[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


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                            WASHINGTON : 2003
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                       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.]

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