capistrano, California 21
Dinh, Viet D., Assistant Attorney General, Office of Legal
Policy, Department of Justice.................................. 11
Eason, Earlene, Gary, Indiana.................................... 23
Lynn, Duane, Peoria, Arizona..................................... 29
Orenstein, James, Former Assistant U.S. Attorney for the Eastern
District of New York........................................... 27
Perry, Patricia, Seaford, New York............................... 24
Royce, Hon. Ed, a Representatives in Congress from the State of
California..................................................... 20
Twist, Steven J., General Counsel, National Victims
Constitutional Amendment Network............................... 31
QUESTIONS AND ANSWERS
Responses of Viet Dinh to questions submitted by Senator Leahy... 45
Responses of Viet Dinh to questions submitted by Senator Durbin.. 51
Responses of Viet Dinh to questions submitted by Senator
Feinstein...................................................... 58
Responses of Jame Orenstein to questions submitted by Senator
Leahy.......................................................... 60
Responses of Steve Twist to questions submitted by Senator Leahy. 81
ADDITIONAL SUBMISSIONS FOR THE RECORD
Albright, Keith & Wendy, Dallas, Texas, letter................... 84
American Civil Libertires Union, Laura W. Murphy, Director, and
Terri Schroeder, Legislative Representative, Washington, D.C,
letter......................................................... 86
California District Attorneys Association, Lawrence G. Brown,
Executive Director, Sacramento, California, letter............. 89
Campbell, Collene Thompson, Commissioner, State of California,
San Juan Capistrano, California, letter........................ 91
Colorado Organization for Victim Assistance, Nancy Lewis,
Executive Director, Denver, Colorado........................... 95
Crime Victims United of Oregon, Steve Doell, President,
Hillsboro, Oregon, letter...................................... 96
Dinh, Viet D., Assistant Attorney General, Department of Justice,
Washington, D.C., statement.................................... 97
Eason, Earlene, Gary, Indiana, statement......................... 104
Federal Law Enforcement Officers Association, Richard J. Gallo,
Lewisberrry, Pennsylvania, letter.............................. 108
Ferres, Donna J., Fort Myers, Florida, letter.................... 113
Fraternal Order of Police, Chuck Canterbury, National President,
Washington, D.C., letter....................................... 115
Henderson, Lynne, Professor of Law, Boyd School of Law, Las
Vegas, Vevada, letter.......................................... 117
Hull, Jane Dee, Governor of Arizona, Chairman, Western Governors
Association, Washington, D.C., letter.......................... 120
International Union of Police Associations AFL-CIO, Dennis J.
Slocumb, Executive Vice President, Alexandria, Virginia, letter 123
Los Angels County Police Chiefs Association, Chief Larry Lewis,
President, Los Angeles, California, letter..................... 130
Mothers Against Drunk Driving, Wendy J. Hamilton, National
President, Irving, Texas, letter............................... 131
Marquis, Joshua, District Attorney, Clatsop County, Astoria,
Oregon, letter................................................. 132
Maryland Crime Victims Resource Center, Inc., Russell P. Butler,
Executive Director, Upper Marlboro, Maryland, letter........... 133
Maryland Crime Victim Resource Center, and National Victims'
Constitutional Amendment Network, Roberta Roper, Upper
Marlboro, Maryland, letter..................................... 134
Moreau, Michael & Penny, New Orleans, Louisiana, letter.......... 136
Murphy, William L., District Attorney, Office of the District
Attorney Richmand County, Staten Island, New York, letter...... 137
National Association of Attorneys General, Mark Shurtleff,
Attorney Generao fo Utah, Christine Gregorire, Attorney General
of Washington, Peg Lautenschlager, Attorney General of
Wisconsin, Jerry Kilgore, Attorney General of Virginina, and
Darrell V. McGraw Jr., Attorney General of West Virginia,
letter......................................................... 141
National Association of Police Organizations, Inc., William J.
Johnson, Executive Director, Washington, D.C., letter.......... 145
National Clearinghouse for the Defense of Battered Women,
Philadelphia, Pennsylvania, statement.......................... 146
National Organization for Victim Assistance, Jeannette M. Adkins,
President of the Board, Washington, D.C., letter............... 152
Orenstein, James, Former Assistant U.S. Attorney for the Eastern
District of New York, statement................................ 153
Parents of Murdered Children, Inc., Central Arkansas Chapter, Dee
McManus Engle, Arkansas State Coordinator, National Board of
Trustees, letter............................................... 170
Parents of Murdered Children, Inc.:
Carolee Brooks, Flushing, New York, letter................... 171
Pat Gioia, Schenectady, New York, letter..................... 172
Matthew Knapp, Freeville, New York, letter................... 173
Patricia Solomon-Lawrence, Bronx, New York, letter........... 174
Debra Moseley, Watertown, New York, letter................... 175
Louise Spiers, Brooklyn, New York, letter.................... 176
Parents of Murdered, Children, Inc., Nancy Ruhe-Munch, Executive
Director, Cincinnati, Ohio, letter............................. 177
Parents of Murdered, Children, Inc., Odile Stern, Executive
Director, New York, letter..................................... 178
Perry, Patricia, Seaford, New York, statement.................... 179
Racial Minorities for Victim Justice, c/o National Organization
for Victim Assistance, Norman S. Early, Jr., Convenor,
Washington, D.C., letter....................................... 185
Rosenthal, Lynn Executive Director, National Network to End
Domestic Violence, Washington, D.C., statement................. 187
Russell, Susan S., M.A., Warren, Vermont:
letter....................................................... 204
statement.................................................... 206
Southern States Police Denevolent Association, Inc., H.G. Bill
Thompson, Director, Governmental Affairs, McDonough, Georgia,
letter......................................................... 211
Stout, Ed., Executive Director, Aid for Victims of Crime, Inc.,
St. Louis, Missouri, letter.................................... 212
Survivors Advocting for an Effective System, Arwen Bird,
Director, Washington, D.C., letter............................. 214
Survivors Advocting for an Effective System, Arwen Bird,
Director, Leadership Conference on Civil Rights, Wade
Henderson, Executive Director, Independence Institute, David
Kopel, Boyd School of Law, Professor Lynn Henderson, Washington
National Office, American Civil Liberties Union, Laura Murphy,
Director, Chadwick Professor of Law, Duke Law School, Robert
Mosteller, Professor, University of Southern California School
of Law, Erwin Chemerinsky, Professor, National Clearinghouse
for the Defense of Battered Women, Sue Osthoff, Director,
National Association of Criminal Defense Lawyers, Lawrence S.
Goldman, President, and Defender Legal Services, National Legal
Aid and Defender Association, Scott Wallace, Director, letter.. 215
Tribe, Laurence H., Professor of Constituional Law, Harvard
University Law School, Cambridge, Massachusetts................ 221
Totten, Gregory D., District Attorney, County of Ventura, State
of California, Ventura, California, letter..................... 223
Twist, Steven J., General Counsel, National Victims
Constitutional Amendment Project, statement.................... 224
Vermont Center for Crime Victim Services, Judy Rex, Executive
Director, letter............................................... 285
Welch, Bud, Oklahoma City, Oklahoma, statement................... 286
PROPOSED CONSTITUTIONAL AMENDMENT TO PROTECT CRIME VICTIMS, S.J. RES. 1
----------
TUESDAY, APRIL 8, 2003
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl
presiding.
Present: Senators Kyl, Leahy, Kennedy, Feinstein, Feingold,
and Durbin.
Also Present: Representative Royce.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. This meeting of the Senate Judiciary Committee
will come to order.
In the absence of the Chairman of the Committee, Senator
Hatch, I will begin. Should Senator Hatch arrive, and Senator
Leahy, of course, an opportunity will be afforded to them to
make whatever statements they wish to make. In fact, we will
keep the record open for the submission of any statements by
any Senator.
We are also joined this morning by Congressman Ed Royce of
California, and he will have a couple of introductions to make
after awhile.
The purpose of this hearing, of course, is to consider a
proposed constitutional amendment to give victims of crime
certain rights that would, to some extent, parallel many more
extensive rights that are provided to defendants in criminal
proceedings.
The Constitution provides defendants a variety of rights,
but none for victims of crime, and in certain situations where
State constitutions and State statutes have attempted to
provide rights to victims of crime, we have found that those
rights have not been uniformly effected by the courts and that
victims, therefore, continue to suffer, notwithstanding those
laudable provisions.
In fact, according to a report of the National Institute of
Justice, even those States that give the strongest protection
by their own statutes or constitutional provisions, fewer than
60 percent of the victims were notified of the sentencing
hearing, and fewer than 40 percent were notified of the
pretrial release of the defendant. So even where the rights are
supposedly guaranteed in statute, they simply aren't being
enforced. It is our view--and Senator Feinstein and I have co-
sponsored this amendment now for several years--that until
these rights are actually embodied in the U.S. Constitution,
they will continue to take second place. That's not right.
This idea is not new. It's over 20 years old. President
Reagan, in his 1982 task force, proposed enactment of a Federal
Constitution amendment to supplement the State laws and State
constitutional provisions.
Now, regarding the current text that is before us, it is
similar to the one in the 106th Congress, but in response to
comments about its length and its cosmetics, the language has
been honed and refined. We have several people to thank for
that, which we will do momentarily.
But regarding this point, President Bush, when he announced
his support of this precise amendment, said that it was written
with care and strikes a proper balance. We believe that that is
true.
Professor Laurence Tribe, who has been instrumental in
helping us with this drafting and came up with a lot of the
ideas for this form of text, praised the amendment's greater
brevity and clarity--for which he was largely responsible, I
might add--and he commented that, ``You have achieved such
conciseness 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've 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.'' Again, we
appreciate all that he has contributed to this effort.
I will just conclude with a brief comment about the degree
of support that this amendment has. It has been supported by
both the Republican and Democratic party platforms. It is a
truly nonpartisan or bipartisan kind of issue, as evidenced
again by the fact that throughout the years, regardless of
which party was in power in the Senate, Senator Feinstein and I
have worked together as the sponsors of this amendment to
attempt to get it passed.
Major national victims rights groups, including Mothers
Against Drunk Driving, Parents of Murdered Children, the
National Organization for Crime Assistance, and State groups
like the Arizona Voice for Crime Victims, the Maryland Crime
Victims Resource Center, Memory of Victims Everywhere, and
Crime Victims United, a variety of organizations support this.
Senator Feinstein is going to have a very important letter to
put into the record in a moment.
It is supported by various law enforcement groups, like the
National Association of Police Organizations, the International
Union of Police Associations, and the Federal Law Enforcement
Officers Association. Forty-one State Attorneys General have
just signed a letter in strong support, which we'll get to in a
moment.
Thirty-two State amendments, as I've said, have passed by
an average vote--and average vote--of 82 percent of the
electorate of those States. So this is very popular among the
people of the United States, and we believe if we can get the
amendment through the Congress and to the State legislatures,
it will be supported by the requisite number of State
legislatures.
We have, I think, at last count, 21 cosponsors in the
Senate, and we are informed that a similar amendment will be
introduced in the House next week, and we are looking forward
to moving the legislation through the Judiciary Committee and
on to the floor of the Senate as soon as we possibly can.
Again, our whole point here is that it is important to
embody rights for victims of crime in the United States
Constitution, if they are ever to have the degree of importance
attached to them that matches our commitment to provide these
rights to victims of crime, in a way that will truly see them,
recognized and administered by our courts in a way that is fair
to the victims of crime.
I want to thank all of the witnesses who are here today. I
will introduce each of you in a moment. I thank Congressman
Royce for being here and, of course, our colleagues, Senator
Durbin and Senator Feinstein.
At this point let me turn to Senator Feinstein for any
opening comments she might like to make.
STATEMENT OF HON. DIANNE FEINSTEIN, A. U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
It's hard to believe that we have been at this now for 6
years, but Steve Twist just came up and he said, yes, it was 6
years.
I want to particularly acknowledge the work you have done,
Mr. Chairman. I have been very pleased to be able to join you
in this effort. I have come to believe in it profoundly over
the years. I particularly want to thank Steve Twist, who has
represented victims and has been with us all the way through
it.
I hope that Senator Durbin might appreciate the following
story. After our last floor debate about the amendment, I was
talking to Larry Tribe by phone, and I recounted to him many of
the comments that Senator Durbin made on the floor about the
amendment, that it was too statutory, that it was too long, et
cetera, et cetera. A couple of months went by and one morning
he called, and he said, ``You know, I was taking a shower this
morning and it just came to me.'' So that's how, in essence, we
started to revise the previous version of the amendment. The
idea came from a constitutional professor of law who happened
to be taking a shower, and had worked with us for a number of
years. I happen to think it's a great improvement.
I would like to spend my time just saying why I believe we
need this amendment. Before I do, I would like to put into the
record a letter signed by 42 State Attorneys General which,
says--and I quote--``The rights you propose in S.J. Res 1 are
moderate, fair, and yet profound. They will extend to crime
victims a meaningful opportunity to participate in the critical
stages of their case, and at the same time they will not
infringe on the fundamental rights of those accused or
convicted of offenses.'' So if I might add that to the record,
I would appreciate it.
First, Mr. Chairman, a victims' rights constitutional
amendment will balance the scales of justice. Currently, while
criminal defendants have almost two dozen separate
constitutional rights, 15 of them provided by amendments to the
U.S. Constitution, there is not a single word in the
Constitution about the victims of crime. These rights trump the
statutory and State constitutional rights of crime victims
because the U.S. Constitution is the supreme law of the land.
To level the playing field, crime victims need rights in
the United States Constitution. In the event of a conflict
between a victim and a defendant's rights, the court will be
able to balance those rights and determine which party has the
most compelling argument.
Second, a constitutional amendment will fix the patchwork
of victims' rights laws. Seventeen States lack State
constitutional victims' rights amendments. And the 33 existing
State victim's rights amendments differ from one another. So
they create a kind of patchwork of rights, all of them
different. Also, virtually every State has statutory
protections for victims, but these vary considerably across the
country. So only a Federal constitutional amendment can ensure
a uniform national floor for victims' rights.
Third, a constitutional amendment will restore rights that
existed when the Constitution was written. It is a little known
fact that at the time the Constitution was drafted, it was
standard practice for victims, not public prosecutors, to
prosecute criminal cases. Because victims were parties to most
criminal cases, they enjoyed the basic rights to notice, to be
present, and to be heard. Hence, it is not surprising that the
Constitution does not mention victims.
Now, of course, it is extremely rare for a victim to
undertake a criminal prosecution. Thus victims have none of the
basic procedural rights they used to enjoy. That stopped in the
mid-19th century, around 1850. When the position of public
prosecutor became institutionalized, victims lost their rights.
Victims should receive some of the modest notice and
participation rights they enjoyed at the time that the
Constitution was drafted.
Fourth, a constitutional amendment is necessary because
mere State law is insufficient. State victims' rights laws,
lacking the force of Federal constitutional law, are often
given short shrift. A Justice Department sponsored study and
other studies have found that even in States with strong legal
protections for victims' rights, many victims are denied those
rights. The studies have also found that statues are
insufficient to guarantee victims' rights. Only a Federal
constitutional amendment can ensure that crime victims receive
the rights they are due.
Fifth, a constitutional amendment is necessary because
Federal statutory law is insufficient. The leading statutory
alternative to the victims' rights amendment would only
directly cover certain violent crimes prosecuted in Federal
court. Thus, it would slight more than 98 percent of victims of
violent crime. We should acknowledge that Federal statutes have
been tried and found wanting. It is time for us to amend the
Constitution.
The Oklahoma City bombing case offers another reason why we
need a constitutional amendment. This case shows how even the
strongest Federal statute is too weak to protect victims in the
face of a defendant's constitutional right. In that case, two
Federal victims' rights statutes were not enough to give
victims of the bombing a clear right to watch the trial and
still testify at the sentencing, even though one of the
statutes was passed with the specific purpose of allowing the
victims to do just that.
An appellate court held, in fact, that the victims did not
have standing under the Constitution to bring a case to get the
right which we in the Senate and House of Representatives,
signed by the President, passed. So a constitutional amendment
would help ensure that victims of a domestic terrorist attack,
such as the Oklahoma City bombing, have standing, and that
their arguments for a right to be present are not dismissed as
``unripe''. A constitutional amendment would give victims of
violent crime an unambiguous right to watch a trial and still
testify at sentencing.
There is strong and wide support for a constitutional
amendment. President Bush, Attorney General Ashcroft, have
endorsed the amendment. I appreciate their support. Both former
President Clinton and former Vice President Gore have all
expressed support for a constitutional amendment on victims'
rights. Both the Democratic and Republican party platforms call
for a victims' rights constitutional amendment. Governors in 49
out of 50 States have called for an amendment. Four U.S.
Attorneys General, including Attorney General Reno, support an
amendment. Forty-two State Attorneys General support an
amendment. And major national victims' rights groups, including
Parents of Murdered Children, Mothers Against Drunk Driving,
and the National Organization for Victim Assistance support the
amendment.
Law enforcement groups, including the National Association
of Police Organizations, the International Association of
Chiefs of Police, the International Union of Police
Associations, AFL-CIO, and the Federal Law Enforcement Officers
Association, support an amendment. Constitutional scholars such
as Harvard Law School Professor Larry Tribe support an
amendment, and I should say that Professor Paul Cassell
supported the amendment prior to becoming a Federal judge.
The amendment has received strong support around the
country. Thirty-two States have passed similar measures, by an
average popular vote of almost 80 percent. Mr. Chairman, I look
forward to hearing the testimony today, and I thank you for
your leadership.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Senator Kyl. Thank you very much, Senator Feinstein, and
thank you for your leadership on this amendment.
This morning is an extraordinarily busy day in the Senate.
I have two other committees meeting at this precise time, and I
know it's busy for all of us. But that is why I'm particularly
pleased that the Ranking Member of the full Senate Judiciary
Committee, Senator Leahy, is here. I will turn to him next for
an opening statement.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. I appreciate your
courtesy on this.
I would ask that a number of items for the record,
including a letter from Chief Justice Rehnquist, a statement
from Bud Welch, the father of an Oklahoma City bombing victim,
the National Network to End Domestic Violence, and others, be
included in the record at the appropriate place.
Senator Kyl. Without objection, so ordered.
Senator Leahy. Thank you.
This past Sunday marked the beginning of National Crime
Victims' Rights Week. For more than two decades, we have set
this week aside each year to focus attention on the needs and
rights of crime victims. Each year, this week reminds us of our
longstanding commitment to afford dignity and recognition to
crime victims, and challenges us to build on the tremendous
foundation of victims' rights and services already established
across our Nation.
My involvement with victims's rights began more than three
decades ago. I was State's Attorney in Chittenden County, VT
and I witnessed first hand how crime can devastate victims'
lives. I believe I was one of the very first, certainly in our
State, one of the first prosecutors in the country to make
absolutely sure that victims were heard at the time of
sentencing, that they were given a chance to be part of the
process all the way through. I have worked ever since to ensure
that the criminal justice system is one that respects the
rights and dignity of victims of crime, rather than one that
presents further ordeals to those who have already been
victimized.
I am pleased that Congress and the States have become far
more sensitive to the rights of crime victims than either were
at the time I was a prosecutor. We have greatly improved our
victims' assistance programs, but we have a lot more to do.
For example, we have unfinished business with respect to
the annual cap on the Crime Victims Fund, which has severely
limited the amount of money available to serve victims of State
crimes. In 2001, Congress passed, and then inexplicably
repealed, legislation that Senator Kennedy and I proposed to
replace the cap with a self-regulating system. Such a system
would ensure stability and would protect the Fund assets while
allowing more money to be distributed to victims. We should not
be imposing artificial caps on spending at a time when unfunded
needs are there.
I was disappointed, for example, that the President's
latest budget for fiscal year 2004 does precisely that. It
proposed a cap on spending for the Crime Victims Fund. The
President's budget would reduce Federal funding for State
victim assistance programs for the second year in a row. I
think that's wrong, because State funding and charitable giving
are drying up, and I hope the President will change his mind.
We also need to protect our most vulnerable victims, women
and children who are victims of domestic violence. They are
extraordinarily vulnerable. Seeing a representative from the
Attorney General's office here, I would remind him that the
President's budget fails to fund any transitional housing
programs, and it severely underfunds grants for battered
women's shelters. These are desperately needed nationwide.
While it may not go through the AG's office, they may want to
pass the word on.
But one important program on which progress has finally
been made is the Violence Against Women office. Last year, we
underscored the importance of that office's work by passing
legislation that required the office to be moved to a more
prominent position under the Attorney General. But for 6 months
after the President signed that legislation into law, the
Department of Justice refused to follow it. I am glad that the
Attorney General has now changed his mind and he has agreed to
set up the Violence Against Women office with the status that
Congress intended. I think you will find bipartisan support in
this Committee to help the new head of that.
Then there's another area of violent crime--terrorism and
mass violence. We need to focus on victims' rights in this
particular context for several reasons. After September 11th,
this most savage type of crime is a growing concern. Terrorism
and mass violence differ from other violent crimes because it
can devastate thousands of innocent lives and can also
devastate whole communities. And then we have to make sure that
victims' rights are tailored to ensure they're in harmony with
the needs of national security.
We passed a bill to allow the families and survivors of the
September 11th attacks to watch a closed circuit broadcast of
the trial of Zacharias Moussaoui. But the judge in that case
has severely limited the number of locations at which victims
can watch those proceedings. Many of the victims are going to
be denied the right that we in Congress, again in a bipartisan
fashion, sought to provide. In fact, we have been told the
prosecution may be moved to Guantanamo Bay, which would mean
none of the victims would be able to watch it. So these are
things we have to watch. If there are going to be trials at
Guantanamo Bay and military tribunals, then we ought to ask are
the victims going to be accommodated in this.
Now, I mention those various proposals--funding for victims
of State crimes, shelter for victims of domestic violence,
strengthening enforcement with respect to violence against
women, and giving victims of terror access to the justice
system--because these are all practical means tailored to the
actual needs of real specific groups of victims. You put the
money in there and it makes sure that victims' rights are
protected.
I remember the debates we've had over the years about
unfunded mandates. Well, we shouldn't make unfunded promises. A
constitutional amendment may well make us feel good, but if
we're not going to fund the things that are there to help
victims, it doesn't really do anything for us.
This amendment makes victims promises that we lack the
ability or political will to turn into practical realities. If
that's the case, then we should reject it. I mean, we found the
presidential budgets, Congressional actions, and we make all
kinds of promises, but we don't put the money there. If we
don't put the money there, then we're tacking on to the
Constitution what Shakespeare called ``words, full of sound and
fury, signifying nothing.'' So we ought to have candor.
After all, amending the Constitution is a very serious
matter. I have a great deal of respect for the sponsors of this
amendment. I know they worked very hard on it. They have been
through, I believe, 70 drafts to date. It shows their
sincerity. But it also shows how difficult this is if you have
to go through all those drafts. In fact, if we had passed an
earlier version, like the one we debated 3 years ago, we would
now be stuck with that version. Everybody now concedes there
were flaws in it. We would be out here trying to pass another
constitutional amendment to correct what we did back then.
So we're not disagreeing about the importance of victims'
rights. I have demonstrated that throughout my career. I
demonstrated that in my career when I was in law enforcement.
We have to make sure victims are heard. But let's make sure
that we do it in a way that they really are heard. Let's make
sure we take the laws that are on the books today and put the
money behind them. Let's make sure we don't have six-month
delays in the future in setting up offices needed for victims'
rights. Let's make sure that when we all give speeches in favor
of victims' rights and all the programs we have established for
them, that we then come up with the money to fund them.
I would hope that people would read the testimony of Bud
Welch, whose daughter was killed in the Oklahoma City bombing.
This is a man who cares very much about victims. He speaks of
the need for victims' legislation, not for a constitutional
amendment.
I think of Mrs. Patricia Perry, who is sitting in the front
row with her husband, John. Her son was killed on September
11th. He had finished his career as a police officer and had
passed in his resignation papers in the normal course of
events, and turned in his badge. The call came for the attack
on the Trade Center Towers and he went back, retrieved his
badge, and went in to save people in the Trade Towers. He did
not come out.
These are people concerned about victims. But I think they
agree that you can't have a ``one size fits all'' solution to
victims' rights. I'm afraid that's what happens here in this
amendment. Even the distinguished Senator from California
quoted Laurence Tribe. Well, Laurence Tribe also said ``the
States and Congress, within their respective jurisdictions,.
already have ample authority to enact rules protecting
[victims] rights'' without the constitutional amendment he has
worked on.
So, Mr. Chairman, we have to ask ourselves why should we
amend our Constitution for only the 18th time in 200 years, and
whether it might be better to put all our energies into funding
the victims' programs that are there.
Again, I thank you for your courtesies on this. I would
also note for the record how much work you and Senator
Feinstein have put into this. I think with both of you it has
been a labor of love in the truest sense of the word.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Kyl. Thank you very much, Senator Leahy.
I would at this time include, without objection, into the
record letters from the organization Mothers Against Drunk
Driving, Crime Victims United of Oregon, Roberta Roper and
Russell Butler of the Maryland Crime Victims Resource Center; a
letter from Parents of Murdered Children, from NOVA, from
Racial Minorities for Victims Assistance, and Sue Russell of
the State of Vermont. Without objection, those letters will be
inserted in the record.
Senator Feinstein. Mr. Chairman, I have a packet of
letters. May I insert those as well?
Senator Kyl. Yes, those will also be inserted, without
objection.
Now, even though the first three of us who have spoken
exceeded the five minute limit that we ordinarily impose, and
we're going to ask our witnesses to abide by, I would like to
ask everyone else, if they can possibly do so, to try to abide
by that. I'm sorry to say that just before I call on Senator
Durbin first.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. I'll try to make my statement even briefer.
I thank both you and Senator Feinstein for your good faith
effort to take this work product and make it much more compact.
It still raises some fundamental questions that I believe
Senator Leahy has addressed, because I think what we all agree
on is that victims should have a right to be notified, to be
informed, and to be present. Now we have a competing right,
too, and that would be the right of the accused. With a
presumption of innocence, with the establishment of
constitutional protections, does this amendment preempt or take
away any of the rights of the accused in America? I think that
is a legitimate threshold question. If the answer is yes, which
rights are now removed from criminal defendants?
Senator Feingold and I have both offered amendments to this
constitutional amendment at various times over the last several
years that would say ``nothing herein shall deny the rights of
an accused under the Constitution.'' Both times those
amendments have been defeated in the Judiciary Committee, which
certainly raises the question, if not the presumption, that we
are preempting the rights of the accused defendant. If we are
doing so, let's do it honestly. Let's be open about it.
When the Department of Justice comes to testify, I'm going
to ask Professor Dinh early in my questioning just which rights
of the criminal defendants are we going to remove, or restrict,
or hamper, by protecting the rights of victims. If there are
none, then we should say it straight out. If there are some,
let's also be very explicit about it.
We also have a question here, which I raised about the
earlier version of this amendment, which gets down to some
basics: who are victims? It is easy to find the victim of an
assault, to identify that person and to say that is the
protected person. But in the case of a murder, who is the
victim? Is it the mother and father of the victim who died? Is
it the brother and sister? Who will it be? How many people will
have rights vested by this constitutional amendment?
There is also a question about a lawful representative of
the victim, another undefined term here, which also is going to
raise some questions about the responsibility of the State to
notify the lawful representatives of the victims and the
victims themselves of their constitutional rights. So many
questions have been raised by it.
I will close by saying I start with the same presumption
that I start with any constitutional amendment: there is a
reason why, in the history of the United States of America, we
have amended this Constitution so rarely. It is because we
assume that the Constitution and the amendments, particularly
the Bill of Rights, have stood the test of time, and we should
never be so presumptuous as to believe that we can take a
roller to a Rembrandt and make it look a little better. We
ought to start with the presumption that, if we can do it by
statute, we should do it by statute and not by constitutional
amendment. That, of course, is my concern as we go into this
debate.
Thank you, Mr. Chairman.
Senator Kyl. Thank you very much.
Senator Feingold.
STATEMENT OF HON. RUSS FEINGOLD, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I have a longer
statement that I would also like to include in the record. I
will come well within the 5 minutes because all I have to do is
strongly associate myself with the remarks of Senator Durbin
that were, to my mind, very effective, and I will just say a
few other words.
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.
But Congress should proceed very carefully when it comes to
amending the Constitution. I believe that Congress can better
protect the rights of victims by ensuring that current State
and Federal laws are enforced, providing resources to
prosecutors and the courts, as Senator Leahy has said, to allow
them to enforce and comply with existing laws and working with
victims to enact additional Federal legislation, if needed.
As Senator Durbin indicated, in the 214-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 cancelled
each other out. Yet, literally hundreds of constitutional
amendments have been introduced in just 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.
I do not believe that the basic calculus of prosecutor,
defendant and victim has changed enough since the foundation of
the Republic to justify this significant action.
Now, as a Senator in the Wisconsin State Senate, I did vote
in favor of amending the Wisconsin State Constitution to
include protections for victims. The majority of States now do
have State constitutional protections 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 reduce the rights of the
accused in a criminal proceeding. That is why Senator Durbin
and I have tried, unsuccessfully, to have this kind of a
protection added to this amendment, because that would make a
huge difference.
I am also concerned that a victims' rights amendment could
jeopardize the ability of prosecutors to investigate their
cases, to prosecute suspected criminals, and 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.
Thank you for the chance to speak, Mr. Chairman.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Senator Kyl. Thank you. All of the questions have been
raised, and I think they're good and appropriate questions, and
now we'll hear from some witnesses who perhaps can answer those
questions.
We would like to begin with Mr. Viet Dinh. Viet, if you
would take the dias, I will introduce you.
Viet Dinh is Assistant Attorney General for the Office of
Legal Policy at the Department of Justice. Prior to his entry
into government service, Mr. Dinh was professor of law and
deputy director of Asian Law and Policy Studies at the
Georgetown University Law Center.
Mr. Dinh graduated magna cum laude from both Harvard
College and the Harvard Law School. He was a law clerk to Judge
Lawrence H. Silverman of the U.S. Court of Appeals for the D.C.
Circuit, and to U.S. Supreme Court Justice Sandra Day O'Connor.
He is joined by Mr. John Gillis, who is Director of the Office
of Victims of Crime.
We welcome you both. Mr. Dinh, the floor is yours.
STATEMENT OF VIET D. DINH, ASSISTANT ATTORNEY GENERAL, OFFICE
OF LEGAL POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Dinh. Thank you very much, Mr. Chairman, and good
morning, Senators. Thank you very much for the opportunity to
be here.
I have a fuller statement that I would ask to be entered
into the record in the interest of time. I will take a few
moments to reiterate the Department's and the administration's
support for this crime victims' rights amendment.
As the President stated last year, ``The protection of
victims' rights is one of those rare instances where amending
the Constitution is the right thing to do, and the Feinstein-
Kyl Crime Victims' Rights Amendment is the right way to do
it.''
Today, as you have noted, is part of National Crime
Victims' Rights Week, and it is fitting, it seems to me, that
this year's theme is ``Fulfill the Promise'', because it has
been over two decades since President Reagan convened his
landmark task force on victims of crime, and Congress passed
the Victim and Witness Protection Act of 1982.
Yet the promise remains unfulfilled and victims of crime
continue to be silenced by a criminal justice system intended
to protect them. Although I agree that, as a general matter, we
should be wary of attempts to amend the Constitution, this is
one of those times when it is both necessary and prudent.
I would like to thank you, Mr. Chairman, and Senator
Feinstein, for your continued leadership and advocacy for a
victims' rights amendment. Having participated in countless
meetings and discussions, I know that this is, indeed, a labor
of love and a labor of passion for the team of lawyers that
worked endlessly to craft this amendment.
I would like to thank Matt Lamberti and Stephen Higgins
here in the Senate, Lizette Benedi and Paul Clement from the
Department of Justice, and of, course, Steve Twist, from the
National Victims Constitutional Amendment Network.
I talked a number of times with Professors Larry Tribe and
Paul Cassell during this process, and I can reiterate that they
deserve support, thanks and praise for all of their expertise
and effort in this regard.
Currently, all 50 States and the Federal Government have
passed legislative measures to protect victims' rights, and 33
States have amended their constitutions to do so. However,
these efforts, while substantial, have proven inadequate to
protect victims' rights when courts compare them with the
Federal constitutional rights of criminal defendants. In 1998,
a National Institute of Justice study concluded that ``a strong
victims' rights law makes a difference, but even where there is
strong legal protection, victims' needs are not fully met.''
The proposed amendment, if enacted, undoubtedly will prompt
significant adjustments in the criminal justice system. That is
why, in evaluating S.J. Res. 1, the Department has viewed our
support of the rights of crime victims in light of our
responsibilities to enforce the criminal laws of the United
States vigorously and effectively, and our commitment to
fairness and justice for all persons, including those accused
of crimes. We believe that the proposed amendment properly
protects and advances all of these interests.
The Department believes that protecting the rights of
victims of crimes is not only consistent with but advances our
core mission of prosecuting perpetrators of crime. That is
especially true under the proposed amendment, which we believe
provides sufficient flexibility to ensure that investigators
and prosecutors are able to discharge their duty to bring
offenders to justice in a timely and efficient manner. That is
why 41 State Attorneys General, as you have noted, Mr.
Chairman, through their national association, have written a
strong letter of support for this amendment, a letter which the
Attorney General received this morning and which Senator
Feinstein has entered into the record.
This amendment has been carefully crafted to protect the
rights of victims while ensuring the proper investigation and
prosecution of crime. It does so by allowing for restrictions
on victims' rights only where there is a substantial interest
in public safety or the administration of criminal justice.
The Department looks forward to working with you to see
that this measure is passed, and to assisting you in fashioning
appropriate implementing legislation should it pass.
I am at your disposal now to answer any questions you may
have. Thank you, sir.
[The prepared statement of Mr. Dinh appears as a submission
for the record.]
Senator Kyl. Thank you very much, Mr. Dinh.
Let me ask you, since you're going to be gone at the time
the next panel--well, you may not be gone, but you won't be on
the dias here.
Mr. Dinh. Do you know something I don't, sir?
[Laughter.]
Senator Kyl. After our next panel testifies is what I was
trying to say.
I noted in his written testimony that one of the presenters
on the next panel, Mr. Orenstein, has identified two very
narrow examples, in his view, of where the crime victims'
rights amendment might harm law enforcement efforts. I would
like to have you respond to those in advance of his testimony.
First he is concerned that giving rights to victims in
organized crime cases might interfere with their prosecutions.
I would ask you whether or not you agree with me, that it's
true that, under this amendment, no such notice would have to
be given.
Second, he is concerned that in the rare situation in which
the victim is actually a prisoner already, that they would have
to be transported to court. I would ask you whether it's true
that, under the amendment, there is no such requirement for
transportation of prison victims that is necessary.
Could you respond to those two concerns that he has
expressed?
Mr. Dinh. Yes, sir. They are both very good points that Mr.
Orenstein raises, but I think ultimately not ones that have not
been thought of by you, the sponsors, and not adequately
addressed in the amendment.
First of all, the question of notice, especially in the
case of organized crime--I believe Mr. Orenstein mentioned his
experience in the John Gotti trial, and with the cooperation of
Mr. Gravano--I note that section 2 of the amendment affords
victims a right to ``reasonable and timely notice.'' The phrase
``reasonable'', of course, is one that is common in
constitutional law, including reasonable search and seizure in
the 4th Amendment and other places within the Constitution. It
affords the court, when faced with the question, sufficient
flexibility to decide that, where notice would jeopardize a
prosecution or pose a danger to the victim or other persons,
then it would not be reasonable to provide such notice.
In case that is not sufficient, I note that the last
sentence of section 2 provides that ``these rights shall not be
restricted except when and to the degree dictated by a
substantial interest in public safety or the administration of
justice'', thereby providing another opportunity for courts,
prosecutors and investigators to consider restrictions on
victims' rights in order to afford a substantial interest in
public safety or the administration of justice.
I think the drafters of the amendment have very wisely
considered that the interests of the prosecution are, in most
cases, consonant with and complementary to the rights of
victims. But where the rights of victims, if guaranteed to an
absolute extent, would jeopardize the public safety or the
prosecutorial interest, then reasonable accommodations can be
made in order to ensure that the two teams are working together
rather than working against each other.
With respect to the second question of prisoner transport,
that is a very interesting question. I have not thought about
it very much because it involves an area of prisoner litigation
and personal rights that is ongoing as a daily matter in the
Supreme Court and elsewhere.
But I would like to note that the right that is afforded
under section 2 to attendance is ``the right not to be excluded
from such public proceeding''. It is not a right to attend, as
such. It is a right not to be excluded. It is a right not to be
turned away at the gates. It does not speak of a right, an
affirmative right, or incentive to attend a particular
proceeding.
So I would think that, just as the government need not
provide cab fare to normal victims, the government need not
provide transportation to a particular proceeding because the
right guaranteed is a right not to be excluded.
But, even so, I guess one other point I would like to make
is, under the Court's jurisprudence regarding the
constitutional rights of prisoners and the penalogical interest
of the United States and other State governments in a case, I
believe, called Turner v. Saffley, a case where Justice
O'Connor wrote that the proper test for balancing the
constitutional rights of prisoners, if this constitutional
amendment were passed and a prisoner is a victim, then that
constitutional right would be afforded to the prisoner. But in
balancing that interest of the constitutional right of
prisoners and the State's interest, the appropriate standard is
not one of strict scrutiny or undue burden that we are familiar
with, but rather it is whether or not a policy is reasonably
related to a State's penalogical interest.
So I think there is sufficient room in the constitutional
law in order to accommodate the concerns that Mr. Orenstein
raised. But in any event, I do not think they are raised with
respect to the specific text of this amendment.
Senator Kyl. So the United States Department of Justice is
comfortable that the amendment, as currently drafted, would not
interfere with law enforcement efforts?
Mr. Dinh. Absolutely, sir.
Senator Kyl. Thank you very much.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Good morning.
Mr. Dinh. Good morning.
Senator Feinstein. I wanted to ask you to respond to
Senator Durbin's concern, and that is that this amendment does
not trample on or subjugate a defendant's rights. When this was
redrafted, this time we tried to meet that concern, and the way
we met it was in section 1, right up front, with these words:
``The rights of victims of violent crime being capable of
protection without denying the constitutional right of those
accused of victimizing them are hereby established and shall
not be denied by any State or the United States, and may be
restricted only as provided in this Article.''
You mentioned the balancing test, which I think both
Senator Kyl and I have wanted to protect, with the knowledge
that a judge can balance those rights. But my question to you
is, do you believe that the way the amendment is drafted
presently does not abrogate any right that a defendant or an
accused possesses under the Constitution?
Mr. Dinh. Yes, ma'am, I do agree, and it starts with a
statement of principle in section 1. It is a very important
statement of principle which I think informs the interpretation
of the rest of the provisions, most significantly the
substantive provisions of section 2, which grants the operative
rights and restrictions therein for the particular amendment.
With respect to section 2, I would like to note that the
balancing test that you speak of specifically is contemplated
by the amendment. This is one of those rare places in the
Constitution--I believe it's the only place in the
Constitution--whereby the test is actually specified so as to
give proper guidance to the court on how to balance exactly
these rights that may come into tension. The amendment states
that ``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.''
A substantial interest in the administration of criminal
justice I think gives the court the ability to evaluate where
rights of criminal defendants under the 4th, 5th, 6th and 8th
and other places in the Constitution come into not conflict but
meets the rights of the victims afforded under this amendment.
Courts would be able to delineate the lines between these
various rights and accommodate them in a reasonable manner by
this specific language, that the rights of crime victims may be
restricted, but only if there is a substantial interest in the
administration of criminal justice, including protection of the
rights of criminal defendants under the 4th, 5th, 6th and 8th
Amendments of the United States Constitution.
Senator Feinstein. Thank you very much, Mr. Dinh. I
appreciate that.
Thank you, Mr. Chairman.
Senator Kyl. Senator Durbin.
Senator Durbin. Thank you very much.
Professor Dinh, let me go back to that section 1 and read
it. ``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...''
I read that differently. I think it is a presumption that
we can give rights to victims without endangering or limiting
the rights of the accused. But it doesn't say expressly the
following: ``No rights vested in victims under this amendment
shall be at the cost or at the expense of the rights of the
accused.''
Wouldn't that be a clearer statement of what you say is, in
fact, the meaning or the intent of this amendment?
Mr. Dinh. I do not know what the exact intent of the
amendment is, but I do know that the meaning is, I think, quite
clear on the face of the amendment. Section 1 sets forth the
principle, the overall principle, that the rights can be
reconciled and both sets of rights can be protected.
There is no question that the introduction of a third
player, if you will, into the criminal justice system that is
currently dominated by the prosecutor and the criminal
defendant's interest, the introduction of crime victims as full
partners in this enterprise would have significant impact and
would prompt significant adjustments in that criminal justice
system.
I think that the admission of such an equal player, a
first-class citizen, if you will, into this community of
criminal justice, would prompt significant development of the
law by courts seeking to adjust the criminal justice system in
order to fully protect the rights of victims. That is why I
think the nuance provision that is in the last sentence of
section 2, that allows for a court to make proper
accommodations for substantial interest in the administration
of criminal justice, is more of a clearly precise rapier-like
approach rather than a broad-sword approach to the adjustment
that will have to be made.
Senator Durbin. Let's try to be specific, then. Let's get
down to some specific instances.
As I read through this, and were this a Federal statute
involving crime victims' rights, it would pass 100 to nothing,
or close to it, on the floor of the Senate. But since we're
talking about a constitutional amendment, there is and should
be closer scrutiny to the exact words that are used.
In my mind, the one element here that raises more concern
than others, is the element of the rights not to be excluded
from public proceedings and reasonably to be heard, so forth
and so on. The public proceedings, of course, refer back to any
public proceeding involving a crime. So I take it what we're
speaking of is the rights of the victims to be present at the
trial, the trial of the defendant, whether they are going to
testify or not. That, I think, raises some questions that need
to be resolved.
Now, let me go to the end of that section 2. It says,
``These rights shall not be restricted except--'' so the
exceptions clause, which you referred to in your statement,
says the courts can make exceptions to the rights of the
victims to be at the trial, if they find ``a substantial
interest in public safety or the administration of criminal
justice, or by compelling necessity.''
What's the difference between a ``substantial interest''
and ``compelling necessity''?
Mr. Dinh. Senator, that is a very good question. As you
know, compelling necessity is a phrase that was used in the
previous version of the Crime Victims' Rights Amendment, S.J.
Res. 3, in the 106th Congress. It is a very high standard for
exceptions. That is, I think, a derivative of some of the
Supreme Court's cases with respect to Executive power,
especially in times of danger to the national security.
The phrase ``substantial interest'' is one that is
derivative from the intermediate scrutiny standard of the
Supreme Court--
Senator Durbin. So it would be a lower standard?
Mr. Dinh. It would be a lower standard in terms of
strength. It only has to be a substantial interest, rather than
a compelling necessity. So as I read this, where the interest
is one that touches upon public safety, or the administration
of criminal justice, it need only be substantial for the court
to accommodate it and thereby restricting the--
Senator Durbin. Let me ask you this question. I think in
answer to Senator Feinstein you said this, but I want to make
certain it's clear.
Is it your belief that the phrase ``the administration of
criminal justice'', which is the basis for an exception to the
right of the victim to be present at trial, would include a
consideration by the court as to whether the presence of the
victim would in any way diminish or deny the rights of the
criminally accused?
Mr. Dinh. Senator, let me answer that a little bit more
completely by recounting a phrase that I see every single day
when I come in to see the Attorney General. Right outside his
office in the rotunda is a quote that says, ``The United States
wins its point whenever justice is done its citizens in the
courts.'' So yes, I do believe that justice is done when
victims are fully represented in the criminal justice system,
and when defendants' rights are fully protected.
I do think that the system and the administration of
criminal justice has to accommodate not only the interest of
the United States in prosecuting the guilty and exonerating the
innocent, but also the rights of victims to be present and the
rights of criminal defendants to have a fair trial.
Senator Durbin. So if I might, Mr. Chairman, I just have
two questions that are important to me and I hope we can have a
few minutes to answer them.
Let's get to a specific situation. Let's assume that a
judge--and this constitutional amendment is on the books. A
judge takes a look at the prospect of bringing into the
courtroom a group of victims who could be the families of the
actual victim of a violent crime, or actual victims themselves.
The judge believes that the presence of those victims in the
courtroom would somehow impede the constitutional right
guaranteed to an impartial jury. The judge believes that their
presence in the courtroom might do that.
Do you believe that they have established in section 2 the
grounds for that judge to say the constitutional rights of the
victims do not supersede the substantial interest of the
accused to an impartial jury and, therefore, I will restrict
the victims from the courtroom?
Mr. Dinh. I do not think I can venture a specific answer to
your particular hypothetical, but I do think that under the
language of the amendment, a judge can consider a substantial
interest in the proper administration of criminal justice, and
it may very well be how he conducts his courtroom includes such
a substantial interest.
Without going into a prognostication as to how this
amendment would be interpreted and how judges would decide
cases in particular instances, I do think there is sufficient
flexibility in the amendment in order to afford a judge the
opportunity to control his courtroom to best protect the
interests of the criminal defendants, the rights of criminal
defendants, and for a prosecutor to make decisions in order to
advance the interest of the prosecution.
Senator Durbin. But you wouldn't quarrel with the
conclusion that if the exception relates to the administration
of justice--and I think we have come to a conclusion that that
includes the rights of the accused--then it certainly would
relate to constitutional protections, specific constitutional
protections, that the accused have in America, such as the
right to an impartial jury?
Mr. Dinh. I think that would be right that the
administration of criminal justice include fairness to criminal
defendants and fundamental protection of rights guaranteed in
the Constitution. But in any event, where there are
constitutional rights that may be intentioned and where a line
has to be drawn, that is a task that has traditionally been
done by courts, according to standards that are well-
established in the constitutional law doctrines.
I think this particular sentence affords further guidance
along the lines you suggest.
Senator Durbin. My last question is this.
Let me take you from what I think is an easier conclusion
to a little more contentious one, and that is the fact that we
have sequestered witnesses from trials historically because we
believe they'll ``go to school'' on other witnesses, that they
will pick up information that is testified to and repeat it as
their own, whether they're conscious of that or not. So it has
been kind of a standard of evidence that, unless you are a
party to a case, or have a statutory right to be present, you
are excluded from the courtroom until you're called to testify.
Now we're in a situation where we're dealing with victims,
and possibly victims' families. Is the same basic standard
going to apply? Do you believe the ``substantial interest''
exception under the administration of criminal justice allows a
judge to determine that the presence of the victims or victims'
families in the courtroom might in some way reduce the
likelihood that they will be credible witnesses and, therefore,
should be excluded?
Mr. Dinh. The short answer to your question, Senator, is I
do not know. I do know that under the current system, under
Federal Rules of Evidence 615, there is discretion for a judge
to make such kinds of determinations. I also know that in the
Crime Victims Clarification Act of 1997, after the Timothy
McVeigh issue that the Chairman raised and Senator Feinstein
raised, Congress spoke specifically to the rights of victims in
those circumstances.
Both of these, of course, are statutory in nature. The
Federal Rules of Evidence is pursuant to the laws of Congress
to adopt it, and so is the Victims Rights Clarification Act of
1997. Those you are free to amend and interpret or legislate as
you see fit. I think the specific application of this amendment
as it relates to future cases, should it pass, is I think for
the courts to finally adjudicate.
Senator Durbin. My last question, if I might, Mr. Chairman.
Section 1 begins with the rights of victims of violent
crime. As you testify today, is it your belief that the term
``violent crime'' means crime as defined by both Federal and
state statutes?
Mr. Dinh. Yes. The amendment would be an amendment to the
Constitution, and under Article VI of the Constitution, the
supremacy clause, it would apply to State officials just as
well as it does to Federal law.
Senator Durbin. Maybe I wasn't clear. In my State of
Illinois, the definition of violent crime is different than the
Federal standard. So if someone is guilty of a violent crime in
Illinois, by State definition, that doesn't meet the standard
by Federal definition, which standard will apply to the phrase
``the rights of victims of violent crime''?
Mr. Dinh. Crimes of violence are somewhat variously defined
within 18 USC, the Federal Code. And as you know, it is defined
in various statutes around the country, also.
Because this will be a constitutional amendment, and the
word ``violent crime'' will be of constitutional dimension, I
would imagine the courts, in interpreting the scope of that
right and the meaning of the adjective ``violent'' would be
informed by the various legislative enactments that are extant.
But I think the definition itself will be one of constitutional
import that does not admit to either Federal or State
legislative definition but may be both or neither.
Senator Durbin. Thank you, Mr. Chairman, for your patience.
Senator Feinstein. Mr. Chairman?
Senator Kyl. Yes, Senator Feinstein.
Senator Feinstein. May I just for the record say that the
use of the words ``administration of criminal justice'' is just
that, and there are three phases: preconviction, conviction,
and post-conviction. The intent is that it cover those three
phases.
Senator Kyl. Thank you, Senator Feinstein.
First of all, Senator Durbin, I would invite you and other
members of the Committee, if he is willing to do so, to submit
additional written questions to Viet Dinh at the Department of
Justice, to further amplify all of your questions. I thought
your questions were very good questions, and there are good
answers to them.
For example, as one of the authors, I agree with everything
that Viet Dinh has just testified to, but would further note
that with regard to the last point, section 4 provides that
Congress shall have the power to enforce, by appropriate
legislation, the provisions of this article. It was our
intention that questions such as definitions of who are
victims, what kind of notice is required and by whom, and your
last point, the definition of violent crime, could well be
dealt with by appropriate Congressional legislation.
If there are no further questions of Viet Dinh--yes, sir.
Mr. Dinh. Can I make just one comment, one note on your
last point, Senator? The language of section 4 deliberately
tracks the language of section 5 of the 14th Amendment and
section 2 of the 13th Amendment. As you know, there is well-
established constitutional precedent as to the proper scope of
Congressional authority under those provisions and, should this
amendment pass, we would gladly work with you in order to
comment on the appropriate legislation.
Senator Kyl. We appreciate that very much. Thank you.
Senator Durbin. Mr. Chairman, if I might be recognized for
just a moment, I thank Professor Dinh for his testimony and I
accept your invitation to continue this dialogue.
I have to leave to go to another hearing, and I assure
those who are here for the second panel that I will read their
testimony carefully. I appreciate this opportunity for this
hearing today.
Senator Kyl. Thank you very much. And thank you, Viet Dinh,
for your presence here, and John Gillis as well. We appreciate
your being here.
Now, would the members of the second panel please come
forward. I will introduce you as you are coming forward, and
then we'll just take you in turn. I'm going to turn to
Congressman Royce in just a moment to further introduce a
couple of you.
Collene Campbell, who will be further introduced, and her
husband, Gary, live in San Juan Capistrano, CA. Collene was the
first woman to be mayor of San Juan Capistrano. After her son
was murdered in 1982, she founded Memory of Victims Everywhere,
or MOVE.
Her family suffered another blow in 1988, when her brother,
race care legend Mickey Thompson and his wife, Trudy, were
murdered.
Earlene Eason was raised in Chicago. She was a nurses
assistant and now works in day care. She has raised three sons.
Her son, Christopher, was murdered in 2000.
James Orenstein is an attorney in private practice in New
York City and an adjunct professor at the law schools of
Fordham University and New York University. From 1990 until
June, 2001, he served in the U.S. Department of Justice as an
Assistant U.S. Attorney for the Eastern District of New York.
Patricia Perry is the mother of a New York City police
officer who died in the 9/11 attacks, which was referred to in
Senator Leahy's testimony.
Duane Lynn met his wife, Nila, when they were 16. They
married at 19. After five-and-a-half years in the Navy, Duane
joined the Arizona Highway Patrol. He was a dispatcher, road
officer, helicopter medic. Duane and Nila had six children and
12 grandchildren. His wife, Nila, was murdered on April 19,
2000.
Steve Twist is a lawyer in Phoenix. He's a former Chief
Assistant Attorney General for the State of Arizona, and now
serves as General Counsel for the National Victims of
Constitutional Amendment Network. Mr. Twist is the author of
the Arizona constitutional amendment for victims' rights and
its implementing legislation. He teaches victims' rights law at
the College of Law at Arizona State University, where he has
also founded a free legal clinic for crime victims.
At this time let me turn to Congressman Ed Royce, a Member
of the United States House of Representatives from California,
for a further introduction of a whole variety of Californians
who are with us today.
STATEMENT OF HON. ED ROYCE, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF CALIFORNIA
Representative Royce. Thank you very much, Senator Kyl. I
appreciate that.
I'm the sponsor of the victims' rights amendment on the
House side, and I am privileged to introduce Collene Thompson
Campbell, who like our Assistant Attorney General Viet Dinh, is
from Orange County, CA.
In 1982, Collene's son, Scott, was murdered. His body was
tossed out of an airplane at 2,000 feet and never recovered.
Scott's death, and the near decade of grief and struggle it
took to bring his killers to justice, prompted Collene to
become involved in the victims' rights movement and to start a
group called Memory of Victims Everywhere.
In 1988, Collene helped me pass Proposition 115, the Crime
Victims Justice Reform Act. She helped put it on the ballot. It
required a million signatures, and it passed overwhelmingly in
the State. That proposition made historic changes in California
law that changed the way our criminal justice system treats
victims, in some of the same ways that you intend to change
here with this constitutional amendment. Many other States have
copied its provisions.
Collene's tragedy did not end with her son's case, and her
involvement did not end with Proposition 115. In March of 1988,
Collene's brother, race car driver Mickey Thompson, and his
wife, Trudy, were gunned down in their own driveway in LA
County. Like her son's case, that case has taken years of
investigation, and the case is now finally awaiting trial.
One has to ask, how can we allow our criminal justice
system to add to the terrible grief these families are forced
to endure? This amendment would help reform that injustice.
Through all this, when others would have long ago given up
hope, Collene has never stopped working. Four U.S. Presidents
have honored her for her work on behalf of the rights of crime
victims and their families. Her dedication and her
unselfishness, her commitment, have made a difference for crime
victims in California and across the country. I am very
privileged to introduce to you my good friend, Collene Thompson
Campbell.
I thank you, Senator Kyl.
Senator Kyl. Thank you very much, Congressman Royce. I was
going to ask whether we should go first from the left to right
or right to left, but being a conservative, I'm going to start
at the right, how's that?
[Laughter.]
I might say that we have asked each of the witnesses to
confine their remarks to 5 minutes. When I met with several of
you this morning, you asked how can you possibly describe in 5
minutes all of the feelings that you've had about these issues,
particularly when it has taken so long--in the case of Mrs.
Campbell, for example. We understand that it's very difficult
to do all of this within a short period of time, and we
therefore especially appreciate your efforts to do so.
Collene?
STATEMENT OF COLLENE THOMPSON CAMPBELL, CITY COUNCILWOMAN, SAN
JUAN CAPISTRANO, CALIFORNIA
Mrs. Campbell. Thank you for the opportunity. My name is
Collene Thompson Campbell, and it is really tough to be here.
Honorable Kyl, Honorable Feinstein, Honorable Senator, I thank
you for giving me this opportunity.
My only son is dead because of a weak and forgiving justice
system. And yes, we may be one of the hardest hit families in
the nation, but we are just one victim's family out of hundreds
of thousands. We continue to be deeply saddened by all four of
the September 11th terrorist attacks, but we also know that
every ten weeks in our Nation as many people are murdered right
here in the country, every ten weeks.
Our son Scott was strangled by two repeat felony criminals
and thrown from an airplane, and we never found him. We
couldn't even have a funeral for him. My brother, my only
sibling, my friend, auto racer legend Mickey Thompson and his
wife, Trudy, were shot to death as they were simply leaving
their home on their way to work in the morning.
For any family to deal with murder is near impossible, but
to allow the American justice system to add additional pain is
shameful.
The U.S. Constitution was written to protect, balance and
establish justice--and that is true--unless and until you have
the misfortune of becoming a victim of crime.
There has been tremendous pain in our family, and
multiplying that grief is the fact that the moment we became a
victim of crime, our rights were ignored in favor of killers.
That means a murderer or rapist has rights not afforded to
honest victims, all because the victim is not mentioned in our
Constitution.
My husband and I were not permitted, not permitted, to be
in the courtroom during all three trials for the men who
murdered our son. We weren't going to be witnesses. They just
kicked our fanny out of there and forced us to sit in the hall.
Yet the killers, with all of their family, were inside the
courtroom portraying the family unit. We were not allowed to be
heard, yet the killers' family were able to testify,
proclaiming goodness about the evil defendants.
We were not notified of a district court appeal hearing.
Therefore, no one was there to represent our murdered son,
Scotty. Yet, in full force, 40 members of the killers' group
were present. The murder case was then overturned and there is
yet to be another trial. The killer was released without
concern for our safety, and we learned of all of this through
the media.
I called the Attorney General's prosecutor in our case and
I asked why she hadn't notified us regarding the appeal. Her
answer was demeaning, but very typical. She said, ``We never
notify the victims. They simply don't understand.'' However, we
knew the true reason we were not notified. Unlike the killer's
defense, she was not required to notify us because we were only
the mom and dad of the murder victim, his next-of-kin. We
weren't the killer so they didn't have to notify us.
I could go on and on, but I can guarantee you that the
treatment that we and thousands of other victims receive is the
product of others before us doing nothing. Hopefully, you will
work to change that. I don't know what we're waiting for.
You rarely hear from people like me because victims are too
devastated to talk--and I'm devastated, as you can tell. We
received no financial help in our attempt to expose the true
victims' world, nor do we have attorneys representing us. We
pay our own way in an effort to improve the justice system to
save others. I paid my own way to be here today.
All we have is the honesty and integrity of good Americans
asking for a balanced justice system, and we need your help
now.
At a huge cost to taxpayers and our life personally, we
have been forced to be in the justice system for 21 straight
years, with no right for a speedy trial. And there's no end in
sight for our family. And what kind of a torture in the justice
system is that for a family who is trying to live a normal
life?
We ask you to move forward with a proposed constitutional
amendment to give the same rights to victims as the accused
have. The amendment we seek does not take away rights from
criminals.
On behalf of all crime victims, thank you for allowing me
to be heard--and that's all crime victims. I only hope you did
hear me today and that you will react to the real world that
we've been forced to endure. And I want to give a special
thanks to Senator Kyl and Senator Feinstein, my Senator from
California. Thank you for caring, thank you for seeing the
truth, and we really do appreciate you. Thank you very much.
[The prepared statement of Mrs. Campbell appears as a
submission for the record.]
Senator Kyl. Thank you, Collene. We will now hear from
Earlene Eason of Gary, IN. Earlene.
STATEMENT OF EARLENE EASON, GARY, INDIANA
Ms. Eason. Mr. Chairman and Senators, my name is Earlene
Eason, and I presently reside in Gary, IN. I strongly support
the crime victims' rights amendment.
I would like to share with you my unfortunate experience as
a crime victim after the murder of my 16 year old son,
Christopher. He was murdered on July 16, 2000. I had relocated
from Minneapolis, MN to Gary, IN. About a year after
relocating, I thought allowing him a few weeks vacation with a
neighbor, and previous neighbor, Penny Jackson, back in
Minneapolis would help ease Christopher's transition to a new
city.
Back in Minneapolis, while on vacation, my son was killed,
murdered in a manner which no human being deserves to die. He
was shot point blank in the lower back with a sawed-off
shotgun. Forensics revealed that my son was trying to run when
he was grabbed by the back of the shirt and pulled back onto
the barrel of the shotgun and then the trigger was pulled. The
killer was a 24 year old from El Salvador.
After my son's murder, the criminal justice system in
Minneapolis treated me very badly. I was not informed of the
death of my son by the authorities. Over 13 hours after my
son's body was found Ms. Penny Jackson called. My family and I
were not told we had rights. However, we were promised by the
district attorney's office that they would keep in touch with
us about the case. This would turn out to be an empty promise.
First, the DA said the charge would be first degree murder.
We only learned of the actual charges filed--which were second
degree murder--from the newspaper. Only after the press had
printed and distributed the newspaper and after we had read it
were we notified.
We also experienced significant financial hardship because
of other failures to give us adequate notice. All of this
wasted expense, which we could not afford, was due to constant
trips to Minneapolis for court dates, which were frequently
changed without adequate notice to me and my fiance.
My son's father, who resides in California, purchased
several flight tickets. He was never informed of any date
changes. The district attorney's office failed to contact him
and inform him of anything. He became so frustrated that he
gave up on coming out to any of the hearings due to the expense
of cancelled tickets and the fear of losing his job from the
disruption of his work schedule because of the failure to
notify him.
The first trial was a hung jury, 11 to 1 to convict. The
trial took place on October 17th, 2000. When I and other
members of the family asked for another trial, we were treated
as simpletons, as if we were invisible. Approximately 2 months
later, the DA's office and the defense attorney decided to plea
bargain. I was informed of this only after the fact. They had
already agreed to the plea bargain. I was informed of the
initial date for plea and sentencing dates, but there were
several continuances. We received very short notice of these
changing dates, which was very disruptive to my fiance's job.
Finally, the date was set for 9-12-01. We were going to fly
to Minneapolis from Chicago. Then the airports were shut down
because of 9/11. I called the district attorney's office and
asked for the proceeding to be re scheduled. The deputy DA
affirmatively discouraged me from attending. He believed it was
more important to have a tactical advantage by getting a
sentence the day after 9/11 than it was important for me, the
mother of a murdered son, to attend and speak at the sentencing
of my son's killer.
The DA did not ask the court for a continuance on our
behalf, even though there had been many continuances granted
for other reasons, and I had never asked for a continuance
before. As a result, I was unable to appear in court to try to
object to the plea bargain or speak at sentencing, even though
it was very important to do so. My son's cold-blooded killer is
getting only 11 years of real time for killing my son. I feel
like the DA and the justice system thought this was just
another African-American kid killed and that our family didn't
deserve to be treated with plain decency.
I was told I could not get restitution. This does not seem
right. The constitutional amendment would greatly help victims
efforts to get restitution. We were assured we would get
financial help even for therapy, and I went for as long as long
as I could afford to pay for it out of my own pocket. I then
had to stop because I could no longer afford it. As a result of
no therapy, I became physically sick and could not work. To
this day, I have received no financial assistance for therapy.
In closing, I would like to say we were treated without
compassion or respect by a justice system that really didn't
care. People receive more compassion for the loss of a pet than
we received from the justice system for the loss of our son.
I would like to ask the Senate to hear us, to realize that
the victims of crime should not have to take this any more. I
feel powerless, but I know you have the power to vote yes on
the constitutional amendment, to keep what happened to us from
happening to anyone else. It is time for you to stand by me and
for you to pass this amendment so that people like me don't
have to take this any more. We should have had rights in this,
and we had none.
Thank you.
[The prepared statement of Ms. Eason appears as a
submission for the record.]
Senator Kyl. Thank you, Ms. Eason.
Mr. Patricia Perry. Thank you for being here.
STATEMENT OF PATRICIA PERRY, SEAFORD, NEW YORK
Mrs. Perry. Thank you, Senators Kyl and Feinstein, and
Honorable Ed Royce, for this opportunity to share my views on
the proposed victims' rights amendment.
My name is Patricia Perry and I speak on behalf of my
husband, James, our daughter, Janice Perry Montoya, and our
son, Joel Perry, in memory of their brother, our son, John
William Perry, a New York City police officer who volunteered
to assist employees escaping the World Trade Center on
September 11, 2001, and himself became a victim.
John graduated from New York University School of Law, but
he wanted the experience of being a police officer. When he
received the opportunity to enter the New York City Police
Academy, he left his partnership in a law firm and eagerly
trained to learn how to protect the public from those who would
cause harm.
While in the NYPD, John also served as a pro bono lawyer
for those whose civil rights or civil liberties had been
violated. He served as legal advisor to the Kings County
Society for the Prevention of Cruelty to Children and was a
volunteer arbitrator for the small claims court in Manhattan,
and also served as a lieutenant in the New York State Guard. He
was serious about his goals, but full of humor and had an
infectious smile.
After 8 years of service in the NYPD, which included nearly
5 years in the legal department, John decided he would return
to private law practice. On September 11th, 2001, John went to
One Police Plaza, completed his retirement papers, and turned
in his badge. The first plane crashed through Tower One. He
immediately retrieved his badge and ran to the World Trade
Center, just minutes away. He met a friend, Captain Pearson,
and entered the underground plaza. They worked together to help
panicked workers find a safe way out of the area. He did not
find safety for himself and became a victim.
John believed in the integrity of the Constitution and the
Bill of Rights, and the institutions of our government that are
established to pursue the guilty through legal means. Our
system, as we have heard, is not infallible. It can at times be
both insensitive to the needs of victims and less than
competent in its prosecution of criminals. We know there are
cases where the guilty have gone unpunished, and where innocent
people have been convicted and even executed.
These are issues that need to be addressed, but we suggest
this amendment is not the appropriate tool, nor will it remedy
these flaws. Our family agrees that John would appreciate the
concern for victims, but would oppose the victims' rights
amendment. Our family believes the best way for Congress to
support victims and their families is to promote and support a
system of justice that provides fair and just convictions of
the criminals responsible for crimes. We believe this
constitutional amendment threatens the system of checks and
balances in the current justice system and that it could
actually compromise the ability of prosecutors to obtain
convictions for those responsible for the carnage on 9/11. We
believe that, to the extent this amendment is effective, it is
unworkable, and even dangerous. And to the extent that it does
nothing, it is an empty promise for victims who need real
resources and real support.
We believe that criminal convictions should not be based on
the emotions of victims and families, particularly in
situations where we are not relevant witnesses to the crime. On
the other hand, victims should clearly have the opportunity to
participate in the penalty phases of a case after a defendant
has been found guilty. As we have seen in the aftermath of this
tragedy and others, victims do not always agree on the best way
a case should be handled.
Under this amendment, as we understand it, victims would
have the right to give input in the criminal case even before
the conviction, which could compromise the government's
prosecution of the case. Moreover, if the amendment passes, who
will be entitled to these constitutional rights? Defining
``victim'' is not always easy and can present problems that
cannot be ignored.
Even the most well-intention efforts cannot always
anticipate the problems that might arise. Look at the ongoing
dissention that has been caused in defining ``victim'' under
the Victims' Compensation Act. In a criminal case, it seems
that defining victim will be even more challenging,
particularly when the victim cannot represent him or herself.
Who decides who is the true representative to be heard? How
long will it take if every family member of every victim of 9/
11 is allowed to input a position on procedure of a case
against someone like Zacharias Moussaoui?
I was interviewed, as were many family members, by the
Justice Department, in order for the prosecution to choose a
sample of family members to testify during the penalty stage.
The Justice Department already determined that not all families
are necessary in the penalty stage of this trial.
This proposed amendment allows for the waiving of the right
of all families to be heard in such cases, but with large
numbers of victims, who passes the test for inclusion? How will
different viewpoints be reconciled if all must be heard? And
if, as the amendment allows, our newly found constitutional
rights are easily waived, the intended relief the amendment
supposedly provides to victims becomes meaningless.
We would suggest that instead of focusing on this
amendment, Congress should ensure that resources are offered as
needed to help heal the pain and loss of victims and victims'
families, as you have before you today. The response of the
American and foreign populations to our loss on 9/11 has been a
great support. But most victims do not receive this love and
support. Our hope is that we all consider the benefits of
turning our attention to providing real help to victims, and we
do so without compromising the integrity of our Constitution.
Many States have begun to provide funds to assist victims
of crime. More work should be done at the State and Federal
legislative level and this amendment is not only distracting
legislators from doing it, but is also causing hurtful and
needless dissentions within the victim community. Can you
imagine how wrenching it is for our family to find ourselves at
odds with other victims' families over this political issue,
which will in any event do so little for crime victims.
We want justice for our son, and for the daughters and
sons, husbands and wives, partners, mothers and fathers who are
victims of every crime. We deserve that our government and law
enforcement personnel protect us as much as possible from harm.
My son, John Perry, believed strongly in the rule of law and
the right of the people to direct our elected representatives,
like yourselves, to use good judgment in establishing sound
laws.
Thank you.
[The prepared statement of Ms. Perry appears as a
submission for the record.]
Senator Kyl. Thank you, Ms. Perry.
Professor James Orenstein, we are pleased to have you with
us.
STATEMENT OF JAMES ORENSTEIN, ESQ., NEW YORK, NEW YORK, FORMER
ASSISTANT UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF
NEW YORK
Mr. Orenstein. Good morning, Mr. Chairman, distinguished
members. Thank you for inviting me to appear 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, including
several here today, to make sure that any victims' rights
amendment will provide real relief for victims of violent
crimes without jeopardizing law enforcement. I think it my be
possible to do both, but I also believe 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 only marginal improvements for their victims. In the
last 20 years, Congress has enacted several statutes that
improve victims' rights in the criminal justice system. One of
them, the Victims' Rights Clarification Act, effectively
addressed the problem of victim exclusion from the courtroom in
the Oklahoma City bombing case, where I was one of the
prosecution team.
As a result of that statute, no victim was excluded from
testifying at the penalty hearing on the basis of having
watched the trial. More importantly, in considering whether
this amendment is necessary and effective, you should know that
Judge Matsch's actions after the enactment of that statute
would likely have been exactly the same if this amendment had
been in effect.
In addition to Federal legislation, every single State has
enacted its own victims' rights laws. The only thing lacking is
uniformity in the States' adoption of the full range of
protections that this body has provided. As a result, the main
benefit to be gained by this amendment is not the elimination
of injustices that its supporters have described today. Most of
those injustices are either already violations of existing law
and, therefore, would not be cured by this amendment, or are
beyond the reach of an amendment that promises not to deny the
historic protections of the Bill of Rights.
Instead, the limited benefit would be uniformity in the
States, a uniformity gained only by allowing Congress to
mandate changes in State criminal justice systems. The same
result, however, could likely be achieved without a
constitutional amendment through the use of Federal spending
power to give States proper incentives to meet uniform national
standards. But unlike reliance on such 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 for
law enforcement are not the result simply of recognizing the
legal rights of victims. Prosecution efforts are generally more
effective if crime victims are regularly consulted during the
course of a case. There are, however, a number of cases where
the victim of one crime is also the offender in another, and in
such cases, this amendment could harm law enforcement.
For example, when a mob soldier decides to testify for 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 victims who
are more sympathetic to the criminals than the government. As
Senator Kyl mentioned before with Mr. Dinh, when John Gotti's
underboss decided to cooperate, he initially remained in jail
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, and had the wording of this current bill been in
effect at the time, they probably would have gotten notice.
Relatives of those gangsters who the underboss had murdered on
Gotti's order would almost certainly have been notified, and
notified Gotti, if they could have done so.
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, the 1st and 6th Amendments make it
extraordinarily difficult to do that. As a result, the need for
discretion is usually handled not by closing the courtroom but
by scheduling guilty pleas without notice, and at times when
the courtroom is likely to be empty. Such pragmatic problem-
solving cannot work under this amendment.
In the prison context, inmates who assault one another may
have little interest in working with prosecutors to promote law
enforcement, but they may have a very real and perverse
interest in disrupting prison administrations by insisting on
the full range of victim services that the courts will allow.
Some of those services could force prison wardens to choose
between costly steps to afford victim inmates their
participatory rights and foregoing the prosecution of offenses
committed within prison walls. Either of these choices could
endanger prison guards.
The risk to law enforcement arises not from giving rights
to crime victims but from using the Constitution to do so.
There are two basic ways this bill could cause more problems
than using legislation to protect victims' rights: first, by
not adequately allowing for appropriate exceptions, and second,
by delaying and complicating trials. I explain at more length
in my written statement how particular aspects of the wording
of the current proposal could harm law enforcement.
I think, in response to what Mr. Dinh was saying before,
one of the main issues that I still have is the use of the word
``restrictions'' rather than the word ``exceptions'' in section
2. That's a change from the version 3 years ago. That could
deprive prosecutors and prison officials of the flexibility
needed for safe and effective enforcement, and could make the
arguments that Mr. Dinh was using earlier today ineffective in
a court.
But beyond such wording issues, some problems are created
by the very fact that, contrary to the claims of some
supporters of this bill, 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--and that's what I'm talking about in the difference
between ``exceptions'' and ``restrictions''. And there are
other examples in my written remarks.
Our criminal justice system has done much in recent years
to improve the way it treats victims of crimes, and it has much
yet to do. The Crime Victims' Assistance Act, co-sponsored by
Senator Leahy and other members of this Committee, is a good
example of legislation that should be enacted, regardless of
whether you also amend the Constitution. By adopting a
legislative approach now, you may well find that the potential
harm to law enforcement inherent in the constitutional
amendment need not be risked.
Some say the kinds of concerns I describe today make the
perfect the enemy of the good. But if supporters of victims'
rights, among whose numbers I count myself, allow the desire
for a symbolic victory of a constitutional amendment to
distract them and to distract you from passing legislation that
could achieve all of their substantive goals more effectively
and with less risk to law enforcement, they run the risk of
making the flawed the enemy of the perfect.
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 crime
victims only be jeopardizing law enforcement. By doing so, it
ill serves the crime victims whose rights and needs we all want
to protect.
Thank you very much.
[The prepared statement of Mr. Orenstein appears as a
submission for the record.]
Senator Kyl. Thank you, Professor Orenstein.
Mr. Duane Lynn.
STATEMENT OF DUANE LYNN, PEORIA, ARIZONA
Mr. Lynn. Thank you, Mr. Chairman, Senators. My name is
Duane Lynn.
Three years ago, Wednesday, April the 19th, 2000, started
out like any other ordinary day. But my plans were interrupted
and the events of that afternoon changed my life and that of my
family forever. In the middle of the afternoon, an angry,
bitter man, named Richard Glassel, came into our homeowners
association meeting in the Vintana Lakes Community where my
wife and I lived. I resided on the board. He simply walked into
the room, announced to everyone ``I'm going to kill you'', and
he started shooting. He had three handguns, one assault rifle,
over 700 rounds of ammunition, and a suicide note in his
pocket.
He had one purpose in mind that afternoon, to kill everyone
that he could. He was mad about the way the homeowners
association trimmed his bushes in his yard months before, and
he was going to have the last word. Ultimately he wounded
several, and he killed two before his gun jammed and he was
tackled to the ground. One of the two killed was my wife. I
made it out alive. We had been married 49 years and 9 months.
We almost made it to 50.
We have six kids, and they had been secretly saving up
their money and were going to give us a 50th wedding
anniversary party in July. The money ended up paying for a
casket. She died in my arms there on the floor that afternoon.
It all last only just a few seconds, 23 seconds of one man's
rage that changed my life forever. She was absolutely
everything to me.
But, unfortunately, my story doesn't stop there. As a
result of this violent crime, we became victims and faces in
our judicial sys-tem, something brand new to us. We were told
from the very beginning that we could give an impact statement at the
sentence phase of the trial. At the time, we really didn't understand
just what all that meant. All we knew was that it was going to be our
time to have a voice in this horrible ordeal, our day in court.
It took almost 3 years for that to happen. Just this past
January, I gave my impact statement to the jury before the
sentence of the shooter, Richard Glassel. He had already been
found guilty. This was after the fact, at the sentencing phase.
The courts told me that I could talk about my wife in my impact
statement. I could talk about how this has all made an impact
on my life. But I was also told that I had to stop short of
talking about how I felt this murderer should be sentenced. I
could give no comment on that. I even had to hand over my
impact statement to be preread by the defense attorney, the
prosecuting attorney, and the judge. Certain parts were
ultimately censored, and I had to make the changes.
Then, right before I read my statement in that courtroom,
the defense lawyer, in his closing arguments, made reference to
what the jury would be hearing from me as a victim and began
disclosing my every word and my thoughts in a lighthearted
manner. One can only assume that he wanted to lessen the impact
of my statement. I couldn't believe it.
I never realized, until having gone through this, that
there are just a handful of players involved in what happens in
a courtroom. The legal system calls that ``being a party
involved''. The prosecuting attorney is considered a party to
what happens in the courtroom; the defense attorney is
considered a party as to what happens in the courtroom; the
defendant is considered a party to what takes place. All of
these parties can give a recommendation as to what should
happen to Mr. Glassel, what kind of a sentence he should have.
The jury can hear even the murderer's family as to what they
would recommend his sentence should be. Land of the free, home
of the brave.
Mr. Glassel dealt with his problems in a cowardly way, and
in this land of the free, we, as the family of the victim,
which was my wife, my love, the person that I still expect to
see walk through my front door every day, as she did for 50
years, she was a real person, not just a name and a number on a
document. We could say nothing about the consequences of that
man who took all this away from me.
My wife is not considered a party in all this. She can't
make a recommendation. She has no say. She's gone. We are her
voice now, and even though we were there for every step of the
way for over 2 years and 8 months that this process took, with
60 courtroom hearings, we by law had to remain silent on this
issue. We just helplessly sat by there on the front row and we
watched all the parties give comments concerning the statements
and the sentencing.
You have no idea what that feels like. The evil done by a
murderer inflicts tragedy, and that is bad enough. But injuries
inflicted by friends, our legal system, are even harder to
take. More betrayal, more disbelief that this was unfolding as
it was. I felt kicked around and ignored by the very system the
government has in place to protect law-abiding citizens.
I was a highway patrolman for 18 years. I lived by the
rules. I enforced the laws of the State of Arizona. And now I
have to sit in silence. The jury never heard that I wanted to
recommend a life sentence. They gave him a death penalty. I had
my reasons.
The system has failed the victim regarding capital
punishment cases. We understand that our judicial system is
there to protect the innocent, but in doing so, we erred on the
side of a defendant and not the family of the victims. There is
something wrong when a prisoner convicted of first degree
murder, two counts, has more rights in the courtroom than the
families of the victims he has murdered. How imbalanced do we
want the judicial scale?
I am here today to ask you to be on the same side as the
victim of the crime. Allow us, as victims, to make a
recommendation as to the sentencing of the defendant. Give me a
voice and as a party in the courtroom. It is our case that is
before the Arizona Supreme Court now on this very issue.
I support this amendment and my hope is that in the future
victims won't have to go through the betrayal that we felt by
the courts. As stated earlier, let's fulfill the promise.
Thank you, ma'am.
[The prepared statement of Mr. Lynn appears as a submission
for the record.]
Senator Feinstein. [Presiding.] Thank you very much, Mr.
Lynn.
Mr. Twist, you're next.
STATEMENT OF STEVEN J. TWIST, GENERAL COUNSEL, NATIONAL VICTIMS
CONSTITUTIONAL AMENDMENT NETWORK
Mr. Twist. Madam Chairman and Senators, thank you. My name
is Steve Twist. I am grateful for the invitation to present the
views of the National Victims Constitutional Amendment Network,
a national coalition of America's leading crime victims' rights
and services organization, including Mothers Against Drunk
Driving, the National Organization for Victim Assistance, and
the National Organization of Parents of Murdered Children,
among many others.
We especially want to thank you, Senator Feinstein and
Senator Kyl for your steadfast and faithful leadership on our
cause and for championing our cause. Let me say also on behalf
of our National movement how grateful we are to the President
and to the Attorney General for remaining also steadfast in
pursuit of the goal of a constitutional right for crime
victims.
If skeptics needed any more evidence of the need for a
Federal amendment, the case of Duane Lynn should be all they
need. For years, critics have said--and you've heard it here
this morning--statutes are enough, State constitutional
amendments are enough. I have asked the critics over these same
years to look at the real world that confronts victims of crime
in criminal cases. Here is Duane Lynn's real world.
Arizona has a strong State amendment. Among other things,
it provides victims with the right to be heard at any
proceeding involving sentencing. Our legislature has further
implemented that right by specifically providing that a
victim's right to be heard at sentencing includes the right to
offer an opinion regarding the appropriate sentence.
We filed a motion seeking to preserve this right for Mr.
Lynn. The trial court denied our motion. We filed a special
action in the State Court of Appeals and the court accepted our
petition but denied relief. We filed a petition for review in
the Arizona Supreme Court and asked for a stay. The petition
was accepted, but the stay was denied. So the sentencing went
forward and the jury did not hear Mr. Lynn ask for life
imprisonment, and the defendant was given the death penalty.
Throughout the legal battle, the courts claimed that for
Mr. Lynn to ask for life and not death denied the defendant his
8th Amendment rights against cruel and unusual punishment. This
is the legal culture to which Mr. Orenstein and other critics
of our amendment remain so hide-bound. This is the culture
which he and others propose to fix with a statute.
I have thought how could this be? I must have missed
something. And then I read Mr. Orenstein's testimony again and
something jumped out at me that I had missed. It's right here
in the first paragraph, right after he sets the theme that
these rights will hurt law enforcement and prosecution. And by
the way, as a former prosecutor for 12 years, who prosecuted
violent crime cases and who supervised the prosecution of
organized crime and racketeering and drug trafficking cases,
with all due respect, I dismiss the fears that have been
presented to the Committee about the negative impact on law
enforcement and prosecution.
But you don't need to listen to me. Those fears are also
contradicted by more than a decade of experience in my State.
And they are also rejected by the California DA's Association
and other DA's around the country, by the International
Association of Chiefs of Police, by the Justice Department.
These are not the things that are so telling, however,
about the gulf that divides Mr. Orenstein and myself on the
amendment. What is telling is right here on the front page. Let
me read it to you. ``...the current language of the Victims'
Rights Amendment...will achieve marginal procedural
improvements for their victims.'' It is this phrase, ``marginal
procedural improvements'' that haunts me. That's what Mr.
Orenstein thinks this is all about, marginal procedural
improvements.
I do not presume, as Mr. Orenstein and others do, to decide
for Collene and Gary Campbell how important it is for them to
be in the courtroom during the trial of their son's murderers.
I do not want to decide for her, and I don't want my
government, in an exercise of hideous paternalism, to decide
for her. I don't presume to decide for Miss Eason that it's
marginally important for her to know about and be heard about
the plea bargain offered to her son's murderers. I don't
presume, as does Mr. Orenstein and others, that it is of
marginal value for Duane Lynn to have the same right as his
wife's murderer and the murderer's family to offer his opinion
on the sentence to be imposed, and to ask for life and not the
death penalty.
Mr. Orenstein and others presume these things to be of
marginal value. In a free society, I prefer to presume that
free Americans should be able to decide for themselves whether
these things are marginal.
For 7 years, through extensive hearings in both Houses, we
have presented to the Congress case after case of injustice. We
have presented a strong and, indeed, a compelling national
consensus that only an amendment to the U.S. Constitution can
end the injustice: former President Clinton, former Vice
President Gore, former Attorney General Janet Reno, President
Bush, Attorney General Ashcroft, the platforms of both the
Democratic and Republican parties, constitutional scholar Larry
Tribe, the list goes on and on, the vast majority of Governors,
41 Attorneys General, prosecutors, the California DA's
Association, the International Association of Chiefs of Police,
the mainstream of America's victims' rights movement, leading
business groups, and the overwhelming voice of voters in 33
States, who when asked to support a constitutional rights
amendment for victims answered yes by over 80 percent, all
joined together in a chorus that rejects the fear of the
critics and stands with America's crime victims to give them
the freedom to choose, to decide what is important for them in
their case in court.
Nothing but a constitutional amendment will give them that
freedom. Arizona's constitution hasn't done it, Arizona
statutes haven't done it. Nothing but an amendment to the U.S.
Constitution. So, for Duane and Collene and Earlene and the
millions who stand with them, we ask you to lead their cause.
[The prepared statement of Mr. Twist appears as a
submission for the record.]
Senator Kyl. [Presiding.] Thank you very much, Mr. Twist. I
was called out of the hearing with a reminder that I'm required
to be at another place right now. But I wasn't able to
acknowledge both Cathy and Patty, Duane Lynn's daughters being
here in the front row behind Duane. I wanted to be sure and do
that. It is not only Duane who has been hurt by his wife's
murder, but also his daughters. We very much appreciate your
being here, and thank you, Mr. Twist, for your statement.
What I would like to do is ask a question and then turn the
hearing over to Senator Feinstein, with recognition that
Senator Kennedy is now here. In addition to whatever time he
may wish to take with questions, Senator Kennedy, if you would
like to make a statement, feel free to do that as well. And we
have left the hearing open for any written questions, so if you
have written questions, those would be appropriate as well.
I had two questions. I have so many questions that I would
like to ask, particularly of the victims here. I think the
statement that Mr. Twist just concluded with summarizes the
point that would have been made, and that is that, in each
individual case, there is a very real and very personal hurt
that occurs when the criminal justice system appears to turn
its back on victims, not to help them through the process.
I got involved in this, I might say, before I was ever in
any elected office, before I ever ran for any elected office,
trying to help victims of crime in my own county in Arizona,
because I saw that no one was giving them a hand and helping
them through the process.
Then I became aware that it wasn't only that but it was a
matter of not being able to do basic things--not the same
things that defendants do, because, understandably, they're
going to have rights that victims could never have--but at
least to participate in a way that would help them work through
the process and make others aware of their situation.
There are two very different questions I would like to ask.
Mr. Twist, I want you to please answer these, if you could. And
then, if others would like to answer them as well, that's fine.
The basic question is, even in a State like Arizona, where
you've done as lot of work--and there is a constitutional
provision and a statute--you have testified to some extent why
that's insufficient. So my first question is, there have been
suggestions that a Federal statute might work here. What is
your opinion of that? Why won't State statutes and a Federal
statute work? What is it about a constitutional amendment that
would actually protect these rights, whereas the State statutes
don't, and in your opinion, a Federal statute would not?
Secondly, precisely to Professor Orenstein's question--I
might say, by the way, that those were very good questions.
They're the same questions that we've been asking over the
course of many years. Instead of having me tell you, Professor
Orenstein, or others, how we have tried to deal with those
questions--and most of them have to do with the exception to
the rule, where you may not want to have a victim present or
where it may be difficult because of the number of victims
present and so on--but I would like to ask Mr. Twist, who was
an author of the amendment, to describe how we tried to deal
with all of those ``what if'' situations, those hypotheticals
that may not occur very often, but when they do, they're still
important, how we tried to deal with those in this amendment.
Mr. Twist.
And I must please beg your forgiveness for having to leave.
I would like to give the gavel to Senator Feinstein, who will
conduct the remainder of the hearing.
Mr. Twist. Senator Kyl, let me say how grateful we are to
you also for championing our cause and for your leadership on
this issue. We're truly grateful.
As to the first question, Senator, I think the answer of
why a Federal amendment as opposed to statutes, or State
constitutional amendments, is the same answer that James
Madison gave to critics of the Bill of Rights, when that
question was posed to then Congressman Madison, who offered the
bill during the first Congress.
He observed that only the Constitution of the United States
is the law of all of us. Only the Constitution of the United
States reaches in this context to the criminal justice systems
of every State. Only the Constitution of the United States has
the power to change the culture of the criminal justice system,
and that is clearly what is needed.
Effectively written laws, constitutional amendments, State
statutes, State constitutional amendments, have proven over 20
years of experience to be inadequate to change the culture. It
is precisely for the same reasons that Madison wanted to
incorporate the Bill of Rights that we seek to incorporate
these rights into the law of all of us, which is the U.S.
Constitution, because only the Constitution has the power to
change the culture.
As to the specific fears of Mr. Orenstein, I respect his
views. I respect his observation as a former Federal prosecutor
of the need not to hamper prosecution. But I would say that if
you look and parse through each of the areas of concern--and I
believe Mr. Dinh did a good job of addressing those--firstly,
the Constitution speaks of the requirement to provide
reasonable notice. It allows exceptions for public safety and
for the administration of justice.
In combination, this carefully-crafted amendment will not
admit the gross injustices or gross challenges to public safety
that Mr. Orenstein fears. It simply will not. And were it
otherwise, you wouldn't have the International Association of
Chiefs of Police, a strong voice of law enforcement, behind the
amendment. You wouldn't have the endorsement of the Justice
Department and the prosecutors there. You wouldn't have the
endorsement of the California District Attorneys Association.
Reasonable notice, with exceptions for public safety and
the administration of justice, provide the flexibility that any
judge would need, any administrator would need, to be able to
determine how to appropriately and properly protect the public
safety and the administration of justice in any case. That's
exactly why the amendment is written in the way it is.
The same thing is true with the prison examples. Reasonable
notice, the right not to be excluded is not the right to force
your jailer to release you from jail to go to a proceeding.
It's the right not to be excluded if you can present yourself
there, and if the law otherwise requires that you are not
allowed to present yourself there, then so be it. The amendment
isn't implicated.
That's why it says the right not to be excluded. Even if it
didn't say the right not to be excluded, the exception or
restriction for public safety, if there are safety threats in
transporting prisoners, there is clearly an exception allowed,
a restriction allowed, in those circumstances.
On Mr. Orenstein's point about the difference between the
word ``restriction'' and the word ``exception'', I accept
Senator Durbin's characterization. I mean, you read that, you
read those sentences together, those words together, and the
Constitution provides enough flexibility for these issues to be
resolved by a judge or administrator or whoever would need to
do it.
I would be happy to continue, Senator Feinstein, if you
think more is necessary.
Senator Feinstein. [Presiding.] [Mike off.] One thing, all
of this is crafted in that a plea bargain would not apply.
Mr. Twist. I take a broader view than Mr. Orenstein in his
testimony has taken, on the flexibility that the courts have
under the current CFR to close proceedings. I would just
commend to the Committee's attention the statement that was
submitted by Professor Doug Baloof at Lewis & Clark Law School
on this precise point, because I think he addresses it very
well.
Senator Feinstein. Thanks very much, Mr. Twist.
I'm going to defer to Senator Kennedy now and will ask my
questions afterwards.
Senator Kennedy. Thank you very much, Madam Chairman. I
will include my statement in the record.
Senator Kennedy. I want to give Mr. Orenstein a chance to
respond to some of the statements that we've heard here. They
have done a pretty good job on your testimony and I would be
interested in your reaction to this.
Mr. Orenstein. There are several points I would like to
address, and I will try and be brief.
On the main one in Mr. Twist's prepared statement, of
course, I do not suggest that it should be up to prosecutors or
any part of the Federal Government to decide which rights of
victims are more important than others, or which are of more
value. My concern is that this amendment either accomplishes
little and perhaps harms more than it can deliver, or that
whatever it delivers, it delivers at the expense of law
enforcement. That is the context in which the phrase that Mr.
Twist quoted is presented.
The flexibility problem, which we're all concerned with--
and I worked with Mr. Twist when I was at the Department of
Justice to try and get this right. I think we had it actually
in some ways better in S.J. Res. 3. But here's the problem.
There is a difference between an exception and a restriction.
If you take the example of reasonable notice of a guilty plea,
if you say that we're going to find a way not to provide notice
at all, that's not providing ``reasonable notice''. It's just
not providing notice. It's not a restriction; it's an
exception.
If we have an ability to provide exceptions, that's fine.
But the amendment, as it's drafted, says the right shall not be
denied and may only be restricted in certain circumstances. So
my concern is that courts would read that, and also read the
history of this amendment as it has progressed from version to
version, and say that where we're trying to not give notice
because of safety concerns, we can't do it. It isn't allowed
under the wording of this amendment.
The prison context, again it's partly a question of how the
language has changed from one draft to another. The previous
draft said--
Senator Kennedy. The point is, this isn't a drafting issue
or question. This is a broader kind of issue. I mean, is this a
technical kind of question that can be worked on through with
the drafting? I mean, many of the points talked about is sort
of a change in the culture in terms of protecting the rights,
and the only way that we're really going to change that in the
criminal justice system, which has grown over this period of
years, is if you're going to have a constitutional amendment. I
don't want to be putting words in, but you mentioned some of
these things, that this is the way it's going to have to be
done in order to give more life to these victims and this is
the only way and it can't be done by statute. Then he indicated
that you just don't understand this as a prosecutor. I want to
kind of get your reaction and response to that. I personally
don't agree with it, but I want to hear your position on it.
Mr. Orenstein. I don't agree, in a couple of ways. First,
in terms of the culture, the culture is changing. It has
changed a lot over the past 20 years, and it needs to continue
changing.
My own personal experience is that I've handled a murder
case where I did not adequately consult with the victims--and
I've regretted it for over a decade since. I had a real
education in working on the Oklahoma City bombing case, where I
saw not only the necessity of working with victims, but the
value to the case of doing so.
I think our culture has changed a lot. One way it has
changed is in the arena of death penalty prosecutions, where
victims now do have a right to speak at capital sentencing
proceedings. Obviously, there are limits that the due process
clause still puts on it, including limits on opining about the
sentence. But even speaking at a sentencing hearing at all,
just giving factual information about the impact of the crime,
that used to be considered unlawful. States passed laws to
change it and aggressively litigated it, and those laws worked.
The Supreme Court endorsed those laws in Payne vs. Tennessee 10
years ago. The culture is changing, and there are ways to
change the culture through statutes, through aggressive
advocacy, and through better prosecution.
As I said in my prepared testimony, I think there are steps
that this body has not yet tried. A spending-based statute that
will encourage every State to adopt this uniform floor of
victims' rights hasn't been tried. I think it could work. I
think it would be a shame not to try it.
Senator Kennedy. You believe that ought to be tried before
a constitutional amendment?
Mr. Orenstein. Well, certainly this goes back to my
technical concerns. Mr. Twist and I, or Mr. Dinh and I, can
argue back and forth over what the right interpretation is. I
hope I'm wrong, but I don't know, and neither does anyone else
here. If I turn out to be right, and it's a statute we're
talking about, we can fix it. If it's a constitutional
amendment, we can't.
Senator Kennedy. This is, I guess, Judge Rehnquist's
position.
Let me thank all the witnesses. Senator Kyl and others have
commented that we are very mindful of these incredible losses
that you've experienced. We know how difficult it is in
listening to the witnesses. And to Miss Perry and Mr. Lynn, we
are grateful to you for your willingness to be here and speak
on this issue. It is incredibly difficult and we're thankful.
I just wanted to ask Mrs. Perry about--I got in here late
because we were over at the Armed Services Committee earlier
and I apologize for being late for this meeting. It is
certainly an impressive life that your son had led, and the
enormously impressive way in which he gave his last full
measure to try and save others. It's an incredible act of
heroism in the highest order of the Judao-Christian definition
of a life that's well led.
He had this particular interest in terms of, I guess, civil
rights and civil liberties through his pro bono services as a
lawyer. Could you talk just a moment about that? Is this
something that was very special to him?
Mrs. Perry. I would just mention, also, that unfortunately
you were not here for the testimony of the other two women,
which was very compelling.
John was--I'm his mother, so forgive me--he was an
exceptional person. We said he didn't sleep and he kept his
life busy from one minute to the other, and he did fit in all
kinds of activities, including assisting friends and
organizations who had legal questions. He enjoyed very much
using his legal knowledge. After his death, even months later,
we were getting telephone calls from people whom he had
represented pro bono, who didn't even know he was the person
involved. They would ask, ``Is this the John Perry we heard
about?''
A woman he met by chance at a railroad station, who needed
help, an actress who was having John represent her in some kind
of a problem. A couple from Germany who had been here a few
years, and years ago he helped them with a landlord/tenant
case. He just enjoyed life to the fullest. He enjoyed showing
people how they could help themselves, and we rejoice in that.
He also was in many organizations, and he spoke out for all
people, on all topics, and was very open to different ideas.
Now, I don't want to get off into John too much, even
though I could talk for 20 minutes and you all would be bored.
But I was struck by something that Mrs. Feinstein reported,
that victims used to have the kind of rights that we think
we're talking about today, until 1850. I would say that even
after 1850, victims or victims' friends took these rights,
because we have a whole history in our country of frontier
justice and of lynchings, where there was no due process. So
while we may be negligent in really assisting the families of
victims today, we don't want to go back to the point where we,
as victims, and our friends, are allowed to take vengeance on
someone who has not been thoroughly given their rights in
court. It's a very dangerous point.
So I think my son, John, with all his interest in the law,
and in acting, and friends and people, would want to make sure
that we do keep close to the system we have put in place, even
while recognizing the system in some places fails because we
are humans. Maybe in Arizona they failed, and maybe in
Minneapolis and in California, that individual courts and
individual judges and prosecutors have not been sensitive. But
the system, as a whole, is much better than it was when we used
to not have these legal people in place to take care of us.
I don't know if I've answered your question.
Senator Kennedy. Very good. Thank you.
Senator Feinstein. Thank you very much, Senator Kennedy.
I wanted to point out that the first constitutional
amendment giving victims any rights was California's in 1982.
On my side of the aisle, there were not a lot of people in San
Francisco supportive of it. I was mayor at the time and I was
one of the few that supported it--party because of a specific
case that pointed out what is lacking in the system today.
Well, the California law passed overwhelmingly, and none of
the negatives came true. Other States then went out and adopted
constitutional amendments, but they all did it differently.
That's the problem. That's one of the reasons, Mr. Orenstein, I
don't think giving money to a State and saying come up with a
basic uniform floor is going to work. I don't know any issue
where that has actually worked, where every State has done the
same kind of thing.
I worked in a prison for 5 years, so I know a little bit
about what prison life is like. I don't see how the amendment
creates a problem for any prison. I want to quickly read the
limited rights that we're giving an individual: ``A victim of a
violent crime shall have the right to reasonable and timely
notice of any public proceeding involving the crime, and of any
release or escape of the accused.'' That's not too difficult.
The victim shall also have ``The rights not to be excluded
from such public proceeding and reasonably to be heard at
public release, plea, sentencing, reprieve, and pardon
proceedings; and the right to adjudicative decisions that duly
consider the victim's safety, interest in avoiding unreasonable
delay, and just and timely claims to restitution from the
offender.
Then it goes on right then and there and says, ``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.''
So essentially what we're trying to do is say, for example,
that, if you're attacked by somebody, and you testify against
them, and they do jail time or prison time, that you have a
basic constitutional right to know when they're released so
that you can protect yourself. I think most Americans would
agree with that, and also that, if you are a crime victim, you
have a basic right to know when a trial is going to take place,
and the right not to be excluded if you can present yourself,
and the right to make an impact statement, or the right to be
present at any public proceeding that involves the perpetrator.
I don't think those are unreasonable rights. I don't think
they'll disturb defendants' rights or sensitive criminal
proceedings. I sat on a term-setting and paroling authority.
That's how I was in prison. We set sentences under California's
indeterminate sentence law. We granted paroles. Those hearings
were not public. I don't know whether they are today, but not
at the time, so they wouldn't have been affected.
The reason you saw the Simpson family and the Goldman
family in court was because of the 1982 California
constitutional amendment. I have been deeply perplexed as to
why people really feel this will influence the administration
of criminal justice. I think deep down I know. I think there
are defense attorneys that don't want a paralyzed victim in the
courtroom, that don't want grieving small children in the
courtroom. But you know what? As you sow, so shall you reap. I
think you do not see a defendant the way he or she was when he
or she committed the crime. They're all cleaned up, all spruced
up, all shaven, many times wearing a suit and tie.
So if you're going to look at the fair administration of
criminal justice--and I spent a lot of my time in this arena--
you need to be fair to both sides. I think providing these
limited rights to a victim really equalizes the scale of
justice.
I have a little brochure that I hand out to people. It's
got a scale of justice. On one side are all the rights granted
by the Constitution to the accused, and on the other, there is
nothing for the victim. So now amendments have been adopted in
33 States. And in every state campaign, people have alleged the
same problems.
I wanted to ask you, Mr. Twist, some opponents have claimed
that this amendment is going to cause staggering costs. Now,
you helped draft the amendment in Arizona, and I think you were
instrumental in getting it passed. What kinds of costs has
Arizona encountered in implementing the amendment?
Mr. Twist. Senator, the costs are minimal. If you think
through the rights that you just enumerated, the only right
that has any sort of cost attached to it is the right to
receive notice. There is a cost associated with providing of
the notice. I would resort back to the testimony of county
attorney Richard Romley, who several years ago submitted his
statement to the record in hearings on this amendment, and
county attorney Barbara LaWall, who testified before the
Committee, that the costs to their offices in providing notice
have been minimal. It's basically phone calls and letters. And
that was several years ago. Now the technology has grown, and
the capacity to provide notice through computerized systems
that make it easier for victims to access, either on-line or
over telephone lines, that require fewer people to actually be
providing the notice. There's the bind system that was first
established in Tennessee that's now spread around the country,
a computerized system, a telephone-based system, for providing
notice of hearings.
But that's it. When you think about the other things, the
right to not be excluded from the courtroom does not have a
cost. The right to be heard at various proceedings that are
already scheduled, and already held in open court, does not
have a cost with it.
With all due respect to Senator Leahy's earlier comment,
this isn't about the money. This is about Mr. Lynn's right to
offer his opinion to a proceeding that is already being held,
his opinion that, in his case, he wanted life imprisonment and
not the death penalty. Or in Mrs. Campbell's case, to say I
just want to have a right to sit in the courtroom as the
defendant's family has a right to sit in the courtroom. There's
no cost associated with that. So it's been minimal, Senator.
Senator Feinstein. Now, similar rights already exist in 33
States, some for as long as 20 years. Can anyone on the panel
provide any evidence that the abuses that have been mentioned
have occurred in these States? Yes, ma'am.
Mrs. Campbell. I've been dying to say a little bit more.
First of all, I would like to thank our Orange County
Congressman for being here to support me, Ed Royce. Thank you,
Ed.
Yeah, I can give you a lot of instances. It seems like my
profession has been to stay in the courtroom. When you talk
about staggering costs, to keep me in a courtroom for 21
straight years is a staggering cost, not only emotionally to my
family, but every time we go into the courtroom and t there's
another delay, that's a huge cost. That's happening all across
the country continually.
I would like to give everybody here--
Senator Feinstein. But that's not because of any
constitutional amendment. To be fair, what I'm saying is--
you're not really responding to my question.
Mrs. Campbell. Okay. Let me give you the direct question.
A couple of months ago our district attorney came up to me
and told me that I was going to be excluded in the courtroom
for the coming trial. I explained to him that I was not going
to be excluded, so there may be a little--I asked him, I said
are you going to make me a witness, and he said no.
Senator Feinstein. Under California law, you have the right
to be there.
Mrs. Campbell. Of course, I do. But--
Senator Feinstein. They cannot keep you out.
Mrs. Campbell. That was just a few months ago.
Senator Feinstein. My question was a little different.
Mrs. Campbell. I'm sorry.
Senator Feinstein. The objection to our proposed
constitutional amendment has always been that there would be
certain abuses, either abuses that disadvantage the defendant,
that would cost the State, That would prevent the prosecutor
from giving timely notice, these kinds of things. And yet,
there is no evidence of these abuses having surfaced in any of
the States. Instead, the abuse has been in not carrying it out,
not carrying out a State constitutional amendment for one
reason or another.
What I would like to ask everybody is whether you have any
indication where the constitutional amendment of a State has
been abused or has cost the State substantial additional funds.
I would certainly like to have that evidence.
I see Senator Feingold is here and I will yield you some
time.
Senator Feingold. Thank you very much for holding this
hearing. It's an outstanding hearing and I have a lot of other
things going on today, like other Senators, but I feel this is
so important that this is the third time I have come back. I
wish I could have heard all the testimony.
I want Mr. Lynn to know that, although we have some
disagreements about the merits of this, it was some of the most
powerful testimony I have ever heard at a hearing. So I thank
everyone for being here.
This is a very, very tough subject that has to be addressed
seriously, and I think you've done a wonderful job today of
helping this issue come forward.
Let me ask some questions. Mr. Orenstein, as someone who
has prosecuted some of the most difficult cases, like the
Oklahoma bombing and organized crime, can you discuss how this
proposed amendment would affect a prosecutor's ability to make
the necessary and independent decisions that are in the best
interest of a prosecution? As an example, what are the possible
ramifications of this amendment when there are multiple crime
victims for a particular incident, who each have competing
interests and objectives, like wanting to watch and possibly
testify at a trial?
Mr. Orenstein. Well, again, the multiple victim cases are
particularly difficult and they particularly call for
flexibility in the system. Some of these problems are problems
of drafting and the inability to predict how courts are going
to interpret certain words, which is why we should proceed very
carefully before enshrining certain words in the Constitution,
because we don't know how they will play out.
In the mass victim case, it is impractical for everyone to
be in the courtroom. You can adapt to that with closed-circuit
TV. It's impractical for everyone who wants to be heard to
speak at a given hearing.
Now, my experience is that victims in the Oklahoma City
case were more than willing to accommodate the practical needs
of situations like that, as long as they're kept in the loop,
as long as they're consulted.
There are two problems. One is where you have one or two
holdouts who just don't want to give up their rights, and a
judge would say look, it's reasonable to have limitations here.
We can't have everybody speak. If the rights belong to the
individual and can't be denied but only restricted, well, you
can't keep that individual from speaking. So again, there could
be problems with--it's a drafting issue.
The other problem is where the victim doesn't want to be
reasonable. This is somebody who's in prison, who has been
assaulted by another prisoner and wants to create problems for
the court system. Again, you need to have the right kind of
flexibility. My concern is very much down in the weeds of how
the Constitution would play out in that situation.
Senator Feingold. You're getting at this, obviously, but is
this a problem that demands a constitutional amendment, or in
many cases isn't this really an issue of providing training and
resources to prosecutors' offices to ensure that prosecutors
will pick up the phone and do what's asked of them, like
notifying victims of court dates, considering issues involving
victims' safety, allowing them to submit victim impact
statements at sentencing hearings, informing victims of release
dates for offenders?
Mr. Orenstein. Very often it isn't. One thing that's really
troubling for me as a former prosecutor, in hearing some of the
awful stories that I've heard at this hearing and at others on
this issue, is needless slights to victims and--
Senator Feingold. Needless--what did you say?
Mr. Orenstein. Needless slights to victims, needless harms
to them, and not only needless, but contrary to the laws of
their State. This is a problem of changing the culture. Neither
a statute nor constitutional amendment will change somebody's
heart or change a culture. We need experience, we need
training. I don't think a constitutional amendment will be more
or less effective in solving the kinds of problems of the
prosecutor who heartlessly says we don't need to consult the
victim, we don't need to tell you, you just won't understand.
That should never be the case.
Senator Feingold. Let me ask Miss Perry to sort of continue
this. I want to underscore a point that was illustrated by the
testimony we've heard, that there is not a single victim's
voice in the question of a constitutional amendment. Some do
support statutory relief, while others support a constitutional
amendment. Whether we enact a constitutional amendment or a
statute, in the end prosecutors and judges must be willing to
and have the resources and training to enforce the law for
victims' rights to even stand a chance of being effective.
I would ask you, Mrs. Perry, what steps do you think we
should be considering in Congress to ensure that victims have
the services and access to the criminal justice system that
they need?
Mrs. Perry. Someone asked earlier about the cost, and as I
see it, the victim's right--If the victims' rights amendment
does pass, it still does not meet the needs that I feel our
family benefited from, and that these other victims' families
have not experienced. That is the emotional and financial
support that States or the Federal Government should make
available to the victims. It increases their pain when they run
out of money, just to pay to go back and forth to the various
trials or hearings. It increases their pain if the person who
is the victim and leaves the family is the breadwinner and they
no longer have an income, they no longer have health insurance.
You in Congress I would hope someday you really face the fact
that we have 41 million people without health insurance in this
country.
Senator Feingold. Amen on that.
Mrs. Perry. This gets exacerbated every time someone is
murdered and that person is responsible for a family's health
and maintenance. I think these things would be of great
assistance to families who are suffering after they have been
assaulted by a person who is now accused and in court. Then
they would have the resources to be able to keep up with what's
going on with the victims' case in court, as long as the local
people follow what's already on the books.
So I would really encourage that that would be of great
help. We benefitted from it, and these victims here have not
benefitted from it, and they've had to find money out of their
own pockets. And our benefits are not from what Congress did,
because I haven't gotten around to victims' compensation, which
would just cause a lot of dissention.
I am part of the Twin Tower Fund, representing police
officer families and firefighter families, and with all due
respect, what you did under a lot of pressure during a very
difficult time in our history, was set up a very complicated
victims' compensation fund, where certain victims are worth
millions of dollars and other victims are worth $250,000 or
$100,000. It is very unequal and has caused a lot of bitter
feelings, especially among the uniformed personnel since most
of those officers were earning relatively modest incomes
compared to employees on the top floors of the World Trade
Center who were earning $250,000 to $500,000 a year. Therefore,
they were more valuable than my son. You know, you get the
picture. There's a lot of problems there.
If you could spend the time, rather than 7 years debating
on how you can get the exact wording that lawyers understand
for a victims' rights amendment, which even seems the lawyers
don't always understand and has a lot of loopholes where you
can waive rights here and enforce them there, just let's help
everybody. Let's help these victims, give them the tools to put
their lives back together, and you know, see if you can
encourage the States to do what has to be done. In the case of
Federal crimes, then the Federal Government should help.
I don't know if that--I can't write the law for you.
Senator Feingold. I thank you.
Madam Chair, it is good to see you as chair again.
[Laughter.]
I take it my time has elapsed.
Senator Feinstein. I think so.
I would like to thank everybody for attending, regardless
of what side of this issue you are on. It is clearly something
that has caught national attention and people feel strongly
about. The testimony was compelling, it was cogent, it was
forthright, and on behalf of Senator Kyl, I thank everybody.
This hearing is adjourned.
[Whereupon, at 12:35 p.m, the Committee adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]