[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

[[Page S2847]]

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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