Congressional Record, Volume 146 Issue 48 (Tuesday, April 25, 2000)

[Congressional Record Volume 146, Number 48 (Tuesday, April 25, 2000)]
[Senate]
[Pages S2835-S2851]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO
PROTECT THE RIGHTS OF CRIME VICTIMS--MOTION TO PROCEED--Continued

Cloture Motion

The PRESIDING OFFICER. Under the previous order, the Chair directs
the clerk to read the motion.
The assistant legislative clerk read as follows:

Cloture Motion

We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Calendar No.
299, S.J. Res. 3, a joint resolution proposing an amendment
to the Constitution of the United States to protect the
rights of crime victims:
Trent Lott, Jon Kyl, Judd Gregg, Wayne Allard, Robert
Smith of New Hampshire, Richard Shelby, Gordon Smith of

[[Page S2836]]

Oregon, Bill Frist, Mike DeWine, Ben Nighthorse
Campbell, Jim Bunning, Chuck Grassley, Rod Grams,
Connie Mack, Craig Thomas, and Jesse Helms.

The PRESIDING OFFICER. By unanimous consent the mandatory quorum call
under the rules has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S.J. Res. 3, a joint resolution proposing an
amendment to the Constitution of the United States to protect the
rights of crime victims, shall be brought to a close?
The yeas and nays are required. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Delaware (Mr. Roth),
the Senator from Arizona (Mr. McCain), and the Senator from Vermont
(Mr. Jeffords) are necessarily absent.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from Nebraska (Mr. Kerrey), and the Senator from Maryland (Ms.
Mikulski) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The yeas and nays resulted--yeas 82, nays 12, as follows:

[Rollcall Vote No. 86 Leg.]

YEAS--82

Abraham
Akaka
Allard
Ashcroft
Bayh
Bennett
Bond
Boxer
Breaux
Brownback
Bryan
Bunning
Burns
Campbell
Chafee, L.
Cleland
Cochran
Collins
Conrad
Coverdell
Craig
Crapo
Daschle
DeWine
Domenici
Edwards
Enzi
Feinstein
Fitzgerald
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Inouye
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Mack
McConnell
Murkowski
Murray
Nickles
Reed
Reid
Robb
Roberts
Rockefeller
Santorum
Sarbanes
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden

NAYS--12

Baucus
Bingaman
Byrd
Dodd
Dorgan
Durbin
Feingold
Harkin
Hollings
Lautenberg
Moynihan
Schumer

NOT VOTING--6

Biden
Jeffords
Kerrey
McCain
Mikulski
Roth
The PRESIDING OFFICER. On this vote the yeas are 82, the nays are 12.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
Mr. FEINGOLD. Mr. President, today I voted against a motion to close
debate on the motion to proceed to S.J. Res. 3, a victims' rights
constitutional amendment. Only twelve Senators voted no, although a far
larger number oppose this resolution. I was prepared to vote yes on the
motion, because the rights of victims are terribly important and a
resolution like this ought to be thoroughly debated. But before the
vote I learned that the language of this resolution to amend the
Constitution is still being negotiated. This ought to be a solemn,
soberly undertaken effort, for it presumes to revise the work of
Madison and Hamilton and those great Americans who put to paper the
ingenious design of the American republic in that hot Philadelphia room
224 years ago. But instead, we were asked today to begin that debate in
earnest while the supporters of the resolution were still off in a room
somewhere trying to agree on the language of the resolution.
So I said no. I said no to this casual, cavalier approach to amending
the Constitution. It does not respect the seriousness of the process
and has led to constitutional profligacy in the Congress--to hundreds
of constitutional amendments being offered as if they were not gravely
important, as if they were not an attempt to edit the organic law that
has held our democracy together for two centuries. In the opening days
of some recent Congresses, we have seen constitutional amendments
introduced at a rate of more than one per day.
A few weeks ago, we considered a constitutional amendment to allow
prohibition of flag desecration. I opposed that amendment, but I didn't
oppose cloture on the motion to proceed. I voted for cloture because
the backers of the flag amendment, wrong as I thought they were, at
least showed some respect for the process. They believed there was a
need for the amendment and they were able to point to particular events
and precedents that they believed needed to be addressed. But no court
has struck down the dozens of state constitution provisions and
hundreds of statutes that protect victims' rights across America today,
so why rush to amend the Constitution? The backers of the flag
amendment argued, correctly, that their goal of allowing prohibition of
some forms of speech could be realized only by a constitutional
amendment. They offered a resolution that had been refined over time,
whose supporters at least, had agreed upon. All of us were aware, long
before the vote, what the resolution said. The vote on proceeding to
the flag debate was not held in a fluid situation, where negotiations
about language that might end up in our Constitution were still talking
place. So we voted as Senators to proceed and we did proceed to a
sober, deliberate and thoughtful debate and an informed vote about the
flag amendment.
Today, on the victims rights amendment, the process was not
respected. The Senate acquiesced in a casual exercise in constitutional
improvisation, shunning the statutory alternatives that are readily
available, to embrace the near immutability of constitutional language.
So I voted no--to say we are not ready to have this debate, but we will
have the debate and we may now add one more reason to the many reasons
to oppose this resolution: its proponents have not respected the
process and we are obliged to assume that their constitutional
amendment, even if it were right in its general substance, must be
flawed in its language and details.
Mr. LEAHY. Mr. President, what is the parliamentary situation now?
The PRESIDING OFFICER. The question is the motion to proceed to S.J.
Res. 3.
Mr. LEAHY. Mr. President, there having been a cloture vote on that
motion to proceed, what is the time situation?
The PRESIDING OFFICER. Each Senator would have up to 1 hour of
debate, with a maximum of 30 hours total.
Mr. LEAHY. And within that 30 hours, am I correct, under the
precedent of the Senate, Senators can yield part of their time to other
Senators but not in such a way as to enlarge the 30 hours?
The PRESIDING OFFICER. As long as it does not extend beyond a total
of 30 hours. The yielding of time must go to the managers.
Mr. LEAHY. The leaders or their designees?
The PRESIDING OFFICER. The leaders or their designees.
Mr. LEAHY. I thank the Chair. Mr. President, I will claim such part
of my hour as I might consume.
It was less than a month ago, I recall, I stood on the floor of the
Senate to defend the Bill of Rights against the proposed flag amendment
to our Constitution. The Senate voted March 29 to preserve the
Constitution and refused to limit the first amendment and the Bill of
Rights by means of that proposed amendment. Apparently, preserving the
Constitution in March does not mean the Constitution is safe in April.
So here I am again as we begin to debate yet another proposed amendment
to the Constitution. Yet, again, I am here to speak out in favor of the
integrity of our national charter.
I support crime victims' assistance and rights, but I do not support
this proposed amendment to the Constitution. Just as opposition to a
flag desecration amendment does not mean a Senator is in favor of flag
burning, opposition to a victims' rights amendment does not mean that a
Senator opposes justice for victims of crime. In fact, during the
course of this debate, we will have a statutory alternative to the
proposed constitutional amendment that would serve to advance crime
victims' rights.
I have been in the Senate for 25 years. I think it is safe to say
that I have been a very strong advocate for victims' rights during that
time. My initial involvement with victims' rights began more than three
decades ago when I served as State's attorney for Chittenden County,
Vermont. According to our population and under

[[Page S2837]]

our procedures at that time, by virtue of the office, at the age of 26,
I became the chief law enforcement officer for the County. I saw
firsthand the devastation of crime. I have worked ever since to ensure
that the criminal justice system is one that respects the rights and
the dignity of victims of crime and domestic violence, rather than one
that presents additional ordeals for those already victimized.
I will continue to work for victims of crime and domestic violence in
the course of this debate. I support crime victims and their rights,
but I oppose this constitutional amendment. As a prosecutor, I was able
to make sure victims were heard, that sentencing decisions were made
with the rights of victims in mind, that plea bargains were not entered
into without the rights of victims in mind. They were all heard. I also
knew we could do that individually, or by State statute, or by State
constitution. But we didn't have to amend the United States
Constitution.
The proposed amendment, S.J. Res. 3, goes on for over 60 lines. I
believe the most important part of our national charter, the
Constitution, is the first amendment. This magnificent part of our
document, in just five or six lines, says that we have the right of
free speech, we have freedom of religion--that is, to practice any
religion we want, or none if we want--we have the right to petition our
Government, and we have the right of assembly. These rights, enunciated
in just five or six lines in the Constitution, preserve the diversity--
actually, they almost demand diversity in our country, and they protect
diversity in our country. If you have diversity, especially diversity
that is protected, you have democracy. Those five or six lines are the
bedrock of our democracy and our freedom.

Contrast this with S.J. Res. 3. As I said earlier, I don't doubt the
sincerity of my two friends, the chief sponsors of this; they are my
friends and they are two people I respect. But this is over 60 lines.
It is like a complicated statute, which will be made more complicated
as the courts get a hold of it, as prosecutors have to figure out what
is going on, and as defense attorneys look for loopholes. No place in
it does it mention what we have always built our criminal justice
system on--the protection of the rights of the accused.
James Madison, the great framer of the Constitution, instructed that
a constitutional amendment should be limited to ``certain great and
extraordinary occasions.'' Well, we have one thing that is great and
extraordinary and that is our country and our democracy. It has made us
the most powerful and influential nation on Earth today. But these are
not great and extraordinary occasions that demand the amending of the
United States Constitution.
I find it distressing that we so ignore James Madison's instructions
and advice and that there are almost 60 proposed constitutional
amendments pending before this Congress alone, including an amendment
to make it easier to adopt other amendments in the future. Now, if we
are going to do this, let's do it on everything. Let's have an
amendment on gun control. Let's have an amendment on abortion. Let's
have an amendment on reapplying from where Senators can serve. Let's do
a number of other things. Some of the amendments that have been
proposed look as if they were before a local board of select people. We
should not be so eager to amend our Constitution. Look at Article V of
the Constitution and read the first part of the first sentence. It
says:

The Congress, whenever two-thirds of both Houses shall deem
it necessary. . . .
Does anyone think the American people would ``deem this necessary''?
At one time, after the President at the time sent up unbalanced
budget after unbalanced budget, Congress said the only way to stop us
from spending was to have a constitutional amendment to balance the
budget. Fortunately, we do not have such a constitutional amendment
today. Instead, we have a President who had the guts to send up a
balanced budget, and we had a Congress who had the guts to back him up
and pass it. That is how to do it--the old-fashioned way.
I believe this particular proposed constitutional amendment regarding
crime victims' rights fails to set the standards set by our founders in
Article V of the Constitution. It cannot be necessary. Let me state
why: Over the last several years, we have been making great strides in
protecting crime victims' rights. We have accomplished much in 20 years
to advance the cause of crime victims' rights, through State law and
Federal statutory improvements, through increased training or
education, and through implementation efforts. There is no basis today
for concluding that this constitutional amendment is necessary for
providing crime victims' rights in the criminal justice process.
There is a growing fascination in the Congress with amending our
Constitution first and legislating second. No Member knows how long he
or she will be in the Senate. I have been privileged in the State of
Vermont. My friends in the State of Vermont have sent me here for over
25 years. They do remind me that Vermont is the only State in the Union
that has elected only one member from my party to the Senate, but I am
thankful they do it by ever increasingly large margins. I don't know
how long I will be here; no Member does.
As long as I am here, I will take upon myself the duty to say to the
Senate: Slow down on this idea of amending the Constitution. Slow down.
Whatever short-term political gain Members may feel today, your
children and your children's children will in all likelihood live by
what you do. The temptation was there for the framers of the
Constitution. I am sure they looked at the differences between the
States and thought, if I amend the Constitution just this way, my State
has an advantage or I have an advantage over this person. Instead, they
resisted the temptation. Maybe that is why we are the oldest currently
existing democracy in the world. Maybe that is why we have a First
Amendment, something not duplicated in any other nation on Earth. Maybe
that is why we protect ourselves and our rights as we do, because we
know we have resisted over the years the 11,000 suggested amendments to
the Constitution. Of those 11,000 amendments, one has to assume that
somebody in every single instance thought their amendment was extremely
important. Every one of those 11,000 times, somebody somewhere thought:
This is the amendment to the Constitution that we really need; this is
the amendment that falls under Article V which says it is necessary.
I was the 21st person in the history of this country to vote 10,000
times in the Senate. Those 10,000 votes were not all necessary for this
country. Sometimes they were votes called by the Sergeant at Arms, and
sometimes they were to adjourn. Sometimes they were votes to commend
ourselves for doing something we were paid to do anyway. Of course,
sometimes they were extraordinarily important votes.
I took pride in being the 21st person in our Nation's history to vote
that many times. But I wouldn't have taken pride to think I voted
almost the same number of times for a different constitutional
amendment. Yet 11,000 constitutional amendments have been before the
Senate. Imagine our Constitution if the 11,000 amendments had passed.
Heck, take half of them. Imagine our Constitution if 5,500 passed.
Impossible. Say 10 percent, 1,100, passed; 5 percent, 550; 1 percent,
110, passed. If we had taken a tiny fraction of these 11,000 that were
so essential to this Nation, our Constitution would not be something
that would be revered around the world, that other countries would try
to emulate; it would be a laughingstock.

Until we do our job with statutes, until we find the ways within the
State, until we explore other ways to help with victims' rights, until
we follow through with the commitment of necessary resources, until we
look at all those States that have passed their own victims' rights
laws, until we accept the fact that not one single court has found
those unconstitutional, thus saying we don't need a constitutional
amendment, until we do that, why do we amend the Constitution again?
As I said, I don't know how much longer I have in the Senate.
However, I will stand on this floor, constitutional amendment after
constitutional amendment. This is a wonderful document. Don't change
it. Don't change it

[[Page S2838]]

unless an amendment falls under Article V and really is necessary. This
is not necessary.
It is ironic, at the height of the key dynamic changes in increased
rights and protections for crime victims over the last decade, the
efforts on behalf of this constitutional amendment have had the
unfortunate, and I believe unintended, fact of slowing that process and
dissipating those efforts.
Who suffered? The crime victims. Crime victims are among the most
sympathetic figures. And they should be. They are also some of the most
politically powerful groups in our society today. We are all supportive
of crime victims. That probably takes political courage, to say we
should ask some questions, because it takes little political courage to
say you are in favor of crime victims; we all our. It is not whether we
support crime victims, because we all do. Certainly, those of us like
myself who have been prosecutors, who have seen firsthand the beaten
victims, the stabbed victims--I even had a murder victim die in my arms
while he was telling me who killed him--understand victims. But this
debate is not about those victims. It is whether the Senate will
endorse the amendment to the United States Constitution. I will do all
in my power to make sure we do not amend the Constitution.

April is an especially sensitive time of year for crime victims and
those who advocate for them. Frankly, I feel every day we should be
advocating for them. Two weeks ago was the 20th anniversary of Crime
Victims' Rights Week. During that time, I was one of the few Senators
who came to the floor to try to make progress on crime victims' rights
by proposing an improved version of the Crime Victims Assistance Act,
S. 934.
Last week, we observed the fifth anniversary of the bombing of the
Alfred P. Murrah Federal Building. Some of us have worked long and hard
for the victims of crime and terrorism around the world. I was proud to
be the author of the Victims of Terrorism Act amendment to the anti-
terrorism bill that passed the Senate in the wake of that tragedy of
June, 1995, which served as the basis for what became the victims
provisions ultimately enacted in 1996.
I worked with Senator Nickles and others to provide closed circuit
television coverage of the Oklahoma City bombing trials. I supported
special assistance for victims and their families to attend and
participate in the trials, including enactment of the Victims Rights
Clarification Act in 1997 to help ensure those who attended the early
portion of the trial could also testify or attend during the sentencing
phase.
I do not need to be told by anybody that I have to be sympathetic
with victims of crime. I have done that throughout my professional
career. I have done it in legislation. I did it for 8 years as a
prosecutor.
But I also look at some of the things we are not doing here in
Congress. Last Thursday, we observed the first anniversary of the
tragic violence at Columbine High School in Colorado. That anniversary
served as a reminder of the school violence we have witnessed too often
over the past few years. Yet the Senate and House have not completed
their work on the juvenile crime bill, a bill that passed the Senate
last May by a margin of almost 3 to 1.
The Hatch-Leahy bill passed this body 73-25. Since then, the
Republican leadership continues its refusal to convene the House-Senate
conference necessary to complete action on this measure. Tell that to
the families who were at the zoo here in Washington D.C. yesterday.
Tell them the gun lobby will tell us when we can meet and when we
cannot, in the United States Congress. Tell those families.
We, oftentimes, have emotional issues that come before us. This past
weekend Elian Gonzalez was reunited with his father, Juan Miguel
Gonzalez. You know what happened there. The great uncle had temporary
custody, custody was revoked, he refused to do a voluntary transfer of
the child, the Attorney General finally had to act to reunite them and
say the United States would uphold its own laws. I think it was done in
the right way. Everybody is running around: We'll have a special
citizenship bill, special amnesty bill, special whatever else. I say,
remember what the Senate is supposed to be. Remember that wonderful
story about the cup and saucer. We are the saucer that allows the
cooling of the passions, and we should approach debate of a proposed
constitutional amendment with the seriousness and deliberation that it
requires.
We could go, instead, back to some of the legislative things we could
do right now, that could be signed into law right now, that might help
victims of crime.
I see the distinguished senior Senator from New Jersey, a man who,
throughout his career here in the Senate, has worked so hard, not just
for victims of crime but for those laws that might ensure that at least
we have a diminution of crime, especially gun crimes. I am perfectly
willing to reserve my time and yield to the distinguished Senator if he
would care to speak.
Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER (Mr. Crapo). The Senator from New Jersey.
Mr. LAUTENBERG. Mr. President, first, I thank the distinguished
Senator from Vermont, the ranking member of the Judiciary Committee. He
has a homespun way of talking at times, but he always brings good sense
and good judgment to the debate. I appreciate his comments about how we
have to be so mindful of our responsibilities under the Constitution,
and we ought not to trifle with amendments to the Constitution. The
Constitution is the fundamental text of our democracy and we ought not
to amend it if there are other ways to address the problem.
Some of those listening may have trouble following all of our twists
of logic, but one thing should be clear--we all know we have too many
victims in our society. We know we have families torn apart, even if
they are not directly victims themselves. Look at Columbine High
School. Who were the victims? Were they just the young people and the
teacher who were killed and their families? Were they the only victims?
Or was the whole high school population of Columbine a victim? Or was
the whole community of Littleton, Colorado that was the victim? Was the
whole country a victim? I think so.
All of us had images seared into our psyches that I think for most of
us will last a lifetime. Were we victims of a sort? Were we victims of
our lack of understanding of how we got to that point? Are we
victimized by violence that does not touch us immediately? I think so
because otherwise we would not see these magnetic detectors all over
the place. We wouldn't have security guards all over the place, and we
wouldn't be spending money building ever more prisons--money that could
be used for education or health care or prescription drugs or to help
young people in our society. So we are all victimized by crime.
That is the problem with the constitutional amendment that is
proposed--defining who is the victim. Once again, is it the family
whose house was broken into and the terrible deeds that followed? Or is
it everybody in the neighborhood? Or is it young child who lost a
friend who was 6 years old, who do not understand why the friend was
murdered by another 6-year-old child? Who is the victim? Even the
family of a perpetrator of a terrible crime is often a victim.
Given the difficulty of defining who is a victim, it might be better
to address this statutorily. We ought to write a statute that very
clearly says: Yes, victims' rights have to be protected. We have said
it so many times over the years, writing laws as opposed to amending
the Constitution. That is the question, really. No one is saying we
should not take care of the victims. But the question is whether you
try to address the problem by statute or if you take the much more
drastic step of amending the Constitution.
And when we talk about victims we should remember all of the people
who have suffered because of the proliferation of guns.
Look at what happened yesterday at the National Zoo. Seven young
people were shot. I have my four children and their spouses and seven
grandchildren, the oldest of whom is 6, coming to Washington in a few
weeks commemorating, with the grandfather of the family, my career in
the Senate. We are going to celebrate. Because they are all so young,
to amuse them I said we would go to the zoo. I am not as enthusiastic
about going to the zoo today as I was a couple of weeks ago when we
thought about this.

[[Page S2839]]

I am worried about what might happen in public gatherings. The two
oldest of my grandchildren--again, they are little kids--are in school.
I call my daughters and say: How are the kids? When I see something
that goes awry in a school and a 6-year-old child can kill another 6-
year-old child because of someone's careless possession of a gun, their
careless abandonment of normal safety protections, I worry about them.
I worry not only for my family. I worry mostly, obviously, as we all
do, about my family. But I also worry about all of the violence that
permeates our society. There is enough of that on television--even in
cartoons. And I think that some of the depictions of violence may
encourage violent behavior. The seeds may be there, but the
encouragement, the nurturing of those seeds often takes place in movies
and television where the hero is the guy who comes in with a gun
blazing. Who he is killing we are never quite sure, but he is killing
people.
If we want to take care of the victims, then we ought to pass a law
and be bold about it and not fall prey to public posturing and say
amend the Constitution. How many other rights ought to be included as
we talk about victims? Should parents' rights be protected? Should
grandparents' rights be protected? Should workers' rights be protected?
Should women be protected? We think so. They are very often victims of
crimes that do not necessarily leave a mark that one can see but often
does enormous damage to their psyche and to their mental well-being--
harassment, sexual harassment. Are we amending the Constitution to deal
with that? No, we are not.
And we need to stop the political posturing about many issues. For
example, we need to stop all of the posturing on gun control and take
action.
I wrote an amendment and presented it to the Senate when we were
discussing the juvenile justice bill. The amendment is very simple--it
would close the gun show loophole. We received 50 votes on each side.
No, that is not fair to say. Fifty votes for and 50 votes against,
including some of my Republican friends who agreed with us that we
ought to close a loophole in gun shows that permits people to buy guns
without identifying themselves. I call it buyers anonymous: Someone
goes in, puts their money down, and walks out with as many guns as they
can physically carry. They can even come back for another load. There
is no identification required. Even though some in this Senate want to
protect that practice, my amendment prevailed. With the Vice President
casting the tie-breaking vote, the amendment passed 51-50.
It was a dramatic day. We all worked so hard. But since then, the
juvenile justice bill has been stalled in a conference committee.
There is a game played around here--political football. If you are in
the majority and do not like something, you have the ability to stop
the legislation from moving. We established a Senate conference
committee with a House conference committee, which is the normal
process. They confer on differences that each of the Houses has on
their legislation. We sent it to the House. The conferees took forever
to be named. Finally, we got conferees.
What did they do to keep the public from knowing, to keep potential
victims from understanding what might be happening? They did nothing.
The distinguished Senator from Vermont, who always brings sense to our
body when he discusses issues with which he is so familiar, mentioned
it. April 20 was the 1-year--I do not even like to use the word
``anniversary''--but it was one year since that horrible day we all
witnessed--kids running, young people in the prime of life killed.

There is nothing more satisfying to me, perhaps because of my white
hair and age, than seeing young people in the full blush of youth
enjoying themselves. Sometimes they do silly things. It is fun when I
see young people, whether they are little young people or 16, 17, or 19
years old. I joined the Army when I was 18. I did not realize how young
it was until I looked back.
Young people who were enjoying themselves were mowed down by two
young killers at Columbine High School. Families were brought to the
worst grief anyone can imagine. A young man was hanging out the window
pleading for help. We do not know what he was saying. One can imagine
what he was saying. His hand was outstretched trying to reach for
safety wherever he could go get it, a refuge from the madness
surrounding him. That was April 20, 1999. April 20, 2000--nothing has
happened. Nothing. I say let's vote on it--you can vote for gun safety
or against it. Let the public see how you voted. But no, they do not
want to do that because they are all scared in their own way. They are
scared the public is going to see that they will not take steps to end
gun violence.
Here we are. We had promises recently that we would be voting on a
conference bill, and we ought to do that pretty soon. All they have to
do is say to the conferees, ``Get the job done,'' and the bill will be
on the floor. But we cannot get them to do that.
The majority--and I talk with all due respect in friendship about the
majority--is in charge. That is the way it is. I wish it was otherwise,
frankly, but the Republicans are in charge, and the Republican leader
has not brought it up, though he said he wants to bring it up. He said
it publicly. On April 9, when asked, he said he would bring it up soon.
On ``Face the Nation,'' a very well-known program, he said he would be
amenable to bringing it up. He was asked by Bob Schieffer: ``Don't you
have to get the conference committee to meet? Why don't you at least
have a meeting?'' in reference to the conference committee on juvenile
justice, one part of which is an attempt to control gun violence.
The majority leader said they were talking about it.
Schieffer came back and said: ``Let me pin you down. Do you think
you're going to get that conference committee to meet to kind of get
this started?''
The response by the majority leader was, ``I do.''
That was April 9. Today is April 25. April 9 to April 25, that does
not seem as if it is rushing to do things.
It was promised. Well, the majority leader said, ``I do.''
Schieffer said, ``This week?''
The majority leader, again, with all due respect, said, ``I don't
know if it will be this week, but we will get it done in the next few
weeks.''
There have been a few weeks. Why don't we get this done? We are all
concerned about victims of crime, but let's pass legislation that will
prevent people from becoming victims of crime.
I continue to urge the Congress to move forward on gun safety. And
what is the response of the Republican Party--the Republican Senate
group. Well, here is what GOP aide John Czwartacki said in Roll Call:

It is a shame but no surprise that they would exploit the
tragedy of these children's deaths to promote a political
agenda.

That is what he said. He said it in response to a commitment that I
and several other Senators made that we would do whatever we could to
get that juvenile justice bill moved along so we could discuss ways of
reducing gun violence.
At times I wonder what it will take for people in this chamber to get
the message. Despite what the American public says, despite what
parents say, despite the fact that there will be a million moms
marching on Mother's Day--some members of this body refuse to act.
Why? Why is it that the voice of the NRA, the National Rifle
Association, can be heard so clearly in this place and so clearly
influences legislation. Why is it that special interest voice sound so
loudly in this place that the majority will not bring up legislation
that says: Close the gun show loophole so unlicensed dealers cannot
sell guns to unidentified buyers? Why is it?
Why is it that it drowns out millions of voices? Look at some of the
polling data. In overwhelming majorities, up as high as 90 percent,
people say: Shut down that gun show loophole. But those voices do not
get through here.
It is quite an amazing process of physics that the sounds travel all
the way here from the NRA office in Washington, but across this country
where everybody is supposed to be represented in this body, those
voices do not get through. They do not see the tears. They do not
understand the grief. They do not hear the pleas of people who have
become victims as a result of a loss of a child or a loss of a loved
member of a family. Those voices

[[Page S2840]]

do not get through. But the voice of the NRA, with its control of some
of the people that work here and in the other body--control, that is
what happens--they set the agenda.
As we discuss victims of crime and constitutional amendments, it
bears a note of hypocrisy because buried in there, in my view, is this
overhanging question about what constitutes a victim, as I earlier
discussed. What should the Constitution be open to? In the more than
200 years we have had the Constitution and the Bill of Rights, it has
been amended 18 times. It is a deliberate violation of what constitutes
good judgment very sparingly.
One of the dreaded thoughts that passes through so many of our minds
is amending the Constitution for one thing after another. We have had
several goes at that very recently when it was thought maybe we would
amend the Constitution to do things that we ought to take care of by
law.
I will close, but just with this reminder. Here is a picture of one
terrible person. He is on the FBI's Ten Most Wanted List. Guess what.
He can go up to an unlicensed dealer at a gun show and buy guns. He
does not even have to worry about them calling the cops because they do
not ask his identification when selling weapons.

There is enormous pressure to keep this gun show loophole in place.
Imagine, those criminals on the FBI's Ten Most Wanted List, and any one
of them could walk in to a gun show and approach an unlicensed dealer
and say: Give me a dozen of these or two dozen of those, and here is
the money, and the deal is done.
It is my hope we will resolve the dispute that is in front of us now
in a statutory fashion; that is, to write law, not to amend the
Constitution. Start there. Extend the debate so that all points of view
are sufficiently heard. Let's let the public know what we are talking
about when we do this.
But even as we contemplate the course of action on this
constitutional amendment--I think it was with 80-some votes that we
said we ought to move ahead. Some of those who voted for cloture,
however, are just interested in opening up the debate and not really
supporting the constitutional amendment.
I say to all my colleagues, I intend to continue to push for the
conferees on the juvenile justice bill to sit down and talk and to come
up with a conference report. Come up with their conclusion, whatever
that happens to be, and let the American public know that they are not
just sitting on their hands as a way of killing this legislation. And
those who oppose it should have the courage to speak up and say: No, I
don't want to control gun violence that way. Guns don't kill. People
kill. Or they may say: The little boy who is 6 years old is a criminal
that the police should have been watching, I suppose, before he went to
school that day with that gun.
There are so many times when a person becomes a criminal for the
first time when they pull that trigger. But the response is always the
same--guns don not kill, people kill. Well, you do not have many drive-
by knifings. It's a lot easier to kill people with a gun.
So we are going to do whatever we can. We are going to seize whatever
opportunities we can. We are going to stand and shout this message
until it is heard all the way across this country, so that people will
call this place, call their Senator, call their Representative, and
tell them they want to see something done about gun violence in this
country, that they are sick and tired of losing thousands and thousands
of people to gun violence.
There are 33,000 victims in a year, when a country such as Japan and
the UK and others have less than 100. We sure do not have 300 times
their population.
There are ways to control violence. One of them is to take these
lethal instruments out of the hands of people who are not qualified to
have them.
I wrote a law to take guns away from those who are domestic abusers,
guys who like to beat up their wives or kids, or guys who like to beat
up their girlfriends.
We had a heck of a fight here. Finally, with President Clinton's
help, we got a bill signed one night that was attached to an
appropriations bill.
The opponents said: It is not going to do any good; it is not going
to matter. That was done in the fall of 1996. Since that time, we have
stopped 33,000 requests to buy guns. 33,000 times that a spouse or a
friend or a child in a household doesn't have to hear somebody say,
``If you don't do this, I'm going to blow your brains out''; 33,000
times in just over 3 years.
The gun lobby fought me and said that is junk, you don't need that,
that is silly, that is not where we ought to be going, we ought to be
locking people up, and so forth. Of course, we do lock them up. They
deserve to be locked up, if they are criminals. We lock up and enforce
the law in more cases now than at any time in the past. Convictions are
way up. Housing criminals has become a problem. We don't have a
sufficient number of jails to accommodate them.
I go with this promise: We will be back again. Not just on this bill,
but as we consider other pieces of legislation. We are going to fight
on this floor. Whether it is kids pulling out guns to resolve fights,
or someone using a gun when they want to rob someone, we have to stop
the gun violence. I am sure the public will agree.
I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, as I understand it, to debate this
amendment, S.J. Res. 3, I am entitled to 1 hour.
The PRESIDING OFFICER. The Senator is correct.
Mr. SCHUMER. I yield myself that hour.
The PRESIDING OFFICER. The Senator is recognized.
Mr. SCHUMER. Mr. President, I thank my colleague from New Jersey for
his eloquent words, his passion and leadership on this issue. I join
with him, helping in any way I can to see that we get to finally pass
the Lautenberg amendment which the country so much wants. I thank him
for his doggedness. We will prevail, I do believe. I thank the Senator
from New Jersey.
I am here to address S.J. Res. 3, the constitutional amendment for
victims' rights. As I guess my history in the Congress shows, I have
been very concerned about crime issues. If one would have to say they
had a signature issue, for me, that has been it. I came to the view
when I came to Congress--and am still of that view--that particularly
in the 1980s and early 1990s, the pendulum had swung too far in the
direction of individual rights and not enough in the direction of
societal rights. I spent a good portion of my time in the Congress
trying to bring that pendulum to the middle, joined by Democrats and
Republicans. I am very proud of that work.
I come to the floor because nothing in my time in the Senate has
troubled me more, has bothered me more, than the amendment we are
beginning to debate. I greatly respect the Senator from Arizona, Mr.
Kyl, and the Senator from California, Mrs. Feinstein, for the work they
have done on this issue. Frankly, my views are not dissimilar to theirs
on the issue of victims' rights. I helped write the law for right of
allocution, for the victim to stand up at sentencing and say his or her
piece. I have been extremely supportive of victims' rights.
Then why would I find this amendment so troubling, more troubling
than any other bill we have debated? Because I revere the Constitution.
I consider America to this day the noble experiment the Founding
Fathers called it when they had written the Constitution. I believe the
Constitution is a sacred document. The more I am in Government, the
more I almost tremble beside the wisdom of the Founding Fathers.
Someone called them the greatest group of geniuses. There may have been
other individual geniuses who were greater than any single member who
wrote the Constitution, but their collective genius was the greatest
group assemblage of genius the world has known, a person wrote. I tend
to share that.

Amending the document they put together is an awesome responsibility,
something that should not be taken lightly, something that should be
done with the utmost care and forethought. One should only debate
constitutional amendments when there is no other way to go. We should
not mess with the Constitution. We should not tamper with the
Constitution.

[[Page S2841]]

Yet here we are today debating a victims' bill of rights, a
constitutional amendment on victims' rights, when not a single State
supreme court, and certainly not the U.S. Supreme Court, has declared
any victims' rights statute unconstitutional. I repeat that amazing
fact for my colleagues. For the first time we are here debating a
constitutional amendment with the other 19 amendments and with, of
course, the 10 amendments in the Bill of Rights being different, where
not a single State supreme court and not the U.S. Supreme Court has
ruled any part of victims' rights unconstitutional.
What is called for here is a statute. I would support making a
statute, a law, almost the exact amendment, perhaps even the exact
amendment, the Senator from Arizona and the Senator from California are
proffering. But a constitutional amendment? Why? Why? Why amend the
Constitution when no law has been declared unconstitutional? We have
never done that in the over-200-year history of this Republic. We have
never taken something we believe in and said, let's immediately make it
a constitutional amendment.
We have debated constitutional amendments here because statutes were
thrown out. We just did it on the flag burning amendment. People
believe strongly that the flag should not be burned. The U.S. Supreme
Court said it was under the aegis, the penumbra, of the first
amendment. So we did our duty on this floor and debated whether we
should amend the Bill of Rights. For the first time ever, we would do
it to say that flag burning was prohibited. It was what the Founding
Fathers thought the constitutional process should be. It was an
amendment that had been thought about. It was an amendment that had
been debated. It was an amendment that went to the core of great
constitutional issues.
My guess is if a Washington or a Jefferson or a Madison were looking
on the floor during that debate, they would have smiled, they would
have said that was the Senate they hoped to have.
If a Washington or a Jefferson or a Madison were looking on the floor
as we debate this, I believe they would recoil, not because of the
issue of victims' rights but because of the thought of passing a
constitutional amendment, only the 20th since the Bill of Rights, when
no law had been declared unconstitutional, when no aspect of the
Constitution itself needed to be clarified.
I ask my colleagues--and I will ask them when they are here because
this debate will go on for some time, as it should--why not a statute?
I have heard my colleague from California say: Because we have to show
how important victims' rights are. With all due respect, we can show
that importance with a statute.
I believe in the rights of working people. I have worked for laws
such as minimum wage and protecting rights in the workplace. I would
not put in the Constitution that we must protect the rights of working
people, unless, of course, there were a series of statutes about
working people that had been thrown out by the courts. Even in the
early 1900s, when the wage laws and child labor laws were thrown out as
unconstitutional, we didn't amend the Constitution--when there might
have been reason to. But here? Now? As the lawyers say, no stare
decisis, no final opinion. It doesn't make sense.
I have to tell my colleagues, if we were to pass this amendment, we
would be fundamentally changing constitutional history, the way the
laws of this country are made, because we would say that the new
Constitution is open to things we believe in and feel strongly about,
even where a statute might have solved the problem.
My colleague from California and I--I regret that she is not here--
had this conversation after our caucus. She said to me, well, there
have been two Federal courts that ignored victims' rights even though
we passed statutes. Well, that means the statute was poorly drafted. A
judge cannot ignore statutory law. I asked her, ``Well, why wouldn't
that be appealed if it wasn't well drafted?'' It wasn't appealed. But
to rush to a constitutional amendment?
This amendment has been below the radar screen. It has crept up upon
us stealthily. It hasn't gotten the airing and debate it needs, and
already we are rushing to judgment, attempting to pass a constitutional
amendment. Again, it was said that the constitutional amendment is
still being negotiated by one of the chief sponsors. What is this? We
are negotiating a constitutional amendment at the same time we are
debating it--something that if it becomes part of the Constitution
cannot be changed without huge movement? You don't do that. The
Constitution is a sacred document. The greatest group of practical
geniuses in the world put it together. It is not something willy-nilly,
if somebody feels strongly about it--and I respect the energy and
passion--that we just go ahead and amend the Constitution. This is a
dispiriting day in a certain way, in my judgment, because we are
debating whether to take that great document, the Constitution of the
United States, and cheapen it by saying when we feel passionately about
something, we skip the statutory process, the judicial process, and we
go right to amending the Constitution.
I am not debating the merits of the provisions. As I said, I believe
in almost every one of them. But every one of these could be
accomplished by statute, by law. And then, if we found out one was
poorly drafted, we could change it; then, if we found out there was
something people didn't take into account--and that happens when we
write laws--we can change it. Not so with a constitutional amendment.
If you look at the amendment that has been drafted, it is longer than
the entire Bill of Rights. If you look at the language, it is not the
language of the Constitution of the United States, which talks about
great concepts. Victims' rights is a fine concept, but the language,
which I have here, is the language of a statute.
Again, I have not received an answer--a good answer--from my
colleague from Arizona and my colleague from California as to why not a
statute. You can pass it more quickly and more easily. It fits the
amendment. It fits what you are trying to do. No court, no supreme
court, no final authority has thrown it out. And to say there were two
Federal cases where the judge ignored a statute, and we immediately go
to a lower court judge, and we immediately go to a constitutional
amendment, again, cheapens the Constitution.

I intend to debate this amendment at some length. I know some of my
colleagues will, too. As I said, this has not gotten airing. In fact, a
month ago, if you talked to most people, they shrugged their shoulders
and said, ``Don't worry, this won't come up.'' Well, it is here and it
is being debated. We are on the precipice of changing what an amendment
to the Constitution of this great country means. We ought not to do it
lightly. We ought not to do it simply because we feel a need, as I do,
to say that victims have rights in the courtroom. We ought to do it
because there is no other alternative. And here there is. We ought to
do it because the judicial and legislative processes have been
exhausted and the Constitution hasn't anticipated a new change. This
clearly is not that case. We ought to do it because this issue has
reached its fulsomeness.
My colleagues, I believe if this body were to pass this amendment, we
would regret it shortly thereafter. We would experience, as we never
have, debate about what specific little clauses in the Constitution
mean--not the interpretation of what is freedom of speech, but how do
you define a victim. How do you deal with certain phrases and clauses?
It is a troubling day. It is a troubling day because almost without
debate, almost without national focus, we are thinking of changing what
an amendment to the Constitution means. It is not simply supposed to
make us feel good. It is not simply to make a political statement to
the people back home. It is to fundamentally change the rights,
privileges, and obligations of the Government and the citizenry.
Again, to my colleagues, why can't we try to pass this very same
language as a statute? I am going to introduce that as an amendment if
we are allowed to--the exact language they have but make it a statute.
I have not heard a good argument and, until I do, I urge every one of
my colleagues, Democrat and Republican, to refrain from the
understandable desire to do something quickly and instead do something
correctly.

[[Page S2842]]

Mr. President, I reserve the remainder of the hour that has been
ceded to me to debate this amendment.
The PRESIDING OFFICER (Mr. Gorton). The Senator from Illinois is
recognized.
Mr. DURBIN. Mr. President, I don't understand the procedure at this
moment. I don't know if I seek recognition through the Senator from New
York or the Chair.
The PRESIDING OFFICER. The Senator can seek recognition in his own
right for up to 1 hour.
Mr. DURBIN. I ask to be recognized on S.J. Res. 3.
The PRESIDING OFFICER. The Senator is recognized.
Mr. DURBIN. Mr. President, I commend my colleague from New York on
the statement he has made on the floor of the Senate. It is interesting
that when Members of the Senate are brought into this Chamber and asked
to become official Members of this body, we are asked to take an oath.
It is an oath which in one part--and perhaps the most important part--
is to preserve and defend the Constitution of the United States. When
you consider all of the great documents that have been produced in the
history of this great country, it is clear that when it comes to our
service in the Senate, the one document that we are asked to hold above
all others, to preserve and defend, is the Constitution of the United
States.
Of course, it is understandable because those who created the Senate
and its counterpart, the House of Representatives, did it in this
document, this Constitution, a copy of which I carry. They believed
that future Senates and future Members of the House of Representatives,
if they preserved this document, would preserve this union.
The job of preserving this Constitution of the United States is not
often easy nor popular. Some say 11,000 different times in the last 100
years Members of the Senate have come to the floor in an attempt to
change this document. It is interesting that in the course of the
history of this Nation, after the adoption of the first ten amendments
to the Constitution, the so-called Bill of Rights, we have only amended
this Constitution 17 times--the Bill of Rights and 17 additional
amendments. Today, we are being asked to amend the Constitution for the
18th time since the adoption of the Bill of Rights.
It is curious that in the history of our politics, the Republican
Party, which so often claims to be the conservative party--and to take
that literally, I assume that means to conserve the values and
principles of this country--has so often been in the leadership not to
conserve but to overturn and change the most basic document, the
Constitution of the United States.
I am told in the last 4 weeks there have been four proposals--one in
the House and three in the Senate; this is the third in the Senate--to
change the Constitution of the United States. This document has endured
for over 200 years. It appears many of our colleagues want to change it
as quickly as possible in a variety of ways. Some want to change it
when it comes to balancing the budget. Others want to change it when it
comes to flag burning. Now today there is a suggestion that we want to
change it when it comes to the rights of the victims of crime.
With all due respect to the wisdom and intelligence of all of my
colleagues in the Senate, frankly, I think they are anxious to take a
roller to a Rembrandt. They want to make their mark on the Constitution
believing that what they suggest matches up to the stature of the words
of Thomas Jefferson, Madison, and the Founding Fathers of this country.
With all due respect to my colleagues, Senate Joint Resolution No. 3
before the Senate now pales in comparison. This resolution has been
around a while. It is shop worn. One of the sponsors of the resolution,
Senator Kyl, came to the floor today and said with some pride that this
was the 63rd draft of this constitutional amendment, and as we stand
today and debate, the 64th draft is being written in a back room. At
some point it will pop out of that room and on to the Senate floor and
we will be told: Here it is; this is the next amendment to the
Constitution of the United States.
Forgive me if I am skeptical, but I believe on reflection we would
regret passing this proposed constitutional amendment. If the authors
of this amendment who have been working on it for years--and I give
them credit for all of their effort, but they still haven't gotten it
right. As the matter comes to the floor of the Senate, do we honestly
believe the words in this document will endure as our Constitution has
endured for over 200 years? No, I think we are in haste producing a
product which we will come to regret.
Now to the merits of the issue. It is one which, frankly, cannot help
but touch your heart. Far too many people are victims of violent crime.
These victims are frightened, they are fed up, and they are determined.
They are rightfully frightened because they and others have far too
great a chance of falling victim to a violent crime. These victims have
endured needless and unjustified physical and emotional suffering. Just
last night at 6 p.m., in the Nation's Capital, at the National Zoo, one
of the real attractions in this city for visitors from across this
region, around the Nation, and even around the world, seven children
were shot while visiting the zoo. One of the seven, an 11-year-old boy,
was shot in the back of the head and is in grave condition.
The statistics on violent crime and gun violence are staggering in
the United States of America. Twelve children die every day in America
as a result of gun violence.

Many crime victims are justifiably fed up. They feel as if the
criminal justice system has wronged them. These people were innocent
victims, but they feel deprived of the fundamental need to participate
in the process of bringing the accused to justice. Victims of crime are
understandably determined to ensure that other victims of violent crime
have the right to an active and meaningful involvement in the criminal
justice system. I believe every effort to ensure that crime victims are
not victimized a second time by the criminal justice system should be
taken. Today, we are here to begin the hard task of determining how
best we can achieve this shared goal.
I don't think many will ever be able to appreciate fully the impact
of crime on a person. In my family's history, we have had a home
burglarized and felt violated, as most people would when they come home
to find someone has been through your belongings and taken something
away. This is an eerie feeling as one walks through the house.
I have had one of my children assaulted. Thank goodness she wasn't
hurt seriously. As a parent, I felt rage at the thought that somebody
would do this to my daughter. Thank God she survived it. They never
caught the person responsible for it. I felt in a way that she was not
the only victim. All of us who loved her were also victims of this
violence.
A violent crime irreparably alters the texture of life for the
victim, that victim's family, and many of their friends. The awareness
and memory of that crime pervades and alters the victim's very being. I
don't think a victim ever totally gets over it.
We know a criminal justice system at its best cannot undo a crime. We
surely also realize the way to fully address the effect of crime is not
just through the criminal justice system. If we are serious about
dealing with the impact of crime upon an individual victim, a family,
or a community, we must act systematically and consciously--not just
with symbolism and political effort. I believe one of the worst things
we can do is to pass a constitutional amendment that contains illusory
or unenforceable promises regarding crime victims. In order to
genuinely address this issue, we must understand the way crime rewrites
a victim's life. Then we must do what we can to ensure that the rewrite
is not inevitably tragic.
I support crime victims' rights. I confess to concerns about amending
this Constitution. I view the Constitution, and in particular the Bill
of Rights, as one of the most enlightened, intelligent, and necessary
documents ever created. I believe any efforts to amend it must be
reserved for the most serious circumstances.
I cannot help but remember as I stand on this floor, as I often do,
debating constitutional amendments which seem to be the order of the
day, how many leaders of newly emerged democracies come to the United
States of

[[Page S2843]]

America as one of their first stops. These men and women who have seen
their countries liberated from totalitarian rule, Communist rule, come
to the United States and make their stop right here on this Hill, in
this city, in this building.
They believe, as I do, that the validation of democracy lies right
here within the corners of the walls of this great building, because
this generation of leadership in the Senate and in the House tries to
carry on a tradition, a tradition of freedom and democracy, a tradition
that is not embodied in a flag but is embodied in a book--the
Constitution of the United States.
When you look at the political atmosphere surrounding this debate on
this constitutional amendment, you will see that it is different from
any other debate we have had on an amendment to this Constitution. A
constitutional amendment is really only necessary when there is a
concern that the rights of the minority may not be respected by the
majority. When there was first a suggestion of a Bill of Rights, it was
opposed by James Madison. He said: It is not necessary. The original
Constitution, as written, defines what the Federal Government can do,
and therefore all of our rights as individuals, as State governments,
and as local governments, are certainly ours and preserved. We do not
need to add any language preserving them, it is assumed that they will
be preserved.
But as the Constitution was submitted to the various States for
ratification, more and more delegates came back and said: We disagree.
We want explicit protection. We want the Bill of Rights to explicitly
protect the rights of American citizens, and we want to spell it out.
One of the primary arguments used for the validity of the Bill of
Rights is that the first amendment, so often quoted for freedom of
speech and press and assembly and religion, is often heralded as the
first amendment because it was so important. A little reading of
history shows us it was not the first amendment in the Bill of Rights.
The first two amendments submitted to the States in the Bill of Rights
were rejected. The third amendment, which is now our first amendment,
moved up. The first two that were rejected related to the question of
reapportionment of the Congress and the ability to be compensated or
receive additional compensation during the course of a congressional
term.
That little footnote in history notwithstanding, we value these 10
amendments in the Bill of Rights as special.
Then, beyond that Bill of Rights, concerns about the rights of the
minority rose again in the 13th and 14th amendments, when we repealed
slavery, or in regard to the 19th amendment and the provision of
suffrage to women.
This amendment, however, does not fit in that description. All but a
very small number of American politicians and organizations
emphatically support victims rights. Every State in the Union has at
least statutory protection of victims of crime when it comes to the
procedure of criminal prosecution. Some 33 States have amended their
State constitutions to provide similar protection, including my own
home State of Illinois in 1992. I fully support that. I think the State
was right to pass a crime victims protection in our State constitution.
Second, any amendment to the Constitution should be more than just a
symbolic gesture. I want to grant crime victims real and concrete
rights. The proposed amendment, however, has certain provisions which
are illusory and unenforceable. Indeed, the amendment lacks definable
language and does not address its implementation. What is the most
important single word in a crime victims protection amendment? Let me
suggest it is ``victim,'' the word ``victim.'' That is the group they
seek to protect and honor and empower. Yet search, if you will, S.J.
Res. 3, you will not find a definition of the word ``victim.''
For those who are listening to the debate, who say, ``How can that be
a problem? We know who the victim of the crime is''--are you sure? My
daughter was assaulted. She was certainly the victim of a crime. As her
father, was I victimized?
Some say: That is a stretch, we just mean the person who was actually
assaulted.
Let's try this from a different angle. Let's assume someone is a
victim of a crime and is murdered. Are they the only victim of the
crime? Is the spouse of the murdered victim also a victim? I could
certainly argue that. I could argue a lot of other members of the
family could be victims.
Let's consider this possibility. If you are going to empower victims
to change the prosecution and the procedure in a criminal case, think
about a battered wife. A battered wife, who has been the victim of
domestic violence for a long period of time and who finally strikes
back and assaults the spouse who has battered her, she is then brought
in on criminal charges of assault and battery, and the abusing spouse
becomes a victim, too. According to this amendment, the abusing spouse
now has crime victim's rights, even though he was the one who battered
his wife, giving rise to her response and retribution. It gets a little
complicated, doesn't it?
We know who a crime victim was--someone who was hurt. When you start
playing this thing out, you understand why the authors of this proposed
constitutional amendment, despite 63 different drafts of this
amendment, have never defined the word ``victim.'' Because if you
empower that victim to slow down court proceedings or speed them up, to
be notified, to be part of the process, you had better take care to
understand who is going to receive these rights and how these rights
will be exercised, because if you are not careful, you can have a lot
of unfortunate consequences.
The amendment lacks this definable language. It does not direct the
law enforcement court personnel, who are supposed to enforce the newly
created victims' rights, on how to do so.
Finally, the important goal of establishing victims' rights can be
achieved through legislation. A constitutional amendment is simply not
necessary. Due to the respect I have for the Constitution, I am
extremely reluctant to amend it unless there is no other means by which
the victims of crime can be protected. Every state in the United States
have a state statute to protect the rights of victims. Thirty-three
States have constitutional amendments to protect the rights of victims.
Frankly, there appears to be across the United States, in every State
of the Nation, a protection of crime victims.
The obvious question of those who bring this amendment to the floor,
then, is, why is this necessary? Why do we need to amend the
Constitution of the United States if existing State law and State
constitutional provisions already protect the victims of crime? There
may be flaws in these State amendments, State constitutional
amendments, State laws, but these flaws can be corrected on a State
basis, as needed.
In addition, a statutory alternative to this constitutional amendment
can reach all of the goals it seeks to achieve. Indeed, there is
legislation that has been proposed by the Senator from Vermont, Mr.
Leahy, which I enthusiastically support, which would put in statute
these crime victim protections. I think this is the best way, the most
effective way, to deal with this.
Let me give a few illustrations of how complicated this situation can
become. Some of them are real-life stories that give evidence of
problems prosecutors have run into in States where individuals have the
right to come forward and to assert their rights as victims of crime.
Let me give you two of them.
In Florida, a Miami defense lawyer tells of representing a murder
defendant who accepted a plea from the prosecution. Of course, the
acceptance of a plea is a decision that you will plead guilty under
certain circumstances and waive the right to a trial. The judge refused
to accept the offer after the victim's mother spoke out against it. The
victim's mother insisted that the criminal defendant go to trial,
despite the agreement by the Government and the defense that he would
accept a plea. The client went to trial, was acquitted, and released.
In the second case, in California, relatives of a homicide victim
complained to a judge that a plea bargain between the prosecution and
the defense was too lenient. They got what they wanted, withdrawal of
the plea and prosecution of the man on murder charges. At

[[Page S2844]]

the close of the trial, the defendant was acquitted and went free.
In each of these instances, in each State, the victim or victim's
family asserted their rights to overturn a decision by the prosecutor
based on that prosecutor's evaluation of the evidence and the likely
outcome of a trial, and the net result of it was that the wrongdoer
ended up walking out of the courthouse door without a penalty.
The suggestion that the victim's involvement or intervention is
always going to lead to a stiffer penalty is, frankly, shown in these
two cases not to apply.
I also make note of the fact that, during the course of this debate,
those who support the constitutional amendment, the Senator from
Arizona, Mr. Kyl, and the Senator from California, Mrs. Feinstein, have
said on occasion that this would in no way jeopardize the rights of the
accused; in other words, that empowering and giving new rights to crime
victims will not be at the expense of the accused defendant. Our
Constitution is very clear when it comes to criminal defendants, that
there are certain rights which shall be protected. We, of course, know
the right to trial by jury, the right to confront your accuser, and all
of the rights which have been cataloged over the years.
When this constitutional amendment came before the Senate Judiciary
Committee 2 years ago, I was a member of that committee. I offered an
amendment to this legislation in committee which said nothing in this
proposed constitutional amendment shall diminish or deny the rights of
the accused as guaranteed under the Constitution. It was said over and
over that is the case of this language and this proposal. Yet my
attempt to put it into the amendment was refused. I understand Senator
Feingold of Wisconsin offered the same amendment in committee this time
when it was being considered, and it, again, was refused.
As I stand here today, I suggest to my colleagues that we are
considering a constitutional amendment which, though it is important,
is not necessary. Before we amend the Bill of Rights in the United
States of America, it should be something that we all believe, or at
least the vast majority believes, is necessary. The existing State
constitutional protections of crime victims, the existing State
statutes all provide protection to the victims of crime. The suggestion
that we can pass a Federal statute which can be modified if we find it
is not perfect gives us an option to do something responsible without
invading the sanctity and province of the Constitution of the United
States.
In addition, I suggest that protecting the rights of victims, as
important as it is, must be taken into consideration with base
constitutional rights and protections for the accused as well in this
free society, recalling the premise of criminal justice in America:
innocence until guilt is proven. That is something which is painful to
stand by at times, but it is as American as the Constitution which
guarantees it.
I suggest to my colleagues in the Senate and to my friend, the
Senator from New York, who I see is on the floor, that we should think
twice before proceeding with this amendment to the Constitution. I will
join my colleagues during the course of this debate in further
discussion of the merits of this proposal. I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. MOYNIHAN. Mr. President, I congratulate the distinguished Senator
from Illinois for saying, but taking one exception, we ought to think
twice about this matter. Dare I hope we might think once. It comes
wholly unexpected to us, a massive departure from two centuries of
constitutional practice, a measure--one amendment which was longer than
the whole of the Bill of Rights, and there is not a single Member on
the other side of the aisle listening, wishing to speak, present. There
are three of us on the Senate floor with the Constitution in our hands
in a matter of 27 hours--the casualness.
George Will said on Sunday that we were cluttering the Constitution.
We do things palpably ill advised. In the House, they put us on a 1-
year balanced budget back into an agricultural cycle, long since gone.
There was no mention whatever of the rights of the accused, about which
we were very concerned. A people should be concerned when Government
accuses someone, and that is why we have the Fourth, Fifth, Sixth, and
Fourteenth amendments. Then to have this endless, tedious, complex
amendment about victims' rights and, as the Senator says, no definition
whatever of what a victim is.

I say to those not present on the opposite side--and there are, of
course, supporters on this side--the capacity of American culture in
this stage to think of new forms of victimhood is unprecedented. It has
been a characteristic of the culture for a generation now to find
victims and to declare oneself a victim and demand compensation and
consideration therefore. It may become a permanent feature of American
culture. I do not know. I doubt it. But it is at high moment now and
would this amendment--oh, my goodness. And for the law schools, yes,
and for those who design and build courthouses, oh, sure, and judges--
there will be no more judges held up in this Senate. We will need
double the Federal judiciary in no time at all.
How could we have come to the point where we have so little sense of
our history, as the Senator from Illinois so rightly said. James
Madison did not think a bill of rights was necessary since the
Constitution only gave powers, specifically enumerated powers, to the
Federal Government. What it was not given, it could not do. Still,
George Mason and others persuaded him and prudence--a hugely important
aspect of good government--prudence said: Well, why not have a bill of
rights? And we have learned to be glad that we did.
Do my colleagues recall the impeachment trial we went through a year
ago? I was struck by the managers--fine persons all--but how little
reference they gave to the Constitution which provides for impeachment.
I may be mistaken--I hope I am--but I did not hear one reference to
Madison's notes which he kept during the Convention in Philadelphia, or
the notes of the one day in which the impeachment clause was settled.
On that day, it was stated, for example, the most important
impeachment of the age then was the impeachment of Warren Hastings
going on in London. Edmund Burke, well known here as a supporter of the
colony's rights, managed the case by the House of Commons in the House
of Lords. The point was made by Mason that Hastings was not accused of
a crime. That was not why he was being impeached. It was abuse of
office. Hence, we have the term ``high crimes and misdemeanors.'' High
crimes.
Now. Do my colleagues know what the references were in that debate?
They were to Hollywood movies. And do my colleagues remember Marlene
Dietrich in ``Witness for the Prosecution''? Are we trivializing our
oath to uphold and defend the Constitution of the United States against
all enemies foreign and domestic? It is scarcely to be believed.
Why are the seats empty on the other side? I cannot be certain, but I
offer a thought, and I would be happy to hear differently. The
administration is negotiating with the sponsors because the
administration has indicated a willingness to support this atrocity,
this abomination, this violation of all we have treasured in two
centuries and more.
That the administration should do this is something I could not
imagine I would ever see. Yet we have it in writing that they are
prepared to do it. I only hope the negotiations break down.
I shall have more to say at another time. But I just wanted to make
this comment. Now I leave the floor. Our revered senior Senator from
Vermont will be the only one remaining. I do not doubt he will have
thoughts to disclose. But even he will eventually find himself somewhat
distracted by the fact that no one is listening. The distinguished
Presiding Officer is here. But there will not be another soul present
with such attention and energy as we take up a matter of the greatest
possible importance, which is amending the Constitution of the United
States.
Mr. LEAHY. Mr. President, if the distinguished senior Senator from
New York would yield to me before leaving?
Mr. MOYNIHAN. I am happy to yield.
Mr. LEAHY. I hope all Senators get a chance to read what the
distinguished Senator said. He is recognized as one of

[[Page S2845]]

the foremost historians of this country and certainly of the Senate. He
is so right: We are talking about amending the Constitution, and nobody
is here to talk about it.
I say to my friend from New York, there have been 11,000 proposed
amendments to the Constitution that have been brought before the
Congress. Article V speaks of amending the Constitution when necessary.
The Senator from New York is a far greater student of history than I,
but does he think that by any stretch of the imagination--we have had
civil wars; we have fought in world wars; we have gone through
Presidential assassinations; we have done all these things--we have
ever come close to 11,000 times in the history of this great Nation
where it has been necessary to amend the Constitution?
Mr. MOYNIHAN. We have not, sir, as is evidenced by the fact that I
believe we have done it 18 times including the Bill of Rights, which
was basically part of the Constitution.
Mr. LEAHY. I say to my friend from New York, it is the Senate that is
the saucer that cools the passions. That should make us slow up and
look at these things.
I wonder what would have happened if, say, during all those times, 10
percent of those amendments had gone through. That would be 1,100
amendments. If 1 percent went through, there would be over 100
amendments. What a different country this would be with much less
democracy, if we would be a democracy at all.
The first amendment in our little pocketbooks of the Constitution is
only four or five lines. The first amendment really protects the
diversity of this country to make sure we remain a democracy, that we
have the right to practice any religion we want, or none if we want--
both thoughts are protected--that we can say what we want, that we can
assemble and petition our Government. All of that is protected. Yet we
have something that, when we print out this proposed amendment, goes on
for something like 60 lines.
I am a lawyer. I loved doing appellate work. The distinguished
Presiding Officer is a distinguished former attorney general. I am sure
he would love to do appellate work. I can tell you right now, this is a
lawyer's dream. We might as well quadruple the number of courts, the
number of judges. They would not keep up with the appeals that would
come just from this one amendment alone.
It is hard for me to emphasize enough, and I hate to hold up the
Senator from New York on this, but there is nobody else here to express
my frustration to.
Mr. MOYNIHAN. Please.
Mr. LEAHY. He and I are on the same side of this. I have the
privilege, as I said earlier, of being the 21st Member of the Senate,
in all its history, to cast 10,000 votes. Some votes were important; a
lot were not important. But I thought it was pretty impressive--10,000
votes. Even with all the unimportant ones, even after all of them, I
did not vote enough to have voted on all the proposed constitutional
amendments. There have been 11,000.

Our highly respected and beloved two most senior Members of this
body, Senator Thurmond and Senator Byrd, have cast 15,000 votes. They
are about the only ones who might have cast enough votes. But those
votes encompassed all kinds of things.
Here we are talking about changing the Constitution at the drop of a
hat. Some of us--Republicans and Democrats alike, conservatives and
liberals--ought to stand up and say: We will pass statutes; we will
experiment. If we are wrong, we will change the statutes; we will
change the law. But we will not amend the Constitution. No matter that
the proposal comes from the left or the right, no matter what it is, we
should not pass it unless it is, as the Constitution says, necessary.
This resolution is not necessary for the security and for the
continuation of the world's greatest democracy.
Mr. MOYNIHAN. May I just make a closing remark.
Not meaning to be disrespectful, but there is a joke, a witticism, if
you like, that says libraries file the French Constitution under the
heading of periodicals: It comes; it goes; it comes; it goes.
We have a treasure here, the oldest written Constitution on Earth. It
has preserved a republic which is without equal. There are two nations,
the United States and Britain, that both existed in 1800 and have not
had their form of government changed by violence since then. We live in
a world where a century ago there were approximately, as I count, 8
nations on Earth that both existed then and have not had their form of
government changed by violence since.
If we are to trivialize the Constitution because of passing
enthusiasms about this economic theory, that economic theory, we risk
the stability of this institution.
I make just one reference to the fact that several years ago we
passed a law providing for a Presidential line item veto on
legislation. It was elementally unconstitutional. The Senate passed it.
The House passed it. The President signed it.
Three of us--our revered senior Democratic Member, Senator Byrd,
Senator Levin, and I--brought suit in the U.S. District Court for the
District of Columbia, which in good time held that the line item veto
was indeed unconstitutional. The government appealed to the Supreme
Court that as members of Congress we did not have the requisite
standing.
Then in the following term, the veto had been exercised. We clearly
did have standing. We went there as amici. And, bang, the Court said:
This is unconstitutional.
Does the President not have lawyers? Are there no counsel on the
Judiciary Committee here and in the House? It is something that
elemental.
Sir, we are approaching a dangerous moment in the history of the
Republic. As I leave the floor, as I am required elsewhere, I leave the
Senator from Vermont who is alone defending the Constitution of the
United States. He is alone on the Senate floor. There is not a single
person here who supports this monstrosity, this abomination, willing to
come forward and say why.
Does that not say something?
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I greatly appreciate the comments of the
distinguished Senator from New York. He and I have been friends for
over a generation. I for one have learned from him and have been
inspired by him. He is so right on this. This debate is treated as a
matter of such passing moment that nobody is here. I want them to have
a chance to come back.
I suggest the absence of a quorum and ask unanimous consent that the
time for the quorum be charged not against any individual Senator but
against the overall 30 hours.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I yield my time under the pending measure to
the Senator from Vermont, Mr. Leahy, 1 hour. I suggest the absence of a
quorum and ask unanimous consent that the time during the quorum not be
charged to either side at this time.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I rise to oppose S.J. Res. 3, the
victims' rights constitutional amendment. I agree with the goals of the
proponents of the amendment. We have to do more to protect and enhance
the rights of victims of crime. But I disagree with the particular
means they have chosen to bring about that end. We do not need to amend
the Constitution to protect victims. We can protect the rights of
victims by enforcing current State and Federal laws. We can protect the
rights of victims by providing the needed resources to prosecutors and
courts to allow them to enforce and comply with existing laws. We can
protect the rights of victims by enacting additional statutes, if
needed, to deal with remaining concerns or any issues that

[[Page S2846]]

might arise in this regard in the future.
The framers of the Constitution made the process of amending the
Constitution very difficult. Those who propose to change that long-
lived and successful charter bear a heavy burden. I have thus opposed
proposals to amend the Constitution, and especially the Bill of Rights,
even when the subject of the amendment was very close to my heart, as
it was with the recent proposal to amend the Constitution to allow for
mandatory campaign spending limits. Similarly, I believe deeply in the
need to ensure that our criminal justice system treats victims fairly,
but I do not believe we have to amend the Constitution to do so.
Throughout history, Members of Congress have thought of more than
11,000 different ways to amend the Constitution--as of this last
recess, 11,045, by one count. Luckily, only 27 have become part of our
national charter. Ten of those, the Bill of Rights, were part of the
package of ratification, and two, the ones on prohibition, canceled
each other. Three others followed the enormous upheaval of the Civil
War and addressed the wrongs of slavery and inequality that spawned
that conflict. But the pace at which Members have introduced and
proposed amendments has picked up in modern times. More than half of
the constitutional amendments proposed in the entire lifetime of our
Nation have come in the last 40 years. Fewer were proposed in the first
173 years of our Nation. This Senate has now considered three so far in
this session alone--and the year is still young.

In a sense, there is a certain lack of humility about proposing so
quickly to amend the Constitution. To propose to change the
Constitution now is to say we have come up with an idea that the
framers of that great charter did not, or that we have come to a
conclusion on how our Government should work fundamentally different
from the one they had and fundamentally different from the one all the
Congresses since have had. We should come hesitantly, if we do, to the
conclusion that we know better than they did. Yes, there will come
occasions where times have changed, as with women's right to vote, and
we need to bring the Constitution up to date; but it is hard to
consider the basic calculus of prosecutor, defendant, and victim to
have changed this much since the foundation of the Republic.
I have to admit that of the constitutional amendments I have seen
proposed in recent Congresses, this is less objectionable in some
respects than most. But I still have significant concerns about the
prospect of amending the Constitution, even for this very worthy
purpose. We must use the constitutional amendment process sparingly.
Before taking the grave step of amending our country's founding
charter, we have to make sure we have exhausted all statutory
alternatives. When it comes to victims' rights, we are far from
exhausting those statutory alternatives. We currently have Federal and
State laws protecting victims. Indeed, many States have passed their
own constitutional amendments to protect victims, including my own
State of Wisconsin--a proposal that I voted for when I was in the
Wisconsin State Senate.
According to the proponents of this constitutional amendment, these
existing laws are not being fully enforced. I would say we should
therefore see to it that the existing laws are enforced. Let us enact
legislation to improve the existing law, and let us provide the needed
resources to prosecutors and courts to comply with existing laws. That
is where the real struggle lies. Only when we have exhausted these
legislative avenues should we possibly consider a constitutional
amendment.
Let's address this important issue one step at a time. Statutes
protecting victims are on the books in each and every State. Amendments
to State constitutions have been adopted by at least 31 States. At the
Federal level, prudent legislation has already been enacted and
additional legislation proposed. Let us work with the current law and
proposals to improve our Federal laws. In fact, additional statutory
protections for victims have been introduced during this Congress by
Chairman Hatch and by the ranking member and Senator Kennedy. I believe
these represent the right direction in which to go.
Chairman Hatch has introduced the Victims' Rights Act of 1999.
Senators Leahy and Kennedy have introduced the Crime Victims Assistance
Act. Senator Leahy announced an improved version of that bill, taking
into account many suggestions made by the chairman of the Judiciary
Committee. I understand Senator Leahy will offer his bill as a
substitute to this constitutional amendment, if the majority leader
allows Senators to exercise their traditional rights to offer
amendments.

Enforcing and enacting comprehensive Federal statutes is the best way
to protect victims. The Leahy-Kennedy bill will accomplish the same
goals the proponents of this amendment want, but it will do it faster
and also protect the integrity of the Constitution. The Leahy-Kennedy
bill includes the right for a victim to be heard at the detention and
sentencing stages, the right to be notified of escaped or released
prisoners, and the right to be heard during consideration of a plea
agreement. These are sensible protections that victims can see take
effect in only a matter of weeks--the time it takes for consideration
and passage of a statute--not years from now when maybe two-thirds of
the Congress approves and three-fourths of the States ratify a
constitutional amendment.
Another reason I oppose this measure is that a constitutional
amendment, as you well know, is far less flexible than a statute when
provisions must be improved over time. A constitutional amendment
cannot easily be modified. Changing it at all--even one letter of it--
would again require the approval of two-thirds of the Congress and
ratification by three-fourths of the State legislatures. This is a real
problem in this case because there are numerous uncertainties about the
effect of this amendment. Even the sponsors are finding things they
want to change. Each time this amendment has been brought before the
Judiciary Committee, it has been different. In fact, the amendment was
modified as recently as last spring when we marked it up in the
Constitution Subcommittee. At that time, my good friend, Senator
Ashcroft, successfully offered an amendment to include the rights of
victims to be involved in the pardon process. Such a change has
inspired a good deal of criticism from the executive branch, which is
concerned with its impact on the exclusive power of the President to
grant pardons.
Whatever one thinks of the change to the amendment, it is the sort of
thing that ought to give us pause when we are dealing not with a
statute but with what is likely to be a permanent constitutional
amendment. What if Senator Ashcroft had not realized that this change
was needed until after the pending proposed constitutional amendment
was already adopted? What if, instead, we had approved the victims'
rights amendment in the last Congress, as I am sure its sponsors would
have preferred? Then, to change the amendment, Senator Ashcroft would
have been required to get two-thirds of the Congress and three-fourths
of the State legislatures to agree to the change.
The pardon issue isn't the end of the matter. Other Senators have
raised concerns about the specifics of this amendment; for example, its
focus on the victims of violent crimes rather than all victims of
crime. If any further changes are needed, we will have to, again, go
through the lengthy and difficult process of amending the constitution.
I have no doubt that further changes will be necessary. I have heard
the main authors of this constitutional amendment saying with some
pride that there have been 63 versions of this amendment. They offer
that as a sign that this is a very well-honed, carefully drafted piece
of legislation or amendment. What I suggest it means is that it is
highly volatile, likely to change, and likely to be inappropriate for
the Constitution, even after it is ratified, given all the changes that
have been made and the problems with it. This constitutional amendment
really reads as a statute. It is almost as long as the entire Bill of
Rights. It is full of terms and concepts that will undoubtedly provoke
years of litigation and years of attempts to overturn a court decision
that one group or another doesn't like.

It even contains an extraordinary clause that might be called the
``emergency eject button.'' The Government

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can ignore the amendment. Remember, this language will be in the
Constitution. The Government can ignore the amendment to achieve a
``compelling interest.''
What if the prosecutors in a high-profile case sought to avoid the
impact of the amendment and the courts determined the justification
they gave did not rise to the level of a compelling interest? If we, as
a Congress, agreed with the prosecutors, we would not be able to pass a
statute to override that judicial ruling because it would have to
actually pass a constitutional amendment to deal with the problem.
It is clear that despite years of effort that have gone into this
amendment, it will have to be fine-tuned in the future. We fine-tune
statutes all the time, but we all know constitutional amendments can't
really be fine-tuned. That is a big problem the Senate needs to face up
to.
This amendment also poses major federalism problems. I am troubled
this amendment could well result in extensive oversight of State
criminal justice systems by the Federal courts. Victims who believe
their rights have not been recognized in State court proceedings will
undoubtedly file lawsuits in Federal district courts. Federal courts
will end up second-guessing the decisions of State prosecutors or
judges about how long a case took to get to trial or what victim should
be notified of a bail hearing. That is why the Conference of Chief
Justices, representing the chief justices of the supreme courts of all
of our States, oppose this amendment and strongly prefer that we deal
with this problem statutorily.
The State chief justices have also expressed concern that this year's
version of the amendment, as opposed to previous versions, allows
Congress, but not the States, to pass legislation implementing the
amendment. They appropriately note that the States can better determine
what laws are needed to implement the amendment, as it is the operation
of their own criminal justice system that is really at issue. But that
would again lead to precisely the patchwork of laws and protections
varying from State to State that the sponsors of this amendment wish to
avoid and claim is the reason they need a constitutional amendment.
I cannot emphasize enough that I am deeply committed to protecting
the victims of crime. As a State senator in the Wisconsin State Senate
in 1991, I voted in favor of amending the Wisconsin State Constitution
to include protections for victims. As I have noted, most States have a
State constitutional protection for victims, and every State in the
country has at least a statute to protect victims.
I draw my colleagues' attention to the example of Wisconsin because
the Wisconsin State Constitution repeatedly clarifies that the rights
granted to the victim in the Wisconsin Constitution are not intended to
diminish the rights of the accused. The Wisconsin amendment contains
language that explicitly forbids victims' rights from impairing the
rights of the accused that are otherwise guaranteed by law.
Unfortunately, the victims' rights amendment before this body does not
contain a similar provision.
For that reason, I offered an amendment during the Judiciary
Committee markup that would have included a clarification similar to
the Wisconsin language. It is troubling and puzzling to me that the
majority of the Judiciary Committee did not agree with that amendment
because they stated over and over again in defense of this amendment
that it would in no way derogate the rights of the defense. If that is
so, why did they oppose such a simple clarification that we found so
useful when passing a similar provision in Wisconsin?
When, in the wake of the Boston massacre, John Adams defended the
British soldiers accused of committing the killings there, he said:

[I]t [is] more beneficial that many guilty persons should
go unpunished than one innocent person should suffer.

Surely, if there is a central pillar of the American system of
justice, this is it: Above all, we must protect the rights of the
innocent.
That is why our Constitution enshrines limitations on the State and
protections of the individual whose liberties the State would seek to
curtail.
Sadly, even with our manifold protections for the rights of the
accused, history has demonstrated that time and again America has on
occasion brought innocence itself to the bar and condemned it to jail
or even to die.
Many proponents of the amendment before the Senate today state
categorically that the rights of victims and the rights of the accused
can comfortably coexist. They claim the amendment would not reduce the
rights of the accused. They may be right, although I fear that cases
may arise where judges will believe that to give the amendment force
will require a lessening of protections for the accused. Be that as it
may, the proponents of this amendment have refused to make this
protection of the rights of the accused crystal clear by writing that
intent into the amendment itself. Until they do, it is not unreasonable
for Senators to fear that this constitutional amendment in some cases
would actually end up curtailing the legitimate rights and liberties of
defendants in courts of law.
For those who believe in individual freedom and civil liberties, this
should be troubling, indeed.
The Constitution should be modified sparingly, where no other
alternative provides an adequate solution. That showing has not been
made. The laws on the books now should be fully enforced. Courts and
prosecutors should be given the resources they need to protect victims
under current law. Congress and State legislatures should enact
additional legislation where needed to give additional protection.
I urge my colleagues to join me in supporting prudent, statutory
safeguards for victims. But I urge my colleagues to vote against this
victims' rights amendment to the Constitution.
(The remarks of Mr. Feingold pertaining to the introduction of S.
2458 are located in today's Record under ``Statements on Introduced
Bills and Joint Resolutions.'')
Mr. FEINGOLD. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
Mr. THOMPSON. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. THOMPSON. Mr. President, I want to address the pending so-called
victims' rights constitutional amendment.
There is no question but that there are instances when victims of
crimes in this country are not heard as they should be heard. Our
criminal justice system does not work perfectly. But these duties are
given to local judges and local district attorneys. They are elected
officials. In most cases, they are responsible to the people in their
jurisdictions. It is in their interest to make sure victims are treated
appropriately.
Certainly, in most cases, the defendants are not the ones who have
the public support on their side. It is certainly the victims. In most
cases, it is in the interest of those charged with the responsibility
of notifying victims of proceedings in court and treating them as they
should be treated in carrying out those responsibilities.
Having said that, we must acknowledge that some things slip through
the cracks. We have a constitutional amendment that is proposed
basically to cover those instances when these local officials let
things slip through the cracks and victims are not notified of court
dates or sentencing or parole hearings. The sentiment is
understandable, but if we look a bit closer, we have to conclude that a
constitutional amendment to address this problem is not the way to go.
It is constitutional overkill, to say the least.
All 50 States have recognized we can do better in terms of victims,
we can notify them when important things happen with regard to the
trial of a defendant, and all 50 States have passed legislation,
constitutional amendments, or both, to address this problem.
Even still, we in Washington, DC, say we are going to pass a
constitutional amendment, in effect mandating--an unfunded mandate at
that--mandating these States behave in certain ways to take care of
this problem.
People say: State laws and State constitutions still do not always
work. There are still some cases where people are not notified, even
though the State constitution and the State statute require it. A
constitutional amendment will, in some way, solve that problem.

[[Page S2848]]

I suggest there is no reason to believe whatsoever that in individual
cases where this problem still persists, a Federal constitutional
amendment will do any better than a State constitutional amendment will
do in ensuring those rights.
I believe this amendment will interject complexity into the judicial
process, will cause increased litigation, and will actually have the
effect of harming victims more than helping victims. The primary
interest of a victim of a crime is to make sure a guilty defendant is,
in fact, found guilty and properly punished. This constitutional
amendment will make the procedure by which the DA's around the country
are trying to prosecute these defendants more complex, more costly,
more time consuming in many respects, and ultimately will harm the very
end in which the victim is most interested, and that is seeing justice
done and a guilty defendant found guilty by our court system.
This constitutional amendment gives nine new rights to a new category
of people. The Constitution sets out our form of government. The Bill
of Rights basically is restrictions on the power of that Government. It
tells the Government things they cannot do because we have been mindful
of the down sides of an all-powerful federal government. We have set
forth specific things the Government may not do toward individuals.
That has usually been the purpose of amendments to our Constitution;
that is, again, limiting the Government in what they can do with regard
to the individual. This constitutional amendment creates nine new
rights on behalf of a new category of people; that is, so-called
victims.

It has taken, in some cases, 200 years, or thereabouts, to have our
courts pass on the issues that have come about because of the wording
of our Constitution and the wording of the Bill of Rights--what is a
reasonable and unreasonable search and seizure, for example.
This will, in language that is more lengthy than most of the
amendments in the Bill of Rights, create additional complexity and
raise additional questions that can only be resolved by courts of law.
It will be many years before issues as to how this works are resolved.
Who is a victim, how do you define a victim? For example, suppose we
have a battered woman who is on trial for stabbing her husband. What if
she is the defendant? What if the husband was, in fact, attacking her?
Who is the victim in that case? The reasonable notice victims are
supposed to get to court proceedings, it sounds good on its face, but
what is reasonable notice? We have hundreds and hundreds of cases of
trying to decide what is reasonable.

In another context, what if a victim is not notified of a court
proceeding on time? Or what if they say they are not but perhaps they
have been? They may come in and say: This proceeding you have just
finished, I did not get notice of it.
The district attorney may say: Yes, we did give you notice.
They may say: No, you did not.
The district attorney may say: Yes, we did.
They may say: It was not reasonable notice.
The prosecutor may say: We gave you so many days.
All of these issues ultimately will have to be decided by a court
that should be devoting its attention to the proceedings in the case,
along with the district attorneys devoting their attention to
prosecuting the defendant and not having these collateral issues making
their job that much more difficult.
To understand the potential mischief of this constitutional
amendment, I think you have to really understand our system and the way
it is set up under the Constitution.
The Constitution was mindful of the inherent problems with a
centralized government. Our founding forefathers' experience with a
powerful government, with a king, led them to decide we would have a
federal system whereby the States would have certain rights. They
decided against a national police state. We have certain defined
Federal responsibilities with regard to law enforcement. But there is
no inherent police authority in the Constitution for the Federal
Government. The basic police authority is out in the States. We do not
want a national police force in this country or a centralized policing
authority for every kind of crime that might occur. Murder, robbery,
rape, burglary--those are crimes that are handled at the State level.
Mr. President, 95 percent of the offenses in this country are
prosecuted at the State level, not the Federal level. That is not the
Federal Government's business. Absent the relatively few truly Federal
criminal cases that we have, these State offenses are prosecuted at the
State level. They are prosecuted by district attorneys and assistant
district attorneys all over the country. They are given a good deal of
discretion as to how they handle these cases.
Mind you, in most cases these people are elected officials in their
local communities. They have every reason to want to do the right
thing. They take an oath to uphold the law. They have an interest in
making sure everybody is treated fairly. It does not always happen, but
it is a system we are dealing with here. We cannot address every
particular instance that might come along. It is a system with which we
are concerned.
This is our system. District attorneys decide when to plea bargain.
District attorneys have to decide how strong their case is. Only they
will know how strong their case is, in making a decision whether to
accept a plea bargain.
Sometimes, when you have multiple defendants, district attorneys have
to make a decision to make a deal with one defendant for more lenience
in exchange for testimony against another defendant. All of these are
discretionary things that in our system we give local district
attorneys the right to do.
It is basically a system involving two parties; that is, the State,
or the people, on the one hand, and the criminal defendants on the
other.
What this constitutional amendment would do is change that whole
system in many material respects. Instead of having a two-party system,
where you have a prosecutor, or the State, or the people, and a
criminal defendant, you would now have three parties. You would have
the prosecutor, the defendant, and the victim.
At every meaningful stage of the criminal trial, you would have all
of these three parties vying for the court's attention to have their
interests expressed. It is complicated enough, as anybody who has ever
been a prosecutor, an assistant U.S. attorney at the Federal level or
assistant district attorney, can tell you.
It is complicated enough when you just have two parties. You are
trying to do the right thing. You are trying to prosecute the case. For
the person who you believe is guilty, who has been indicted, you are
going to bring them to trial. The defendant has not been convicted yet,
but you believe they are guilty or you would not be prosecuting them.
But you also know the limitations of your case.
You also know how many other defendants there are out there. You also
know whether or not this guy you have before you is a small fry or a
big fish. You also know there might be a chance of getting to someone
bigger.
All those kinds of things you know are very complicated, very
difficult. The defendants file motions for continuances. The defendants
file motions to suppress evidence, if there is a search warrant
involved. There are motions to dismiss and all those kinds of things.
Here we come along with this constitutional amendment and inject a
third party into the process, third parties who certainly have an
interest in the outcome, third parties who are allowed to attend, third
parties who want to see that justice is done. But a constitutional
amendment would not just say, let's give these third parties these
rights, let's try to do them right, let's try to make sure they have
their voices heard; we would, by amendment, put this in the
Constitution of the United States, just like the first amendment on
free speech or the fifth amendment on due process or the sixth
amendment on the right to counsel.
We would elevate the rights of a victim, with whom we are all
sympathetic, up there with the prosecutor and the defense in trying to
juggle all of this business of giving notice and having a right to be
in the courtroom at every stage of the game. The judge is going to have
to decide whether or

[[Page S2849]]

not notice has been given correctly at all the right times, whether or
not the right people are in the courtroom. All this new complexity
injected in an already complex system.
As well meaning as it is, I think the result of it is going to be, as
I said, more complexity, more litigation for people who believe the
Constitution has not been followed, that they have not been given the
right kind of notice, or they were late for court and they did not get
to sit in the courtroom, or something of that nature. It is going to
wind up hurting the ultimate interest of victims more than helping.
Under the constitutional amendment, the victim, as we would
ultimately define a victim--as I said, it is not going to be that easy
in many cases--would have a right to come in and object to a deal the
district attorney might want to make.
Only the district attorney may know certain information. For example,
let's say there is a gang involved and you have one cooperative
witness. When the victims come in and object to the deal, the district
attorney cannot stand up and say, this is the reason we are doing this,
because everybody else would hear it. It would compromise possibly
another case.
Or if the victim comes in and objects to a plea bargain with a
particular defendant, the district attorney cannot get up and say, the
reason we did this, Your Honor, is we really do not have much of a
chance, and we are lucky to get this. He cannot do that because he may
have to, in fact, go to trial. As happens sometimes, the judge is
sympathetic and says: We agree with the victim. We are not going to
accept this deal.
The district attorney is sitting there, unable to explain it fully on
the one hand and then, on the other, having to go to trial, and in some
cases, when in States that have such rules, has gone to trial and
actually lost the case. So the attorney, instead of getting some
punishment for a guilty defendant, has actually had to go to trial and
at the trial, you have to prove guilt beyond a reasonable doubt--a high
standard of proof--and the defendant walks because they were unable to
make the deal that they were trying to make.
Under this amendment, there is a provision that is extremely
troublesome; that is, that it becomes a constitutional right for a
victim to be in court at all times during the proceeding. In most
cases, in just about all States at one time, it was the rule. In fact,
they just call it the rule. Every lawyer knows when you are trying a
case, you say: Your Honor, I would like to impose the rule. When that
happens, all of the other witnesses leave the courtroom because you
don't want your witnesses to be hearing other witnesses testify. It
might tailor their testimony. If somebody on your side of the case is
testifying a certain way about how something happened, it makes sense
that it is not in the interest of justice to have the other witnesses
sitting there listening to that so when they get on the witness stand,
they are not tempted to tailor their testimony and avoid any
contradictions that the other side might take advantage of. It is kind
of a horn book procedure.
What this amendment would do would say that the victim could sit in
the courtroom and listen to all of the other witnesses testify. If the
prosecutor decided to put the victim on last, they could listen to
every one of the witnesses testify before the victim in the courtroom
took the stand. That goes against experience and common sense and
common practice for about 200 years in this country. We have to keep in
mind that at this stage of the game, this defendant has not been
convicted of anything. As angry as we might be at the defendant or as
much as we think he might be guilty, we have to remember he hasn't been
convicted of anything. In this country, everybody gets a fair trial.
If one of our loved ones was accused of something and we thought the
accuser had their own reasons for accusing our loved one and we saw
them sitting in the courtroom listening to all the witnesses talk about
exactly how this happened and exactly how that happened and then they
took the stand and kind of melded all the testimony together to make it
all consistent and wrap it up in one big bow, I think we would be
concerned about that. The trial judge at least ought to have the
discretion of making a determination as to who sits in the courtroom
and who does not. The Federal Government does not have any business
micromanaging the trial of these lawsuits in every general sessions
court in every little town in the country. That is what this
constitutional amendment would do.
It would upset the balance we have always had in this country of a
prosecutor, a defendant, tried in a State court with local rules. There
have always been constitutional provisions the States have to abide
by--there is no question about that--free speech, search and seizure,
all of that, but we don't have a unitary government, we have a system
of federalism whereby States decide these local cases and State judges
make those decisions. We come along with a constitutional amendment
that creates nine new rights, about 2\1/2\ pages of new Constitution,
and goes totally away from the concept that we have had for 200 years
in this country, the concept of federalism.
I think this proposal is another step down the road toward a Federal
takeover of our criminal justice system. For most of America's history,
Federal involvement in criminal law was limited to national issues. Yet
in this age of mass media and saturation coverage, Congress and the
White House are ever eager to pass Federal criminal laws. Chief Justice
Rehnquist has said this. To appear responsive to every highly
publicized societal ill or sensational crime, the Congress acts in
these areas and creates more and more Federal crimes out of what should
be State and local offenses.

We have reached the point where nobody really knows how many Federal
crimes now exist. Nobody can really calculate them, but we keep piling
them on, more and more. We have undoubtedly surpassed an old estimate
that we had awhile back of 3,000. A hearing I chaired last year
reviewed an American Bar Association task force report from leaders in
the criminal justice system who counseled restraint in federalizing
crime control.
Justice Brandeis once said:

Denial of the right to experiment may be fraught with
serious consequences to the Nation. It is one of the happy
incidents of the federal system that a single courageous
State may, if its citizens choose, serve as a laboratory; and
try novel social and economic experiments without risk to the
rest of the country.

That is the system we have. States address these issues in different
ways. Why should we, as the Federal Government, impose one size fits
all on a populace that is not in agreement on exactly what that should
be? Why should the States not have the leeway to do what States have
always done in our system?
Last but not least, this is a solution looking for a problem for the
most part. Every State in the Union has addressed this issue. We have
become more mindful that in some cases victims are not getting the
attention they need. So every State in the Union has taken a look at
this. We think the system works out pretty well. For the most part, our
public officials are doing what they are supposed to do.
Some States have gone so far as to change their constitutions. Some
States in the middle have passed legislation. But every State, one way
or another, has addressed this, doing what States are supposed to be
doing, responding to the demands of their local citizens. My State of
Tennessee changed its constitution with regard to this. There is
absolutely no need for us to federalize this particular area of
criminal law.
Finally, my primary concern, besides the ones of upsetting our
constitutional framework and system that we have enjoyed in this
country for so long, is that--because of the complexity, because of the
increased litigation and problems that we can't even anticipate now
with a three-party procedure instead of a two-party procedure,
questions that will have to be resolved by courts not knowing what kind
of delays all this is going to produce and messing up our system and so
forth--we will wind up in many cases hurting a victim's interests more
than we will help them. As I said from the outset, the victim's primary
interest is to make sure that a defendant who is guilty in fact be
found guilty in

[[Page S2850]]

a fair, efficient way that is uncomplicated, uncluttered, and that does
not go on forever.
Therefore, I urge that we reject this constitutional amendment. I
thank the Chair.
Mr. LEAHY. Mr. President, I compliment the Senator from Tennessee for
what he said. He is a very thoughtful Senator with great respect for
what the Senate's role is in our whole Federal system. We miss him on
the Senate Judiciary Committee. I think that can be fairly said by
Senators on both sides of the aisle because of his thoughtful
involvement and debate. I note that when he was there, he raised
similar issues. His voice was one that helped shape the debate. I thank
him for it. I compliment him for it.
Mr. KOHL. Mr. President, I understand that under the cloture rules, I
am afforded 1 hour of debate time. I designate Senator Daschle to
control my hour.
Mr. GRAMS. Mr. President, I rise today in support of S. J. Res. 3,
the proposed constitutional amendment to establish certain rights for
victims of violent crime. I am proud to be a cosponsor of this
important legislative proposal introduced by Senators Kyl and
Feinstein.
I have always cherished the basic freedoms established by the United
States Constitution. This precious document provides important rights
to every American--rights which have encouraged their active
participation in the functions of our Republic. For example, the First
Amendment encourages free speech and association, while the 19th and
26th Amendments were ratified to protect the voting rights of women and
eighteen-year-old citizens.
As we debate the merits of the proposed Crime Victims Constitutional
Amendment, I am reminded of the constitutional rights guaranteed to
persons accused of crime. These include the right: to a speedy and
public trial by jury; to know the nature of the accusation; to confront
witnesses; to counsel; and rights against excessive bail, fines, or
cruel or unusual punishment. These rights promote the involvement of
the accused in court and should not be diminished by Congressional
action.
In recent years, Congress has enacted legislation that seeks to
establish certain rights for victims of crime, including the 1990
Victims Rights and Restitution Act, which required federal law
enforcement agencies to make their best efforts to ensure that crime
victims are treated with fairness and respect. Most recently, we
enacted the Mandatory Victims Restitution Act of 1996 and the Victims
Rights Clarification Act of 1997, which sought to allow crime victims
to observe court proceedings even if they were expected to testify
during the sentencing hearing. Additionally, all fifty states now have
either constitutional amendments or statutes that seek to protect the
rights of crime victims.
Despite these efforts by Congress and the States, I am very concerned
that the United States Constitution does not protect the rights of
victims and promote their involvement in the criminal justice process.
In my view, the Crime Victims' Rights Amendment is the most effective
way to address the current imbalance between the rights of defendants
and victims within the Constitution. As a constituent from St. Paul
recently wrote, the proposed amendment will, ``Prevent victims from
being victimized twice. First, by the crime, then by the judicial
system when they learn that those accused have all the rights.'' These
concerns are shared by the Department of Justice, constitutional
scholars, and various victim advocates such as the National Center for
Missing and Exploited Children.
The proposed constitutional amendment to protect the rights of crime
victims is not a new concept. As my colleagues may know, it was first
recommended in 1982 by President Reagan's Task Force on Victims of
Crime. Since its initial introduction during the 104th Congress,
Senators Kyl and Feinstein have worked tirelessly to improve this
proposal and preserve the rights of defendants and the authority of
prosecutors. Importantly, the Crime Victims' Rights Constitutional
Amendment received strong, bipartisan support upon its passage by the
Senate Judiciary Committee earlier this month.
I would not support a proposal to change the fundamental character of
the Constitution or eliminate the basic freedoms that it provides to
Americans. However, I also believe that the rights of crime victims are
not trivial to the needs of our nation and are worthy of protection
under the Constitution. Passing additional laws or state constitutional
amendments that may be ignored by federal and state court comes at the
expense of those who have fallen victim to violent crime and who expect
equal justice from the criminal justice system.
In addition, we must not forget that many crime victims are afraid of
being victimized again and face retaliation by criminal offenders. We
must ensure that victims feel respected throughout the criminal justice
process. I believe establishing certain constitutional rights for crime
victims will help to encourage greater reporting of crimes and
cooperation with law enforcement. The Crime Victims' Constitutional
Amendment would allow for greater participation in the criminal justice
system in a manner completely consistent with constitutional amendments
that have established a citizen's right to participate in other
government processes.
I respectfully disagree with those who suggest that the Crime
Victims' Constitutional Amendment conflicts with the principle of
federalism. As someone who has worked to maintain the distinction
between federal and state responsibility, I am pleased that this
amendment provides an appropriate level of flexibility to the States.
Specifically, this amendment would allow the States to pass legislation
to define ``victims of crime'' and ``crimes of violence.'' It would
also allow States to determine the degree of ``reasonable'' notice to
public proceedings or the release or escape of a criminal offender that
will be provided to crime victims.
Ultimately, it will be three-quarters of the States that must decide
whether to consider and ratify this amendment. Passage of this
amendment will not impose any rights upon the States without careful
and lengthy consideration by the State legislatures. In fact, this
amendment has been endorsed by 49 of our nation's Governors, the
elected officials who are most concerned about unnecessary federal
mandates being imposed upon the States. Additionally, the Congressional
Budget Office (CBO) has indicated that this amendment will not impose
additional costs upon the States.
I also understand the concerns of those who suggest that the Crime
Victims' Rights Amendment will disadvantage defendants during court
proceedings. However, the amendment does not deprive the accused of any
of their constitutional rights. It would ensure respect and basic
fairness for crime victims through a constitutional right to be
notified of court proceedings; to attend all public proceedings; to be
heard at crucial stages in the process; to be notified of the
offender's release or escape; to consideration for a trial free from
unreasonable delay; to an order of restitution; to have the safety of
the victim considered in determining a release from custody; and to be
notified of these basic rights.
In proclaiming the first ``Victims Rights Week'' in 1981, President
Reagan stated, ``For too long, the victims of crime have been the
forgotten persons of our criminal justice system. Rarely do we give
victims the help they need or the attention they deserve. Yet the
protection of our citizens--to guard them from becoming victims--is the
primary purpose of our penal laws. Thus, each new victim personally
represents an instance in which our system has failed to prevent crime.
Lack of concern for victims compounds that failure.''
Mr. President, I firmly believe that the Crime Victims' Rights
Amendment will help to restore public confidence in the criminal
justice system and give crime victims the protection they deserve. The
high number of crime victims in our society underscores the need to
pass this amendment and send it to the States for their careful
consideration. I urge my colleagues to support passage of this
important public safety initiative.
Mr. MOYNIHAN. Mr. President, as the Senate once again considers an
amendment to the United States Constitution, this time to protect the

[[Page S2851]]

rights of crime victims, I ask that George Will's column from Sunday's
Washington Post be printed in the Record in its entirety. He offers a
well-reasoned analysis of the concerns the proposed amendment raises.
There being no objection, the column was ordered to be printed in the
Record, as follows:

[From the Washington Post, April 23, 2000]

(By George F. Will)

Tinkering Again

Congress's constitutional fidgets continue. For the fourth
time in 29 days there will be a vote on a constitutional
amendment. The House failed to constitutionalize fiscal
policy with an amendment to require a balanced budget. The
Senate failed to eviscerate the First Amendment by empowering
Congress to set ``reasonable limits'' on the funding of
political speech. The Senate failed to stop the epidemic of
flag burning by an amendment empowering Congress to ban flag
desecration. And this week the Senate will vote on an
amendment to protect the rights of crime victims.
Because many conservatives consider the amendment a
corrective for a justice system too tilted toward the rights
of the accused, because liberals relish minting new rights
and federalizing things, and because no one enjoys voting
against victims, the vote is expected to be close. But the
amendment is imprudent.
The amendment would give victims of violent crimes rights
to ``reasonable'' notice of and access to public proceedings
pertaining to the crime; to be heard at, or to submit a
statement to, proceedings to determine conditional release
from custody, plea bargaining, sentencing or hearings
pertaining to parole, pardon or commutation of sentence;
reasonable notice of, and consideration of victim safety
regarding, a release or escape from custody relating to the
crime; a trial free from unreasonable delay; restitution from
convicted offenders.
Were this amendment added to the Constitution, America
would need more--a lot more--appellate judges to handle
avalanches of litigation, starting with the definition of
``victim.'' For example, how many relatives or loved ones of
a murder victim will have victims' rights? Then there are all
the requirements of ``reasonableness.'' The Supreme Court--
never mind lower courts--has heard more than 100 cases since
1961 just about the meaning of the Fourth Amendment's
prohibition of ``unreasonable'' searches.
What is the meaning of the right to ``consideration''
regarding release of a prisoner? And if victims acquire this
amendment's panoply of participatory rights, what becomes of,
for example, a victim who is also a witness testifying in the
trial, and therefore, not entitled to unlimited attendance?
What is the right of the victim to object to a plea bargain
that a prosecutor might strike with a criminal in order to
reach other criminals who are more dangerous to society but
are of no interest to the victim?
Federalism considerations also argue against this
amendment, and not only because it is an unfunded mandate of
unknowable cost. States have general police powers. As the
Supreme Court has recently reaffirmed, the federal
government--never mind its promiscuous federalizing of crimes
in recent decades--does not. Thus Roger Pilon, director of
the Center for Constitutional Studies at the Cato Institute,
says the Victims' Rights Amendment is discordant with ``the
very structure and purpose of the Constitution.''
Pilon says the Framers' ``guarded'' approach to
constitutionalism was to limit government to certain ends and
certain ways of pursuing them. Government, they thought,
existed to secure natural rights--rights that do not derive
from government. Thus the Bill of Rights consists of grand
negatives, saying what government may not do. But the
Victims' Rights Amendment has, Pilon says, the flavor of
certain European constitutions that treat rights not as
liberties government must respect but as entitlements
government must provide.
There should be a powerful predisposition against
unnecessary tinkering with the nation's constituting
document, reverence for which is diminished by treating it as
malleable. And all of the Victims' Rights Amendment's aims
can be, and in many cases are being, more appropriately and
expeditiously addressed by states, which can fine-tune their
experiments with victims' rights more easily than can the
federal government after it constitutionalizes those rights.
The fact that all 50 states have addressed victims' rights
with constitutional amendments or statutes, or both,
strengthens the suspicion that the proposed amendment is (as
the Equal Rights Amendment would have been) an exercise in
using--misusing, actually--the Constitution for the
expressive purpose of affirming a sentiment or aspiration.
The Constitution would be diminished by treating it as a
bulletin board for admirable sentiments and a place to give
special dignity to certain social policies. (Remember the
jest that libraries used to file the French constitution
under periodicals.)
The Constitution has been amended just 18 times (counting
ratification of the first 10 amendments as a single act) in
211 years. The 19th time should not be for the Victims'
Rights Amendment. It would be constitutional clutter,
unnecessary and, because it would require constant judicial
exegesis, a source of vast uncertainty in the administration
of justice.

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