[Congressional Record Volume 142, Number 52 (Monday, April 22, 1996)]
[Senate]
[Pages S3795-S3797]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself, Mrs. Feinstein, Mr. Hatch, and Mr. 
        Craig):
  S.J. Res. 52. A joint resolution proposing an amendment to the 
Constitution of the United States to protect the rights of victims of 
crimes; to the Committee on the Judiciary.


            rights of crime victims constitutional amendment

  Mr. KYL. Mr. President, April 21-27 is National Crime Victims' Rights 
Week.
  To ensure that crime victims are treated with fairness, dignity, and 
respect, I rise--along with my colleague Senator Feinstein--to 
introduce a joint resolution proposing a constitutional amendment to 
establish and protect the rights of crime victims.
  Representative Henry Hyde will introduce a companion joint resolution 
in the House. The Senate Judiciary Committee will hold a full committee 
hearing on the resolution tomorrow, Tuesday, April 23. And I would like 
to thank Senator Hatch for recognizing the importance of this issue and 
moving so quickly to hold hearings. This should be a signal to my 
colleagues and to all America that the time for justice for crime 
victims is at hand.
  The proposed constitutional amendment will give victims fundamental 
rights to be informed, present, and heard at critical stages throughout 
their case, and the rights to a speedy trial, reasonable protection, 
and full restitution from the convicted offender--the least the system 
owes to those it failed to protect.
  The text of the amendment is clear and straightforward. It reads:

       Section 1. To ensure that the victim is treated with 
     fairness, dignity, and respect, from the occurrence of a 
     crime of violence and other crimes as may be defined by law 
     pursuant to section 2 of this article, and throughout the 
     criminal, military, and juvenile justice processes, as a 
     matter of fundamental rights to liberty, justice, and due 
     process, the victim shall have the following rights: to be 
     informed of and given the opportunity to be present at every 
     proceeding in which those rights are extended to the accused 
     or convicted offender; to be heard at any proceeding 
     involving sentencing, including the right to object to a 
     previously negotiated plea, or release from custody; to be 
     informed of any release or escape; and to a speedy trial, a 
     final conclusion free from unreasonable delay, full 
     restitution from the convicted offender, reasonable measures 
     to protect the victim from violence or intimidation by the 
     accused or convicted offender, and notice of the victim's 
     rights.
       Section 2. The several States, with respect to a proceeding 
     in a State forum, and the Congress with respect to a 
     proceeding in a United States forum, shall have the power to 
     implement further the rights established in this article by 
     appropriate legislation.

  Mr. President, these simple words will help to restore justice to a 
system fraught with injustice.


                                Support

  The amendment is supported by major national victims' rights groups: 
Parents of Murdered Children, Mothers Against Drunk Driving [MADD], the 
National Organization for Victim Assistance, the National Victim 
Center, the National Victims' Constitutional Amendment Network, the 
Victim Assistance Legal Organization, and the Doris Tate Crime Victims 
Bureau.


     Need to Protect victims' rights--scales of justice imbalanced

  There is a need to protect victims' rights because the scales of 
justice are imbalanced.
  Those accused of crime have many constitutionally protected rights; 
They are innocent until proven guilty; they have the right to due 
process; right to confront witnesses; right against self-incrimination; 
right to a jury trial; right to a speedy trial; right to counsel; right 
to be free from unreasonable searches and seizures.
  Yet, despite rights for the accused, the U.S. Constitution, our 
highest law, does not protect the rights of crime victims.
  The recognized symbol of justice is a figure holding a balanced set 
of scales, but in reality the scales are heavily weighed on the side of 
the accused. These protections are sadly one-sided. My proposal will 
not deny or infringe any constitutional right of any person accused or 
convicted of a crime. But it will add to the body of rights we all 
enjoy as Americans.
  Each year, about 43 million Americans are victims of serious crime. 
These victims have no constitutional rights. They are often treated as 
mere inconveniences, forced to view the process from the sidelines. 
Defendants can be present through their entire trial because they have 
a constitutional right to be there. But in many trials, victims are 
ordered to leave the courtroom.
  Victims often are not informed of critical proceedings, such as 
hearings to consider releasing a defendant on bail or allowing him to 
plea bargain to a reduced charge. Even when victims find out about 
these proceedings, they

[[Page S3796]]

frequently have no opportunity to speak.
  Today, victims have no right to reasonable finality. It is not 
uncommon for cases to last years and years after the jury verdict, 
while courts again and again review the same issue. These lengthy 
delays cause terrible suffering for crime victims, especially the loved 
ones of homicide victims. What others consider as a mere inconvenience 
can be an endless nightmare for the victim.


                            Patricia Pollard

  Consider the case of Patricia Pollard--a woman from my home State of 
Arizona. In July 1974, on a road just outside of Flagstaff, AZ, 
Patricia Pollard was silenced--first by an attacker, and then by the 
judicial system. Eric Mageary used the jagged edge of a ripped beer can 
to inflict deep slash wounds in her body. He broke her ribs and her 
jaw. He choked her into unconsciousness and left her for dead by the 
side of the road.
  Patricia survived. Mageary was convicted and sent to prison. Ten 
years short of serving his minimum sentence, he was paroled. No notice 
was given to Patricia. If given the opportunity, Patricia would have 
wanted to tell the judge about the crime, about how dangerous Mageary 
was, and how a long prison sentence was needed to protect the community 
from this vicious criminal. But the law gave Patricia no right to be 
heard, and society paid for its silencing of her. Mageary's parole was 
soon revoked for serious narcotics violations, and he was back in 
prison.
  In 1990, the people of Arizona amended their State constitution to 
add a victims' bill of rights, which established the right of victims 
to be informed, present, and heard at every critical stage in their 
case.
  Incredibly, in 1993, in direct violation of Patricia's new 
constitutional rights, the parole board voted to release Mageary--again 
without hearing from Patricia.
  But this time there was a remedy for this injustice. An action was 
filed to stop the release and force the board to hold another hearing 
in which Patricia's rights would be protected. The Arizona Court of 
Appeals acted swiftly and stopped the release. The second time around, 
after the board took the time to hear directly about the horrible 
nature of the crime, they voted for public safety and for Patricia, and 
kept Mageary behind bars. Without constitutional rights for Patricia, 
the safety of the community would have been jeopardized again.

  Constitutional rights restored Patricia's voice. Not all Americans 
have these rights, and even those that exist are not protected by the 
supreme law of the land, the U.S. Constitution. That is why today, 
during National Crime Victims' Rights Week, Senator Feinstein and I are 
introducing a victims' bill of rights to the U.S. Constitution to 
extend to victims throughout the country a threshold of basic fairness. 
Victims must be given a voice--not a veto, but a real opportunity to 
stand and speak for justice and the law abiding in our communities.


                               statistics

  Patricia Pollard is not an isolated example. As I noted earlier, each 
year 43 million Americans are victims of serious crime, according to 
the Department of Justice.
  According to DOJ statistics released last week, during 1994 there 
were 10.9 million violent crimes, 6.6 million simple assaults, 2.5 
million aggravated assaults, 1.3 million robberies, and 430,000 rapes 
or other types of sexual assault. Also, one of every nine persons from 
12 through 15 years old was a violent crime victim during 1994.
  And just this week the Clinton administration reported that crime 
costs Americans at least $450 billion a year.
  These numbers are staggering and sobering. And they demonstrate the 
enormous burden that crime forces its victims to carry.
  The breakdown of social order and the crisis of crime that accompany 
it, have swelled the ranks of criminals, and those who suffer at their 
hands, to proportions that astonish us, that break our hearts, and that 
demand collective action. And the process of detecting, prosecuting, 
and punishing criminals continues, in too many places in America, to 
ignore the rights of victims to fundamental justice.


              twenty states have constitutional amendments

  The need for a constitutional amendment was first recognized in 1982 
by a President's Task Force on Victims of Crime, which concluded that 
the criminal justice system has lost its essential balance. Since then, 
20 States have adopted victims' amendments.
  The average electoral support for these amendments was 78 percent. In 
1994, six States approved constitutional amendments--all by landslides: 
Alabama, 80 percent; Alaska, 87 percent; Idaho, 79 percent; Maryland, 
92 percent; Ohio, 77 percent; and Utah, 68 percent.
  But this patchwork of State constitutional amendments is inadequate. 
A Federal amendment would establish a basic floor of victims' rights--a 
floor below which States could not go.


            victims need rights in the federal constitution

  Some may say, ``I'm all for victims' rights but they don't need to be 
in the U.S. Constitution. The Constitution is too hard to change. All 
we need to do is pass some good statutes to make sure that victims are 
treated fairly.''
  But statutes have not worked to restore balance and fairness for 
victims. The Federal Government has well-written statutes that were 
intended to establish rights for victims in Federal proceedings. Yet 
the promise of those statutes lies largely unfulfilled. The whole 
history of our country teaches us that constitutions are needed to 
protect the basic rights of the people. The original Bill of Rights was 
adopted to guarantee that the Federal Government would never infringe 
on inalienable rights enjoyed by the people--neither at the hands of an 
overreaching executive nor an inflamed majority in Congress. Some 
argued that because the Federal Government did not possess the power in 
the Constitution to infringe these rights, the express protection of 
them in the Constitution was unnecessary. History soon taught us the 
wisdom of including the Bill of Rights.
  Who would be comfortable now if the right to free speech, or a free 
press, or to peaceably assemble, or any of our other rights were 
subject to the whims of changing legislative or court majorities? When 
the rights to vote were extended to all regardless of race, and to 
women, were they simply put into a statute? Who would dare stand before 
a crowd of people anywhere in our country and say that a defendant's 
rights to a lawyer, a speedy public trial, due process, to be informed 
of the charges, to confront witnesses, to remain silent, or any of the 
other constitutional protections are important, but don't need to be in 
the Constitution?

  Such a position would be rightly subject to ridicule. Yet that is 
precisely what critics of the victims' bill of rights would tell crime 
victims. Victims of crime will never be treated fairly by a system that 
permits the defendant's constitutional rights always to trump the 
protections given to victims. Such a system forever would make victims 
second-class citizens. It is precisely because the Constitution is hard 
to change that basic rights for victims need to be protected in it.
  Our criminal justice system needs the kind of fundamental reform that 
can only be accomplished through changes in our fundamental law. Today 
we have a system of justice that accommodates the interests of its 
professionals fairly well, but it all too often treats its citizens, 
its victims, with hostility, and almost always with indifference. 
Attitudes will not change without a constitutional reform that 
recognizes the rights of victims as a core value.


      Amending the constitution is a big step, but a necessary one

  Amending the Constitution is, of course, a big step--one which I do 
not take lightly--but, on this issue, it is a necessary one.
  As Thomas Jefferson once said:

       I am not an advocate for frequent changes in laws and 
     constitutions, but laws and institutions must go hand in hand 
     with the progress of the human mind. As that becomes more 
     developed, more enlightened, as new discoveries are made, new 
     truths discovered and manners and opinions change, with the 
     change of circumstances, institutions must advance also to 
     keep pace with the times.


                               Conlcusion

  In closing, I would like to thank Senator Dianne Feinstein for her 
hard work on this amendment and for her tireless efforts on behalf of 
crime victims.
  Mr. President, for far too long, the criminal justice system has 
ignored

[[Page S3797]]

crime victims who deserve to be treated with fairness, dignity, and 
respect. Our criminal justice system will never be truly just as long 
as criminals have rights and victims have none. We need a new 
definition of justice--one that includes the victim.
  Today, as we begin National Victims' Rights Week, in courtrooms 
across America, victims will be forced to sit outside while their 
attackers are tried. Today and every day, critical proceedings will be 
held in criminal cases and victims will not be informed of those 
proceedings or given the opportunity for their voices to be heard. 
Today, and every day, victims will be forced to endure endless delays.
  Mr. President, with this joint resolution, we can cure this 
injustice. Victims groups across America support this effort and are 
watching to see if Congress has the will to make this Victims' Rights 
Week truly a celebration for crime victims.

                          ____________________