[Congressional Record Volume 143, Number 36 (Wednesday, March 19, 1997)]
[Senate]
[Pages S2507-S2509]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                VICTIM RIGHTS CLARIFICATION ACT OF 1997

  Mr. NICKLES. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of H.R. 924 just received from 
the House.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The bill clerk read as follows:

       A bill (H.R. 924) to amend title 18, United States Code, to 
     give further assurance to the right of victims of crime to 
     attend and observe the trials of those accused of the crime.

  The Senate proceeded to consider the bill.
  Mr. NICKLES. Mr. President, I wish to thank my colleague and friend, 
Senator Leahy, for his cooperation in bringing this bill to the floor. 
As I mentioned, the House passed this bill yesterday. It was by a vote 
of 418 to 9.
  I also want to thank my colleagues, Senator Hatch, Senator Inhofe--
who is an original cosponsor of this legislation with me--Senator 
Grassley and Senator Kennedy and their staffs for working together with 
our staff to make this bill possible.
  And I want to thank the bipartisan and bicameral cooperation that we 
have had because we have negotiated with the House, came up with 
similar legislation to correct, I think, a mistake, a problem.
  Mr. President, we introduce this legislation on behalf of the victims 
of the Oklahoma City bombing and other victims of crime. This 
legislation will clarify the rights of victims to attend and observe 
the trial of the accused and also testify at the sentencing hearing.
  The Victim Rights Clarification Act is necessary because a Federal 
judge interpreted his sequestration power as authorizing the exclusion 
of victims of crime from trial who will only be witnesses at 
sentencing. The district judge presiding over the Oklahoma City bombing 
case basically gave the victims and their families two choices. They 
could attend the trial and witness the trial--or in this case we have 
closed-circuit TV for the families, since the trial is actually in 
Denver and many of the families are in Oklahoma City. So they have 
closed-circuit TV. They have two options: They can view the trial in 
Denver or in Oklahoma City, or they could participate in the sentencing 
phase of the trial.
  Most of the families of the victims wanted to do both--or many wanted 
to do both. They should not have had to make that decision. This 
legislation will clarify that.
  Such rulings as the judge made extend sequestration far beyond what 
Congress has intended. The accused has no legitimate basis for 
excluding a victim who will not testify during the trial. Congress 
thought it already adopted a provision precluding such sequestration in 
the victims' bill of rights. This bill clarifies the preexisting law so 
it is indisputable that district courts cannot deny victims and 
surviving family members the opportunity to watch the trial merely 
because they will provide information during the sentencing phase of 
the proceedings.
  This bill also applies to all pending cases and in no way singles out 
a case for unique or special treatment. Rather, a serious problem has 
come to light and Congress has responded by clarifying the applicable 
Federal law across the country from this day forward.
  The U.S. Supreme Court has specifically upheld the power of Congress 
to make ``changes in law'' that apply even in pending cases. In 
Robertson versus Seattle Audubon Society, a unanimous court explained 
that Congress can ``modify the provisions at issue'' in pending and 
other cases. This bill makes it clear that Federal crime victims will 
not be denied the chance to watch the court proceedings simply because 
they wish to be heard at sentencing.
  This bill will be enforced through normal legal channels. Federal 
district courts will make the initial determination of the 
applicability of the law. In disputed cases, the courts will hear from 
the Department of Justice, counsel for the affected victims, and 
counsel for the accused. If the district court persists in denying a 
victim the right to observe a trial in violation of the law, both the 
Department of Justice and the victims can seek appellate review through 
the appropriate pleadings.
  Once again, Mr. President, this is an important piece of bipartisan 
legislation that will clarify the intent of Congress with respect to a 
victim's right to attend and observe a trial and testify at sentencing.
  I very much appreciate the support of my colleagues in both the 
Senate and the House who have made this bill possible today. I am very 
grateful for their assistance. I know that I am speaking on behalf of 
hundreds of victims and the families in Oklahoma City, that they are 
grateful for this legislation, and a special thank you to my 
colleagues, Senator Inhofe and Senator Leahy and Senator Kennedy and 
Senator Hatch, for making this bill possible.
  I yield the floor.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I am pleased to join my friends, Mr. Hatch, 
the two Senators from Oklahoma, and Senator Grassley, as an original 
cosponsor of the Victim Rights Clarification Act of 1997.
  I am glad we are considering and passing this important 
legislation. They are doing this in an expeditious and bipartisan 
manner.

  Two of the most important rights Congress can safeguard for crime 
victims are the right to witness the trial of the accused and the right 
to be heard in connection with the sentencing decision. The Victim 
Rights Clarification Act is not the first time Congress has addressed 
these two ideas. In 1990, we passed the Victims' Rights and Restitution 
Act, providing that crime victims shall have the right to be present in 
all public court proceedings related to the offense, unless the court 
determines the testimony by the victim would be materially affected.
  In the Violent Crime Control Act of 1994, Congress included several 
victims' rights provisions. For instance, we amended rule 32 of the 
Federal Rules of Criminal Procedure to require Federal judges at the 
sentencing for crimes of violence or sexual assault to determine if the 
victim wishes to make a statement.
  Last year, we enacted the Televised Proceedings for Crime Victims Act 
as part of the Antiterrorism and Effective Death Penalty Act of 1996. 
That responded to the difficulties created for victims of the Oklahoma 
City bombing.
  Mr. President, I think this is important because so often what we set 
in the criminal procedures in the Federal court are then adopted by the 
State courts. During my days as a prosecutor, I felt victims should 
have complete access to the court during a trial and that victims 
should be heard upon sentencing. Frankly, I found many times when the 
person being sentenced had suddenly gotten religion, had suddenly 
become a model person, usually dressed in a better suit and tie than I 
wore as a prosecutor and was able to cry copious tears seeking 
forgiveness and saying how it was all a mistake, sometimes reality came 
to the courtroom

[[Page S2508]]

only when the victim would speak. I remember one such victim had very 
little to say, with heavy scars on her face that would probably never 
heal. That said more than she might.
  I say that, Mr. President, because in enacting this legislation, we 
affect not only Federal courts directly, which of course I think is 
important, but I say to my colleagues in the Senate that after this is 
experienced in the Federal courts for a couple of years, we are going 
to find the same procedures followed by State courts all over this 
country. We saw it in the Federal Rules of Civil Procedure. We see it 
in the Federal Rules of Criminal Procedure. If they work in the Federal 
courts, they tend to work in the State courts.
  I am glad to join with my friend from Oklahoma, the distinguished 
senior Senator from Oklahoma and his colleague, Senator Inhofe, in 
support of this legislation which shows how responsive Congress can be 
to victims' rights.
  The Supreme Court has also spoken to whether victim impact statements 
are permissible in death penalty cases.
  In the 1991 case Payne versus Tennessee, the Supreme Court made clear 
that a sentencing jury in a capital case may consider victim impact 
evidence relating to the victim's personal characteristics and the 
emotional impact of the murder on the victim's family.
  The Court observed that it is an affront to the civilized members of 
the human race to say that at sentencing in a capital case, a parade of 
witnesses may praise the background, character, and good deeds of the 
defendant, but nothing may be said that bears upon the character of, or 
the harm imposed upon, the victims.
  Unfortunately, the victims in the Oklahoma City bombing case are 
being categorically excluded from both watching the trial and providing 
victim impact testimony. Thus the victims are faced with an 
excruciating dilemma: If they sit outside the courtroom during the 
trial, they may never learn the details of how the justice system 
responded to this horrible crime. On the other hand, if they attend the 
trial, they will never be able to tell the jury the full extent of the 
suffering the crime has caused to them and to their families.
  I do not believe that current law thrusts this painful choice upon 
victims in this country. However, recent court rulings reveal the need 
to clarify and even hone existing law. That is exactly what Congress is 
doing by passing the Victim Rights Clarification Act of 1997.
  This important legislation will:
  Clarify that a court shall not exclude a victim from witnessing a 
trial on the basis that the victim may, during the sentencing phase of 
the proceedings, make a statement or present information in relation to 
the sentence.
  Specify that a court shall not prohibit a victim from making a 
statement or presenting information in relation to the sentence during 
the sentencing phase of the proceedings solely because the victim has 
witnessed the trial.
  Just as importantly, the Victim Rights Clarification Act will not:
  Apply to victims who testify during the guilt phase of a trial.
  Eliminate a judge's discretion to exclude a victim's testimony during 
the sentencing phase that will unfairly prejudice the jury. 
Specifically, the legislation allows for a judge to exclude a victim if 
he or she finds basis--independent of the sole fact that the victim 
witnessed the trial--that the victim's testimony during the sentencing 
phase will create unfair prejudice.
  Attempt to strip a defendant of his or her constitutional rights.
  Overturn any final court judgments.
  My cosponsors and I worked together to pass this legislation within a 
time-frame that could benefit the victims in the Oklahoma City bombing 
cases.
  Our final legislative product, however, will not only assist the 
victims in the Oklahoma City bombing case, but crime victims throughout 
the United States.
  In response to real people, real problems and real pain, Congress has 
demonstrated its ability to find a real solution--the Victim Rights 
Clarification Act of 1997.
  Mr. HATCH. Mr. President, I rise today to speak briefly in support of 
H.R. 924, the Victims' Rights Clarification Act of 1997. A companion to 
this bill was introduced this past Friday by Senator Nickles as S. 447, 
which is cosponsored by Senator Inhofe, myself, Senator Leahy, and 
Senator Grassley. I was proud to be an original cosponsor of this vital 
bill because it advances the rights of crime victims in the criminal 
justice process. This bill will ensure that victims of a crime who may 
be victim-impact witnesses at the sentencing phase of a trial are able 
to attend that trial and still testify at sentencing.
  Mr. President, too often the victims of crime seem to be forgotten as 
the wheels of justice turn. In a sense, they are victimized twice--
first by the criminal, and then by a justice system that too frequently 
treats them as irrelevant to the administration of justice.
  This legislation clarifies that the victims and survivors of crime 
who might present testimony at sentencing about the effects of the 
defendant's act should not be prevented from observing the trial. It 
also clarifies that, conversely, observing the trial is not grounds for 
excluding a victim or survivor from presenting impact testimony at 
sentencing. In 1991, the Supreme Court ruled in Payne v. Tennessee [501 
U.S. 808] ruled that victims and survivors may be given the right to 
provide testimony at sentencing about the victim and the impact of the 
crime on the victim's family. Since then, Congress has ensured that the 
Federal Rules of Criminal Procedure provide this right to victims of 
violent crimes when the defendant is tried in federal court.

  Recent court decisions have made it evident that some clarification 
of this right is badly needed. These decisions have excluded from 
trials victims and survivors who might give impact testimony at 
sentencing.
  Generally, witnesses may be excluded from viewing a trial until they 
have testified. The rationale for this rule, known as the rule on 
witnesses and embodied in rule 615 of the Federal Rules of Evidence, is 
the need to prevent witnesses from collaborating on their testimony, as 
well as the need to prevent each witness from shaping his or her 
testimony to the testimony that already has been presented. Those 
rationales do not apply, however, when victims testify at sentencing 
about the effect of the crime on their own lives. As a result of this 
bill, victims and survivors will be permitted to observe the trial and 
still testify about the effect of the crime on their lives, without 
running afoul of the policy underpinnings for excluding witnesses from 
viewing a trial.
  Another rationale for application of the rule on witnesses, and one 
that has been advanced to prevent victims from both observing the trial 
and presenting impact testimony, holds that a victim may testify only 
about the effect of the crime on his or her life, not about the effect 
of the trial on his life. But, Mr. President, for the victim the trial 
is one of the effects of the crime and becomes forever a part of the 
victim's life.
  Remember, this amendment deals only with victim impact testimony. By 
that point in the process, the defendant already has been convicted. In 
my view, it is not unfair for the law to treat the effect on a victim 
of viewing a trial as part of the effect of the crime, since the trial 
is a proximate, reasonably foreseeable consequence of the commission of 
a crime. As the result, a victim should be free to see the trial and 
still give victim-impact testimony at sentencing.
  This bill will ensure that victims of crimes have an opportunity to 
alleviate some of their suffering through witnessing the operation of 
the criminal justice system. Moreover, this bill will accomplish this 
salutary result without having forced upon them the cruel choice of 
observing the trial or giving impact testimony at sentencing. Indeed, 
the bill before the Senate is a significant improvement over the 
legislation originally introduced in the other body because, unlike the 
original House bill, it specifically ensures that victims have the 
right both to attend the trial and provide impact testimony at 
sentencing. The opportunity to do both is critical to providing closure 
to victims and ensuring justice for victims, as well as defendants and 
society.
  Mr. President, this provision is not controversial. I hope that it 
can be

[[Page S2509]]

passed by the Senate and sent to the President for his approval without 
delay.
  Mr. INHOFE. Mr. President, I am pleased to join my colleagues, 
Senators Nickles and Leahy in getting through the Senate H.R. 924, the 
Victim Allocution Clarification Act. This is an important issue for 
victims and their families of the Murrah Federal Building bombing. 
Clearly, we would not have been able to get this through unless there 
was widespread support for clarifying congressional intent with respect 
to the rights of victims and their families.
  Although the Victims Rights and Resolution Act of 1990 provided that 
victims have the right to be present at all public court proceedings, 
it conditioned that on a court determination that the testimony by the 
victim would not be materially affected if the victim heard other 
testimony at the trial. Recent courts decisions have held that victims 
cannot attend the trial and submit a victim's impact statement. H.R. 
924 clarifies congressional intent by allowing the victim and their 
family to both attend the trial and submit a statement during the 
sentencing phase.
  I believe this language has reached a delicate balance between 
protecting the rights of the victims while maintaining the 
constitutional protections of the defendant. As noted by Senator 
Nickles, it is critical that we pass H.R. 924 before the trial in the 
Oklahoma City bombing case begins on March 31. I appreciate the efforts 
of all involved in getting through the Senate and House expeditiously.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the bill be 
deemed read a third time and passed, and the motion to reconsider be 
laid upon the table, and that any statements relating to the bill 
appear at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (H.R. 924) was deemed read a third time and passed.
  Mr. NICKLES. Mr. President, I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I thank my friend and colleague, Senator 
Leahy from Vermont. We have done something rather unusual. We worked 
together in a very bipartisan fashion to do some good work, and we did 
it very quickly. It is not often that Congress passes legislation this 
quickly, and we did so.
  Also, I want to thank Senator Daschle and Senator Lott because we 
wanted to expedite this. We would like to get it to the President 
before he leaves the country today. This trial happens to start on the 
31st of this month.
  I might mention that this is the third piece of legislation that we 
have passed that deals directly, or has had some impact, I guess, as a 
result of the Oklahoma City bombing. Last Congress, we passed 
legislation dealing with habeas corpus reform, one of the most 
significant improvements, I think, in our statutes dealing with 
criminal law in a long time. We wanted to have an end to endless 
appeals. I think the Oklahoma City tragedy gave us great momentum to 
make that happen. I remember several of the victims coming to testify, 
urging Congress to enact a crime bill, but also urging Congress to 
enact habeas reform because they wanted to see justice soon rather than 
later.
  We also passed legislation to allow closed-circuit TV so victims 
would not have to go all the way to Denver. I was disappointed the 
decision was made that the trial would be held in Denver. Originally, 
the judge said the people would have to attend to witness the trial. 
This trial could last for months. We passed legislation basically 
mandating that closed-circuit TV would be allowed in this case and, 
hopefully, other cases. Hopefully, we will not have other cases, but if 
we have another case that might be identical to this, the victims and 
their families would not have to travel several hundred miles just to 
be able to witness the trial.
  Finally, we passed this legislation, this important legislation, to 
allow victims and their families to be able to witness a trial and 
also, if they desire, to be able to testify during the sentencing 
phase. This would not have happened if we did not have bipartisan 
support.
  Again, I thank my colleagues for making it happen. I am delighted. On 
behalf of hundreds of Oklahoma City families who are directly impacted, 
we say thank you to both our colleagues in the House and the Senate for 
passing this legislation today.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.

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