[Congressional Record Volume 145, Number 61 (Friday, April 30, 1999)]
[Senate]
[Pages S4487-S4505]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. McCONNELL (for himself, Mr. Bennett, Mr. Conrad, and Mr.
Dorgan):
S. 931. A bill to provide for the protection of the flag of the
United States, and for other purposes; to the Committee on the
Judiciary.
flag protection act of 1999
Mr. McCONNELL. Mr. President, the American flag is our most precious
national symbol and the Constitution is our most revered national
document. They both represent the ideas, values and traditions that
unify us as a people and a nation. Brave men and women have fought and
given their lives in defense of the freedom and way of life that they
both represent.
Today, I am proud to introduce, along with my colleague from Utah,
Senator Bennett, and my colleagues from North Dakota, Senator Conrad
and Senator Dorgan, the Flag Protection Act of 1999. This legislation
would ensure that acts of deliberately confrontational flag-burnings
are punished with stiff fines and even jail time. My bill will help
prevent desecration of the flag, and at the same time, protect the
Constitution.
Those malcontents who desecrate the flag do so to grab attention for
themselves and to inflame the passions of patriotic Americans. And,
speech that incites lawlessness or is intended to do so merits no First
Amendment protection, as the Supreme Court has made abundantly clear.
From Chaplinsky's ``fighting words'' doctrine in 1942 to Brandenburg's
``incitement'' test in 1969 to Wisconsin v. Mitchell's ``physical
assault'' standard in 1993, the Supreme Court has never protected
speech which causes or intends to cause physical harm to others.
And, that, Mr. President, is the basis for this legislation. My bill
outlaws three types of illegal flag desecration. First, anyone who
destroys or damages a U.S. flag with a clear intent to incite imminent
violence or a breach of the peace may be punished by a fine of up to
$100,000, or up to one year in jail, or both.
Second, anyone who steals a flag that belongs to the United States
and destroys or damages that flag may be fined up to $250,000 or
imprisoned up to 2 years, or both.
And third, anyone who steals a flag from U.S. property and destroys
or damages that flag may also be fined up to $250,000 or imprisoned up
to 2 years, or both.
Some of my colleagues will argue that we've been down the statutory
road before and the Supreme Court has rejected it. However, the
Senate's previous statutory effort wasn't pegged to the well-
established Supreme Court precedents in this area.
This bill differs from the statutes reviewed by the Supreme Court in
the two leading cases: Texas v. Johnson, (1989) and U.S. v. Eichman,
(1990).
In Johnson, the defendant violated a Texas law banning the
desecration of a venerated object, including the flag, in a way that
will offend one or more persons. Johnson took a stolen flag and burned
it as part of a political protest staged outside the 1984 Republican
convention in Dallas. The state of Texas argued that its interest in
enforcing the law centered on preventing breaches of the peace. But the
government, according to the Supreme Court, may not ``assume every
expression of a provocative idea will incite a riot. . . .'' Johnson,
according to the Court, was prosecuted for the expression of his
particular ideas: dissatisfaction with government policies. And it is a
bedrock principle underlying the First Amendment, said the Court, that
an individual cannot be punished for expressing an idea that offends.
The Johnson decision started a national debate on flag-burning and as
a result, Congress, in 1989, enacted the Flag Protection Act. In
seeking to safeguard the flag as the symbol of our nation, Congress
took a different tack from the Texas legislature. The federal statute
simply outlawed the mutilation or other desecration of the flag.
The Supreme Court, however, ruled in Eichman that the federal statute
was unconstitutional. Specifically, the Court found that Congressional
intent to protect the national symbol was insufficient to overcome the
First Amendment protection for the expressive conduct exhibited by
flag-burning.
Notwithstanding these decisions, the Court clearly left the door open
for outlawing flag-burning that incites lawlessness: ``the mere
destruction or disfigurement of a particular physical manifestation of
the symbol, without more, does not diminish or otherwise affect the
symbol itself in any way.''
But Mr. President, you don't have to take my word on it. The
Congressional Research Service has offered legal opinions concluding
that this initiative will withstand constitutional scrutiny:
The judicial precedents establish that the [Flag Protection
and Free Speech Act], if enacted, while not reversing Johnson
and Eichman, should survive constitutional attack on First
Amendment grounds.
In addition, Bruce Fein, a former official in the Reagan
Administration and respected constitutional scholar, concurs:
In holding flag desecration statutes unconstitutional in
Johnson, the Court cast no doubt on the continuing vitality
of Brandenburg and Chaplinsky as applied to expression
through use or abuse of the flag. [The Flag Protection and
Free Speech Act] falls well within the protective
constitutional umbrella of Brandenburg and Chaplinsky . . .
[and it] also avoids content-based discrimination which is
generally frowned on by the First Amendment.
And several other constitutional specialists also agree that this
initiative respects the First Amendment and will withstand
constitutional challenge. A memo by Robert Peck, and Professors Robert
O'Neil and Erwin Chemerinsky concludes that this legislation ``conforms
to constitutional requirements in both its purpose and its
provisions.''
And, these same three respected men have looked at the few State
court cases which have been decided since we had this debate 3 years
ago and have reiterated their original finding of constitutionality. In
a recent memo, they explained:
Three years ago . . . [w]e expressed our strongly held
opinion that [the Flag Protection and Free Speech Act] would
be compatible with the U.S. Supreme Court's rulings in Texas
v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman,
496 U.S. 310 (1990). We write now to reiterate that position,
finding that nothing that has occurred in the interim casts
any doubt on our conclusion.
Mr. President, I ask unanimous consent that the full text of these
various memos be printed in the Record. And, I note that some of the
memos refer to S. 982 in the 105th Congress and some refer to S. 1335
in the 104th Congress. These bills, introduced in different sessions of
Congress, are the same, and are both entitled the Flag Protection and
Free Speech Act.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S4488]]
Bruce Fein,
Attorney at Law,
Great Falls, VA, October 21, 1995.
Senator Mitch McConnell,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator: This letter responds for your request for an
appraisal of the constitutionality of the proposed ``Flag
Protection and Free Speech Act of 1995.'' I believe it easily
passes constitutional muster with flying banners or guidons.
The only non-frivolous constitutional question is raised by
section 3(a). It criminalizes the destruction or damaging of
the flag of the United States with the intent to provoke
imminent violence or a breach of the peace in circumstances
where the provocation is reasonably likely to succeed. In
Chaplinsky v. New Hampshire (1942), the Supreme Court upheld
the constitutionality of laws that prohibit expression
calculated and likely to cause a breach of the peace. Writing
for a unanimous Court, Justice Frank Murphy explained that
such ``fighting'' words ``are no essential part of any
exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and
morality.''
In Brandenburg v. Ohio (1969), the Court concluded that the
First Amendment is no bar to the punishment of expression
``directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.''
In holding flag desecration statutes unconstitutional in
Texas v. Johnson (1989), the Court cast no doubt on the
continuing vitality of Brandenburg and Chaplinsky as applied
to expression through use or abuse of the flag. See 491 U.S.
at 409-410.
Section 3(a) falls well within the protective
constitutional umbrella of Brandenburg and Chaplinsky. It
prohibits only expressive uses of the flag that constitute
``fighting'' words or are otherwise intended to provoke
imminent violence and in circumstances where the provocation
is reasonably likely to occasion lawlessness. The section is
also sufficiently specific in defining ``flag of the United
States'' to avoid the vice of vagueness. The phrase is
defined to include any flag in any size and in a form
commonly displayed as a flag that would be perceived by the
reasonable observer to be a flag of the United States. The
definition is intended to prevent circumvention by
destruction or damage to virtual flag representations that
could be as provocative to an audience as mutilating the
genuine article. Any potential chilling effect on free speech
caused by inherent definitional vagueness, moreover, is
nonexistent because the only type of expression punished by
section 3(a) is that intended by the speaker to provoke
imminent lawlessness, not a thoughtful response. The First
Amendment was not intended to protect appeals to imminent
criminality.
Section 3(a) also avoids content-based discrimination which
is generally frowned on by the First Amendment. It does not
punish based on a particular ideology or viewpoint of the
speaker. Rather, it punishes based on calculated provocations
of imminent violence through the destruction or damage of the
flag of the United States that are reasonably likely to
succeed irrespective of the content of the speaker's
expression. Such expressive neutrality is not
unconstitutional discrimination because the prohibition is
intended to safeguard the social interest in order, not to
suppress a particular idea. See F.C.C. v. Pacifica
Foundation, 438 U.S. 726, 744-746 (1978).
I would welcome the opportunity to amplify on the
constitutionality of section 3(a) as your bill progresses
through the legislative process.
Very truly yours,
Bruce Fein.
____
Memorandum
To: Interested Parties.
From: Robert S. Peck, Esq. Robert M. O'Neil, Professor,
University of Virginia Law School and Director, Thomas
Jefferson Center for the Protection of Free Expression.
Erwin Chemerinsky, Sydney Irmas Professor of Law and
Political Science, University of Southern California.
Re: S. 982, the Flag Protection and Free Speech Act of 1997.
Three years ago, we offered our analysis of constitutional
issues raised by S. 1335, which has been reintroduced this
Congress as S. 982, the Flag Protection and Free Speech Act.
We expressed our strongly held opinion that such a statute
would be compatible with the First Amendment and not conflict
with the U.S. Supreme Court's rulings in Texas v. Johnson,
491 U.S. 397 (1989) and United States v. Eichman, 496 U.S.
310 (1990). We write now to reiterate that position, finding
that nothing that has occurred in the interim casts any doubt
on our conclusion.
We observed in our earlier memorandum that the Eichman
Court expressly left open a number of options for flag-
related laws, including the approach taken by then-S. 1335
(now S. 982). Moreover, we noted that, in R.A.V. v. City of
St. Paul, 505 U.S. 377, 385 (1992), the Court reiterated this
opening by indicating that flag burning could be punishable
under circumstances where dishonoring the flag did not
comprise the gist of the crime.
S. 982 targets for punishment incitement to violence, which
has never been regarded as a constitutionally protected
activity. Some opponents of S. 982 have suggested that
several recent state court decisions raise questions about
our conclusions. They are mistaken. This memorandum will
supplement our earlier analysis by reviewing those cases.
Once again, we find that our earlier reasoning remains sound.
The most recent of these state court decisions, and the
only one that was not available to us when we wrote our
earlier memorandum, is Wisconsin v. Janssen, 570 N.W. 2d 746
(Wis. App. 1997)., review granted, 215 Wis. 2d 421 (Wis. Nov.
20, 1997). This memorandum will also review the holdings in
Ohio v. Lessin, 620 N.E. 2d 72 (Ohio 1993), cert. denied, 510
U.S. 1194 (1994), and Texas v. Jimenez, 828 S.W. 2d 455 (Tex.
App.), cert. denied, 506 U.S. 917 (1992). In preparing our
original memorandum in 1995, we found these two cases
irrelevant to the constitutionality of S. 1335 (now S. 982).
Review of these cases, in fact, strengthens our conclusion
about the constitutional viability of S. 982 because these
courts recognized the same distinction between the protected
expression of disparaging views of the flag, and the
punishable conduct outlined in our earlier memorandum.
In Janssen, a state statute made punishable as a crime both
contemptuous treatment of the American flag, as well as
conduct that did not contain expressive elements. A Wisconsin
Court of Appeals invalidated the statute that penalized
anyone who ``intentionally and publicly mutilates, defiles,
or casts contempt upon the flag . . .'' Such a statute, the
court said, improperly punishes contemptuous treatment of the
flag and impermissibly discriminates against a viewpoint, the
same flaw that the U.S. Supreme Court found in its original
flag burning decisions, Texas v. Johnson, 491 U.S. 397 (1989)
and United States v. Eichman, 496 U.S. 310 (1990). Thus, the
court found that the statute's broad language ``. . . clearly
encompasses acts that the United States Supreme Court has
deemed to be protected speech.'' The Wisconsin court did not
specifically examine the non-expressive portion of the
statute, which did not implicate First Amendment concerns,
finding that courts cannot rewrite statutes to bring them
into compliance with constitutional commands. The court's
treatment of the statute endorses the view that a statute
that eschews punishment for expressing a point of view by
mistreatment of the flag and instead focuses solely on
punishable non-expressive conduct will pass constitutional
muster. The far more precise language of S. 982 is
carefully designed to avoid punishing an expressed
viewpoint. The Janssen case thus has no bearing on S. 982.
The Ohio Supreme Court's decision in Lessin also has no
impact on any analysis of S. 982. The Court did not overturn
the statute in question, which was a general incitement
statute, but instead reversed a conviction because of flawed
jury instructions. In fact, the Court indicated that a
conviction would be upheld if a jury convicted the accused on
the basis of a more ``accurate and thorough set of jury
instructions.'' The fatal flaw in the jury instructions was
that there was a failure to separate purely expressive
conduct from legitimately criminalized violence. Because of
that failure, the Court could not say whether the jury
convicted the defendant for contempt for the flag or
incitement. The Court said that the jury must be informed
that ``flag burning in the absence of a call to violence is
protected speech under the First Amendment.'' By the same
token, the Court's statement clearly indicates that burning
an American flag to incite violence is not protected by the
First Amendment. S. 982 properly punishes the use of the flag
to incite violence, and Lessin supports its
constitutionality.
Finally, Jimenez invalidated a Texas law that a court of
appeals in that state found indistinguishable from the
federal law invalidated by the U.S. Supreme Court in Eichman.
Unlike S. 982, the Texas law did not require proof of direct
incitement to imminent lawless action. Instead, it still
targeted protected expression, though it contained no
viewpoint bias. While the Jimenez Court speculated that no
flag burning law could ever be constitutional, that question
was definitively answered otherwise, as we indicated in our
first memorandum, by the U.S. Supreme Court in R.A.V., a
decision issued several months after Jimenez. In R.A.V., the
Court said that flag burning that did not publish the message
or viewpoint of the flag burner, but concentrated solely on
the criminal conduct, would meet constitutional requirements.
Opponents of S. 982 also argue that the fact that the
Supreme Court denied certiorari in Jimenez and Lessin shows
that the Court would likely find S. 982 unconstitutional.
This argument is flawed for two principal reasons. First,
since the underlying state decisions do not address the
constitutionality of S. 982, or call into question the
premises upon which its validity rests, the Court's denial of
certiorari in those cases could not support the claim that
the Court would invalidate S. 982 on constitutional grounds.
Second, the Supreme Court each year decides to review only
a tiny fraction of the several thousand appeals and petitions
that are filed. The Court is not a court of error, but rather
takes cases that require a national resolution, and it spoke
definitively to the flag burning issue in Johnson and
Eichman. Given that neither Jimenez nor Lessin raised novel
or undecided constitutional issues that required such a
national
[[Page S4489]]
resolution, there was very little chance that the Court would
be interested in hearing these cases. As Justice Stevens
stated last year, ``it is well settled that our decision to
deny a petition for a writ of certiorari does not in any
sense constitute a ruling on the merits of the case in which
the writ is sought.'' Bethley v. Louisiana, 117 S. Ct. 2425
(1997) (statement of Stevens, J.); see also Maryland v.
Baltimore Radio Show, Inc., 228 U.S. 912, 919 (1950) (opinion
of Frankfurter, J., respecting denial of petition for writ of
cert.), U.S. v. Carver, 260 U.S. 482 (1923). The value of the
Jimenez and Lessin decisions, therefore, is in no way
enhanced by the Court's refusal of review.
We conclude, on the basis of all relevant judicial
decisions, that S. 982 is constitutional.
____
Memorandum
To: Interested Parties.
From: Robert S. Peck, Esq. Robert M. O'Neil, Professor,
University of Virginia Law School Erwin Chemerinsky,
Legion Lex Professor of Law, University of Southern
California.
Re: S. 1335, the Flag Protection and Free Speech Act of 1995.
Date: November 7, 1995.
This memorandum will analyze the constitutional
implications of S. 1335, the Flag Protection and Free Speech
Act of 1995. As its name implies and the legislation states
as its purpose, S. 1335 seeks ``to provide the maximum
protection against the use of the flag of the United States
to promote violence while respecting the liberties that it
symbolizes.'' S. 1335, 104th Cong., 1st Sess. Sec. 2(b)
(1995). This memorandum concludes that the bill conforms to
constitutional requirements in both its purpose and its
provisions.
It would be a mistake to conclude that S. 1335 is
unconstitutional simply because the U.S. Supreme Court
invalidated the Flag Protection Act of 1990 in its decision
in United States v. Eichman, 496 U.S. 310 (1990). In this
decision, as well as its earlier flag-desecration opinion,
the Court specifically left open a number of options for
flag-related laws, including the approach undertaken by S.
1335. The Court reiterated its stand in its 1992 cross-
burning case, indicating that flag burning could be
punishable under circumstances where dishonoring the flag did
not comprise the gist of the crime. R.A.V. v. City of St.
Paul, 112 S.Ct. 2538, 2544 (1992).
Unlike the 1990 flag law that the Court negated, S. 1335 is
not aimed at suppressing non-violent political protest; in
fact, it fully acknowledges that constitutionally protected
right. In contrast, the Flag Protection Act, the Court said,
unconstitutionally attempted to reserve the use of the flag
as a symbol for governmentally approved expressive purposes.
S. 1335 makes no similar attempt to prohibit the use of the
flag to express certain points of view. Instead, it both
advances a legitimate anti-violent purpose while remaining
solicitous of our tradition of ``uninhibited, robust, and
wide-open'' public debate. New York Times v. Sullivan, 376
U.S. 254, 270 (1964).
Moreover, the statute is sensitive to, and complies with,
several other constitutional considerations, namely: (1) it
does not discriminate between expression on the basis of its
content or viewpoint, since it avoids the kind of
discrimination condemned by the court in R.A.V.; (2) it does
not provide opponents of controversial political ideas with
an excuse to use their own propensity for violence as a means
of exercising a veto over otherwise protected speech, since
it requires that the defendant have a specific intent to
instigate a violent response; and (3) it does not usurp
authority vested in the states, since it does not intrude
upon police powers traditionally exercised by the states.
Each of these points will be discussed in greater detail
below.
One additional point is worth noting. Passing a statute is
far preferable to enacting a constitutional amendment that
would mark the first time in its more than two centuries as a
beacon of freedom that the United States amended the Bill of
Rights. Totalitarian regimes fear freedom and enact broad
authorizations to pick and choose the freedoms they allow.
The broadly worded proposed constitutional amendment follows
that blueprint by giving plenary authority to the federal and
state governments to pick and choose which exercises of
freedom will be tolerated. On the contrary, American
democracy has never feared freedom, and no crisis exists that
should cause us to reconsider this path. Because the Court
has never said that Congress lacks the constitutional power
to enact a statute to prevent the flag from becoming a tool
of violence, a statute--rather than a constitutional
amendment--is an incomparably better choice.
I. S. 1335 Punishes Violence or Incitement to Violence, Not Expressive
Conduct
The fatal common flaw in the flag-desecration prosecution
of Gregory Lee Johnson, whose Supreme Court case started the
controversy that has led to the proposed constitutional
amendment, and the subsequent enactment by Congress of the
Flag Protection Act of 1989 was the focus on punishing
contemptuous views concerning the American flag. Eichman, 496
U.S. at 317-19; Texas v. Johnson, 491 U.S. 397, 405-07
(1989). In both instances, law was employed in an attempt to
reserve use of the flag for governmentally approved
viewpoints (i.e., patriotic purposes). The Court held such a
reservation violated bedrock First Amendment principles in
that the government has no power to ``ensure that a symbol be
used to express only one view of that symbol or its
referents.'' Id. at 417.
Johnson had been charged with desecrating a venerated
object, rather than any of a number of other criminal charges
that he could have been prosecuted for and that would not
have raised any constitutional issues. Critical to the
Supreme Court's decision in his case, as well as to the
Texas courts that also held the conviction
unconstitutional, was the fact that ``[n]o one was
physically injured or threatened with injury.'' 491 U.S.
at 399. The Texas Court of Criminal Appeals noted that
``there was no breach of the peace nor does the record
reflect that the situation was potentially explosive.''
Id. at 401 (quoting 755 S.W. 2d 92, 96 (1988)). Thus, the
primary concern addressed by S. 1335, incitement to
violence, was not at issue in the Johnson case. The
Eichman Court found the congressional statute to be
indistinguishable in its intent and purpose from the
prosecution reviewed in Johnson and thus also
unconstitutional.
In reaching its conclusion about the issue of
constitutionality, the Court, however, specifically declared
that ``[w]e do not suggest that the First Amendment forbids a
State to prevent, `imminent lawless action.' '' Id. at 410
(quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). In
Brandenburg, the Court said that government may not ``forbid
or proscribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action.'' 395 U.S. at 447. It went on to state
that ``[a] statute which fails to draw this distinction
impermissibly intrudes upon the freedoms guaranteed by the
First and Fourteenth Amendments. It sweeps within its
condemnation speech which our Constitution has immunized from
government control.'' Id. at 448.
S. 1335 merely takes up the Court's invitation to focus a
proper law on ``imminent lawless action.'' It specifically
punishes ``[a]ny person who destroys or damages a flag of the
United States with the primary purpose and intent to incite
or produce imminent violence or a breach of the peace, and in
circumstances where the person knows it is reasonably likely
to produce imminent violence or a breach of the peace.'' S.
1335, at Sec. 3(a). The language precisely mirrors the
Court's Brandenburg criteria. It does not implicate the
Constitution's free-speech protections, because ``[t]he First
Amendment does not protect violence.'' NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 916 (1982).
More recently, the Court put it this way: ``a physical
assault is not by any stretch of the imagination expressive
conduct protected by the First Amendment.'' Wisconsin v.
Mitchell, 113 S. Ct. 2194, 2199 (1993). Under the Court's
criteria, for example, a symbolic protest that consists of
hanging the President in effigy is indeed protected symbolic
speech. Although hanging the actual President might convey
the same message of protest, a physical assault on the
nation's chief executive cannot be justified as
constitutionally protected expressive activity and could
constitutionally be singled out for specific punishment. S.
1335 makes this necessary distinction as well, protecting
the use of the flag to make a political statement, whether
pro- or anti-government, while imposing sanctions for its
use to incite a violent response.
Courts and prosecutors are quite capable of discerning the
difference between protected speech and actionable conduct.
Federal law already makes a variety of threats of violence a
crime. Congress has, for example, targeted for criminal
sanction interference with commerce by threat or violence, 18
U.S.C. Sec. 1951, (1994), incitement to riot, 18 U.S.C.
Sec. 2101, tampering with consumer products, U.S.C.
Sec. 1365, and interfering with certain federally protected
activities. 18 U.S.C. Sec. 245. S. 1335 fits well within the
rubric that these laws have previously occupied. It cannot be
reasonably asserted that S. 1335 attempts to suppress
protected expression.
II. S. 1335 Does Not Unconstitutionally Discriminate on the Basis of
Content or Viewpoint
The Supreme Court has repeatedly recognized that ``above
all else, the First Amendment means that government has no
power to restrict expression because of its message, its
ideas, its subject matter, or its content.'' Police
Department v. Mosley, 408 U.S. 92, 95 (1972). On this basis,
the Court recently invalidated a St. Paul, Minnesota
ordinance that purported to punish symbolic expression when
it constituted fighting words directed toward people because
of their race, color, creed, religion or gender. Fighting
words is a category of expression that the Court had
previously held to be outside the First Amendment's
protections. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-
72 (1942). In R.A.V. v. City of St. Paul, 112 S. Ct. 2538,
2543 (1992), the Court gave this statement greater nuance by
stating that categories of speech such as fighting words are
not so entirely without constitutional import ``that they may
be made the vehicles for content discrimination unrelated to
their distinctively proscribable content.'' Explaining this
concept, the Court gave an example involving libel: ``the
government may proscribe libel; but it may not make the
further content discrimination of proscribing only libel
critical of the government.'' Id.
As a further example, the Court said a city council could
not enact an ordinance prohibiting only those legally obscene
works that
[[Page S4490]]
contain criticism of the city government. Id. As yet another
example, the Court stated that ``burning a flag in violation
of an ordinance against outdoor fires could be punishable,
whereas burning a flag in violation of an ordinance against
dishonoring the flag is not.'' Id. at 2544. The rationale
behind this limitation, the Court explained, was that
government could not be vested with the power to ``drive
certain ideas or viewpoints from the marketplace.'' Id. at
2545 (quoting Simon & Schuster, Inc. v. Members of the
N.Y. State Crime Victims Bd., 112 S.Ct. 501, 508 (1991)).
No such danger exists under S. 1335. Both the patriotic
group that makes use of the flag to provoke a violent
response from dissenters and the protesters who use the flag
to provoke a violent response from loyalists are subject to
its provisions. A law that would only punish one or the other
perspective would have the kind of constitutional flaw
identified by the Court in R.A.V. Moreover, the legislation
recognizes, as the Supreme Court itself did (``the flag
occupies a ``deservedly cherished place in our community,''
491 U.S. at 419) that the flag has a special status that
justifies its special attention. Similarly, the R.A.V. Court
noted that a law aimed at protecting the President against
threats of violence, even though it did not protect other
citizens, is constitutional because such threats ``have
special force when applied to the person of the President.''
Id. at 2546. The rule against content discrimination, the
Court explained, is not a rule against content
discrimination, the Court explained, is not a rule against
under-inclusiveness. For example, ``a State may choose to
regulate price advertising in one industry but not in others,
because the risk of fraud is in its view greater there.'' Id.
(parenthetical and citation omitted).
The federal law cited earlier that make certain types of
threats of violence into crimes are not thought to pose
content discrimination problems because they deal with only
limited kinds of threats. To give another example, federal
law also makes the use of a gun in the course of a crime
grounds for special additional punishment. See 18 U.S.C.
Sec. 924(c). In Brandenburg, the Court found that a Ku Klux
Klan rally at which guns were brandished and overthrow of the
government discussed remained protected free speech. Because
guns were used for expressive purposes in Brandenburg and
found to be beyond the law's reach there does not mean that
the law enhancing punishment because a gun is used during the
commission of a crime unlawfully infringes on any expressive
rights.
The gun law makes the necessary constitutional distinctions
that the Court requires, and so does S. 1335's concentration
on crimes involving the American flag rather than protests
involving the flag. S. 1335 properly identifies in its
findings the reason for Congress to take special note of the
flag: ``it is a unique symbol of national unity.''
Sec. 2(a)(1). It notes that ``destruction of the flag of the
United States can occur to incite a violent response rather
than make a political statement.'' Sec. 2(a)(4). As a result,
Congress has developed the necessary legislative facts to
justify such a particularized law.
In its only post-R.A.V. decision on a hate-crimes statute,
the Court upheld a statute that enhanced the punishment of an
individual who ``intentionally selects'' his victim on the
basis of race, religion, color, disability, sexual
orientation, national origin or ancestry. Wisconsin v.
Mitchell, 113 S.Ct. 2194 (1993). A fair reading of the
Court's unanimous decision in that case supports the
conclusion that the Court would not strike down S. 1335 on
R.A.V. grounds. In Mitchell, the Court concluded that the
statute did not impermissibly punish the defendant's
``abstract beliefs,'' id. at 2200 (citing Dawson v.
Delaware, 122 S. Ct. 1093 (1992)), but instead spotlighted
conduct that had the potential to cause a physical harm
that the State could properly proscribe. S. 1335 similarly
eschews ideological or viewpoint discrimination to focus
on the intentional provocation of violence, a harm well
within the government's power to punish.
iii. s. 1335 does not encourage a heckler's veto
First Amendment doctrine does not permit the government to
use the excuse of a hostile audience to prevent the
expression of political ideas. Thus, the First Amendment will
not allow the government to give a heckler some sort of veto
against the expression of ideas that he or she finds
offensive. As a result, the Court has observed, ``in public
debate our own citizens must tolerate insulting, and even
outrageous, speech in order to provide `adequate breathing
space' to the freedoms protected by the First Amendment.''
Boos v. Barry, 485 U.S. 312, 322 (1988). Any other approach
to free speech ``would lead to standardization of ideas
either by legislatures, courts, or dominant political or
community groups.'' Terminiello v. Chicago, 337 U.S. 1, 4
(1949). Thus, simply because some might be provoked and
respond violently to a march that expressed hatred of the
residents of a community, that is insufficient justification
to overcome the First Amendment's protection of ideas, no
matter how noxious they may be deemed. See, e.g., Collin v.
Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 436 U.S. 953
(1978).
The Supreme Court's flag-burning decisions applied this
principal. In Johnson, the state of Texas attempted to
counter the argument against its flag-desecration prosecution
by asserting an overriding governmental interest; it claimed
that the burning of a flag ``is necessarily likely to disturb
the peace and that the expression may be prohibited on this
basis.'' 491 U.S. at 408 (footnote omitted). The Court
rejected this argument on two grounds: (1) no evidence had
been submitted to indicate that there was an actual breach of
the peace, nor was evidence adduced that a breach of the
peace was one of Johnson's goals; Id. at 407, and (2) to hold
``that every flag burning necessarily possesses [violent]
potential would be to eviscerate our holding in Brandenburg
[that the expression must be directed to and likely to incite
or produce violence to be subject to criminalization].'' Id.
at 409.
S. 1335 avoids the problems that Texas had by requiring
that the defendant have ``the primary purpose and intent to
incite or produce imminent violence or a breach of the peace,
. . . in circumstances where the person knows it is
reasonably likely to produce imminent violence or a breach of
the peace.'' S. 1335, at Sec. (a)(a). If Texas had
demonstrated that Johnson had intended to breach the peace
and was likely to accomplish this goal, Johnson could have
been convicted of a crime for burning the U.S. flag. Texas,
however, never attempted to prove this.
Moreover, S. 1335 does not enable hecklers to veto
expression by reacting violently because it requires that the
defendant have the specific intent to provoke that response,
while at the same time taking away any bias-motivated
discretion from law enforcers. The existence of a scienter
requirement and a likelihood element is critical to
distinguishing between a law that unconstitutionally punishes
a viewpoint because some people hate it and one that
legitimately punishes incitement to violence.
iv. s. 1335 is consistent with federalism principles
Earlier this year, the Supreme Court held that the Gun-Free
School Zones Act of 1990, 18 U.S.C. Sec. 922(q)(1)(a)
unconstitutionally exceeded the power of Congress to regulate
Commerce. Untied States v. Lopez, 63 U.S.L.W. 4343(1995). In
doing so, the Court reaffirmed the original principle that
``the powers delegated by the [] Constitution to the federal
government are few and defined. Those which are to remain in
the State governments are numerous and indefinite.'' Id. at
4344 (quoting The Federalist No. 45, pp. 292-293 (C. Rossiter
ed. 1961) (James Madison)).
S. 1335 respects these principles by directing its
sanctions only at preventing the use of the national flag to
incite violence, preventing someone from damaging an American
flag belonging to the United States, or damaging, on federal
land, an American flag stolen from another person. Each of
these acts have a clear federal nexus and remain properly
within the jurisdiction of the federal government. Moreover,
the bill concedes jurisdiction to the states wherever it may
properly be exercised. S. 1335, at Sec. 3(a)(d).
v. conclusion
S. 1335 is carefully crafted to avoid constitutional
difficulties by being solicitous of federalism and freedom of
speech by focusing on incitement to violence. By doing so, it
meets all constitutional requirements.
____
Congressional Research Service,
Washington, DC, October 23, 1995.
To: Honorable Robert F. Bennett. Attention: Lisa Norton.
From: American Law Division.
Subject: Constitutionality of Flag Desecration Bill.
This memorandum is in response to your request for a
constitutional evaluation of S. 1335, 104th Congress, a bill
to provide for the protection of the flag of the United
States and free speech and for other purposes.
Briefly, the bill would criminalize the destruction or
damage of a United States flag under three circumstances.
First, subsection (a) would penalize such conduct when the
person engaging in it does so with the primary purpose and
intent to incite or produce imminent violence or a breach of
the peace and in circumstances where the person knows it is
reasonably likely to produce imminent violence or a breach of
the peace.
Second, subsection (b) would punish any person who steals
or knowingly converts to his or her use, or to the use of
another, a United States flag belonging to the United States
and who intentionally destroys or damages that flag. Third,
subsection (c) punishes any person who, within any lands
reserved for the use of the United States or under the
exclusive or concurrent jurisdiction of the United States,
steals or knowingly converts to his or her use, or to the use
of another, a flag of the United States belonging to another
person and who intentionally destroys or damages that flag.
Of course, the bill is intended to protect the flag of the
United States in circumstances under which statutory
protection may be afforded. The obstacle to a general
prohibition of destruction of or damage to the flag is the
principle enunciated in United States v. Eichman, 496 U.S.
310 (1990), and Texas v. Johnson, 491 U.S. 397 (1989), that
flag desecration, usually through burning, is expressive
conduct if committed to ``send a message,'' and that the
Court would review limits on this conduct with exacting
scrutiny; legislation that proposed to penalize the conduct
in order to silence the message or out of disagreement with
the message violates the First Amendment speech clause.
[[Page S4491]]
Rather clearly, subsections (b) and (c) would present no
constitutional difficulties, based on judicial precedents,
either facially or as applied. The Court has been plain that
one may not exercise expressive conduct or symbolic speech
with or upon the property of others or by trespass upon the
property of another Eichman, supra, 496 U.S., 316 n. 5;
Johnson, supra, 412 n. 8; Spence v. Washington, 418 U.S. 405,
408-409 (1974). See also R. A. V. v. City of St. Paul, 112
S.Ct. 2538 (1992) (cross burning on another's property). The
subsections are directed precisely to the theft or conversion
of a flag belonging to someone else, the government or a
private party, and the destruction of or damage to that flag.
Almost as evident from the Supreme Court's precedents,
subsection (a) is quite likely to pass constitutional muster.
The provision's language is drawn from the ``fighting words''
doctrine of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
That case defined a variety of expression that was
unprotected by the First Amendment, among the categories
being speech that inflicts injury or tends to incite
immediate violence. Id., 572. While the Court over the years
has modified the other categories listed in Chaplinsky, it
has not departed from the holding that the ``fighting words''
exception continues to exist. It has, of course, laid down
some governing principles, which are reflected in the
subsection's language.
Thus, the Court has applied to ``fighting words'' the
principle of Brandenburg v. Ohio, 395 U.S. 444 (1969), under
which speech advocating unlawful action may be punished only
if it directed to inciting or producing imminent lawless
action and is likely to incite or produce such action. Id.,
447. This development is spelled out in Cohen v. California,
403 U.S. 15, 20, 22-23 (1971). See also NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 928 (1982); Hess v. Indiana, 414
U.S. 105 (1973).
A second principle, enunciated in an opinion demonstrating
the continuing vitality of the ``fighting words'' doctrine,
is that it is impermissible to punish only those ``fighting
words'' of which government disapproves. Government may not
distinguish between classes of ``fighting words'' on an
ideological basis. R. A. V. v. City of St. Paul, 112 S.Ct.
2538 (1992).
Subsection (a) is drafted in a manner to reflect both these
principles. It requires not only that the conduct be
reasonably likely to produce imminent violence or breach of
the peace, but that the person intend to bring about imminent
violence or breach of the peace. Further, nothing in the
subsection draws a distinction between approved or
disapproved expression that is communicated by the action
committed with or on the flag.
In conclusion, the judicial precedents establish that the
bill, if enacted, would survive constitutional attack.
Subsections (b) and (c) are more securely grounded in
constitutional law, but subsection (a) is only a little less
anchored in decisional law.
Because of time constraints, this memorandum is necessarily
brief. If, however, you desire a more generous treatment,
please do not hesitate to get in touch with us.
Johnny H. Killian,
Senior Specialist,
American Constitutional Law.
Mr. McCONNELL. I urge the Senate to pass this legislation and protect
our Nation's most cherished symbol and our most revered document.
Mr. President, I ask unanimous consent that the bill in its entirety
be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 931
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Flag Protection Act of
1999''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) the flag of the United States is a unique symbol of
national unity and represents the values of liberty, justice,
and equality that make this Nation an example of freedom
unmatched throughout the world;
(2) the Bill of Rights is a guarantee of those freedoms and
should not be amended in a manner that could be interpreted
to restrict freedom, a course that is regularly resorted to
by authoritarian governments which fear freedom and not by
free and democratic nations;
(3) abuse of the flag of the United States causes more than
pain and distress to the overwhelming majority of the
American people and may amount to fighting words or a direct
threat to the physical and emotional well-being of
individuals at whom the threat is targeted; and
(4) destruction of the flag of the United States can be
intended to incite a violent response rather than make a
political statement and such conduct is outside the
protections afforded by the first amendment to the
Constitution.
(b) Purpose.--The purpose of this Act is to provide the
maximum protection against the use of the flag of the United
States to promote violence while respecting the liberties
that it symbolizes.
SEC. 3. PROTECTION OF THE FLAG OF THE UNITED STATES AGAINST
USE FOR PROMOTING VIOLENCE.
(a) In General.--Section 700 of title 18, United States
Code, is amended to read as follows:
``Sec. 700. Incitement; damage or destruction of property
involving the flag of the United States
``(a) Definition of Flag of the United States.--In this
section, the term `flag of the United States' means any flag
of the United States, or any part thereof, made of any
substance, in any size, in a form that is commonly displayed
as a flag and that would be taken to be a flag by the
reasonable observer.
``(b) Actions Promoting Violence.--Any person who destroys
or damages a flag of the United States with the primary
purpose and intent to incite or produce imminent violence or
a breach of the peace, and under circumstances in which the
person knows that it is reasonably likely to produce imminent
violence or a breach of the peace, shall be fined not more
than $100,000, imprisoned not more than 1 year, or both.
``(c) Damaging a Flag Belonging to the United States.--Any
person who steals or knowingly converts to his or her use, or
to the use of another, a flag of the United States belonging
to the United States, and who intentionally destroys or
damages that flag, shall be fined not more than $250,000
imprisoned not more than 2 years, or both.
``(d) Damaging a Flag of Another on Federal Land.--Any
person who, within any lands reserved for the use of the
United States, or under the exclusive or concurrent
jurisdiction of the United States, steals or knowingly
converts to his or her use, or to the use of another, a flag
of the United States belonging to another person, and who
intentionally destroys or damages that flag, shall be fined
not more than $250,000, imprisoned not more than 2 years, or
both.
``(e) Construction.--Nothing in this section shall be
construed to indicate an intent on the part of Congress to
deprive any State, territory, or possession of the United
States, or the Commonwealth of Puerto Rico of jurisdiction
over any offense over which it would have jurisdiction in the
absence of this section.''.
(b) Clerical Amendment.--The analysis for chapter 33 of
title 18, United States Code, is amended by striking the item
relating to section 700 and inserting the following:
``700. Incitement; damage or destruction of property involving the flag
of the United States.''.
Mr. McCONNELL. Mr. President, I yield the floor.
Mr. CONRAD addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. CONRAD. Mr. President, I rise today as an original cosponsor of
the bipartisan Flag Protection Act of 1999. I salute its author,
Senator McConnell of Kentucky.
I believe every Member of this body abhors acts of desecration
against the flag. Burning a flag, or otherwise dishonoring this symbol
of freedom, is repugnant to me, to my colleagues, and to the vast
majority of American citizens. I believe we should protect the flag
from the acts of those few who would dishonor it.
But the question is, How do we do it? Mr. President, we have
previously passed a statute to protect the flag but that was overturned
by the U.S. Supreme Court as unconstitutional.
Some now say the only alternative is to pass a constitutional
amendment. After considerable study and review, I have concluded that
is not the case. There is an alternative, and the alternative is the
legislation that we offer today, the Flag Protection Act of 1999. It is
a statute. It is not a constitutional amendment. It will protect the
flag, and I believe it will be upheld as constitutional.
We have a clear responsibility to exhaust all other options before we
take the very serious step of amending the Constitution of the United
States. Every one of us in the Senate pledges on our first day in this
Chamber to uphold, protect, and defend the Constitution of the United
States. Amending that time-honored, time-tested document is among the
most serious of our duties--a step we have taken only rarely in the
long history of our country.
The Constitution is the foundation of our Government. I believe it is
one of the greatest documents in human history. Its freedoms are the
source of our strength as a nation--and a model of freedom to the
world.
Mr. President, the Founding Fathers wisely made it very difficult to
amend the Constitution. They knew that a process that would allow for
easy amendment of the Constitution could destabilize our country, that
it could undermine the stability we have enjoyed through our long
history. The Constitution has been amended only 27 times in 200 years,
although many more attempts have been made.
Those 27 amendments, beginning with the Bill of Rights, were the
result
[[Page S4492]]
of fundamental debates about the nature of our society, and who we
would be as a nation. Freedom of religion, freedom of the press,
freedom to assemble peacefully, the right to a trial by jury, the right
to vote--these amendments address rights so basic we almost take them
for granted today. Yet, some of them at the time of adoption provoked
serious debate and division, division so deep they threatened to split
the country.
Mr. President, I hesitate to launch this Nation on an undertaking of
such magnitude and divisiveness. When there is an alternative--and
there is an alternative--I believe we can protect the flag without
amending the Constitution. I believe we can propose and pass a statute
that will protect the flag against burning and other acts of
desecration, and I believe that statute will be upheld as
constitutional.
That is why today I am joining this bipartisan effort with my
colleagues, Senator McConnell of Kentucky, Senator Dorgan of North
Dakota, and Senator Bennett of Utah, to introduce the Flag Protection
Act of 1999. This statute provides for maximum protection for the flag
while respecting the liberties it symbolizes. We have been assured by
experts at the Congressional Research Service and by constitutional
scholars that it will be upheld by the courts.
When it comes to amending the Constitution, I am conservative. I feel
strongly that the flag can and should be protected. But before we take
the step of amending the Constitution of the United States, we should
exhaust every other remedy. Today we have introduced a statutory
remedy. I ask my colleagues to join me in approving this law to protect
the flag and the Constitution.
Mr. President, I ask unanimous consent to have printed in the Record
a letter from the AMVETS of North Dakota. The AMVETS, in a letter to
me, dated September 29, 1998, have endorsed this approach. I also ask
unanimous consent to have printed in the Record the specific provision
that they adopted at their convention supporting the approach that we
are taking today.
There being no objection, the material was ordered to be printed in
the Record, as follows:
AMVETS,
Department of North Dakota,
Fargo, ND, September 29, 1998.
Hon. Kent Conrad,
U.S. Senate,
Washington, DC.
Dear Senator Conrad: I am sure your are hearing both sides
of the issue concerning SJR-40. During our May 1998
Department convention in West Fargo, our membership passed an
amended resolution to petition congress to work towards
legislation to prevent U.S. Flag Desecration. Enclosed is a
copy of the passed resolution S98-14. During the convention
you addressed our membership and stated you felt this was a
viable and defensible alternative to a proposed
Constitutional amendment. At our State Executive Committee
meeting Wahpeton, ND, on September 26, 1998, the SEC voted to
continue pursuing this goal.
Thank you for your time and consideration of this matter.
Randall A. LeKander,
Department Commander.
____
Resolution S. 98-14
u.s. flag desecration
Whereas although the right of free expression is part of
the foundation of the Constitution of the United States, very
carefully drawn limits on expression, in specific instances,
have long been recognized as legitimate means of maintaining
public safety and defining other societal standards, and
Whereas certain actions, although arguably related to a
person's free expression, nevertheless raise issues
concerning public decency, public space, and the rights of
other citizens, and
Whereas the United States flag is a most honorable and
worthy banner of a nation which is thankful for its strengths
and committed to curing its faults, a nation that remains the
destination of millions of immigrants attracted by the
universal power of the American ideal, and
Whereas the law, as interpreted by the United States
Supreme Court, no longer accords the Stars and Stripes the
reverence, respect and dignity befitting a banner of that
most noble experiment of a nation-state, and
Whereas it is only fitting the Americans everywhere should
lend their voices to a forceful call for restoration of the
Stars and Stripes to a proper station under law and decency;
now therefore, be it
Resolved, That AMVETS petition Congress to work towards
legislation which specifies that Congress shall have the
power to prohibit physical desecration of the United States
flag.
Mr. CONRAD. Mr. President, I would also like to read briefly from a
letter I received from a constituent in North Dakota. He wrote to me
the following:
As a third generation military officer, I cannot support an
amendment to the Constitution with respect to the flag. I
have many compelling reasons to ask that you not support this
amendment. My sworn duty as an officer in the United States
Air Force to uphold and defend the Constitution of the United
States lies at the heart of my opposition. This amendment
will weaken the Constitution and open the door for more
frivolous amendments in the future. I cannot stand by and let
this happen without raising my voice.
He went on to say:
Of the gallant Americans who fought and died in the service
of our country within the last 200 years, I tell you this:
They did not die defending the flag. They died defending our
freedom and the ideals upon which our country was founded.
Don't cheapen their sacrifice by supporting this misguided
amendment.
Mr. President, a third letter that I received was from a man also
from North Dakota. He wrote me this:
On my mother's side, my great-grandfather came to the
United States from Bohemia and fought in the Union Army. On
my father's side, my great-grandmother lost her two oldest
sons, Iowa soldiers, at the Siege of Vicksburg. And members
of my family have represented the United States in every war
since. I am a Korean War combat veteran.
He went on to say:
The flag is strong enough to take care of itself. But if
these flag protectors are sincere about its protection, then
strong legislation is the safest way to go.
Mr. President, that is what we are offering today on a bipartisan
basis--four Senators; two Democrats, two Republicans--offering the Flag
Protection Act of 1999. We believe this is the appropriate way to
protect the flag.
Mr. President, I yield the floor.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER (Mr. Burns). The Senator from North Dakota.
Mr. DORGAN. Mr. President, I rise today as a cosponsor of the
legislation that my colleagues, Senator McConnell, Senator Bennett,
Senator Conrad and I have jointly introduced--a piece of legislation
called the Flag Protection Act.
This, at its roots, is about the Constitution. Some will say the
Constitution is an easy issue.
A decade ago, the U.S. Supreme Court struck down a Texas statute, a
statute which provided criminal sanctions for the burning of an
American flag. The Supreme Court said, no, the desecration of a flag is
an expression of speech. That fellow in Texas had a constitutional
right to do that. That was a 5-4 decision of the Supreme Court. I
disagreed with that decision. I think the Supreme Court was wrong. But
immediately--and for 10 years--there was an effort to amend the
Constitution to overturn the Supreme Court's decision and allow a
statute to be deemed constitutional that would prohibit the desecration
of the American flag.
I have voted on two occasions against a constitutional amendment to
prohibit flag desecration. Those who say it is an easy vote say it is
just an amendment amending the Constitution. Let's just do it and
protect the flag.
It might be easy for them; it is not easy for me.
Then there are those who say we should never amend the Constitution,
that you have a right to desecrate the flag. They too say this is an
easy choice. Let's just make that choice.
This decision has been just as difficult. I have agonized about this
issue.
There are many, many Americans, over many, many years, who have shed
their blood to nurture this country's liberties and freedoms. The
burning of an American flag is a disgusting act, one that I personally
do not think is protected under the first amendment of the
Constitution.
The question is, however, what do you do to remedy this situation? Do
you amend the Constitution, or is there a way to craft a statute saying
flag desecration is wrong in a manner that the Supreme Court would say,
yes, this statute will meet the test?
I believe there is. I have believed all along there is. I pledged to
some folks back in my home State that I would review this, reanalyze it
again. I have done that over and over. I have read everything that has
been written by virtually all of the scholars on both sides of this
issue. I conclude, once again, that our country is better served by
reserving our attempts to alter the U.S. Constitution for those things
that are extraordinary occasions, as one of the
[[Page S4493]]
authors of the Constitution, James Madison discussed. Then the
Constitution should be amended only in circumstances when it is the
only remedy.
Some 12 or 13 years ago, I went to Philadelphia in the summertime for
the 200th birthday of the writing of the U.S. Constitution. I have told
my colleagues this before, but I want to say it again, because it
describes how I feel for the Constitution.
Two hundred years previously, 55 white men marched into the assembly
room in Independence Hall, a room that is substantially smaller than
this Chamber. Those 55 men wrote a Constitution for this country.
Walking down the cobbled streets of Philadelphia, someone asked
Benjamin Franklin, one of the 55, what they were doing. He said, we are
writing a Constitution, if you can keep it.
Two hundred years after the writing of that Constitution, 55 of us
were privileged to go back into the very same room. The chair where
George Washington presided still sits in the front of the room. Mason
sat over here, Madison, Ben Franklin. I was one of the 55 chosen, men,
women, minorities. I come from a town of 300 people, a high school
class of 9. I got goose bumps sitting in this room where they wrote the
Constitution of the United States. I have never forgotten that day,
thinking that I am in the room where the historic figures of our
country created the framework for governance in our country.
That day is always etched in my memory when we debate the questions
of whether we should amend the Constitution of the United States.
There have been 11,000 proposals to change America's Constitution.
Outside of the first 10, the Bill of Rights, only 17 amendments have
changed our Constitution in the more than two centuries of history in
this country.
Now we have a proposal during these past 10 years to change the
Constitution. Is it a serious proposal about a serious issue? Yes, it
is. Our flag is important. So is our Constitution. It seems to me, as I
said, our country is better served if there is a way to address the
issue of flag desecration by passing a statute that will meet the test
of the Supreme Court, to do that rather than alter our U.S.
Constitution.
The piece of legislation we have introduced today has been reviewed
by a number of constitutional experts, the Congressional Research
Service and elsewhere, and they indicate they feel it does meet the
test. It would be upheld by the Supreme Court.
To be able to enact a statute of this type and avoid altering the
Constitution makes eminent good sense to me. I think future generations
and our Founding Fathers would agree that it is worth the effort for us
to find a way to protect our flag without having to wonder about the
unintended consequences of altering this significant area of our
Constitution that guarantees and preserves important rights for the
citizens of our country.
Mr. President, I know that many who have invested a great amount of
time and effort to enact a constitutional amendment will be sorely
disappointed by my decision and, perhaps, Senator Conrad's decision and
others, to not support a constitutional amendment on flag desecration.
I know they are impatient to correct a decision by the Supreme Court
that they and I believe was wrong.
I have wrestled with this issue for so long. I wish I were not, with
my decision, disappointing so many, including some of my friends who
passionately believe we must amend the Constitution to protect the
flag. But as I sift through all of the material and think about the
history of our country and think about this constitutional framework of
our government and all of the appetite that exists here and elsewhere
to change this Constitution for 100 different reasons and 100 different
ways, I think our country is better served by patience and by a
thoughtful effort to correct a problem short of altering our country's
Constitution.
For that reason, I join my colleagues today, two Republicans and two
Democrats, to offer a piece of legislation that would serve, instead of
altering our Constitution, as an effort to protect our American flag.
Mr. President, I ask that my written statement be printed in the
Record.
Mr. DORGAN. Mr. President, 10 years ago the U.S. Supreme Court
in a 5-4 decision struck down a Texas flag protection statute on the
grounds that burning an American flag was ``speech'' and therefore
protected under the First Amendment of the Constitution. I disagreed
with the Court's decision then and I still do. I don't believe that the
act of desecrating a flag is an act of speech. I believe that our flag,
as our national symbol, can and should be protected by law.
In the intervening years since the Supreme Court decision I have
twice supported federal legislation that would make flag desecration
illegal, and on two occasions I voted against amendments to the
Constitution to do the same. I voted that way because, while I believe
that flag desecration is despicable conduct that should be prohibited
by law, I also believe that amending our Constitution is a step that
should be taken only rarely and then only as a last resort.
In the past year I have once again reviewed in detail nearly all of
the legal opinions and written materials published by Constitutional
scholars and courts on all sides of this issue. I pledged to the
supporters of the Constitutional amendment that I would re-evaluate
whether a Constitutional amendment is necessary to resolve this issue.
From my review I have concluded that there remains a way to protect
our flag without having to alter the Constitution of the United States.
I am joining with Senators Bennett, McConnell and Conrad today to
introduce legislation that I believe accomplishes that goal. The bill
we introduce today protects the flag but does so without altering the
Constitution and a number of respected Constitutional scholars tell us
they believe this type of statute will be upheld by the U.S. Supreme
Court. This statute protects the flag by criminalizing flag desecration
when the purpose is to, and the person doing it knows, it is likely to
lead to violence.
Supporters of a Constitutional amendment will be disappointed I know
by my decision to support this statutory remedy to protect the flag
rather than support an amendment to the U.S. Constitution. I know they
are impatient to correct a decision by the Supreme Court that they and
I believe was wrong. I have wrestled with this issue for so long and I
wish I were not, with my decision, disappointing those, including many
of my friends, who passionately believe that we must amend the
Constitution to protect the flag.
But in the end I know that our country will be better served
reserving our attempts to alter the Constitution only for those things
that are ``extraordinary occasions'' as outlined by President James
Madison, one of the authors of the Constitution, and only in
circumstances when it is the only remedy for something that must be
done.
More than 11,000 Constitutional amendments have been proposed since
our Constitution was ratified. However, since the ratification of the
Bill of Rights in 1791 only 17 amendments have been enacted. These 17
include three reconstruction era amendments that abolished slavery, and
gave African-Americans the right to vote. The amendments included
giving women the right to vote, limiting Presidents to two terms, and
establishing an order of succession in case of a President's death or
departure from office. The last time Congress considered and passed a
new Constitutional amendment was when it changed the voting age to 18,
more than a quarter of a century ago. All of these matters were of such
scope they required a Constitutional amendment to be accomplished.
But protecting the American flag can be accomplished without amending
the Constitution, and that is a critically important point.
Constitutional scholars, including those at the Congressional
Research Service, the research arm of Congress, and Duke University's
Professor William Alstyne, have concluded that this statute passes
Constitutional muster, because it recognizes that the same standard
that already applies to other forms of speech applies to burning the
flag as well. This is the same standard which makes it illegal to
falsely cry ``fire'' in a crowded theater. Reckless speech that is
likely to cause violence is not protected under the ``fighting words''
standard, long recognized by the Supreme Court of the United States.
[[Page S4494]]
I believe that future generations--and our founding fathers--would
agree that it's worth the effort for us to find a way to protect our
flag without having to wonder about the unintended consequences of
altering our Constitution.
Mr. President, I yield the floor.
By Mr. CAMPBELL:
S. 932. A bill to prevent Federal agencies from pursuing policies of
unjustifiable nonacquiescence in, and relitigation of, precedent
established in the Federal judicial courts; to the Committee on the
Judiciary.
federal bureaucracy accountability act of 1999
Mr. CAMPBELL. Mr. President, today I introduce the Federal
Bureaucracy Accountability Act of 1999.
This legislation is clearly needed because when federal bureaucracies
are faced with a decision between enforcing their rules and regulations
or complying with our nation's laws they all to often choose to ignore
the law and follow their rules. These bureaucracies can get away with
ignoring laws passed by Congress, signed into law and then interpreted
by our federal courts because of a technical, legal loophole.
Bureaucracies ought not ignore our laws and courts simply because they
may find it easier and more convenient to stick with their familiar
rules and regulations rather than changing their ways and complying
with the law. And when these bureaucracies choose to ignore the law it
is almost always average Americans who end up suffering.
There are thousands of stories of Americans who have been wrongfully
denied their rightful benefits because some federal agency refuses to
follow the legal decisions reached by our federal courts. In these
situations ordinary American citizens must comply with the law, but
federal agencies may simply choose to ignore that same law whenever
they may so choose. This is not equal justice under the law.
Our Founding Fathers envisioned a justice system in which everyone is
required to obey the laws as they are interpreted and enforced through
our courts. When there are disagreements appeals can be made to higher
courts. But otherwise, when the courts have spoken, we all must obey
the law or face the consequences, as it was intended.
Currently, if a federal court in one jurisdiction rules against a
federal agency's rule, that same federal agency can continue to follow
that same rule in other jurisdictions, even if it is to the detriment
of the American citizens they are purportedly serving. This needlessly
leads to years of costly legal wrangling while also compounding the
pain and suffering American citizens endure as they try to secure the
same services other Americans are already receiving in neighboring
jurisdictions.
Some of the more egregious actions are seen in the Social Security
Administration, the federal agencies running Medicare and Medicaid, the
Bureau of Land Management, and the Internal Revenue Service.
In legal terms, this bill would prevent federal agencies from
pursuing policies of unjustifiable nonacquiesence with, or the
relitigation of, judicial precedents as established through the federal
courts.
This legislation is a revised version of S. 1166, a bill I introduced
in the 105th Congress. The bill I am introducing today contains
perfecting language reflecting the valuable input I received during a
June 15, 1998, Senate Judiciary Subcommittee on Administrative
Oversight and the Courts hearing on S. 1166.
During that hearing, a fellow Coloradan, Lynn Conforti, testified
about how her claims for disability benefits were repeatedly denied by
the Social Security Administration, not on the basis of existing law,
but on the basis of bureaucratic policies. Her testimony highlighted
how her physical suffering was compounded by severe financial troubles
and mental anguish as a result of her 32-month struggle with the Social
Security Administration. This was her return for 27 years of
contributing to Social Security. Ms. Conforti hopes to be able to
return to work in the future, but she still requires access to the
resources she needs to continue her rehabilitation efforts. Finally,
Ms. Conforti was awarded her disability benefits by an Administrative
Law Judge in an on the record determination.
Ms. Conforti's story is just one sad example of how agencies too
often fail to help the very people whose need is real. Thousands of
other Americans go through similar experiences each year. Something
clearly must be done to ensure that federal agencies comply with
federal law.
There are important organizations that also make it clear that
something needs to be done. The Judicial Conference of the United
States, chaired by Supreme Court Chief Justice William Rehnquist,
serves as the Federal Judiciary's governing body. The Judicial
Conference has identified federal agency nonacquiesence as a policy
that undermines legal certainty and the fair application of the law.
The American Bar Association has also strongly recommended that
Congress pass legislation to stop federal agencies from disregarding
federal judicial decisions. In addition, organizations such as the
National Multiple Sclerosis Society and the Diabetes Research Institute
also came out in support of last year's bill, S. 1166.
It's time we made sure federal agencies comply with the law. I urge
my colleagues to support passage of this legislation.
Mr. President, I ask unanimous consent that a copy of the Federal
Bureaucracy Accountability Act of 1999 be printed in the Record
following my comments.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 932
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PROHIBITING INTRACIRCUIT AGENCY NON-ACQUIESCENCE
IN APPELLATE PRECEDENT.
(a) Short Title.--This Act may be cited as the ``Federal
Bureaucracy Accountability Act of 1999''.
(b) In General.--Chapter 7 of title 5, United States Code,
is amended by adding at the end the following:
``Sec. 707. Adherence to court of appeals precedent
``(a) Except as provided in subsection (b), an agency (as
defined in section 701(b)(1) of this title) shall in civil
cases, in administering a statute, rule, regulation, program,
or policy within a judicial circuit, adhere to the existing
precedent respecting the interpretation and application of
such statute, rule, regulation, program, or policy, as
established by the decisions of the United States court of
appeals for that circuit. All officers and employees of an
agency, including administrative law judges, shall adhere to
such precedent.
``(b) An agency is not precluded under subsection (a) from
taking a position, either in administrative or litigation,
that is at variance with precedent established by a United
States court of appeals if--
``(1) it is not certain whether the administration of the
statute, rule, regulation, program, or policy will be subject
to review exclusively by the court of appeals that
established that precedent or a court of appeals for another
circuit;
``(2) the Government did not seek further review of the
case in which that precedent was first established, in that
court of appeals or the United States Supreme Court,
because--
``(A) neither the United States nor any agency or officer
thereof was a party to the case; or
``(B) the decision establishing that precedent was
otherwise substantially favorable to the Government; or
``(3) it is reasonable to question the continued validity
of that precedent in light of a subsequent decision of that
court of appeals or the United States Supreme Court, a
subsequent change in any pertinent statute or regulation, or
any other subsequent change in the public policy or
circumstances on which that precedent was based.''.
(c) Clerical Amendment.--The table of sections for chapter
7 of title 5, United States Code, is amended by adding at the
end the following new item:
``707. Adherence to court of appeals precedent.''.
By Mr. MURKOWSKI (for himself and Mr. Stevens):
S. 933. A bill to amend the Internal Revenue Code of 1986 to clarify
the tax treatment of Settlement Trusts established pursuant to the
Alaska Native Claims Settlement Act; to the Committee on Finance.
Alaska Native Settlement Trust Tax Legislation
Mr. MURKOWSKI. Mr. President, I am pleased to be joined by Senator
Stevens in introducing legislation that will allow Alaska Native
Corporations to establish settlement trusts designed to promote the
health, education, welfare and cultural heritage of Alaska Natives.
Mr. President, in 1987, the Alaska Native Claims Settlement Act was
[[Page S4495]]
amended to permit Native Corporations to establish settlement trusts to
hold lands and investments for the benefit of current and future
generations of Alaska Natives. Assets in these trusts are insulated
from business exposure and risks and can be invested to provide
distributions of income to Native shareholders and their future
generations.
Although the 1987 amendments were designed to facilitate the
development of settlement trusts, many Native Corporations have been
stymied in their efforts because the tax law, in many cases, imposes
onerous penalties on the Native shareholders when the trusts are
created. For example, when assets are transferred to the trust, they
are treated as a de facto distribution of assets directly to the
shareholders themselves to the extent of the corporation's earnings and
profits.
Even though the current shareholders receive no actual income at the
time of the transfer into the trust, they are liable for income taxes
as if they received an actual distribution. This not only requires the
shareholder to come up with money to pay taxes on a distribution he or
she never received, but also can result in a situation where a trust
fund beneficiary is required to prepay taxes on his share of the entire
trust corpus, which may be substantially more in taxes than the amount
of cash benefits he or she will actually receive in the future.
Our legislation remedies this inequity by requiring that a
beneficiary of a settlement trust will be subject to taxation with
respect to assets conveyed to the trust only when the actual
distribution is received by the beneficiary. Moreover, the legislation
provides that distributions from the trust will be taxable as ordinary
income even if the distribution represents a return of capital. In
addition, to ensure that these trusts do not accumulate excessive
levels of the corporation's earnings, the legislation requires that the
trust must annually distribute at least 55 percent of their taxable
income.
Mr. President, Alaska Native Corporations are unique entities. Unlike
Native American tribes in the lower 48, Alaska Native corporations are
subject to income tax. But unlike ordinary C corporations, Alaska
Native corporations have diverse purposes, one of which is to preserve
and protect the heritage of the Native shareholders. The settlement
trust concept is well suited to the special needs of Alaska's Natives.
As the Conference Committee Report to ANSCA amendments of 1987 stated:
Trust distributions may be used to fight poverty, provide
food, shelter and clothing and served comparable economic
welfare purposes. Additionally, cash distributions of trust
income may be made on an across-the-board basis to the
beneficiary population as part of the economic welfare
function.
Settlement trusts will ensure that for generations to come, Native
Alaskans will have a steady stream of income on which to continue
building an economic base. The current tax rules discourage the
creation of such trusts with the result that Native corporations are
under extreme pressure to distribute all current earnings rather than
prudently reinvesting for the future.
Mr. President, it is my hope that we will be able to see this
legislation adopted into law this year. For the long-term benefit of
Alaska Natives, this tax law change is fundamentally necessary.
Mr. President, I ask unanimous consent that the text of the
legislation be included in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 933
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TAX TREATMENT OF ALASKA NATIVE SETTLEMENT TRUSTS.
(a) Tax Exemption.--Section 501(c) of the Internal Revenue
Code of 1986 is amended by adding at the end the following
new paragraph:
``(28) A trust which--
``(A) constitutes a Settlement Trust under section 39 of
the Alaska Native Claims Settlement Act (43 U.S.C. 1629e),
and
``(B) with respect to which an election under subsection
(p)(2) is in effect.''
(b) Special Rules Relating to Taxation of Alaska Native
Settlement Trusts.--Section 501 of the Internal Revenue Code
of 1986 is amended by redesignating subsection (p) as
subsection (q) and by inserting after subsection (o) the
following new subsection:
``(p) Special Rules for Taxation of Alaska Native
Settlement Trusts.--
``(1) In general.--For purposes of this title, the
following rules shall apply in the case of a Settlement
Trust:
``(A) Electing trust.--If an election under paragraph (2)
is in effect for any taxable year--
``(i) no amount shall be includible in the gross income of
a beneficiary of the Settlement Trust by reason of a
contribution to the Settlement Trust made during such taxable
year, and
``(ii) except as provided in this subsection, the
provisions of subchapter J and section 1(e) shall not apply
to the Settlement Trust and its beneficiaries for such
taxable year.
``(B) Nonelecting trust.--If an election is not in effect
under paragraph (2) for any taxable year, the provisions of
subchapter J and section 1(e) shall apply to the Settlement
Trust and its beneficiaries for such taxable year.
``(2) One-time election.--
``(A) In general.--A Settlement Trust may elect to have the
provisions of this subsection and subsection (c)(28) apply to
the trust and its beneficiaries.
``(B) Time and method of election.--An election under
subparagraph (A) shall be made--
``(i) before the due date (including extensions) for filing
the Settlement Trust's return of tax for the 1st taxable year
of the Settlement Trust ending after the date of the
enactment of this subsection, and
``(ii) by attaching to such return of tax a statement
specifically providing for such election.
``(C) Period election in effect.--Except as provided in
paragraph (3), an election under subparagraph (A)--
``(i) shall apply to the 1st taxable year described in
subparagraph (B)(i) and all subsequent taxable years, and
``(ii) may not be revoked once it is made.
``(3) Special rules where transfer restrictions modified.--
``(A) Transfer of beneficial interests.--If, at any time, a
beneficial interest in a Settlement Trust may be disposed of
in a manner which would not be permitted by section 7(h) of
the Alaska Native Claims Settlement Act (43 U.S.C. 1606(h))
if the interest were Settlement Common Stock--
``(i) no election may be made under paragraph (2)(A) with
respect to such trust, and
``(ii) if an election under paragraph (2)(A) is in effect
as of such time--
``(I) such election is revoked as of the 1st day of the
taxable year following the taxable year in which such
disposition is first permitted, and
``(II) there is hereby imposed on such trust a tax equal to
the product of the fair market value of the assets held by
the trust as of the close of the taxable year in which such
disposition is first permitted and the highest rate of tax
under section 1(e) for such taxable year.
The tax imposed by clause (ii)(II) shall be in lieu of any
other tax imposed by this chapter for the taxable year.
``(B) Stock in corporation.--If--
``(i) the Settlement Common Stock in any Native Corporation
which transferred assets to a Settlement Trust making an
election under paragraph (2)(A) may be disposed of in a
manner not permitted by section 7(h) of the Alaska Native
Claims Settlement Act (43 U.S.C. 1606(h)), and
``(ii) at any time after such disposition of stock is first
permitted, such corporation transfers assets to such trust,
clause (ii) of subparagraph (A) shall be applied to such
trust on and after the date of the transfer in the same
manner as if the trust permitted dispositions of beneficial
interests in the trust in a manner not permitted by such
section 7(h).
``(C) Administrative provisions.--For purposes of subtitle
F, any tax imposed by subparagraph (A)(ii)(II) shall be
treated as an excise tax with respect to which the deficiency
procedures of such subtitle apply.
``(4) Distribution requirement on electing settlement
trust.--
``(A) In general.--If an election is in effect under
paragraph (2) for any taxable year, a Settlement Trust shall
distribute at least 55 percent of its adjusted taxable income
for such taxable year.
``(B) Tax imposed if insufficient distribution.--If a
Settlement Trust fails to meet the distribution requirement
of subparagraph (A) for any taxable year, then,
notwithstanding subsection (c)(28), a tax shall be imposed on
the trust under section 1(e) on an amount of taxable income
equal to the amount of such failure.
``(C) Designation of distribution.--Solely for purposes of
meeting the requirements of this paragraph, a Settlement
Trust may elect to treat any distribution (or portion) during
the 65-day period following the close of any taxable year as
made on the last day of such taxable year. Any such
distribution (or portion) may not be taken into account under
this paragraph for any other taxable year.
``(D) Adjusted taxable income.--For purposes of this
paragraph, the term `adjusted taxable income' means taxable
income determined under section 641(b) without regard to any
deduction under section 651 or 661.
``(5) Tax treatment of distributions to beneficiaries.--
``(A) Electing trust.--If an election is in effect under
paragraph (2) for any taxable
[[Page S4496]]
year, any distribution to a beneficiary shall be included in
gross income of the beneficiary as ordinary income.
``(B) Nonelecting trusts.--Any distribution to a
beneficiary from a Settlement Trust not described in
subparagraph (A) shall be includible in income as provided
under subchapter J.
``(6) Definitions.--For purposes of this subsection--
``(A) Native corporation.--The term `Native Corporation'
has the meaning given such term by section 3(m) of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602(m)).
``(B) Settlement trust.--The term `Settlement Trust' means
a trust which constitutes a Settlement Trust under section 39
of the Alaska Native Claims Settlement Act (43 U.S.C.
1629e).''
(c) Withholding on Distributions by Electing ANCSA
Settlement Trusts.--Section 3402 of the Internal Revenue Code
of 1986 is amended by adding at the end the following new
subsection:
``(t) Tax Withholding on Distributions by Electing ANCSA
Settlement Trusts.--
``(1) In general.--Any Settlement Trust (as defined in
section 501(p)(6)(B)) which is exempt from income tax under
section 501(c)(28) (in this subsection referred to as an
`electing trust') and which makes a payment to any
beneficiary shall deduct and withhold from such payment a tax
in an amount equal to such payment's proportionate share of
the annualized tax.
``(2) Exception.--The tax imposed by paragraph (1) shall
not apply to any payment to the extent that such payment,
when annualized, does not exceed an amount equal to the
amount in effect under section 6012(a)(1)(A)(i) for taxable
years beginning in the calendar year in which the payment is
made.
``(3) Annualized tax.--For purposes of paragraph (1), the
term `annualized tax' means, with respect to any payment, the
amount of tax which would be imposed by section 1(c)
(determined without regard to any rate of tax in excess of 31
percent) on an amount of taxable income equal to the excess
of--
``(A) the annualized amount of such payment, over
``(B) the amount determined under paragraph (2).
``(4) Annualization.--For purposes of this subsection,
amounts shall be annualized in the manner prescribed by the
Secretary.
``(5) No application to third party payments.--This
subsection shall not apply in the case of a payment made,
pursuant to the written terms of the trust agreement
governing an electing trust, directly to third parties to
provide educational, funeral, or medical benefits.
``(6) Alternate withholding procedures.--At the election of
an electing trust, the tax imposed by this subsection on any
payment made by such trust shall be determined in accordance
with such tables or computational procedures as may be
specified in regulations prescribed by the Secretary (in lieu
of in accordance with paragraphs (2) and (3)).
``(7) Coordination with other sections.--For purposes of
this chapter and so much of subtitle F as relates to this
chapter, payments which are subject to withholding under this
subsection shall be treated as if they were wages paid by an
employer to an employee.''
(d) Reporting.--Section 6041 of the Internal Revenue Code
of 1986 is amended by adding at the end the following new
subsection:
``(f) Application to Alaska Native Settlement Trusts.--In
the case of any distribution from a Settlement Trust (as
defined in section 501(p)(6)(B)) to a beneficiary, this
section shall apply, except that--
``(1) this section shall apply to such distribution without
regard to the amount thereof,
``(2) the Settlement Trust shall include on any return or
statement required by this section information as to the
character of such distribution (if applicable) and the amount
of tax imposed by chapter 1 which has been deducted and
withheld from such distribution, and
``(3) the filing of any return or statement required by
this section shall satisfy any requirement to file any other
form or schedule under this title with respect to
distributive share information (including any form or
schedule to be included with the trust's tax return).''
(e) Effective Date.--The amendments made by this section
shall apply to taxable years of Settlement Trusts ending
after the date of the enactment of this Act and to
contributions to such trusts after such date.
By Mr. LEAHY (for himself, Mr. Kennedy, Mr. Sarbanes, Mr. Kerry,
Mr. Harkin, and Mrs. Murray):
S. 934. A bill to enhance rights and protections for victims of
crime; to the Committee on the Judiciary.
crime victims assistance act
Mr. LEAHY. Mr. President, this past Sunday marked the beginning of
National Crime Victims' Rights Week. We set this week aside each year
to focus attention on the needs and rights of crime victims. I am
pleased to take this opportunity to introduce legislation with my good
friend from Massachusetts, Senator Kennedy, and our cosponsors,
Senators Sarbanes, Kerry, Harkin, and Murray. Our ``Crime Victims
Assistance Act'' represents the next step in our continuing efforts to
afford dignity and recognition to victims of crime.
My involvement with crime victims began more than three decades ago
when I served as State's Attorney for Chittenden County, Vermont, and
witnessed first hand the devastation of crime. 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
additional ordeals for those already victimized.
I am proud that Congress has been a significant part of the solution
to provide victims with greater rights and assistance. Over the past 15
years, Congress has passed several bills to this end. These bills have
included: the Victims and Witness Protection Act of 1982; the Victims
of Crime Act of 1984; the Victims' Bill of Rights of 1990; the 1994
Violent Crime Control and Law Enforcement Act; the Justice for Victims
of Terrorism Act of 1996; the Victim Rights Clarification Act of 1997;
and the Victims with Disabilities Awareness Act.
Also, on the first day of this session, we introduced S.9, a youth
crime bill. In that legislation, which we have identified as a
legislative priority for the entire Democratic caucus, we included
provisions for victims of juvenile crime so that their rights to
appear, to be heard, and to be informed would be protected. The recent
tragedy in Littleton, Colorado, was only the most recent reminder of
the urgent need to enhance protections for these victims, to ensure
that their voices are heard.
The legislation that we introduce today, the ``Crime Victims
Assistance Act,'' builds upon this progress. It provides for a
wholesale reform of the Federal Rules and Federal law to establish
additional rights and protections for victims of federal crime.
Particularly, the legislation would provide crime victims with an
enhanced: right to be heard on the issue of pretrial detention; right
to be heard on plea bargains; right to a speedy trial; right to be
present in the courtroom throughout a trial; right to give a statement
at sentencing; right to be heard on probation revocation; and right to
be notified of a defendant's escape or release from prison.
The legislation goes further than other victims rights proposals that
are currently before Congress by including: enhanced penalties for
witness intimidation; an increase in Federal victim assistance
personnel; enhanced training for State and local law enforcement and
officers of the Court; the development of state-of-the-art systems for
notifying victims of important dates and developments in their cases;
the establishment of ombudsman programs for crime victims; the
establishment of pilot programs that implement balanced and restorative
justice models; and more direct and effective Federal assistance to
victims of international terrorism, including victims of the Lockerbie
bombing and other terrorist acts occurring prior to passage of the
Victims of Crime Act.
These are all matters that can be considered and enacted this year
with a simple majority of both Houses of Congress. They need not
overcome the delay and higher standards necessitated by proposing to
amend the Constitution. They need not wait the hammering out of
implementing legislation before making a difference in the lives of
crime victims.
The Judiciary Committee has already held another hearing this year on
a proposed constitutional amendment regarding crime victims. Previous
hearings on this proposal were held in 1996, 1997, and 1998.
Unfortunately, the Committee has devoted not a minute to consideration
of legislative initiatives like the Crime Victims Assistance Act, which
Senator Kennedy and I have introduced over the past years to assist
crime victims and better protect their rights. Like many other
deserving initiatives, it has taken a back seat to the constitutional
amendment debate that continues.
I regret that we did not do more for victims last year or the year
before. Over the course of that time, I have noted my concern that we
not dissipate the progress we could be making by focusing exclusively
on efforts to amend the Constitution. Regretfully, I must
[[Page S4497]]
note that the pace of victims legislation has slowed noticeably and
many opportunities for progress have been squandered.
I look forward to continuing to work with the Administration, victims
groups, prosecutors, judges and other interested parties on how we can
most effectively enhance the rights of victims of crime. Congress and
State legislatures have become more sensitive to crime victims rights
over the past 20 years and we have a golden opportunity to make
additional, significant progress this year to provide the greater voice
and rights that crime victims deserve.
I would like to acknowledge several groups and individuals who have
been extremely helpful with regards to the legislation that we are
introducing today: The Office for Victims of Crime at the Justice
Department; the National Network to End Domestic Violence; the NOW
Legal Defense Fund; the National Clearinghouse for the Defense of
Battered Women; the National Victim Center; the National Organization
for Victim Assistance; Professor Lynne Henderson of Indiana Law School;
and Roger Pilon, Director of the Center for Constitutional Studies at
the Cato Institute.
While we have greatly improved our crime victims assistance programs
and made advances in recognizing crime victims rights, we still have
more to do. That is why it is my hope that Democrats and Republicans,
supporters and opponents of a constitutional amendment on this issue,
will join in advancing this important legislation through Congress. We
can make a difference in the lives of crime victims right now, and I
hope Congress will make it a top priority and pass the Crime Victims
Assistance Act before the end of the year.
Mr. President, I ask unanimous consent that the text of the bill and
the section-by-section analysis be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 934
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Crime
Victims Assistance Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--VICTIM RIGHTS
Subtitle A--Amendments to Title 18, United States Code
Sec. 101. Right to be notified of detention hearing and right to be
heard on the issue of detention.
Sec. 102. Right to a speedy trial and prompt disposition free from
unreasonable delay.
Sec. 103. Enhanced right to order of restitution.
Sec. 104. Enhanced right to be notified of escape or release from
prison.
Sec. 105. Enhanced penalties for witness tampering.
Subtitle B--Amendments to Federal Rules of Criminal Procedure
Sec. 121. Right to be notified of plea agreement and to be heard on
merits of the plea agreement.
Sec. 122. Enhanced rights of notification and allocution at sentencing.
Sec. 123. Rights of notification and allocution at a probation
revocation hearing.
Subtitle C--Amendment to Federal Rules of Evidence
Sec. 131. Enhanced right to be present at trial.
Subtitle D--Remedies for Noncompliance
Sec. 141. Remedies for noncompliance.
TITLE II--VICTIM ASSISTANCE INITIATIVES
Sec. 201. Increase in victim assistance personnel.
Sec. 202. Increased training for State and local law enforcement, State
court personnel, and officers of the court to respond
effectively to the needs of victims of crime.
Sec. 203. Increased resources for State and local law enforcement
agencies, courts, and prosecutors' offices to develop
state-of-the-art systems for notifying victims of crime
of important dates and developments.
Sec. 204. Pilot programs to establish ombudsman programs for crime
victims.
Sec. 205. Amendments to Victims of Crime Act of 1984.
Sec. 206. Services for victims of crime and domestic violence.
Sec. 207. Pilot program to study effectiveness of restorative justice
approach on behalf of victims of crime.
Sec. 208. Victims of terrorism.
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``Attorney General'' means the Attorney
General of the United States;
(2) the term ``bodily injury'' has the meaning given that
term in section 1365(g) of title 18, United States Code;
(3) the term ``Commission'' means the Commission on
Victims' Rights established under section 204;
(4) the term ``Indian tribe'' has the same meaning as in
section 4(e) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b(e));
(5) the term ``Judicial Conference'' means the Judicial
Conference of the United States established under section 331
of title 28, United States Code;
(6) the term ``law enforcement officer'' means an
individual authorized by law to engage in or supervise the
prevention, detection, investigation, or prosecution of any
violation of law, and includes corrections, probation,
parole, and judicial officers;
(7) the term ``Office of Victims of Crime'' means the
Office of Victims of Crime of the Department of Justice;
(8) the term ``State'' means each of the several States of
the United States, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, and
the Commonwealth of the Northern Mariana Islands;
(9) the term ``unit of local government'' means any--
(A) city, county, township, town, borough, parish, village,
or other general purpose political subdivision of a State; or
(B) Indian tribe;
(10) the term ``victim''--
(A) means an individual harmed as a result of a commission
of an offense; and
(B) in the case of a victim who is less than 18 years of
age, incompetent, incapacitated, or deceased--
(i) the legal guardian of the victim;
(ii) a representative of the estate of the victim;
(iii) a member of the family of the victim; or
(iv) any other person appointed by the court to represent
the victim, except that in no event shall a defendant be
appointed as the representative or guardian of the victim;
and
(11) the term ``qualified private entity'' means a private
entity that meets such requirements as the Attorney General
may establish.
TITLE I--VICTIM RIGHTS
Subtitle A--Amendments to Title 18, United States Code
SEC. 101. RIGHT TO BE NOTIFIED OF DETENTION HEARING AND RIGHT
TO BE HEARD ON THE ISSUE OF DETENTION.
Section 3142 of title 18, United States Code, is amended by
adding at the end the following:
``(k) Notification of Right To Be Heard.--
``(1) In general.--In any case involving a defendant who is
arrested for an offense involving death or bodily injury to
any person, a threat of death or bodily injury to any person,
a sexual assault, or an attempted sexual assault, in which a
detention hearing is scheduled pursuant to subsection (f)--
``(A) the Government shall make a reasonable effort to
notify the victim of the hearing, and of the right of the
victim to be heard on the issue of detention; and
``(B) at the hearing under subsection (f), the court shall
inquire of the Government as to whether the efforts at
notification of the victim under subparagraph (A) were
successful and, if so, whether the victim wishes to be heard
on the issue of detention and, if so, shall afford the victim
such an opportunity.
``(2) Limitation.--Upon motion of either party that
identification of the defendant by the victim is a fact in
dispute, and that no means of verification has been
attempted, the Court shall use appropriate measures to
protect integrity of the identification process.
``(3) Definition of victim.--In this subsection, the term
`victim' means any individual against whom an offense
involving death or bodily injury to any person, a threat of
death or bodily injury to any person, a sexual assault, or an
attempted sexual assault, has been committed and also
includes the parent or legal guardian of a victim who is less
than 18 years of age, or incompetent, or 1 or more family
members designated by the court if the victim is deceased or
incapacitated.''.
SEC. 102. RIGHT TO A SPEEDY TRIAL AND PROMPT DISPOSITION FREE
FROM UNREASONABLE DELAY.
Section 3161(h)(8)(B) of title 18, United States Code, is
amended by adding at the end the following:
``(v) The interests of the victim (or the family of a
victim who is deceased or incapacitated) in the prompt and
appropriate disposition of the case, free from unreasonable
delay.''.
SEC. 103. ENHANCED RIGHT TO ORDER OF RESTITUTION.
Section 3664(d)(2)(A)(iv) of title 18, United States Code,
is amended by inserting ``, and the right of the victim (or
the family of a victim who is deceased or incapacitated) to
attend the sentencing hearing and to make a
[[Page S4498]]
statement to the court at the sentencing hearing'' before the
semicolon.
SEC. 104. ENHANCED RIGHT TO BE NOTIFIED OF ESCAPE OR RELEASE
FROM PRISON.
Section 503(c)(5)(B) of the Victims' Rights and Restitution
Act of 1990 (42 U.S.C. 10607(c)(5)(B)) is amended by
inserting after ``offender'' the following: ``, including
escape, work release, furlough, or any other form of release
from a psychiatric institution or other facility that
provides mental health services to offenders''.
SEC. 105. ENHANCED PENALTIES FOR WITNESS TAMPERING.
Section 1512 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``as provided in
paragraph (2)'' and inserting ``as provided in paragraph
(3)'';
(B) by redesignating paragraph (2) as paragraph (3);
(C) by inserting after paragraph (1) the following:
``(2) Whoever uses physical force or the threat of physical
force, or attempts to do so, with intent to--
``(A) influence, delay, or prevent the testimony of any
person in an official proceeding;
``(B) cause or induce any person to--
``(i) withhold testimony, or withhold a record, document,
or other object, from an official proceeding;
``(ii) alter, destroy, mutilate, or conceal an object with
intent to impair the object's integrity or availability for
use in an official proceeding;
``(iii) evade legal process summoning that person to appear
as a witness, or to produce a record, document, or other
object, in an official proceeding; and
``(iv) be absent from an official proceeding to which such
person has been summoned by legal process; or
``(C) hinder, delay, or prevent the communication to a law
enforcement officer or judge of the United States of
information relating to the commission or possible commission
of a Federal offense or a violation of conditions of
probation, parole, or release pending judicial proceedings;
shall be punished as provided in paragraph (3).''; and
(D) in paragraph (3)(B), as redesignated, by striking ``in
the case of'' and all that follows before the period and
inserting ``an attempt to murder, the use of physical force,
the threat of physical force, or an attempt to do so,
imprisonment for not more than 20 years''; and
(2) in subsection (b), by striking ``or physical force''.
Subtitle B--Amendments to Federal Rules of Criminal Procedure
SEC. 121. RIGHT TO BE NOTIFIED OF PLEA AGREEMENT AND TO BE
HEARD ON MERITS OF THE PLEA AGREEMENT.
(a) In General.--Rule 11 of the Federal Rules of Criminal
Procedure is amended by adding at the end the following:
``(i) Rights of Victims.--
``(1) In general.--In any case involving a defendant who is
charged with an offense involving death or bodily injury to
any person, a threat of death or bodily injury to any person,
a sexual assault, or an attempted sexual assault--
``(A) the Government, prior to a hearing at which a plea of
guilty or nolo contendere is entered, shall make a reasonable
effort to notify the victim of--
``(i) the date and time of the hearing; and
``(ii) the right of the victim to attend the hearing and to
address the court; and
``(B) if the victim attends a hearing described in
subparagraph (A), the court, before accepting a plea of
guilty or nolo contendere, shall afford the victim an
opportunity to be heard on the proposed plea agreement.
``(2) Definition of victim.--In this subsection, the term
`victim' means any individual against whom an offense
involving death or bodily injury to any person, a threat of
death or bodily injury to any person, a sexual assault, or an
attempted sexual assault, has been committed and also
includes the parent or legal guardian of a victim who is less
than 18 years of age, or incompetent, or 1 or more family
members designated by the court if the victim is deceased or
incapacitated.
``(4) Mass victim cases.--In any case involving more than
15 victims, the court, after consultation with the Government
and the victims, may appoint a number of victims to serve as
representatives of the victims' interests.''.
(b) Effective Date.--
(1) In general.--The amendment made by subsection (a) shall
become effective as provided in paragraph (3).
(2) Action by judicial conference.--
(A) Recommendations.--Not later than 180 days after the
date of enactment of this Act, the Judicial Conference shall
submit to Congress a report containing recommendations for
amending the Federal Rules of Criminal Procedure to provide
enhanced opportunities for victims of offenses involving
death or bodily injury to any person, the threat of death or
bodily injury to any person, a sexual assault, or an
attempted sexual assault, to be heard on the issue of whether
or not the court should accept a plea of guilty or nolo
contendere.
(B) Inapplicability of other law.--Chapter 131 of title 28,
United States Code, does not apply to any recommendation made
by the Judicial Conference under this paragraph.
(3) Congressional action.--Except as otherwise provided by
law, if the Judicial Conference--
(A) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are the same as the amendment made by
subsection (a), then the amendment made by subsection (a)
shall become effective 30 days after the date on which the
recommendations are submitted to Congress under paragraph
(2);
(B) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are different in any respect from the
amendment made by subsection (a), the recommendations made
pursuant to paragraph (2) shall become effective 180 days
after the date on which the recommendations are submitted to
Congress under paragraph (2), unless an Act of Congress is
passed overturning the recommendations; and
(C) fails to comply with paragraph (2), the amendment made
by subsection (a) shall become effective 360 days after the
date of enactment of this Act.
(4) Application.--Any amendment made pursuant to this
section (including any amendment made pursuant to the
recommendations of the United States Sentencing Commission
under paragraph (2)) shall apply in any proceeding commenced
on or after the effective date of the amendment.
SEC. 122. ENHANCED RIGHTS OF NOTIFICATION AND ALLOCUTION AT
SENTENCING.
(a) In General.--Rule 32 of the Federal Rules of Criminal
Procedure is amended--
(1) in subsection (b)--
(A) in paragraph (4), by striking subparagraph (D) and
inserting the following:
``(D) a victim impact statement, identifying, to the
maximum extent practicable--
``(i) each victim of the offense (except that such
identification shall not include information relating to any
telephone number, place of employment, or residential address
of any victim);
``(ii) an itemized account of any economic loss suffered by
each victim as a result of the offense;
``(iii) any physical injury suffered by each victim as a
result of the offense, along with its seriousness and
permanence;
``(iv) a description of any change in the personal welfare
or familial relationships of each victim as a result of the
offense; and
``(v) a description of the impact of the offense upon each
victim and the recommendation of each victim regarding an
appropriate sanction for the defendant;''; and
(B) by adding at the end the following:
``(7) Victim impact statements.--
``(A) In general.--Any probation officer preparing a
presentence report shall--
``(i) make a reasonable effort to notify each victim of the
offense that such a report is being prepared and the purpose
of such report; and
``(ii) provide the victim with an opportunity to submit an
oral or written statement, or a statement on audio or
videotape outlining the impact of the offense upon the
victim.
``(B) Use of statements.--Any written statement submitted
by a victim under subparagraph (A) shall be attached to the
presentence report and shall be provided to the sentencing
court and to the parties.'';
(2) in subsection (c)(1), by adding at the end the
following: ``Before sentencing in any case in which a
defendant has been charged with or found guilty of an offense
involving death or bodily injury to any person, a threat of
death or bodily injury to any person, a sexual assault, or an
attempted sexual assault, the Government shall make a
reasonable effort to notify the victim (or the family of a
victim who is deceased) of the time and place of sentencing
and of their right to attend and to be heard.''; and
(3) in subsection (f), by inserting ``the right to
notification and to submit a statement under subdivision
(b)(7), the right to notification and to be heard under
subdivision (c)(1), and'' before ``the right of allocution''.
(b) Effective Date.--
(1) In general.--The amendments made by subsection (a)
shall become effective as provided in paragraph (3).
(2) Action by judicial conference.--
(A) Recommendations.--Not later than 180 days after the
date of enactment of this Act, the Judicial Conference shall
submit to Congress a report containing recommendations for
amending the Federal Rules of Criminal Procedure to provide
enhanced opportunities for victims of offenses involving
death or bodily injury to any person, the threat of death or
bodily injury to any person, a sexual assault, or an
attempted sexual assault, to participate during the
presentencing phase of the criminal process.
(B) Inapplicability of other law.--Chapter 131 of title 28,
United States Code, does not apply to any recommendation made
by the Judicial Conference under this paragraph.
(3) Congressional action.--Except as otherwise provided by
law, if the Judicial Conference--
(A) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are the same as the amendments made by
subsection (a), then the amendments made by subsection (a)
shall become effective 30 days after the date on which the
recommendations are submitted to Congress under paragraph
(2);
[[Page S4499]]
(B) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are different in any respect from the
amendments made by subsection (a), the recommendations made
pursuant to paragraph (2) shall become effective 180 days
after the date on which the recommendations are submitted to
Congress under paragraph (2), unless an Act of Congress is
passed overturning the recommendations; and
(C) fails to comply with paragraph (2), the amendments made
by subsection (a) shall become effective 360 days after the
date of enactment of this Act.
(4) Application.--Any amendment made pursuant to this
section (including any amendment made pursuant to the
recommendations of the United States Sentencing Commission
under paragraph (2)) shall apply in any proceeding commenced
on or after the effective date of the amendment.
SEC. 123. RIGHTS OF NOTIFICATION AND ALLOCUTION AT A
PROBATION REVOCATION HEARING.
(a) In General.--Rule 32.1 of the Federal Rules of Criminal
Procedure is amended by adding at the end the following:
``(d) Rights of Victims.--
``(1) In general.--At any hearing pursuant to subsection
(a)(2) involving one or more persons who have been convicted
of an offense involving death or bodily injury to any person,
a threat of death or bodily injury to any person, a sexual
assault, or an attempted sexual assault, the Government shall
make reasonable effort to notify the victim of the offense
(and the victim of any new charges giving rise to the
hearings), of--
``(A) the date and time of the hearing; and
``(B) the right of the victim to attend the hearing and to
address the court regarding whether the terms or conditions
of probation or supervised release should be modified.
``(2) Duties of court at hearing.--At any hearing described
in paragraph (1) at which a victim is present, the court
shall--
``(A) address each victim personally; and
``(B) afford the victim an opportunity to be heard on the
proposed terms or conditions of probation or supervised
release.
``(3) Definition of victim.--In this rule, the term
`victim' means any individual against whom an offense
involving death or bodily injury to any person, a threat of
death or bodily injury to any person, a sexual assault, or an
attempted sexual assault, has been committed and a hearing
pursuant to subsection (a)(2) is conducted, including--
``(A) a parent or legal guardian of the victim, if the
victim is less than 18 years of age or is incompetent; or
``(B) 1 or more family members or relatives of the victim
designated by the court, if the victim is deceased or
incapacitated.''.
(b) Effective Date.--
(1) In general.--The amendment made by subsection (a) shall
become effective as provided in paragraph (3).
(2) Action by judicial conference.--
(A) Recommendations.--Not later than 180 days after the
date of enactment of this Act, the Judicial Conference shall
submit to Congress a report containing recommendations for
amending the Federal Rules of Criminal Procedure to ensure
that reasonable efforts are made to notify victims of
offenses involving death or bodily injury to any person, or
the threat of death or bodily injury to any person, of any
revocation hearing held pursuant to rule 32.1(a)(2) of the
Federal Rules of Criminal Procedure.
(B) Inapplicability of other law.--Chapter 131 of title 28,
United States Code, does not apply to any recommendation made
by the Judicial Conference under this paragraph.
(3) Congressional action.--Except as otherwise provided by
law, if the Judicial Conference--
(A) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are the same as the amendment made by
subsection (a), then the amendment made by subsection (a)
shall become effective 30 days after the date on which the
recommendations are submitted to Congress under paragraph
(2);
(B) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are different in any respect from the
amendment made by subsection (a), the recommendations made
pursuant to paragraph (2) shall become effective 180 days
after the date on which the recommendations are submitted to
Congress under paragraph (2), unless an Act of Congress is
passed overturning the recommendations; and
(C) fails to comply with paragraph (2), the amendment made
by subsection (a) shall become effective 360 days after the
date of enactment of this Act.
(4) Application.--Any amendment made pursuant to this
section (including any amendment made pursuant to the
recommendations of the United States Sentencing Commission
under paragraph (2)) shall apply in any proceeding commenced
on or after the effective date of the amendment.
Subtitle C--Amendment to Federal Rules of Evidence
SEC. 131. ENHANCED RIGHT TO BE PRESENT AT TRIAL.
(a) In General.--Rule 615 of the Federal Rules of Evidence
is amended--
(1) by striking ``At the request'' and inserting the
following:
``(a) In General.--Except as provided in subsection (b), at
the request'';
(2) by striking ``This rule'' and inserting the following:
``(b) Exceptions.--Subsection (a)'';
(3) by striking ``exclusion of (1) a party'' and inserting
the following: ``exclusion of--
``(1) a party'';
(4) by striking ``person, or (2) an officer'' and inserting
the following: ``person;
``(2) an officer'';
(5) by striking ``attorney, or (3) a person'' and inserting
the following: ``attorney;
``(3) a person'';
(6) by striking the period at the end and inserting ``;
or''; and
(7) by adding at the end the following:
``(4) a person who is a victim (or a member of the
immediate family of a victim who is deceased or
incapacitated) of an offense involving death or bodily injury
to any person, a threat of death or bodily injury to any
person, a sexual assault, or an attempted sexual assault, for
which a defendant is being tried in a criminal trial, unless
the court concludes that--
``(A) the testimony of the person will be materially
affected by hearing the testimony of other witnesses, and the
material effect of hearing the testimony of other witnesses
on the testimony of that person will result in unfair
prejudice to any party; or
``(B) due to the large number of victims or family members
of victims who may be called as witnesses, permitting
attendance in the courtroom itself when testimony is being
heard is not feasible.
``(c) Discretion of Court; Effect on Other Law.--Nothing in
subsection (b)(4) shall be construed--
``(1) to limit the ability of a court to exclude a witness,
if the court determines that such action is necessary to
maintain order during a court proceeding; or
``(2) to limit or otherwise affect the ability of a witness
to be present during court proceedings pursuant to section
3510 of title 18, United States Code.''.
(b) Effective Date.--
(1) In general.--The amendments made by subsection (a)
shall become effective as provided in paragraph (3).
(2) Action by judicial conference.--
(A) Recommendations.--Not later than 180 days after the
date of enactment of this Act, the Judicial Conference shall
submit to Congress a report containing recommendations for
amending the Federal Rules of Evidence to provide enhanced
opportunities for victims of offenses involving death or
bodily injury to any person, or the threat of death or bodily
injury to any person, to attend judicial proceedings, even if
they may testify as a witness at the proceeding.
(B) Inapplicability of other law.--Chapter 131 of title 28,
United States Code, does not apply to any recommendation made
by the Judicial Conference under this paragraph.
(3) Congressional action.--Except as otherwise provided by
law, if the Judicial Conference--
(A) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are the same as the amendments made by
subsection (a), then the amendments made by subsection (a)
shall become effective 30 days after the date on which the
recommendations are submitted to Congress under paragraph
(2);
(B) submits a report in accordance with paragraph (2)
containing recommendations described in that paragraph, and
those recommendations are different in any respect from the
amendments made by subsection (a), the recommendations made
pursuant to paragraph (2) shall become effective 180 days
after the date on which the recommendations are submitted to
Congress under paragraph (2), unless an Act of Congress is
passed overturning the recommendations; and
(C) fails to comply with paragraph (2), the amendments made
by subsection (a) shall become effective 360 days after the
date of enactment of this Act.
(4) Application.--Any amendment made pursuant to this
section (including any amendment made pursuant to the
recommendations of the United States Sentencing Commission
under paragraph (2)) shall apply in any proceeding commenced
on or after the effective date of the amendment.
Subtitle D--Remedies for Noncompliance
SEC. 141. REMEDIES FOR NONCOMPLIANCE.
(a) General Limitation.--Any failure to comply with any
amendment made by this Act shall not give rise to a claim for
damages, or any other action against the United States, or
any employee of the United States, any court official or
officer of the court, or an entity contracting with the
United States, or any action seeking a rehearing or other
reconsideration of action taken in connection with a
defendant.
(b) Regulations To Ensure Compliance.--
(1) In general.--Notwithstanding subsection (a), not later
than 1 year after the date of enactment of this Act, the
Attorney General and the Chairman of the United States Parole
Commission shall promulgate regulations to implement and
enforce the amendments made by this title.
(2) Contents.--The regulations promulgated under paragraph
(1) shall--
(A) contain disciplinary sanctions, including suspension or
termination from employment, for employees of the Department
of Justice (including employees of the United States Parole
Commission) who willfully or repeatedly violate the
amendments made by this title, or willfully or repeatedly
refuse or fail to comply with provisions of Federal law
[[Page S4500]]
pertaining to the treatment of victims of crime;
(B) include an administrative procedure through which
parties can file formal complaints with the Department of
Justice alleging violations of the amendments made by this
title;
(C) provide that a complainant is prohibited from
recovering monetary damages against the United States, or any
employee of the United States, either in his official or
personal capacity; and
(D) provide that the Attorney General, or the designee of
the Attorney General, shall the ultimate arbiter of the
complaint, and there shall be no judicial review of the final
decision of the Attorney General by a complainant.
TITLE II--VICTIM ASSISTANCE INITIATIVES
SEC. 201. INCREASE IN VICTIM ASSISTANCE PERSONNEL.
There are authorized to be appropriated such sums as may be
necessary to enable the Attorney General to--
(1) hire 50 full-time or full-time equivalent employees to
serve victim-witness advocates to provide assistance to
victims of any criminal offense investigated by any
department or agency of the Federal Government; and
(2) provide grants through the Office of Victims of Crime
to qualified private entities to fund 50 victim-witness
advocate positions within those organizations.
SEC. 202. INCREASED TRAINING FOR STATE AND LOCAL LAW
ENFORCEMENT, STATE COURT PERSONNEL, AND
OFFICERS OF THE COURT TO RESPOND EFFECTIVELY TO
THE NEEDS OF VICTIMS OF CRIME.
Notwithstanding any other provision of law, amounts
collected pursuant to sections 3729 through 3731 of title 31,
United States Code (commonly known as the ``False Claims
Act''), may be used by the Office of Victims of Crime to make
grants to States, units of local government, and qualified
private entities, to provide training and information to
prosecutors, judges, law enforcement officers, probation
officers, and other officers and employees of Federal and
State courts to assist them in responding effectively to the
needs of victims of crime.
SEC. 203. INCREASED RESOURCES FOR STATE AND LOCAL LAW
ENFORCEMENT AGENCIES, COURTS, AND PROSECUTORS'
OFFICES TO DEVELOP STATE-OF-THE-ART SYSTEMS FOR
NOTIFYING VICTIMS OF CRIME OF IMPORTANT DATES
AND DEVELOPMENTS.
(a) In General.--Subtitle A of title XXIII of the Violent
Crime Control and Law Enforcement Act of 1994 (Public Law
103-322; 108 Stat. 2077) is amended by adding at the end the
following:
``SEC. 230103. STATE-OF-THE-ART SYSTEMS FOR NOTIFYING VICTIMS
OF CRIME OF IMPORTANT DATES AND DEVELOPMENTS.
``(a) Authorization of Appropriations.--There are
authorized to be appropriated to the Office of Victims of
Crime of the Department of Justice such sums as may be
necessary for grants to State and local prosecutors' offices,
State courts, county jails, State correctional institutions,
and qualified private entities, to develop and implement
state-of-the-art systems for notifying victims of crime of
important dates and developments relating to the criminal
proceedings at issue.
``(b) False Claims Act.--Notwithstanding any other
provision of law, amounts collected pursuant to sections 3729
through 3731 of title 31, United States Code (commonly known
as the `False Claims Act'), may be used for grants under this
section.''.
(b) Violent Crime Reduction Trust Fund.--Section 310004(d)
of the Violent Crime Control and Law Enforcement Act of 1994
(42 U.S.C. 14214(d)) is amended--
(1) in the first paragraph designated as paragraph (15)
(relating to the definition of the term ``Federal law
enforcement program''), by striking ``and'' at the end;
(2) in the first paragraph designated as paragraph (16)
(relating to the definition of the term ``Federal law
enforcement program''), by striking the period at the end and
inserting ``; and''; and
(3) by inserting after the first paragraph designated as
paragraph (16) (relating to the definition of the term
``Federal law enforcement program'') the following:
``(17) section 230103.''.
SEC. 204. PILOT PROGRAMS TO ESTABLISH OMBUDSMAN PROGRAMS FOR
CRIME VICTIMS.
(a) Definitions.--In this section:
(1) Director.--The term ``Director'' means the Director of
the Office of Victims of Crime.
(2) Office.--The term ``Office'' means the Office of
Victims of Crime.
(3) Qualified private entity.--The term ``qualified private
entity'' means a private entity that meets such requirements
as the Attorney General, acting through the Director, may
establish.
(4) Qualified unit of state or local government.--The term
``qualified unit of State or local government'' means a unit
or a State or local government that meets such requirements
as the Attorney General, acting through the Director, may
establish.
(5) Voice centers.--The term ``VOICE Centers'' means the
Victim Ombudsman Information Centers established under the
program under subsection (b).
(b) Pilot Programs.--
(1) In general.--Not later than 12 months after the date of
enactment of this Act, the Attorney General, acting through
the Director, shall establish and carry out a program to
provide for pilot programs to establish and operate Victim
Ombudsman Information Centers in each of the following
States:
(A) Iowa.
(B) Massachusetts.
(C) Ohio.
(D) Tennessee.
(E) Utah.
(F) Vermont.
(2) Agreements.--
(A) In general.--The Attorney General, acting through the
Director, shall enter into an agreement with a qualified
private entity or unit of State or local government to
conduct a pilot program referred to in paragraph (1). Under
the agreement, the Attorney General, acting through the
Director, shall provide for a grant to assist the qualified
private entity or unit of State or local government in
carrying out the pilot program.
(B) Contents of agreement.--The agreement referred to in
subparagraph (A) shall specify that--
(i) the VOICE Center shall be established in accordance
with this section; and
(ii) except with respect to meeting applicable requirements
of this section concerning carrying out the duties of a VOICE
Center under this section (including the applicable reporting
duties under subsection (c) and the terms of the agreement)
each VOICE Center shall operate independently of the Office;
and
(C) No authority over daily operations.--The Office shall
have no supervisory or decisionmaking authority over the day-
to-day operations of a VOICE Center.
(c) Objectives.--
(1) Mission.--The mission of each VOICE Center established
under a pilot program under this section shall be to assist a
victim of a Federal or State crime to ensure that the
victim--
(A) is fully apprised of the rights of that victim under
applicable Federal or State law; and
(B) participates in the criminal justice process to the
fullest extent of the law.
(2) Duties.--The duties of a VOICE Center shall include--
(A) providing information to victims of Federal or State
crime regarding the right of those victims to participate in
the criminal justice process (including information
concerning any right that exists under applicable Federal or
State law);
(B) identifying and responding to situations in which the
rights of victims of crime under applicable Federal or State
law may have been violated;
(C) attempting to facilitate compliance with Federal or
State law referred to in subparagraph (B);
(D) educating police, prosecutors, Federal and State
judges, officers of the court, and employees of jails and
prisons concerning the rights of victims under applicable
Federal or State law; and
(E) taking measures that are necessary to ensure that
victims of crime are treated with fairness, dignity, and
compassion throughout the criminal justice process.
(d) Oversight.--
(1) Technical assistance.--The Office may provide technical
assistance to each VOICE Center.
(2) Annual report.--Each qualified private entity or
qualified unit of State or local government that carries out
a pilot program to establish and operate a VOICE Center under
this section shall prepare and submit to the Director, not
later than 1 year after the VOICE Center is established, and
annually thereafter, a report that--
(A) describes in detail the activities of the VOICE Center
during the preceding year; and
(B) outlines a strategic plan for the year following the
year covered under subparagraph (A).
(e) Review of Program Effectiveness.--
(1) GAO study.--Not later than 2 years after the date on
which each VOICE Center established under a pilot program
under this section is fully operational, the Comptroller
General of the United States shall conduct a review of each
pilot program carried out under this section to determine the
effectiveness of the VOICE Center that is the subject of the
pilot program in carrying out the mission and duties
described in subsection (c).
(2) Other studies.--Not later than 2 years after the date
on which each VOICE Center established under a pilot program
under this section is fully operational, the Attorney
General, acting through the Director, shall enter into an
agreement with 1 or more private entities that meet such
requirements the Attorney General, acting through the
Director, may establish, to study the effectiveness of each
VOICE Center established by a pilot program under this
section in carrying out the mission and duties described in
subsection (c).
(f) Termination Date.--
(1) In general.--Except as provided in paragraph (2), a
pilot program established under this section shall terminate
on the date that is 4 years after the date of enactment of
this Act.
(2) Renewal.--If the Attorney General determines that any
of the pilot programs established under this section should
be renewed for an additional period, the Attorney General may
renew that pilot program for a period not to exceed 2 years.
(g) Funding.--Notwithstanding any other provision of law,
an aggregate amount not to exceed $5,000,000 of the amounts
collected
[[Page S4501]]
pursuant to sections 3729 through 3731 of title 31, United
States Code (commonly known as the ``False Claims Act''), may
be used by the Director to make grants under subsection (b).
SEC. 205. AMENDMENTS TO VICTIMS OF CRIME ACT OF 1984.
(a) Crime Victims Fund.--Section 1402 of the Victims of
Crime Act of 1984 (42 U.S.C. 10601) is amended--
(1) in subsection (b)--
(A) in paragraph (3), by striking ``and'' at the end;
(B) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(5) any gifts, bequests, and donations from private
entities or individuals.''; and
(2) in subsection (d)--
(A) by striking paragraph (1) and inserting the following:
``(1) All unobligated balances transferred to the judicial
branch for administrative costs to carry out functions under
sections 3611 and 3612 of title 18, United States Code, shall
be returned to the Crime Victims Fund and may be used by the
Director to improve services for crime victims in the Federal
criminal justice system.''; and
(B) in paragraph (4), by adding at the end the following:
``(C) States that receive supplemental funding to respond
to incidents or terrorism or mass violence under this section
shall be required to return to the Crime Victims Fund for
deposit in the reserve fund, amounts subrogated to the State
as a result of third-party payments to victims.''.
(b) Crime Victim Compensation.--Section 1403 of the Victims
of Crime Act of 1984 (42 U.S.C. 10602) is amended--
(1) in subsection (a)--
(A) in each of paragraphs (1) and (2), by striking ``40''
and inserting ``60''; and
(B) in paragraph (3), by inserting ``and evaluation'' after
``administration''; and
(2) in subsection (b)(7), by inserting ``because the
identity of the offender was not determined beyond a
reasonable doubt in a criminal trial, because criminal
charges were not brought against the offender, or'' after
``deny compensation to any victim''.
(c) Crime Victim Assistance.--Section 1404 of the Victims
of Crime Act of 1984 (42 U.S.C. 10603) is amended--
(1) in subsection (c)--
(A) in paragraph (1)--
(i) by striking the comma after ``Director'';
(ii) by inserting ``or enter into cooperative agreements''
after ``make grants'';
(iii) by striking subparagraph (A) and inserting the
following:
``(A) for demonstration projects, evaluation, training, and
technical assistance services to eligible organizations;'';
(iv) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(v) by adding at the end the following:
``(C) training and technical assistance that address the
significance of and effective delivery strategies for
providing long-term psychological care.''; and
(B) in paragraph (3)--
(i) in subparagraph (C), by striking ``and'' at the end;
(ii) in subparagraph (D), by striking the period at the end
and inserting ``; and''; and
(iii) by adding at the end the following:
``(E) use funds made available to the Director under this
subsection--
``(i) for fellowships and clinical internships; and
``(ii) to carry out programs of training and special
workshops for the presentation and dissemination of
information resulting from demonstrations, surveys, and
special projects.''; and
(2) in subsection (d)--
(A) by striking paragraph (1) and inserting the following:
``(1) the term `State' includes--
``(A) the District of Columbia, the Commonwealth of Puerto
Rico, the United States Virgin Islands, and any other
territory or possession of the United States; and
``(B) for purposes of a subgrant under subsection (a)(1) or
a grant or cooperative agreement under subsection (c)(1), the
United States Virgin Islands and any agency of the government
of the District of Columbia or the Federal Government
performing law enforcement functions in and on behalf of the
District of Columbia.'';
(B) in paragraph (2)--
(i) in subparagraph (C), by striking ``and'' at the end;
and
(ii) by adding at the end the following:
``(E) public awareness and education and crime prevention
activities that promote, and are conducted in conjunction
with, the provision of victim assistance; and
``(F) for purposes of an award under subsection (c)(1)(A),
preparation, publication, and distribution of informational
materials and resources for victims of crime and crime
victims organizations.'';
(C) by striking paragraph (4) and inserting the following:
``(4) the term `crisis intervention services' means
counseling and emotional support including mental health
counseling, provided as a result of crisis situations for
individuals, couples, or family members following and related
to the occurrence of crime;'';
(D) in paragraph (5), by striking the period at the end and
inserting ``; and''; and
(E) by adding at the end the following:
``(6) for purposes of an award under subsection (c)(1), the
term `eligible organization' includes any--
``(A) national or State organization with a commitment to
developing, implementing, evaluating, or enforcing victims'
rights and the delivery of services;
``(B) State agency or unit of local government;
``(C) tribal organization;
``(D) organization--
``(i) described in section 501(c) of the Internal Revenue
Code of 1986; and
``(ii) exempt from taxation under section 501(a) of such
Code; or
``(E) other entity that the Director determines to be
appropriate.''.
(d) Compensation and Assistance to Victims of Terrorism of
Mass Violence.--Section 1404B of the Victims of Crime Act of
1984 (42 U.S.C. 10603b) is amended--
(1) in subsection (a), by striking ``1404(a)'' and
inserting ``1402(d)(4)(B)''; and
(2) in subsection (b), by striking ``1404(d)(4)(B)'' and
inserting ``1402(d)(4)(B)''.
SEC. 206. SERVICES FOR VICTIMS OF CRIME AND DOMESTIC
VIOLENCE.
Section 504 of the Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations
Act, 1996 (110 Stat. 1321-53) may not be construed to
prohibit a recipient (as that term is used in that section)
from using funds derived from a source other than the Legal
Services Corporation to provide related legal assistance (as
defined in section 502(b) of Public Law 105-119 (111 Stat.
2511)) to any person with whom an alien (as that term is used
in subsection (a)(11) of that section) has a relationship
covered by the domestic violence laws of the State in which
the alien resides or in which an incidence of violence
occurred.
SEC. 207. PILOT PROGRAM TO STUDY EFFECTIVENESS OF RESTORATIVE
JUSTICE APPROACH ON BEHALF OF VICTIMS OF CRIME.
(a) In General.--Notwithstanding any other provision of
law, amounts collected pursuant to sections 3729 through 3731
of title 31, United States Code (commonly known as the
``False Claims Act''), may be used by the Office of Victims
of Crime to make grants to States, units of local government,
and qualified private entities for the establishment of pilot
programs that implement balanced and restorative justice
models.
(b) Definition of Balanced and Restorative Justice Model.--
In this section, the term ``balanced and restorative justice
model'' means an approach to criminal justice that promotes
the maximum degree of involvement by a victim, offender, and
the community served by a criminal justice system by allowing
the criminal justice system and related criminal justice
agencies to improve the capacity of the system and agencies
to--
(1) protect the community served by the system and
agencies; and
(2) ensure accountability of the offender and the system.
SEC. 208. VICTIMS OF TERRORISM.
(a) In General.--Section 1404B of the Victims of Crime Act
of 1984 (42 U.S.C. 10603b) is amended to read as follows:
``SEC. 1404B. COMPENSATION AND ASSISTANCE TO VICTIMS OF
TERRORISM OR MASS VIOLENCE.
``(a) In General.--The Director may make grants, as
provided in either section 1402(d)(4)(B) or 1404--
``(1) to States, which shall be used for eligible crime
victim compensation and assistance programs for the benefit
of victims described in subsection (b); and
``(2) to victim service organizations, and public agencies
that provide emergency or ongoing assistance to victims of
crime, which shall be used to provide, for the benefit of
victims described in subsection (b)--
``(A) emergency relief (including compensation, assistance,
and crisis response) and other related victim services; and
``(B) emergency response training and technical assistance.
``(b) Victims Described.--Victims described in this
subsection are victims of a terrorist act or mass violence,
whether occurring within or outside the United States, who
are--
``(1) citizens or employees of the United States; and
``(2) not eligible for compensation under title VIII of the
Omnibus Diplomatic Security and Antiterrorism Act of 1986.''.
(b) Applicability.--The amendment made by this section
applies to any terrorist act or mass violence occurring on or
after December 20, 1989.
____
Section-by-Section Summary of the Crime Victims Assistance Act
TITLE I--VICTIMS RIGHTS IN THE FEDERAL SYSTEM
Title I reforms federal law and the federal rules of
evidence to provide enhanced protections to victims of
federal crime, from the time of the defendant's arrest
through sentencing, including post-sentencing hearings.
Subtitle A. Amendments to Title 18
Sec. 101. Right to be Notified of Detention Hearing and
Right to be Heard on the Issue of Detention
Section 101 amends federal law to establish a victim's
right to be notified of a detention hearing, to attend the
detention hearing, and be heard on the issue of detention. No
such right currently exists in federal law.
In cases where identification of the defendant remains at
issue, section 101 provides flexibility to the presiding
judge to protect the integrity of the identification.
[[Page S4502]]
Sec. 102. Right to a Speedy Trial and Prompt Disposition
Free From Unreasonable Delay
Section 102 amends the Speedy Trial Act to require the
Court to take into account the interests of the victim in the
prompt and appropriate disposition of the case, free from
unreasonable delay when considering a motion to continue a
trial.
Sec. 103. Enhanced Right to Order of Restitution
Section 103 amends federal law to ensure that the victim
has the right to attend a sentencing hearing and to make a
statement to the court at sentencing.
Sec. 104. Right to be Notified of Escape or Release from
Prison
Section 104 amends the Victims Rights and Restitution Act
of 1990 to expand the victim's right to be notified of an
offender's release or escape from custody. Specifically, this
section clarifies that a victim has the right to be notified
of the offender's escape or release from a psychiatric
institution. Current law does not address this potentially
critical issue.
Sec. 105. Enhanced Penalties for Witness Tampering
Section 105 amends a federal witness tampering statute (18
U.S.C. Sec. 1512) to raise the statutory maximum penalties in
witness tampering cases involving the use or threatened use
of physical force from 10 years to 20 years.
Subtitle B. Amendments to Federal Rules of Criminal Procedure
Sec. 121. Right to be Notified of Plea Agreement and to be
Heard on Merits of the Plea Agreement
Section 121 (a) amends Rule 11 of the Federal Rules of
Criminal Procedure (governing pleas) to require the
government to make a reasonable effort to notify the victim
of an upcoming plea hearing, and of the victim's right to be
heard at the plea hearing. In cases involving more than 15
victims, the Court, after consultation with the government
and the victims, may appoint a number of victims as
representatives of the victims' interests.
Section 121 (b) provides a timetable for the implementation
of the amendments to Rule 11, taking into consideration the
recommendations of the United States Judicial Conference.
Sec. 122. Enhanced Rights of Notification and Allocution at
Sentencing
Section 122 (a) amends Rule 32 of the Federal Rules of
Criminal Procedures (Sentencing) to provide for enhanced
opportunities for victims to participate in the criminal
sentencing process. Specifically, section 122(a) amends Rule
32 to require that presentence reports contain very specific
information about victim impact. Probation officers are
required to make reasonable efforts to notify the victim
about the preparation of the presentence reports, and must
provide victims with an opportunity to submit oral or written
statements, including statements on audio or videotape,
describing the impact of the offense on the victim. In
addition, Rule 32 is amended to require the government to
make a reasonable effort to notify the victim of the time and
place of sentencing, and the victim's right to be heard at
sentencing. These provisions are intended to insure that
victims remain actively involved throughout the criminal
process.
Section 122(b) provides a timetable for the implementation
of the amendments to Rule 32, taking into consideration the
recommendations of the United States Judicial Conference.
Sec. 123. Rights of Notification and Allocution At a
Probation Revocation Hearing
Section 123(a) amends Rule 32.1 of the Federal Rules of
Criminal Procedure (Probation Revocation or Modification of
Supervised Release) to provide enhanced opportunities for
victims to be notified of and participate in revocation
hearings. Often times, when a defendant is taken into custody
for violating conditions of release or conditions of
probation, a victim is unaware of these important
developments. Section 123 (a) amends Rule 32.1 to direct the
government to make a reasonable effort to notify the victim
of the impending revocation hearing, and to notify the victim
of his or her right to attend the hearing and address the
court.
Section 123(b) provides a timetable for the implementation
of the amendments to Rule 32.1, taking into consideration the
recommendations of the United States Judicial Conference.
Subtitle C. Amendment to Federal Rules of Evidence
Sec. 131. Enhanced Right to Be Present At Trial
Section 131 amends Rule 615 of the Federal Rules of
Evidence (Witness Sequestration) to establish a statutory
right for crime victims to attend court proceedings,
including trials. Currently, victims are routinely prevented
from being present at trials, except during their own
testimony. Section 131(a) amends Rule 615 to permit crime
victims to attend trials and other court proceedings, unless
the court makes a finding that the testimony of the person
will be materially affected by hearing the testimony of other
witnesses, and the material effect will result in unfair
prejudice to any party, or that due to large numbers of
victims or family members of victims who may be called as
witnesses, permitting attendance in the courtroom when
testimony is being heard is not feasible.
Section 131(b) provides a timetable for the implementation
of the amendment to Rule 615, taking into consideration the
recommendations of the United States Judicial Conference.
Subtitle D. Remedies for Noncompliance
Sec. 141. Remedies for Noncompliance
Section 141 establishes a mechanism for addressing
violations of the newly created statutory rights of crime
victims. Section 141(a) clarifies that no party can file a
civil action for damages or injunctive relief against the
U.S., any employee of the U.S., any officer of the court, nor
any entity contracting with the U.S., for failure to comply
with any amendment in this Act.
Section 141(b) directs the Attorney General and the Chair
of the U.S. Parole Commission to establish a workable
regulatory scheme that will permit the effective
administrative enforcement of victims rights. These
regulations must contain disciplinary sanctions, including
termination for employees of the Department of Justice who
willfully violate or refuse to comply with Federal provisions
pertaining to the treatment of victims of crime. These
regulations must also include an administrative procedure
through which formal complaints with the Department of
Justice alleging violations of this title can be filed. Under
the proposed administrative scheme a complainant is
prohibited from recovering any monetary damages against the
United States.
This subsection states that the Attorney General is the
ultimate arbiter of the complaint, and there will be no
judicial review of the final decision of the Attorney
General.
TITLE II--VICTIM ASSISTANCE INITIATIVES
Title II contains a series of provisions designed primarily
to assist victims of state crime, and to ensure that victims
participate in the criminal process to the maximum extent.
Sec. 201. Increase in Victim Assistance Personnel
Section 201 authorizes to be appropriated such sums as may
be necessary to enable the Attorney General to provide grants
through the Office of Victims of Crime (OVC) to qualified
private entities to fund 50 victim-witness advocate
positions, who can assist victims of state crimes.
This section also authorizes to be appropriated such sums
as may be necessary to enable the Attorney General to hire 50
full-time (or full-time equivalent) employees to serve as
victim-witness advocates to provide assistance to victims of
any federal criminal offense investigation.
Sec. 202. Increased Training for State and Local Law
Enforcement, State Court Personnel, and Officers of the
Court to Respond Effectively to the Needs of Victims of
Crime
Section 202 provides that funds collected pursuant to the
False Claims Act (31 U.S.C. 3729-3731) may be used by OVC to
make grants to States, units of local government, and
qualified private entities, to provide training and
information to prosecutors, judges, law enforcement officers,
probation officers, and other officers and employees of
Federal and State court in order to assist them in responding
effectively to the needs of victims of crime.
Sec. 203. Increased Resources for State and Local Law
Enforcement Agencies, Courts, and Prosecutors' Offices
to Develop State-of-the-Art Systems for Notifying
Victims of Crime of Important Dates and Developments
Section 203 amends subtitle A of title 23 of the Violent
Crime Control and Law Enforcement Act of 1994 (P.L. 103-322;
108 Stat. 2077) by authorizing to be appropriated such sums
as may be necessary to OVC to fund grants to State and local
prosecutors' offices, State courts, county jails, State
correctional institutions, and qualified private entities, to
develop and implement state-of-the-art systems for notifying
victims of crime of important dates and developments relating
to the criminal proceedings at issue.
Section 203 authorizes funds collected pursuant to the
False Claims Act (31 U.S.C. 3729-3731) to be used for these
grants.
This section also amends Section 310004(d) of the Violent
Crime Control and Law Enforcement Act of 1994 to permit funds
from the Violent Crime Reduction Trust Fund to be used for
grants outlined in this section.
Sec. 204. Pilot Programs to Establish Ombudsman Programs
for Crime Victims
Section 204 authorizes pilot programs designed to establish
innovative programs to assist victims of both federal and
state crime in vindicating their rights. All too frequently,
victims do not have a sufficient voice during the criminal
process. Some localities have responded to this problem by
creating ombudsman programs wherein independent officers are
established whose function is to represent the victim's
interests. These ombudsmen will educate prosecutors and
judges as to their victim-related responsibilities, and will
provide helpful guidance and support to crime victims
themselves. These programs have shown considerable promise in
a number of cities.
Section 204 authorizes the creation of these ombudsman
programs. Subsection (a) sets out definitions of the terms
``director,'' ``office,'' ``qualified private entity,''
``qualified unit of State or local government,'' and ``VOICE
Centers'' for the purposes of this section.
[[Page S4503]]
Subsection (b) provides that within a year after the
enactment of this Act, the Attorney General (acting through
the Director of OVC) will establish pilot programs to operate
Victim Ombudsman Information Centers (``VOICE'' Centers) in
Iowa, Massachusetts, Ohio, Tennessee, Utah, and Vermont.
This subsection also authorizes the Attorney General to
enter into agreement with and provide for a grant to assist a
qualified private entity or unit of State or local government
in carrying out the pilot program. The agreement shall
specify that the VOICE Center shall, excepting applicable
requirements of this section, operate independently of OVC,
and OVC shall have no supervisory or decision making
authority over the day-to-day operations of a VOICE Center.
The purpose of this provision is to ensure that VOICE centers
operate independently.
Subsection (c) provides that the mission of each VOICE
Center shall be to ensure that victims of Federal or State
crimes are fully appraised of the rights of victims and that
the victims participate in the criminal justice process to
the fullest extent of the law.
This subsection also sets out the duties of the VOICE
Centers. The duties include providing information to victims
concerning their right to participate in the criminal justice
process; identifying and responding to situations in which
rights of victims of crime may have been violated; attempting
to rectify violations of victims' rights; educating police,
prosecutors, court officials, and employees of jails and
prisons about the rights of victims; and taking measures to
ensure victims are treated with respect, dignity, and
compassion during the justice process.
Subsection (d) authorizes OVC to provide technical
assistance to each VOICE Center. Each pilot VOICE Center
shall submit an annual report to the Director of OVC
detailing the activities of the VOICE Center and the
strategic plan for the following year.
Subsection (e) provides that within two years of each VOICE
Center's pilot program establishment, the Comptroller General
of the U.S. shall review their effectiveness in carrying out
their mission and duties as described in subsection (c). This
subsection also requires that within two years of each VOICE
Center's pilot program establishment, the Attorney General
shall have private entities study the effectiveness of the
VOICE Centers in carrying out their mission and duties as
described in subsection (c).
Subsection (f) states that the pilot program shall
terminate 4 years after the date of enactment of the Act. If
the Attorney General determines that any of the pilot
programs should be renewed for an additional period, they may
be renewable for up to two years.
Subsection (g) authorizes an amount not to exceed
$5,000,000 of the amounts collected pursuant to the False
Claims Act to be used by the Director of OVC to make grants
to fund the pilot programs.
Sec. 205. Amendments to Victims of Crime Act of 1994
Section 205 provides for various improvements in the
program of federal support for victim assistance and
compensation under the Victims of Crime Act.
Subsection (a) authorizes the receipt of private donations
to the Crime Victims Fund. It also provides that unobligated
funds transferred to the judicial branch for the
establishment of the (now defunct) National Fine Center are
to be returned to the Crime Victims Fund and may be used for
the benefit of federal crime victims. Moreover, it requires
states to return to the Crime Victims Fund amounts for which
they are reimbursed under subrogation provisions as a result
of third party payments to victims, or where the state has
received supplemental funding for incidents of terrorism or
mass violence. This will help replenish the funds available
for assistance to victims of terrorism and mass violence.
Subsection (b) changes the minimum threshold for the annual
grant that the Director shall make from the Fund to an
eligible crime victim compensation program. The change is
from 40 percent of the amounts awarded during the preceding
fiscal year to 60 percent.
Subsection (b) also enhances authority and support for
demonstration projects, training, technical assistance, and
program evaluation, and clarifies that compensation will not
be denied to any victim because the identity of the offender
was not determined beyond a reasonable doubt in a criminal
trial or because criminal charges were not brought against
the offender.
Subsection (c) clarifies that the Director may enter into
cooperative agreements in addition to making grants; that
such cooperative agreements or grants may be for evaluation
purposes and training and technical assistance that address
the significance of and effective delivery strategies for
providing long-term psychological care; that the Director may
use funds for fellowships, clinical internships, and programs
of training and special workshops for the presentation and
dissemination of information resulting from demonstrations,
surveys, and special projects. Subsection (c) also tightens
some of the definitions in the Victims of Crime Act.
Sec. 206. Services for Victims of Crime and Domestic
Violence
Section 206 directs that a specified statute not be
construed to prohibit a recipient from using funds derived
from a source other than the Legal Services Corporation to
provide related legal assistance to any person with whom an
alien has a relationship covered by the domestic violence
laws of the State in which the alien resides or in which an
incidence of violence occurred.
Sec. 207. Pilot Program to Study Effectiveness of
Restorative Justice Approach on Behalf of Victims of
Crime
Section 207 authorizes the use of funds collected under the
False Claims Act by OVC to make grants to States, units of
local government, and qualified private entities for the
establishment of pilot programs that implement balanced and
restorative justice models.
Sec. 208. Victims of Terrorism
Section 208 clarifies the intent of the antiterrorism
amendment to the Victims of Crime Act by enabling OVC to
assist the victims of terrorist acts or mass violence
occurring outside the United States and authorizing it to
provide funding directly to non-profits and other Federal
agencies, medical and mental health organizations and others
in response to such victims' needs.
Section 208 will also enable OVC to provide assistance to
the victims of terrorist acts or mass violence occurring
prior to the passage of the Victims of Crime Act, but on or
after December 20, 1989. This will allow OVC to assist the
family members of those killed in the bombing of Pan Am 103.
These family members reside in various states around the
country including Alabama, California, Colorado, Connecticut,
Hawaii, Illinois, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, New Hampshire, New Jersey, New York,
Ohio, Oregon, Pennsylvania, South Carolina, Texas, Virginia,
Washington, and West Virginia.
Mr. KENNEDY. Mr. President, today, Senator Leahy and I are
introducing the Crime Victims Assistance Act. For too long, our
criminal justice system has neglected the hundreds of thousands of
victims of crime whose lives are shattered by violence or threats of
violence each year.
Clearly, the rights of victims deserve better from our criminal
justice system. Too often, the system does not provide adequate relief
for victims of crime. They are not given basic information about their
case--such as the status of the case, scheduling changes in court
proceedings, and notice of a defendant's arrest, bail status and
release from prison.
Victims deserve to know about their case. They deserve to know about
hearings and other court proceedings. They deserve to know when their
assailants are being considered for parole. And they certainly deserve
to know when their attackers are released from incarceration.
But there is a right way and a wrong way to protect victims' rights.
The wrong way is to amend the Constitution. One of the guiding
principles that has served the nation well for two hundred years is
that if it is not necessary to amend the Constitution, it is necessary
not to amend it.
We have amended the Constitution only 17 times in the two centuries
since the adoption of the Bill of Rights. We should consider such
amendments only in rare instances, when the enactment of a statute is
clearly inadequate.
The right way to protect victims' rights is by statute, not by
constitutional amendment. One of the most obvious provisions of such a
statute is additional resources for courts and prosecutors. These
resources can be used to establish better notification, provide better
training to deal with victims' needs, and to take all the other steps
required to see that the criminal justice system deals fairly with the
victims of crime. If Congress is truly committed to victims rights, we
can act quickly by statute.
Senator Leahy and I are proposing a victims rights statute--not a
constitutional amendment, because we believe it accomplishes the needed
goals. It provides protection for victims now--this year. We do not
have to wait for a constitutional amendment that may take years for the
States to ratify.
Chief Justice Rehnquist also opposes amending the Constitution. He
has specifically stated that a statute, rather than a constitutional
amendment, ``would have the virtue of making any provisions in the bill
which appeared mistaken by hindsight to be amended by a simple act of
Congress.''
Crime victims must be treated with dignity, compassion and
understanding. Being victimized by crime is traumatic enough. We must
do all we can to see that victims of crime are not victimized again by
the criminal justice system.
At the federal level, the system has become more victim friendly. I
am
[[Page S4504]]
proud to have sponsored the Sentencing Reform Act of 1994, which vastly
expanded the authority of the courts to order defendants to pay
restitution to the victims. Subsequent laws have given victims the
right to be heard at sentencing.
This legislation we are introducing today assures victims of a
greater voice in decisions on the detention and prosecution of
criminals.
It contains a series of provisions to assist victims of state crimes,
and to ensure that victims participate in the criminal justice process
to the maximum extent. For example, it provides grants to fund victim-
witness advocate positions. It provides training for judges,
prosecutors, and law enforcement. It establishes our ombudsman
programs.
Legislation on victims' rights deserves high priority in this
Congress. I urge the Senate to act swiftly to accomplish the goal we
share of genuine protections for victims rights.
By Mr. LUGAR:
S. 935. A bill to amend the National Agricultural Research,
Extension, and Teaching Policy Act of 1977 to authorize research to
promote the conversion of biomass into biobased industrial products,
and for other purposes; to the Committee on Agriculture, Nutrition, and
Forestry.
NATIONAL SUSTAINABLE FUELS AND CHEMICALS ACT OF 1999
Mr. LUGAR. Mr. President, I rise to introduce The National
Sustainable Fuels and Chemicals Act, with the goal of advancing
biotechnologies likely to offer outstanding benefits in terms of
strategic security, reduction of greenhouse gases and healthier rural
economies.
At the heart of the National Sustainable Fuels and Chemicals Act is a
novel research Initiative, jointly administered by the Secretary of
Agriculture and the Secretary of Energy, that authorizes research for
the purpose of overcoming technical barriers to low cost biomass
conversion and gives priority funding to consortia composed of
technical experts from academia, national laboratories, Federal
research agencies and industry. By enhancing creative and imaginative
approaches toward biomass processing, the Sustainable Fuels and
Chemicals Research Initiative will serve to develop the next generation
of advanced technologies making possible low cost biobased industrial
products.
Innovative in both purpose and structure, the Initiative will promote
integrated research partnerships as the best means of overcoming
technical challenges that span multiple academic disciplines while also
leveraging scarce Federal discretionary spending. 49 million dollars
per annum is proposed for the Sustainable Fuels and Chemicals Research
Initiative; funding is authorized for six years, through 2005. Given
the potential benefits in improved national security, rural development
and greenhouse gas reductions, this expenditure represents an
investment in America's future and is in line with recommendations from
a report of the President's Committee of Advisors on Science and
Technology (PCAST).
The legislation will also coordinate and focus Federal research in
cellulosic biomass processing through creation of the Sustainable Fuels
and Chemicals Board consisting of senior representatives from the
National Science Foundation, the Environmental Protection Agency, the
Department of the Interior and the White House Office of Science and
Technology Policy. Co-chaired by designees of the Secretary of
Agriculture and Secretary of Energy, the Board shall coordinate
research, development and demonstration activities relating to biobased
industrial products between the Departments of Energy and Agriculture
which are the two principal agencies for biotechnology research on
fuels, chemicals and power. The Board will also serve to coordinate
research activities across the many Federal agencies that are involved
in research, regulation and policy formulation of fuels, commodity
chemicals and power.
To advise the Secretary of Agriculture and Secretary of Energy on the
technical focus and direction of the request for proposals issued under
the research Initiative, a Sustainable Fuels and Chemicals Technical
Advisory Committee is established. Modeled on the National Defense
Sciences Board, the Advisory Committee consists of experts from
academia, prominent engineers and scientists, representatives from
commodity trade organizations and environmental or conservation groups.
As an independent panel of technical experts, the Sustainable Fuels and
Chemicals Technical Advisory Committee will serve an important role in
the strategic planning and oversight of research carried out under the
Initiative.
The case for promoting technology that will supply fuels, notably
ethanol, chemicals and power from cellulosic biomass can be made
independently of whether the world will continue to enjoy cheap oil.
However, a wealth of scientific data indicates both that the world's
supply of conventional oil is nearly half exhausted and that with each
passing year, the demand for petroleum-derived energy increases.
History gives us a clear warning that individual oil wells, oil fields,
and national petroleum outputs have all shown a decline in production
rates when the level of reserves reaches 50 percent. Balanced against
both such `common sense' and Malthusian theory are optimists, including
the late economist Julian Simon, who uses energy supplies as one
example when arguing that natural resources have become more available
rather than more scarce.
I would suggest that cellulosic biomass offers a unique opportunity
for consensus between these seemingly unalterable opposing views. No
longer is the debate centered on the delicate political and
international issue of how best to divide the shrinking pie of world
resources. Rather, application of the limitless supply of human
ingenuity will be used to create a new and sustainable resource. In
this regard, nature offers us the hint of a solution by demonstrating
its own methods for harnessing power from the sun, nutrients in the
soil and water, in support of a vast array of plant life.
Following nature's elegant example, engineers and scientists have
developed biotechnologies capable of breaking down nearly any form of
plant, tree or grass into their constituent chemical building blocks,
principally in the form of complex sugars. From this intermediate step,
a wide variety of biobased industrial products including feed, fuels,
chemicals, materials and power can be produced. With this capability,
plants, trees, grasses and agricultural residues assume a new
significance as a potential source of biobased industrial products.
Significantly, cellulosic biomass is the only foreseeable sustainable
source of organic fuels, chemicals and materials that find ubiquitous
use in any modern economy.
Consider that biobased industrial chemicals can provide functional
replacements for essentially all organic chemicals currently derived
from petroleum, and have clear potential for product life cycles that
are much more environmentally friendly than their fossil fuel
counterparts. The new cellulosic conversion technology under
development will contribute towards growth of what is now a fledgling
industry centered on biobased products--including chemicals,
lubricants, plastics, adhesives and building materials--with a market
worth an estimated $300 billion per year in its infancy.
Biobased fuels such as ethanol have clear potential to be
sustainable, low-cost and high performance, are compatible with both
current and future transportation systems, and provide near zero net
greenhouse gas emissions. The impact of bioethanol on greenhouse gas
emissions is particularly significant because the transportation sector
accounts for one-third of the total greenhouse gas emissions. Of the
many contributing factors to possible climate change, the
transportation sector is our most difficult challenge because of the
ubiquitous dependence on greenhouse gas producing fossil fuels.
Cellulosic ethanol, a renewable fuel derived from grasses, plants,
trees and waste materials, offers a positive long-term approach to the
problem of global warming that does not assume a shift from the
automobile culture or increased costs for American employers and
consumers.
Cellulosic ethanol is a versatile, liquid fuel and consequently will
be able to use much of the existing infrastructure built over the last
century in support of gasoline and internal combustion engines. The
compatibility of water with biomass derived products,
[[Page S4505]]
including ethanol, is an important environmental consideration and a
powerful demonstration of green chemistry. As my friend Jim Woolsey is
fond of saying, ``If a second Exxon Valdez filled with ethanol ran
aground off Alaska, it would produce a lot of evaporation and some
drunk seals.''
By providing farmers of the world the possibility of additional
commodity products, whether dedicated crops or income from collection
of agricultural residues, biomass processing can lead to healthier
rural economies. A major strength of the new technologies for breaking
down cellulosic biomass is that almost any type of plant, tree, or
agricultural waste can be used as a source of fuel. This high degree of
flexibility allows farmers the possibility of a cash crop simply by
collecting their agricultural wastes. Local crops that enrich the soil,
prevent erosion and improve local environmental conditions can be
planted and then harvested for fuel. My firm belief is that innovations
in biotechnology enabling the co-production of food, fuel, chemicals
and materials from the sustainable supply of cellulosic biomass, are
vital to the future of agriculture.
While undertaking this effort, I remain mindful that biofuels must be
produced in ways that enhance overall environmental quality. Sound
land-use policies must be followed to protect wildlife habitat and
biological diversity concerns. But professional land-use techniques
should readily accomplish this.
Providing an alternative fuel that will power the internal combustion
engine of the automobile will help reduce our dependence on Middle
Eastern oil without necessitating a rebuilding of the massive
infrastructure built in support of gasoline. Reliance on the unstable
states of the Middle East adversely impacts American strategic
security, while massive oil imports skew our balance of payments. With
the need for affordable energy rising with increasing population, and
the transportation sector fueled almost exclusively by fossil fuels,
the Middle East will control something approaching three-quarters of
the world's oil in the coming century, providing that unstable region
with a disproportionate leverage over diplomatic affairs. At a time
when the United States confronts an ill-defined and confused drama of
events on the international stage, including an increasingly assertive
China, and nuclear and missile technology proliferation to North Korea,
it seems clear we should dedicate a relatively small amount of money
toward research that could lead to a revolution in the way we produce
and consume energy. Or as presented by a distinguished panel of
scientists and industrial experts in a recent PCAST report, ``. . . the
security of the United States is at least as likely to be imperiled in
the first half of the next century by the consequences of inadequacies
in the energy options available to the world as by inadequacies in the
capabilities of U.S. weapons systems.'' The report succinctly
concludes, ``It is striking that the Federal government spends about
twenty times more R&D money on the latter problem than on the former.''
Before we are able to reap the significant benefits offered by
biobased industrial products, the cost of the new conversion technology
must be significantly reduced. Research and development is the only
systematic means for creating the innovations and technical
improvements that will lower the costs of biomass processing. Given the
relatively short-term horizon characteristic of private sector
investments, and because many benefits of biomass processing are in the
public interest, industry is ill-equipped to fund the necessary
fundamental research that will result in cost effective technologies
for biomass conversion.
Research activities carried out by the Department of Agriculture,
Department of Energy and other Federal agencies are a principal reason
for much of the progress witnessed in biomass processing and underscore
the future promise if new technology is developed. Nonetheless,
coordination among the Federal agencies is disjointed and the research
tends to be driven by institutional missions rather than by an
overarching strategy to develop cost-effective technologies for biomass
conversion. The National Sustainable Fuels and Chemicals Act is
designed to overcome these shortcomings and raise the level of the
Federal commitment to biotechnologies that are already demonstrating
potential as powerful new alternatives to the traditional practices of
the past.
In this effort, I am asking for the support of President Clinton and
Vice President Gore who have indicated their commitment to the
development of sustainable resources. On this issue we can develop a
consensus for undertaking research that will improve our national
security and balance of payments, reduce greenhouse gas emissions and
strengthen rural economies in America and around the world. Working
together we can promote the type of innovation-focused research
essential for improvements in the utilization of America's biomass
resource. It is my firm belief that future Americans will enjoy a rich
return on our investment in the promise of a green revolution.
____________________