Congressional Record, Volume 144 Issue 132 (Monday, September 28, 1998)

[Congressional Record Volume 144, Number 132 (Monday, September 28, 1998)]
[Senate]
[Pages S11010-S11013]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S11010]]
VICTIMS' RIGHTS

Mr. KYL. Madam President, Senator Feinstein and I have been granted
time in this period of morning business to discuss a matter that we
began working on about 2\1/2\ years ago, and we wanted to give a report
to you, to the Members of the U.S. Senate, and, frankly, to all
Americans who are interested in the subject of victims' rights.
In April of 1996, during National Victims' Rights Week, along with
Representative Henry Hyde, chairman of the House Judiciary Committee,
we introduced a Federal constitutional amendment to guarantee certain
rights, fundamental constitutional rights, to all victims of violent
crime. Since that time, we have worked with victims' rights groups
across the country, with law enforcement officials, with our colleagues
in the House of Representatives and here in the Senate, of course, with
the Department of Justice, the Attorney General, and even the President
of the United States, to craft an amendment that could gain acceptance
in the two legislative bodies, and then be adopted by the people of the
United States as an amendment to the Constitution. We have come a long
way since that time.
I want to take this time to join with Senator Feinstein in giving a
brief report about our progress, with the conclusion that we are not
going to be presenting this amendment at this late date in this session
of the Congress, but that we do hope to have a vote on this amendment
in the U.S. Senate early next year.
I want to begin by thanking my colleague, Senator Feinstein from
California. She has been an extraordinarily important proponent of
crime victims' rights around the country; therefore, it was important
for her to be one of the prime sponsors of this constitutional
amendment. Her experience brought to bear on the subject made it much
easier for people to join with us in the effort, and the work she had
done with victims' rights groups before we introduced the amendment was
important in galvanizing the support of those groups around the country
to support this amendment and to work on the versions of it as we had
to hone the language to meet the objections and concerns of various
people around the country. I want to thank her also for her patience in
working with me and her willingness to spend many, many long hours in
working out the details of this amendment and meeting with various
groups, trying to gather support among both the outside groups and our
colleagues that would guarantee passage of the amendment.
In the final version that passed the Senate Judiciary Committee in
July of this year by a bipartisan vote of 11-6, we had sponsorship by
30 Republicans and 12 Democrats. You can see by this bipartisan vote of
11-6 it required cooperation of Republicans and Democrats to move this
matter forward. So there is nothing partisan about the matter of
victims' rights.
I mentioned the fact that we had over 60 drafts of this amendment.
What that demonstrates I think is that Senator Feinstein and I have
been willing to meet with anyone at any time to hear their concerns,
and objections in some cases, about what we are trying to do in
specifics. We have been able to mold an amendment which meets their
concerns to the extent that we have this strong, strong support.
I note that in a brand new publication from the Department of Justice
called ``New Directions From the Field: Victims' Rights and Services
for the 21st Century,'' hot off the press, the very first
recommendation of this report from the Department of Justice is that
victims' rights should be embodied in an amendment to the U.S.
Constitution.
I would like to read from this report for a moment, if I might,
because this is recommendation from the field No. 1.

The United States Constitution should be amended to
guarantee fundamental rights for victims of crime.

What are these rights? They are the same ones that Senator Feinstein
and I propose in our amendment.
Constitutionally protected rights should include the right
to notice of public court proceedings and to attend them; to
make a statement to the court about bail, sentencing, and
accepting a plea; to be told about, to attend, and to speak
at parole hearings; to notice when the defendant or convict
escapes, is released, or dies; to an order of restitution
from the convicted offender; to a disposition free from
unreasonable delay; to consideration for the safety of the
victim in determining any release from custody; to notice of
these rights; and to standing to enforce them.

I would like to read on from this report the reasons stated for the
conclusion that we need a Federal constitutional amendment, because
these reasons summarize a great deal of testimony that we heard in the
hearings we held which demonstrated that mere State statutes, or State
constitutional provisions, are not adequate to provide a uniform floor
of rights for all victims of serious crime in the United States.
Here is what this report goes on to say:

A federal constitutional amendment for victims' rights is
needed for many different reasons, including: (1) to
establish a consistent ``floor of rights'' for crime victims
in every state and at the federal level; (2) to ensure that
courts engage in a careful and conscientious balancing of the
rights of victims and defendants; (3) to guarantee crime
victims the opportunity to participate in proceedings related
to crimes against them; and (4) to enhance the participation
of victims in the criminal justice process.

The report goes on to say:

A victims' rights constitutional amendment is the only
legal measure strong enough to rectify the current
inconsistencies in victims' rights laws that vary
significantly from jurisdiction to jurisdiction on the state
and federal levels. Such an amendment would ensure that
rights for victims are on the same level as the fundamental
rights of accused and convicted offenders. Most supporters
believe that it is the only legal measure strong enough to
ensure that the rights of victims are fully enforced across
the country. They also believe, however, that the efforts to
secure passage of a federal constitutional amendment for
crime victims' rights should not supplant legislative
initiatives at the state and federal level.
Granting victims of crime the ability to participate in the
justice system is exactly the type of participatory right the
Constitution is designed to protect and has been amended to
permanently ensure. Such rights include the right to vote on
an equal basis and the right to be heard when the government
deprives one of life, liberty, or property.
Madam President, hot off the press from the Department of Justice,
the No. 1 recommendation is a Federal constitutional amendment to do
the things that the amendment which Senator Feinstein and I have
introduced would do for crime victims around this country.
I know Senator Feinstein is going to talk for a moment about how the
scales of justice are imbalanced, and what our amendment is intended to
do is right that imbalance between the legitimate rights of the accused
on the one hand and the legitimate rights of victims on the other hand.
Let me get to the bottom line for those who have been wondering what
the status of this amendment is and where we are going to go from here.
In July, as I said, the Senate Judiciary Committee passed out on a
bipartisan basis, 11 to 6, the latest version of the amendment that
Senator Feinstein and I have proposed. As noted, it has some 42
cosponsors. Since that time, we have sought to obtain floor time to
debate and eventually vote on our constitutional amendment.
Madam President, as you are aware, it has been very difficult, in the
waning weeks of this congressional session, to get floor time to take
up even the most mundane of bills, because the Senate is very much
concentrated on getting the appropriations bills passed so that we can
fund the Government for the next year. And, of course, with the
campaign coming up, leaders are very definitely committed to an
adjournment date of around October 9 or 10.
Senator Feinstein and I conferred with the various leaders of the
victims' rights movement and with our colleagues to determine what the
best course of action would be. We understood that for something as
important as amending the Constitution, we wanted to do it right. The
last thing that Senator Feinstein or I would ever do is to try to hurry
an amendment to the U.S. Constitution, to try to push this through
without an adequate debate, without giving everyone an opportunity to
have their say.
As I said, we have made changes to the extent of 62 different drafts,
which I think establish our bona fides in wanting to hear from everyone
with an interest in this important subject.
We determined, under the circumstances, rather than trying to amend
another piece of legislation

[[Page S11011]]

with our amendment or to try to rush this through in some way, that we
would continue to work at the grassroots level with organizations that
support the amendment, continue to work with the administration, whose
support for an amendment has been very helpful, and continue to work
with our colleagues to gain even more support in terms of
cosponsorship, so that when we do bring it to the floor, we will have
had the widest possible discussion and opportunity for everyone to
participate. We understand that will make it more likely that this
important effort will have quick success in the House of
Representatives and, importantly, in the State legislatures, which
would then have to ratify the amendment.
Madam President, we decided that under the circumstances it was
better for us not to try to rush that amendment to the floor here in
the waning days, literally, of this Congress, but that we would be
willing to defer action until early next year. I know that both Senator
Feinstein and I would like to see this matter dealt with perhaps during
Crime Victims Week in April of next year.
But whatever the timing that is appropriate, we will be urging our
colleagues early in the year to join us in cosponsoring the amendment
in its final version and ensuring quick passage out of the Judiciary
Committee, again because, of course, we will be in a new Congress and
we will need to act anew on the legislation because of that and to
secure the support of the leadership to quickly bring the amendment
then to the floor of the Senate so that we can have a thorough debate
and, hopefully, to pass the amendment out, sending it to the House for
its subsequent action.
We hope that with that kind of a timetable, with that kind of an
opportunity for everybody to participate, we will in the year 1999 have
adopted a constitutional amendment that can then be acted upon by the
States once and for all to protect the rights of crime victims around
this country.
I want to close these brief remarks by again thanking Senator
Feinstein and all of the others who have been so active in this effort.
The outside groups I will name at another occasion, because they
deserve very special recognition for all of the effort that they have
put into this.
But, frankly, the amendment would not have gotten to this point
without the strong and active support of one of the strongest
supporters of victims' rights that I know in the United States, my
friend and colleague from California, Senator Feinstein.
At this point, I would be happy to yield for her to make comments.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. I thank the Chair and I thank the Senator from
Arizona.
I want Senator Kyl to know that it has really been a very great
pleasure for me to work with the Senator over these past 2 years. I
think it has been for me one of the best experiences I have had in the
time I have been in the Senate, and that is two Senators from different
political parties sitting down to try to work out something which is
enormously difficult to do, and that is the drafting of a new
constitutional amendment.
The Senator mentioned that we have done 60-plus drafts, and that we
have met with the Attorney General, the White House, met members of
victims' groups. The Senator brought in the counsel for victims. Larry
Tribe, from Harvard University, worked with us, and we believe, I
think, that we have an amendment that will now stand the test of public
scrutiny and stand the test of time.
I want to share, Madam President, with the Senate how I first became
involved in victims' rights. It was in the mid-1970s in San Francisco
when a man broke into a home on Portrero Hill. He tied the man in the
home to a chair and murdered him by beating him with a hammer, a
chopping block and a ceramic vase. He then repeatedly raped his 24-
year-old wife, breaking several of her bones. He slit her wrist and
tried to strangle her with a telephone cord before setting their home
on fire and leaving them to go up in flames.
Miraculously, this young woman, whose name I purposely left out of
this, is still alive. She testified against him. He is still in State
prison, to the best of my knowledge. But when I became mayor she used
to call me every year and say, ``I'm terrified that he might get out. I
don't know if and when he will get out. His parole is coming up. Could
you help me?''
I recognized then that there really were no rights that victims had.
In 1982, California became the first State in the Union to apply some
victims' rights. It was a bill of rights. It passed the electorate
overwhelmingly. That is the reason when people saw the family of Nicole
Brown Simpson and Ronald Goldman in court it wasn't because they had
Federal rights or constitutional rights; it was because the
constitution of the State of California provided that right in 1982.
Some 28 other States have followed.
So you might say, ``Well, what's the problem?'' The problem is each
State is different, and there is no basic floor of rights guaranteed to
every victim. Therefore, if rights come in conflict, obviously, the
rights provided in the Constitution prevail.
Now, what rights are in the Constitution? These are the
constitutional rights today. You will see the rights of the accused, 15
specific rights guaranteed in the Constitution: the right to counsel,
the right to due process, to a speedy trial, to a prohibition against
double jeopardy, self-incrimination, against unreasonable searches and
seizures, to have warrants issued only on probable cause, a jury of
your peers, to be informed of accusations, and so on. You will then on
the other side see the rights granted to victims are ``none.''
Well, one has to look back and say, how did this happen? I have
looked back, and how it happened is very interesting. Our Founding
Fathers, when they included the rights of the accused in the
Constitution, did not think to include the rights of crime victims.
Then again in 1789 there were not 9 million victims of violent crimes
every year. As a matter of fact, there were not much more than 4
million people in all of our colonies. In fact, there are more victims
of violent crime each year, by far, than there were people in the
country when the Constitution was written.
Additionally, the way the criminal justice system worked then,
victims did not need a guarantee of these rights. In America, up to the
late 18th century and well into the 19th century, the concept of the
public prosecutor did not exist. Victims could and did commence
criminal cases themselves, by hiring a sheriff to arrest the defendant
and then initiating a private prosecution. The core rights in our
amendment--to notice, to attend, to be heard--were inherently made
available to the victim.
As Juan Cardenas, writing in the Harvard Journal of Law and Public
Policy, observed:

At trial, generally, there were no lawyers for either the
prosecution or the defense. Victims of crime simply acted as
their own counsel, although wealthier crime victims often
hired a prosecutor.

Gradually, public prosecution replaced the system of private
prosecution. With the explosive growth of crime in this country in
recent years--the rate of violent crime has more than quadrupled in the
last 35 years--it became easier and easier for the victim to be left
out of the process.
Another scholar noted:

With the establishment of the prosecutor, the conditions
for the general alienation of the victim from the legal
process further increase. The victim is deprived of his
ability to determine the course of a case and is deprived of
the ability to gain restitution from the proceedings. Under
such conditions, the incentives to report crime and to
cooperate with the prosecution diminish. As the importance of
the prosecution increases, the role of the victim is
transformed from principal actor to a resource that may be
used at the prosecutor's discretion.

So there was no need to guarantee those rights in 1789, and, as we
all know, the Constitution protects people from government rather than
providing most people with certain basic rights. But the criminal
justice system has changed dramatically since then and the prevalence
of crime has changed dramatically. So we believe that the need and
circumstances both combine to restore balance to the criminal justice
system by guaranteeing the rights of violent crime victims in the
United States.
I am very proud to have 12 coauthors on the Democratic side for this
constitutional amendment, and I am particularly proud to have the
support of Senator Biden of Delaware. Senator

[[Page S11012]]

Biden of Delaware was the chairman of the Judiciary Committee, I say to
the Senator from Arizona, when I came on that committee back in 1992
and was very helpful to me in learning the ropes of the committee. I
have great respect for him. So it was very significant to me when we
worked with him, made certain compromises in the amendment, and gained
his support.
Mr. KYL. Might I just interrupt the Senator to also note that, as
supporters of the amendment, we have the current chairman of the
Judiciary Committee, Senator Hatch, and also, as I indicated earlier,
the chairman of the House Judiciary Committee, Representative Hyde. So
this amendment certainly has the support of the people who have been in
the leadership of the committee as well as the current leadership of
the committee.
Mrs. FEINSTEIN. That is right. And I am delighted the Senator is in
the Chamber, because many people have said about this amendment,
``Well, why isn't Federal law enough?'' And if the Senator will recall,
we both voted for the Federal clarification law in the case of Oklahoma
City that would give victims the right to be notified, to be present in
the courtroom, and to make a statement. And even after we clarified the
law, the Federal judge held that if a victim was present, that victim
could not make a statement. So this again is, I think, an additional
rationale for this constitutional amendment.
I do want to point out the valuable support of Professor Laurence
Tribe of the Harvard Law School, and I would like to just briefly quote
portions of his testimony last year before the House hearing on the
amendment.

The rights in question--rights of crime victims not to be
victimized yet again, through the processes by which
Government bodies and officials prosecute, punish, and
release the accused or convicted offender--are indisputably
basic human rights against government, rights that any
civilized society of justice would aspire to protect and
strive never to violate.
Our Constitution's central concerns involve protecting the
rights of individuals to participate in all those
governmental processes that directly and immediately involve
those individuals and affect their lives in some focused and
particular way . . . The parallel rights of victims to
participate in these proceedings are no less basic, even
though they find no parallel recognition in the explicit text
of the Constitution of the United States.
The fact that the States and Congress, within their
respective jurisdictions, already have ample affirmative
authority to enact rules protecting these rights is . . . not
a reason for opposing the amendment altogether . . . The
problem, rather, is that such rules are likely, as experience
to date sadly shows, to provide too little real protection
whenever they come into conflict with bureaucratic habit,
traditional indifference, sheer inertia, or any mention of an
accused's rights regardless of whether those rights are
genuinely threatened.

So, in a sense, this is all the heart of our argument. Today, the
accused, the defendant, has 15 specific rights in the Constitution.
The victim of a violent crime, or any other crime, has no rights in
the Constitution. Consequently, there is no protected, no basic floor
of rights across this Nation. Each State varies. And when one of these
rights conflicts with a right guaranteed to a victim by a State
constitutional amendment, the Federal Constitution will always prevail.
We believe very strongly that 15 rights should be balanced by the 7
rights that we would provide to victims under this constitutional
amendment.
``The right to receive notice of the proceedings.'' What could be
more basic? Somebody assaults you, somebody has raped you, somebody has
robbed you--at least you receive a notice to the hearing.
``The right to attend the trial, and any other public proceeding at
which the defendant is present.''
``The right to be heard at certain stages in the proceeding: The
release of the offender; acceptance of a plea bargain; and sentencing.
``The right to be notified of the offender's release or escape.''
This is something for me which goes back to the 1974 case of a woman
having to call to plead to know when her husband's murderer and her own
attacker would be released, and because she does not have that
information to this day guaranteed to her, to this day she lives in
anonymity. She has changed her name and she has changed her place of
residence because she believes one day he will get out and one day he
will come after her. No American should have to live that way. That is
a basic right we provide in this constitutional amendment.
``The right to an order of restitution, albeit $1, presented by a
judge,'' which is significant to every victim. We had interested
victims testify to this. Senator Kyl, I am sure, will remember how
meaningful and important just the simple act of restitution was to
them.
``To have the safety of the victim considered in determining a
release from custody.'' These are, in essence, the basic rights that we
would provide to begin to balance this scale of justice throughout
time. The only way it can be done is by adding a constitutional
amendment to the U.S. Constitution.
I, once again, thank Senator Kyl. It has been a great pleasure for
me. I hope we will have the time to debate this fully on the floor and
have a vote. I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Madam President, let me just add some additional thanks to
those that Senator Feinstein has indicated here. Before I do, I note
the illustrative chart that Senator Feinstein has been referring to
refers to the rights of the defendants there. I think it is instructive
that for those who say we should not be providing victims' rights by
amending the U.S. Constitution, it is very instructive that most of
those rights for defendants were added by amendment to the U.S.
Constitution. They were not embodied in the original text of the
Constitution. So, as times changed and as we determined that rights
needed to be added, we did that for the defendants. Now, as Senator
Feinstein has pointed out, it is time to add some coequal rights for
victims of violent crime.
There are some additional people I think we would be remiss in not
thanking at this time. Laurence Tribe certainly was mentioned by
Senator Feinstein; Professor Paul Cassell at the University of Utah was
equally helpful to us, in drafting language changes.
Mrs. FEINSTEIN. If the Senator will yield for just one moment?
Mr. KYL. Yes, of course.
Mrs. FEINSTEIN. On Paul Cassell, I think the Senator will remember,
in the Judiciary Committee he had very compelling testimony and he
submitted a brief which he had written particularly on this. I found it
very, very compelling. I would like to refer to it in the text of our
remarks, so people who might be interested would go back and read that
brief.
Mr. KYL. I thank Senator Feinstein. I might add, anyone interested in
obtaining more information about what we are doing, and in getting
information about the specific provisions, the testimony of the
witnesses who answered a lot of the questions that, frankly, our
colleagues had, they can contact us. We can provide them transcripts of
the hearings, very erudite writings of the people like Laurence Tribe
and Paul Cassell who have been working for a long period of time and
have so much to contribute, as well as information from people at the
Department of Justice and others.

I would also like to thank Steve Twist, an attorney in Arizona, who
has spent thousands of hours pro bono, a lawyer who has spent much of
his career in advancing the cause of victims' rights and who, frankly,
was one of my mentors in learning about this subject and who has also
helped us throughout this process.
Also, there are two particular brilliant lawyers on our staff who
deserve a lot of credit, Neil Quinter, a member of Senator Feinstein's
staff with her today, and Stephen Higgins, a member of my staff; both
lawyers who have spent far more than the usual amount of time on a
piece of legislation, working this, because not only is it a very
interesting legal challenge but also a personal commitment on their
parts as much as it is for us.
I indicated we would probably thank a lot of people at another time.
Certainly the victims' rights groups and representatives who have been
so important in advancing this cause at the grassroots level. But I
thought it important, at least at this time as we wind up this session,
to note the people who have, professionally, been so helpful to us. We
will be working on this over the next 2 or 3 months as we prepare for
the next legislative session.
I will allow Senator Feinstein to close. I am pleased to announce
that

[[Page S11013]]

while we have not been able to get this amendment to the floor for
consideration by our colleagues today, or this year, I am quite
optimistic we will be able to do that early in the next session of the
Senate. I think the additional time we take to allow everyone to have
their say, to ask the questions they need to ask, that will allow this
to come at a time when we can have a full debate, that that will permit
us to adopt this amendment next session and send it to the States for
ratification.
Again, I thank Senator Feinstein for her wonderful cooperation and
inspiration on this amendment.
Mrs. FEINSTEIN. If the Senator will yield on one point, I would like
to add to those thanks, and thank him for being so generous. I would
like to add Roberta Roper of the National Victims Constitutional
Amendment Network, who worked with Steve Twist so actively; David
Beatty of the National Victims Center; and John Stein and Marlene Young
of the National Organization for Victim Assistance.
If I might say this: Some people have pooh-poohed--maybe pooh-poohed
is not a good senatorial word--let me say denigrated this concept. As
one who sat on 5,000 cases, sentencing them, setting sentences and
granting paroles for 6 years of my life, I can tell you that I believe
this constitutional amendment will make more of a difference in the
criminal justice system than virtually anything else that could be
done. I think it is extraordinarily important. I know the Senator joins
me in this, and I hope we will be able to have that full debate early
on in the next Congress.
Mr. KYL. Madam President, it seems like there is always one more
thing we want to say on this important subject. Again, we cannot
possibly thank everyone here today, but one of the organizations--now
that Senator Feinstein mentions a couple of other people--Mothers
Against Drunk Driving have been enormously helpful at the grassroots,
working with our colleagues gaining cosponsorships. I would be remiss
if I did not mention them.
Again, we will have many more opportunities to discuss this. I urge
anyone who has questions about it to be in touch with us. But it is
certainly an effort that I am going to be pleased to work on in the
next session.
Mr. Bumpers addressed the Chair.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. BUMPERS. What is the parliamentary situation?
The PRESIDING OFFICER. We are in morning business.
Mr. BUMPERS. Is there any particular order, Madam President?
The PRESIDING OFFICER. The Senator has the right to speak.

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