[Congressional Record Volume 146, Number 49 (Wednesday, April 26, 2000)]
[Senate]
[Pages S2897-S2910]
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--Resumed

  The PRESIDING OFFICER. The clerk will report the unfinished business.
  The legislative clerk read as follows:

       Motion to proceed to S.J. Res. 3 proposing an amendment to 
     the Constitution of the United States to protect the rights 
     of crime victims.

  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I remind my colleagues of the status now of 
business on the Senate floor. It has been a little confusing, I know, 
particularly for those who might be watching who aren't familiar with 
Senate procedures. But sometimes we take something up and then lay it 
aside, take something else up, and then go back to the original matter, 
and so on. That is what we have been doing.
  Yesterday, you will recall that we began the debate on S.J. Res. 3, 
which is an amendment to the U.S. Constitution that would provide 
rights to victims of violent crime. Senator Feinstein of California and 
I are the primary sponsors of that resolution.
  At the end of yesterday, we went to other matters. We are now going 
to resume debate on the motion to proceed to this resolution.
  The Senate procedure is that we first have to decide to proceed, and 
then we can proceed. So later on this afternoon, hopefully, the Senate 
will vote to proceed to formal consideration of this constitutional 
amendment. Technically, for a while this afternoon we are going to be 
debating on whether or not we should proceed.
  I am hopeful our colleagues will agree, whether they support the 
amendment or not, that they should permit us to proceed to make our 
case so they can evaluate it and decide at the end of that period 
whether or not they want to support a constitutional amendment.
  I think it is a little difficult, given the fact that there hasn't 
been a great deal of information, for people who are not on the 
Judiciary Committee to decide what their position is on this until they 
have heard arguments.
  Yesterday afternoon, Senator Leahy primarily, but several other 
members of the Democratic side and one Republican, came to the floor 
and discussed at length, I think for at least 3, maybe 4 hours, reasons 
why they thought that constitutional amendment should not be adopted. 
Certainly there are legitimate arguments that can be adduced on both 
sides of this proposition.
  But I would like to begin today by explaining a little bit why we 
believe that it is important, first, to take the amendment up, and, 
second, why we believe, if we do take it up, it should be supported by 
our colleagues.
  Senator Feinstein will be here shortly, and she will begin her 
presentation by discussing a case, the Oklahoma City bombing case, that 
in some sense is a metaphor for this issue generally, because in the 
Oklahoma City bombing case victims were denied their rights. Families 
of people who were killed were not permitted to sit through the trial. 
They were given a choice over a lunch break during the trial either to 
remain in the courtroom or to leave if they wanted to be present at the 
time of the sentencing and to say something to the judge at that time. 
There was enough confusion about the matter that many of them gave up 
their right to sit in the courtroom in order to be able to exercise 
their right to speak to the judge at the time of the sentencing.
  Congress was so exercised about that it actually passed a law--it was 
specifically directed to the Oklahoma City bombing case but it 
pertained to other similar cases--so that victims have the right to be 
in courtroom, and they shouldn't have to make a choice between the 
trial and sentencing. They should be able to appear at both.
  Senator Feinstein will discuss in a moment the details of how that 
case proceeded and why it stands for the proposition that we need a 
Federal constitutional amendment.
  The bottom line is that even the Federal Government passed a statute 
designed to pertain to this exact case which was insufficient to assure 
that those people could exercise what we believe is a fundamental right 
to sit through that trial. They were denied that right.
  What is worse, because the case was taken up on appeal, and because 
the U.S. Constitution clearly trumps any Federal statute, or any State 
statute, or State constitutional provision, it wasn't possible to argue 
that this Federal statute trumped the defendants' rights if those were 
bases for the rights asserted.
  So you have at least seven States, or thereabouts, in the Tenth 
Circuit that are now bound by a precedent that says this Federal 
statute doesn't work, to let you sit in the courtroom during the 
trial. That has to be changed. There is only one way to change it. That 
is with a Federal constitutional amendment that says to the courts, 
from now on, these are fundamental rights and courts must consider 
these rights.

  As Senator Feinstein will point out, supporters of this amendment 
include a wide variety of people who had family and friends involved in 
the Oklahoma City bombing case. One is Marsha Kight, whose daughter was 
killed. Marsha has been a strong supporter of the victims' rights 
amendment because she had to sit through all that. That is what Senator 
Feinstein will be talking about.
  We listened to arguments yesterday from Senator Leahy and others 
about the amendment. I understand they wish to talk this afternoon. I 
will be paying attention to what they have to say and try to respond as 
best I can. The arguments fall into two or three general categories. 
One notion they presented is that this is a complicated amendment, it 
is too long--even longer than the Bill of Rights. It is not longer than 
the Bill of Rights. We have counted the words. I will have my staff 
tell Members exactly how many words are in the Bill of Rights and how 
many words are in this amendment.
  The point is, to find defendants' rights, one has to look all over 
the Constitution. We have amended the Constitution several times to 
give people who are accused of crime different rights. If you added up 
all rights of the

[[Page S2898]]

accused and put them into one amendment, it would be much longer than 
the amendment we have for victims' rights. We have all of our rights in 
one place.
  I don't think it should be an argument against providing victims of 
crime certain fundamental rights because it takes up several lines of 
the Constitution. We either mean to give them fundamental rights or we 
don't. Defendants have all of the rights now. That is fine. We take 
nothing away from the defendants. But this should not be based on 
whether there are more words describing the defendants' rights than 
there are describing victims' rights.
  One reason we take a little longer to describe victims' rights--
although it is shorter than the defendants' rights if we add them up--
we have described them with great precision. They are very limited.
  Defendants' rights are expressed in broad terms. Defendants have a 
``right to trial by jury.'' Does that mean in all cases? Does that mean 
just in felony cases? What kind of a jury? Defendants are protected 
from ``unreasonable search and seizure.'' What does that mean? There is 
a basic ``fair trial'' right, and a right to counsel. All of these are 
expressed in very general terms.
  There are thousands of pages of court decisions interpreting what 
``unreasonable search and seizure'' means. I suppose the Founding 
Fathers could have written 10 pages describing exactly what they meant 
by ``unreasonable search and seizure.'' They didn't do that.
  In our proposal, we have described these victims' rights with great 
care so that there could be no argument the rights took anything away 
from defendants. That is why some of the wording is apparently a little 
bit longer than our friends on the other side desire.
  I guarantee if they were shorter, if they merely said victims have a 
reasonable right to attend the trial, their argument would be: We 
haven't nailed this down; This is too broad and subject to 
interpretation. You have to state exactly what is meant or it might 
conflict with the defendants' rights. Those who oppose this will argue 
it either way. In effect, we are damned if we do and damned if we 
don't. We have tried to word it carefully.

  I have the exact number of words for anybody who is interested. 
Without the technical provisions which concern the effective date, the 
amendment is 307 words. The victims' rights are described in 179 words. 
Defendants' rights in the U.S. Constitution consume 348 words.
  OK, so if this is all about how many words there are, we win. 
However, that is not what this is about. Let's get serious.
  The other argument from the opponents was, we have written 63 drafts 
of this amendment. Yes, indeed, we have. In fact, we are proud of it. 
We have been making the point that this isn't some unthought-through 
proposition, written on the back of an envelope. We have written draft 
after draft after draft, as a good craftsman would polish a fine piece 
of furniture over and over and over until it was absolutely smooth and 
shiny. We have done the same thing with this amendment.
  We have talked to prosecutors. We have talked to the U.S. Department 
of Justice. They have written a very nice letter complimenting the 
changes we made about concerns they expressed. We have accommodated 
many of their concerns. We talked to law professors; we talked to 
victims groups; we talked to lots of different people. As a result of 
all of these conversations, we have continued to modify the amendment 
to take into account their wonderful suggestions, to take into account 
concerns they have raised.
  We are rather proud of the fact that we have been careful; we haven't 
just tried to slide this through. For 4 years we have been working on 
this through 63 different drafts. We now have a very carefully crafted, 
honed constitutional amendment. Frankly, we have written more drafts 
here than the Bill of Rights. People think that is a pretty good 
document. Of course, I would never hope to compete with our Founding 
Fathers. Understanding how much thought they put into their amendments, 
we have tried to be as careful in what we have written.
  I daresay arguments can be made against our proposed constitutional 
amendment. There are some legitimate points to make. However, it is not 
legitimate to say we have tried to hurry this through, or we have not 
given it enough thought, or we have not had enough input, or we have 
not been willing to make changes. I think the fact we have gone through 
this number of changes illustrates the fact that we have been very open 
in the process.
  That is why the amendment passed through the Senate Judiciary 
Committee with a very strong bipartisan vote of 12-5. Getting anything 
through this Judiciary Committee in the form of a constitutional 
amendment, I think all of my colleagues would agree, is a pretty sound 
testament to the care with which we have crafted this particular 
provision.
  While there are arguments that can be made about the constitutional 
amendment, it is not fair to say we shouldn't do it because of the 
number of words in the amendment or we shouldn't do it because we have 
taken the pains to go through 63 drafts. We have tried to be very 
careful in what we have done. Those were two of the arguments raised 
against this yesterday.
  A third argument was that we ought to give some time to allow a 
statutory alternative to work. With all due respect, it was in 1982, 
when President Reagan convened a group that was concerned with 
protecting victims' rights, that the proposal for a constitutional 
amendment was first made. It was in 1996 when President Clinton held a 
ceremony in the Rose Garden with the Attorney General and many others 
expressing his strong support for a Federal constitutional amendment to 
protect the rights of victims of crime. He said: We have experimented 
with State statutes, Federal statutes, and State constitutional 
provisions long enough. They just don't work to secure the rights of 
victims. Well meaning prosecutors and judges have tried hard. In fact, 
the cause of victims' rights has gained a lot of support over the 
years. Victims are much better treated in the process now than they 
were many years ago.

  I read yesterday statement after statement by President Clinton, by 
Attorney General Reno, by associate attorneys general, by law 
professors, by Laurence Tribe, a respected professor from Harvard, 
district attorneys and judges, all of whom say, unfortunately, when a 
right is not expressed as a fundamental right in the U.S. Constitution, 
it just isn't protected with the same degree of care and consideration 
and energy as those rights that are protected in the U.S. Constitution.
  That is why, according to a recent study, 60 percent of the victims 
who are supposed to get notice of their rights don't receive notice. 
One cannot exercise a constitutional right if one is not aware of it.
  With respect to defendants, we have made it the Holy Grail that they 
will be advised of their rights. This is what the Miranda warning is 
all about. Defendants have a right not to speak and a right to an 
attorney.
  Victims ought to at least get some reasonable notice of their rights. 
It does not mean you have to track them all down and stick a statement 
right in front of their faces and tell them orally, but it does mean 
you at least have to keep them on a mailing list or phone list. 
Computerized telephone messages now can be sent.
  We have had testimony. For example, the county attorney in the sixth 
largest county in the country by population has testified it is just no 
problem to notify victims of their rights. He says the entire cost of 
taking care of the victims' rights is about $15, from beginning to end. 
It just is not a valid argument that it is going to be a real problem 
for prosecutors or the court system to provide this notice and to 
provide these rights to victims.
  I have one final comment, since I think Senator Feinstein is now 
ready, and I have given the introduction for her comments, I say to 
Senator Feinstein, so our colleagues will be prepared to hear what she 
has to say. But I have a final comment about these rights.
  There is a culture in the legal community that has built up over the 
years that bends over backwards to protect the rights of defendants. We 
have no quarrel with that. Law school courses,

[[Page S2899]]

Law Review articles, everything is oriented toward that. When you go to 
law school and you are a second- or third-year law student, you can 
participate in a legal clinic representing indigent defendants and so 
on, but there is no similar culture to protect the rights of victims. 
That is one reason why you have people reflexively saying: We have to 
make sure we protect the right of defendants. If we are going to 
protect the right of victims, we just do not feel real good about that 
because it might hurt defendants.

  As we pointed out yesterday and as I think Senator Feinstein is about 
to point out today, nothing in our proposal takes away a constitutional 
right of a person standing accused of a crime. We would not permit that 
and we are willing to include language that makes it clear that the 
rights we enumerate here for victims do not in any way abridge the 
rights of the defendants. That should be clear. So this culture that 
has grown up in support of defendants' rights should not be an argument 
against the protection of victims' rights, which, after all, involve 
people whom society has failed to protect in the first instance. If 
there is anyone we want to help through the criminal justice process it 
is these people, these victims of violent crimes.
  I think that is a shorthand summary of the arguments against some of 
the things that were said yesterday. I am very pleased, though, that 
Senator Feinstein is here, as I said, to present information that 
specifically responds to an argument that was made yesterday with 
respect to the Oklahoma City bombing case. There is a great deal of 
misunderstanding about that.
  If she is prepared at this time, I ask her now to supplement what I 
have said in the presentation of her remarks in that regard.
  The PRESIDING OFFICER (Mr. Burns). The Senator from California.
  Mr. LEAHY. Will the Senator from California yield?
  Mrs. FEINSTEIN. I certainly will.
  Mr. LEAHY. Mr. President, I do not want to interrupt the discussion 
of the Senator from Arizona and the Senator from California. I am just 
curious, so we can have some idea of where we might be; yesterday, we 
had a problem. I understand the two proponents were out negotiating a 
new draft of this. But we had a situation where there were few on the 
floor.
  I know the two proponents of this amendment, although they are on 
opposite sides from me, would agree that a constitutional amendment is 
far too consequential to be some kind of place holder on the Senate 
schedule. We have a number of Senators who will want to speak. They 
have asked me to speak. We have the distinguished dean of our party, my 
friend, the senior Senator from West Virginia, who will want to speak. 
We have had others who have.
  I am just curious if the two Senators have some concept of where we 
may be on the schedule.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I will be delighted to respond to the ranking 
member of the Judiciary Committee. It was my intention to introduce 
Senator Feinstein today. She was on her way over. I knew that. She has 
some prepared remarks she would like to give.
  At the conclusion of that, I am fully prepared to allow the Senator 
from Vermont and the Senator from West Virginia to proceed. I know they 
both have statements they want to make.
  It is true it is much better if we are here. The Senator from Vermont 
yesterday had to step out while I was making some remarks. I understood 
that completely. He noted we had to step out while he was speaking.
  Mr. LEAHY. For legitimate reasons, I should say.
  Mr. KYL. Certainly. We plan to be here for however much time the 
Senator feels is necessary to take on this motion to proceed. We are 
willing to listen. We are willing to offer comments in reply. I would 
say Senator Feinstein may have roughly 20 or 30 minutes. I am prepared 
at that point to allow the minority to proceed with whatever comments 
they may have.
  Mr. LEAHY. I thank my good friend from Arizona. As always, he is 
courteous and helpful, as is the Senator from California. That is fine 
with me. Obviously, they are entitled to all the time they want.
  I should note, again, in my comments, the distinguished Senator from 
Arizona and the distinguished Senator from California were working, 
actually moving the ball forward. The debate was not lost because it 
gave people an opportunity to state their positions. They were working 
in an effort to move us closer to a vote. I appreciate that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the ranking member and the 
distinguished Senator from Arizona. I am delighted the distinguished 
Senator from West Virginia is here. I will try to be as brief as I can. 
However, when I left the Democratic caucus at lunch yesterday, I felt, 
I might say, very lonely; that this, in a sense, was an insurmountable 
quest. As I went back to my office and as I considered what had been 
said in the caucus and what had been said on the floor of the Senate, I 
felt so strongly how worthwhile this fight is and how many people will 
be touched and protected if, one day, we do succeed.
  Then I realized we were not alone. Later today, I will be submitting 
a raft of letters from a panoply of victims' rights organizations as 
well as law enforcement organizations that are in support of this 
measure. A few of them are up here on the board today: Mothers Against 
Drunk Driving, National Victims' Constitutional Amendment Network, 
National Organization for Victims Assistance, Parents of Murdered 
Children; Colorado Organization for Victim Assistance; Stephanie Roper 
Foundation; Mothers Against Violence in America--and on and on and on.
  Also, a group of 37 State attorneys general, the former U.S. 
Attorneys General, William Barr, Dick Thornburgh, Ed Meese; the Alabama 
Attorney General, and on and on and on; the Law Enforcement Alliance of 
America, the American Correctional Association, American Probation and 
Parole Association, Concerns of Police Survivors, the National 
Troopers' Coalition, the International Union of Police Associations, 
Los Angeles County Police Chiefs' Association, and on and on and on. 
Members can look at this. I will submit later individual letters.
  However, I thought it might be useful to answer some of the questions 
that were asked on the floor yesterday. One of them was that we should 
not be doing this lightly; this is too precipitous; it comes too fast; 
Members have not had enough of an opportunity to study it. In fact, 
Senator Kyl and I have been working on this for 4 years. We have had 
four hearings in the Judiciary Committee. We have heard from 34 
witnesses. We have taken 802 pages of testimony. The House has had 32 
witnesses and has 575 pages of testimony. So this is not a lonely quest 
in the sense that it has lasted for a short period of time, but it is a 
quest that will go on as well.
  Yesterday, both in the Democratic caucus, as well as on the floor, 
one distinguished member of the Judiciary Committee, a Senator whom I 
greatly respect, made this statement. Hopefully he will be listening 
because I want to provide the answer. The statement is:

       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.

  Let me take the biggest and broadest case and describe to my 
colleagues why a statute will not work. The reason I use this case is 
it is a case with which we are all familiar. It is a case in which this 
Senate has played a role twice in passing, in fact, two statutes. It is 
a case where the defendants had access to attorneys and could mount a 
legal challenge. It is the treatment of the Oklahoma City bombing 
victims.
  I am going to read from a letter from a law professor who was one of 
the attorneys for the Oklahoma City bombing victims. His name is Paul 
Cassell. He is a professor of law at the University of Utah. He says:

       This morning I had the opportunity to listen to the debate 
     on the floor of the Senate concerning the Crime Victims 
     Rights Amendment. During that debate, if I understood it 
     correctly, the suggestion was made that federal statutes had 
     ``worked'' to protect the rights of the Oklahoma City bombing 
     victims. As the attorney who represented

[[Page S2900]]

     a number of victims in that case, I am writing to express my 
     strong view that this suggestion is simply not correct. To 
     the contrary, the events of that case show that statutes 
     failed. To be specific, the statutes failed to assure that 
     all victims who wanted to were able to attend the trial of 
     Timothy McVeigh. Indeed, the Department of Justice 
     prosecutors handling the case advised a number of victims 
     that they should not attend to avoid creating unresolved 
     legal questions about their status in the case. A number of 
     the victims reluctantly accepted that advice. In other words, 
     they sat outside the courtroom despite the presence of two 
     federal statutes specifically designed to make sure that they 
     had an unequivocal right to attend. To add insult to 
     injuries, the other attorneys and I who represented the 
     individual victims were never able to speak a word in court 
     on their behalves. . . .
       Some might claim that this treatment of the Oklahoma City 
     bombing victims should be written off as atypical. However, 
     there is every reason to believe that the victims here were 
     far more effective in attempting to vindicate their rights 
     than victims in less notorious cases. The Oklahoma City 
     bombing victims were mistreated while the media spotlight has 
     been on when the nation was watching. The treatment of 
     victims in forgotten courtrooms and trials is certainly no 
     better, and in all likelihood much worse. Moreover, the 
     Oklahoma City bombing victims had six lawyers working to 
     press their claims in court, including a law professor 
     familiar with victims rights, four lawyers at a prominent 
     Washington, DC, law firm and a local counsel. In the normal 
     case, it often will be impossible for victims to locate a 
     lawyer willing to pursue complex and unsettled issues about 
     their rights without compensation. One must remember that 
     crime most often strikes the poor and others in a weak 
     position to retain counsel. Finally, litigating claims 
     concerning exclusion from the courtroom or other victims' 
     rights promises to be quite difficult. For example, a victim 
     may not learn that she will be excluded until the day the 
     trial starts. Filing effective appellate actions in such 
     circumstances promises to be practically impossible. It 
     should, therefore, come as little surprise that the Oklahoma 
     City litigation was the first in which victims sought federal 
     appellate court review of their rights under the Victims Bill 
     of Rights, even though that statute was passed in 1990.

  What he is saying is that this was the first time victims under a 
statute passed 6 years earlier actually tried to use the court to 
enforce their rights.
  He continues:

       The Oklahoma City bombing victims would never have suffered 
     these indignities if the Victims Rights Amendment had been 
     the law of the land. It would have unequivocally protected 
     their right to attend and their ``standing'' to assert claims 
     on their behalf to protect that right. In short, the federal 
     amendment would have worked to protect their rights.

  Then he goes on to give a chronology, and I think this is very 
important because the issue is effectively standing and the fact that 
they have no standing in the Constitution to have these rights. I think 
it is important that I point out a chronology of exactly what happened. 
I want to take the time to do that:

       During a pre-trial motion hearing in the Timothy McVeigh 
     prosecution, the district attorney . . . issued a ruling 
     precluding any victim who wished to provide victim impact 
     testimony at sentencing from observing any proceeding in the 
     case. The court based its ruling on Rule 615 of the Federal 
     Rules of Evidence the so-called ``rule on witnesses.'' In the 
     hour that the court then gave to victims to make this 
     wrenching decision about testifying, some of the victims 
     opted to watch the proceedings; others decided to leave 
     Denver to remain eligible to provide impact testimony.
       Thirty-five victims and survivors of the bombing then filed 
     a motion asserting their own standing--

  This is important--

     then filed a motion asserting their own standing to raise 
     their rights under federal law and, in the alternative, 
     seeking leave to file a brief on the issue as amici curiae. 
     The victims noted that the district court apparently had 
     overlooked the Victims Bill of Rights, a federal statute 
     guaranteeing victims the right (among others) ``to be present 
     at all public court proceedings unless the court determines 
     that testimony by the victim would be materially affected if 
     the victim heard other testimony at trial.''

  In other words, the court had flexibility to make that determination.
  Continuing:

       The District Court then held a hearing to reconsider the 
     issue of excluding victim witnesses. The court first denied 
     the victims' motion asserting standing to present their own 
     claims, allowing them only the opportunity to file a brief as 
     amici curiae. After argument by the Department of Justice and 
     by the defendants, the court denied the motion for 
     reconsideration. It concluded that victims present during the 
     court proceedings would not be able to separate the 
     ``experience of trial'' from ``the experience of loss from 
     the conduct in question,'' and, thus, their testimony at a 
     sentencing hearing would be inadmissible. . . .
       The victims then filed a petition for writ of mandamus in 
     the U.S. Court of Appeals for the Tenth Circuit seeking 
     review of the district court's ruling. Because the procedures 
     for victims appeals were unclear, the victims filed a 
     separate set of documents appealing from the ruling. 
     Similarly, the Department of Justice, uncertain of precisely 
     how to proceed procedurally, filed both an appeal and a 
     petition for a writ of mandamus.
       Three months later, a panel of the Tenth Circuit rejected--
     without oral argument--both the victims' and the United 
     States' claims on jurisdictional grounds. With respect to the 
     victims' challenges, the court concluded that the victims 
     lacked ``standing'' under Article III of the Constitution 
     because they had no ``legally protected interest'' to be 
     present at the trial and consequently had suffered no 
     ``injury in fact'' from their exclusion. The Tenth Circuit 
     also found the victims had no right to attend the trial under 
     any First Amendment right of access. Finally, the Tenth 
     Circuit rejected, on jurisdictional grounds, the appeal 
     and mandamus petition filed by the United States. Efforts 
     by both the victims and the Department to obtain a 
     rehearing were unsuccessful, even with the support of 
     separate briefs urging rehearing from 49 members of 
     Congress, all six Attorneys General in the Tenth Circuit, 
     and some of the leading victims groups in the nation.
       In the meantime--

  And now it gets even more critical--

     the victims, supported by the Oklahoma Attorney General's 
     Office, sought remedial legislation in Congress clearly 
     stating that victims should not have to decide between 
     testifying at sentencing and watching the trial. The Victims' 
     Rights Clarification Act of 1997 was introduced to provide 
     that watching a trial does not constitute grounds for denying 
     the chance to provide an impact statement. The 1997 measure 
     passed the House by a vote of 414 to 13. The next day, the 
     Senate passed the measure by unanimous consent. The following 
     day, President Clinton signed the Act into law, explaining 
     that ``when someone is a victim, he or she should be at the 
     center of the criminal justice process, not on the outside 
     looking in.''
       The victims then promptly filed a motion with the district 
     court asserting a right to attend under the new law. The 
     victims explained that the new law invalidated the court's 
     earlier sequestration order and sought a hearing on the 
     issue. Rather than squarely uphold the new law, however, the 
     district court entered a new order on victim-impact witness 
     sequestration. The court concluded ``any motions raising 
     constitutional questions about this legislation would be 
     premature and would present issues that are not now ripe for 
     decision.'' Moreover, the court held that it could address 
     issues of possible prejudicial impact from attending the 
     trial by conduct[ing] a voir dire of the witnesses after the 
     trial. The district court also refused to grant the victims a 
     hearing on the application of the new law, concluding that 
     its ruling rendered their request ``moot.''
       After that ruling, the Oklahoma City victim impact 
     witnesses--once again--had to make a painful decision about 
     what to do. Some of the victim impact witnesses decided not 
     to observe the trial because of ambiguities and uncertainties 
     in the court's ruling, raising the possibility of exclusion 
     of testimony from victims who attended the trial. The 
     Department of Justice also met with many of the impact 
     witnesses, advising them of these substantial uncertainties 
     in the law, and noting that any observation of the trial 
     would create the possibility of exclusion of impact 
     testimony. To end this confusion, the victims filed a motion 
     for clarification of the judge's order. The motion noted that 
     ``[b]ecause of the uncertainty remaining under the Court's 
     order, a number of the victims have been forced to give up 
     their right to observe defendant McVeigh's trial. This 
     chilling effect has thus rendered the Victims Rights 
     Clarification Act of 1997 . . . for practical purposes a 
     nullity.''

  So the effort of this Congress to write one statute, and to clarify 
it with a second statute, was rendered a nullity.

       Unfortunately, the effort to obtain clarification did not 
     succeed, and McVeigh's trial proceeded without further 
     guidance for the victims.
       After McVeigh was convicted, the victims filed a motion to 
     be heard on issues pertaining to the new law. Nonetheless, 
     the court refused to allow the victims to be represented 
     by counsel during argument on the law or during voir dire 
     about the possible prejudicial impact of viewing the 
     trial. The court, however, concluded (as the victims had 
     suggested all along) that no victim was in fact prejudiced 
     as a result of watching the trial.
       This recounting of the details of the Oklahoma City bombing 
     litigation leaves no doubt that statutory protection of 
     victims rights did not ``work.'' To the contrary, for a 
     number of the victims, the rights afforded in the Victims 
     Rights Clarification Act of 1997 and the earlier Victims Bill 
     of Rights were not protected. They did not observe the trial 
     of defendant Timothy McVeigh because of lingering doubts 
     about the constitutional status of these statutes.
       The undeniable, and unfortunate, result of that litigation 
     has been to establish--as the only reported federal appellate 
     ruling [to date]--a precedent that will make effective

[[Page S2901]]

     enforcement of the federal victims rights statutes quite 
     difficult. It is now the law of the Tenth Circuit that 
     victims lack ``standing'' to be heard on issues surrounding 
     the Victims' Bill of Rights and, for good measure, that the 
     Department of Justice may not take an appeal for the victims 
     under either of those statutes. For all practical purposes, 
     the treatment of crime victims' rights in federal court in 
     Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming has 
     been remitted to the unreviewable discretion of individual 
     federal district court judges. The fate of the Oklahoma City 
     victims does not inspire confidence that all victims rights 
     will be fully enforced in the future. Even in other circuits, 
     the Tenth Circuit ruling, while not controlling, may be 
     treated as having persuasive value. If so, the Victims Bill 
     of Rights will effectively become a dead letter.

  This is the reason we pursue our case with such ardor. We do not 
believe it is possible, under any statute drafted to cover victims of 
violent crimes, to provide them with certain basic rights because any 
Federal statute would only cover 1 to 2 percent of the victims of 
violent crimes in the United States; and, secondly, because the one 
noteworthy case, in the sense of public knowledge, in the sense of 
major representation of victims by attorneys of major quality, resulted 
in two laws, passed by this Senate and the other House, being rendered 
a nullity.
  That is the reason we pursue our quest here today.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Who seeks time?
  Mr. KYL. Mr. President, I know Senator Leahy and Senator Byrd want to 
make a presentation. I would certainly be prepared to yield to them as 
soon as they are ready to make their remarks. In the meantime, I 
thought perhaps I could engage Senator Feinstein in some conversation 
and maybe make a couple points myself. But as soon as Senator Leahy or 
Senator Byrd arrive, I will be happy to relinquish the floor to them.
  One of the arguments that has been raised by some opponents of the 
amendment, including a prominent columnist whom I respect greatly, 
George Will, derives from a superficial reading of our amendment. It is 
said that this kind of an amendment, which grants rights to victims of 
crime, would be discordant with the general purpose of the 
Constitution, which is not to grant entitlements to people that the 
Government would provide but, rather, protects people's natural rights, 
some of which are enumerated in the Bill of Rights, some of which are 
assumed to exist outside the Constitution and are more expressed in 
terms of prohibitions on bad government conduct.
  I want to make clear--and seek Senator Feinstein's view on this--that 
in both cases the Constitution has prevented deleterious Government 
action. In neither case does the Constitution grant rights. In our 
case, for example, the right to attend the trial that we talk about in 
the Oklahoma City bombing case is really not expressed as the right to 
attend the trial. There is no right to Government access to the trial. 
We express this as a prohibition on the Government denying access to 
the trial so if a victim or victim's family is able to get to the 
courtroom, nobody has to bring them there, but if they are able to get 
there and they want to attend the trial, the Government may not deny 
them that right.
  In this regard, it is the same as the right to free speech. We all 
talk about the right to free speech. We really don't have an 
entitlement to free speech in the Constitution. We believe that is a 
natural right. As the Constitution says, the Government shall not 
abridge our right to free speech. It cannot constitutionally enact any 
laws that would inhibit the free exercise of speech.
  I urge my colleagues and wise people, such as George Will, to read 
this carefully. It is just as the existing Constitution. We speak in 
common terms of protecting the right of free speech, the right to 
attend the trial about which Senator Feinstein has been talking. But in 
reality, both constitutional provisions are prohibitions on the 
Government infringing upon this right.
  Is that a distinction the Senator finds important in describing the 
Oklahoma City case?
  Mrs. FEINSTEIN. Mr. President, I think Senator Kyl has stated it very 
well. Not only do I find that to be a correct distinction--it is not 
only Senator Kyl and I--it is legal scholars who we have worked with 
and trusted throughout this process. Let me quote the professor from 
Harvard with whom we worked, Larry Tribe.

       These are the very kinds of rights with which our 
     Constitution is typically and properly concerned, rights of 
     individuals to participate in all those government processes 
     that strongly affect their lives. Congress and the states 
     have already provided a variety of measures to protect the 
     rights of victims.

  Senator Kyl and I have heard that said on this floor and outside of 
this floor. That certainly is true. Yet, as Professor Tribe goes on, 
the reports from the field are that they have all too often been 
affected. Rules to assist victims frequently fail to provide meaningful 
protection whenever they come into conflict with bureaucratic habit, 
traditional indifference, sheer inertia, or the mere mention of an 
accused's rights, even when those rights are not genuinely threatened.
  I read the chronology of the Oklahoma City bombing case and the 
rights that those victims were afforded by two statutes, not one 
statute. We couldn't get it done right in 1990. We tried again 7 years 
later. Both of those were effectively declared a nullity by the Tenth 
Circuit because the victims had no standing under article III of the 
Constitution. So the question of standing and harm all enter into this. 
Everything I have been able to deduce is, the only way to provide 
standing to be a party at issue in the situation is through the 
Constitution of the United States. Would my colleague agree with that?
  Mr. KYL. Yes. I thank Senator Feinstein for that statement. It is a 
confirmation that scholars of law, not only she and I, have reached 
this conclusion.

  I was just reminded of another place in which this conclusion is 
found. The U.S. Department of Justice volume ``New Directions from the 
Field, Victims Rights and Services for the 21st Century.'' Among the 
statements in this report is the following:

       Granting victims of crime the ability to participate in the 
     justice system is exactly the type of participatory right the 
     Constitution is designed to protect and has been amended to 
     permanently ensure. Such rights include the right to vote on 
     an equal basis and the right to be heard when the government 
     deprives one of life, liberty or property.

  What we have provided here is a set of rights, some expressed in 
terms of ``not to be excluded from,'' some expressed as a right such as 
a right to vote, as has been noted. In each case, the fundamental basis 
is that the Government cannot deprive one of their ability to 
participate in the criminal justice process to the extent we have 
defined it here. I think that is a very important distinction. As the 
Senator pointed out, without the standing to assert the right, it would 
be hollow. It would be merely an oratory statement. That is precisely 
why the people in the Oklahoma City bombing case couldn't vindicate 
their rights. The court said they didn't have any standing.
  Mrs. FEINSTEIN. The point made by the Oklahoma City case is that 
these were not indigent victims. They had Washington counsel, 
distinguished counsel of very high quality. They tried to assert the 
rights under the statute, and the court essentially turned them down. 
This isn't what we think; this is what happens. I will quote a bit more 
from Professor Tribe on this very subject, until Senator Byrd, who is 
next, comes to the Chamber.
  Larry Tribe makes this statement:

       Beginning with the premise that the Constitution should not 
     be amended lightly and should never be amended to achieve 
     short-term partisan or purely policy objectives, I would 
     argue that a constitutional amendment is appropriate only 
     when the goal involves (1) a needed change in government 
     structure, or (2) a needed recognition of a basic human 
     right, where (a) the right is one that people widely agree 
     deserves serious and permanent respect, (b) the right is one 
     that is insufficiently protected under existing law, (c) the 
     right is one that cannot be adequately protected through 
     purely political action such as state or federal legislation 
     and/or regulation, (d) the right is one whose inclusion in 
     the United States Constitution would not distort or endanger 
     basic principles of the separation of powers among the 
     federal branches . . . (e) the right would be judicially 
     enforceable without creating open-ended or otherwise 
     unacceptable funding obligations.

  Professor Tribe goes on to say:

       I believe that S.J. Res. 3 meets these criteria. The rights 
     in question--rights of crime

[[Page S2902]]

     victims not to be victimized yet again through the processes 
     by which government bodies and officials prosecute, punish, 
     and/or release the accused or convicted offender--are 
     indisputably basic human rights against government, rights 
     that any civilized system of justice would aspire to protect 
     and strive never to violate.

  Mr. SCHUMER. Will the Senator yield for a question?
  Mrs. FEINSTEIN. I am happy to yield when I have concluded my thought. 
I am in the middle of a quote from a very distinguished law professor, 
whom I know Senator Schumer respects greatly.
  Mr. SCHUMER. I do, and I know him well. I thought the quote was 
finished. His quotes do go on.
  Mrs. FEINSTEIN. They do go on. And once more, they are worth 
listening to.
  Mr. SCHUMER. Indeed.
  Mrs. FEINSTEIN. Continuing the quote:

       To protect these rights of victims does not entail 
     constitutionalizing the rights of private citizens against 
     other private citizens; for it is not the private citizen 
     accused of crime by state or federal authorities who is the 
     source of the violations that victims' rights advocates hope 
     to address with a constitutional amendment in this area. 
     Rather, it is the government authorities themselves, those 
     who pursue (or release) the accused or convicted criminal 
     with insufficient attention to the concerns of the victim, 
     who are sometimes guilty of the kinds of violations that a 
     properly drawn amendment would prohibit.

  I think that well states what we are trying to do.
  I am delighted to yield to Senator Schumer.
  Mr. SCHUMER. I thank my colleague. Before I ask my question, I 
commend Senator Feinstein. We strongly disagree on the proposal before 
us. But I know that for years and years she has been concerned about 
victims. I know also of the passion, hard work, and diligence she 
brings to the debate. I commend her for that. Our strong disagreement 
on the issue does not in any way lessen my respect for her or the 
Senator from Arizona for the job they have done in moving this 
amendment to the floor.

  Mrs. FEINSTEIN. We are eagerly awaiting the ``but.''
  Mr. SCHUMER. There is no ``but'' about my respect for the Senator. 
However, there is a ``but'' about Professor Tribe's remarks in the 
whole. What bothers me most about this amendment--and I have expressed 
this to the Senator--is as follows. Of the five criteria Professor 
Tribe lays out, I think I would agree with four of them. I think that 
amendments should not be done lightly. But I think there are times when 
we have to amend the Constitution, although reluctantly. I certainly 
believe the rights of victims are extremely important. As the Senator 
knows, we worked on the crime bill of 1994 together. I worked 
diligently in the House to add the right of allocution and other things 
to the bill. I understand why the statute didn't work in Oklahoma City 
although I would like to debate another point.
  But Professor Tribe, I think, goes off base when he says a statute 
would not take care of this problem. So I have a two-part question. 
First, why is it not better, if this particular statute does not work, 
to redesign it? Why is it not better to take the basic amendment that 
the Senator from Arizona and the Senator from California have offered 
and make it a statute, given the fact that we have not had a single 
State supreme court--in some States, such as mine, they are not called 
a supreme court--but the highest court of any of the 50 States throw 
out a victims' rights amendment on the basis of unconstitutionality. 
Given the fact that the Supreme Court has not rejected such an 
amendment, it seems to me that given that the language proposed--which 
is still being worked on, so it may change--is longer than the entire 
Bill of Rights and is not the language of a constitutional amendment--
at least any that I have seen--why don't we try to refine the statute 
rather than move to a constitutional amendment with such alacrity?
  Professor Tribe said a statute would not work. I have not seen that. 
I have seen, in my State and many others, victims' rights statutes work 
and work very well. That is my question to the Senator from California. 
I thank the Senator for her graciousness.
  Mrs. FEINSTEIN. First, I think the Senator knows I have very deep 
respect for him. If I am fighting a battle, he is certainly one I would 
like to have in the trench with me.
  Mr. SCHUMER. And usually I am there.
  Mrs. FEINSTEIN. There is always room in the trench to change his 
mind, if the Senator cares to. I do appreciate his concern and his 
testimony does carry weight with me. As a matter of fact, it was 
Senator Schumer's comment in the Record that I referred to last night 
when I addressed and talked with the attorneys in Oklahoma City today 
who represented the victims--Professor Cassell was one of them--and got 
that chronology.
  To me, the reason the statute won't work is because it hasn't worked. 
Both Houses of Congress, and even the redoubtable intelligence of the 
Senator in working on both the 1990 and the 1997 statute, rendered both 
a nullity by the Tenth Circuit. Therefore, they were victims in that 
entire circuit and are effectively left without a remedy, and the 
belief is that it would be difficult in that circuit, based on the 
precedent that has been set, without providing standing for victims in 
the Constitution under article III, to have a successful statute.

  Now, I don't believe many victims have the wherewithal to get a 
professor of law at a distinguished university and a Washington law 
firm. The people who are going to be the most impacted by this are 
poor, are minorities, where most of the crime victims, after all, 
really are in the Nation. So the ability for them to get redress under 
a statute, I think, is effectively quite limited.
  Addressing the second part about the drafting of this article, we 
have been at this for 4 years. There are 800 pages of testimony, as I 
have mentioned. I ask Senator Kyl, how many meetings does the Senator 
believe we have had with the Justice Department in the last 4 years 
over the wording in this?
  Mr. KYL. Mr. President, if you count all of the informal meetings and 
various meetings back and forth with staff, certainly it would be well 
over a dozen.
  Mrs. FEINSTEIN. So we have had at least a dozen meetings with 
Justice. The concepts are the authors', and much of the writing is 
actually a product of those meetings with the Justice Department. In 
fairness, staff has changed over the years. We worked with one 
assistant U.S. Attorney General, and that person has changed, and so on 
and so forth. We have also worked with White House staff. The basics of 
the amendment that the Senator questions as being burdensome in 
verbiage is really very simple: to reasonable notice of, and not to be 
excluded from any public proceedings relating to the crime; to be 
heard, if present; to submit a statement at all such proceedings to 
determine a conditional release from custody and acceptance of a 
negotiated plea or sentence.
  I might say that this was gone over with precision and detail with 
Justice as to whether a plea bargain would be effected; the foregoing 
rights in a parole proceeding that is not public to the extent these 
rights are afforded to the convicted offender; the reasonable notice of 
and an opportunity to submit a statement concerning any proposed pardon 
or commutation; reasonable notice of escape or release from custody. I 
will say the pardon has not been worked out with Justice, and there are 
some negotiations going on about that right now. But notice of release 
or escape; consideration for the interest of the victim; that any trial 
be free from unreasonable delay--there was considerable discussion 
through Senator Kyl, ourselves, attorneys for the victims, victims' 
rights groups, as to not to create a problem there. And the words ``to 
consideration of the interest'' were added to avoid any problem. To 
order restitution, to consideration for the safety of the victim in 
determining any conditional release from custody, and to notice of the 
rights: that is essentially the bulk of the basic rights. The rest sets 
up a vehicle.
  Now, we have heard two Senators come to the floor and say: ``Who 
would define a victim?'' We have to write in this that the Congress 
shall have the power to enforce this article by appropriate 
legislation. So the Congress would enforce the article. And some of 
that language, by way of clarification, is added.
  This is not 1791; it is the year 2000. Fortunately, since 1791, there 
is court precedent. There is now definition of

[[Page S2903]]

language in the law that has been predetermined, and it is much more 
complicated, I think, to write this kind of language than it was way 
back when.
  Mr. SCHUMER. Mr. President, I thank the Senator for her answer, and I 
simply make three points. Before I do, I want to refer to a letter from 
Chief Justice Rehnquist in opposition saying that a statute would be 
far preferable to a constitutional amendment. This letter is to Judy 
Clarke, President of the National Association of Criminal Defense 
Lawyers. I will read it:

       I have received the letter of March 21, commenting on 
     various measures pending in Congress relating to the 
     judiciary. The Judicial Conference has recently taken a 
     position in favor of making provision for victims' rights by 
     statute, rather than by constitutional amendment; this would 
     have the virtue of making any provisions in the bill which 
     appeared mistaken by hindsight to be amended by a simple act 
     of Congress.

  It makes the very point. The Senator admitted that negotiations are 
still ongoing. We are debating a constitutional amendment that must be 
passed by two-thirds of each Chamber and then three-quarters of the 
States. We are still debating the language.
  Mrs. FEINSTEIN. Will the Senator permit me to respond?
  Mr. SCHUMER. I will in one second. I want to finish my statement.
  First, the kind of definitions that the Senator has talked about of 
appeals procedures has never been in the U.S. Constitution. In fact, 
what happened before is there would be a two- or three-line sentence 
that the rights of victims should be protected, and then we would work 
out by statute what the details were.
  I have never seen a constitutional amendment such as this. It is the 
21st century. I agree with that. But that doesn't mean the elegance of 
thought and language in the Constitution of the 18th century should be 
thrown out the window, and we are doing that here.
  I ask the Senator, why, if she believes in a constitutional amendment 
with a two- or three-line amendment talking about victims' rights, 
would she not be far more in keeping with constitutional thought and 
theory than a 15-page document which clearly is written in statutory 
and not constitutional language? Second, if the detailed definitional 
language that the Senator is talking about works, it will work as a 
statute.
  The reason the Oklahoma City case didn't work is the statute was 
poorly drafted, at least in terms of what the Senator is saying. I will 
have more to say about that later. I don't want to occupy her time on 
this, but if the language works as a constitutional amendment, the very 
language that we have before us admittedly being rephrased or 
redrafted, why doesn't it work as a statute?

  The problem that is pointed to in the Oklahoma City case is not the 
amendment. If the very same language were a constitutional amendment, 
God forbid, it still wouldn't have been applied because the judge 
didn't throw it out on an unconstitutional basis. He basically ignored 
it, which meant it wasn't clear enough.
  No. 1, do we have any amendment in the Constitution that compares in 
detail and outlines procedurally what we have here?
  No. 2, if this language works as a constitutional amendment, why 
wouldn't it work as a statute?
  No. 3, if a constitutional amendment is necessary, although again it 
has not been thrown out by the Supreme Court, or any lower court, why 
wouldn't we have a simple, elegant three-line statement talking about 
the rights of victims, and then let the details of legislative 
engineering be worked out in statute as it has been done in this 
country, regardless of whether Democrats, Republicans, Whigs, or Free-
Soilers, or anybody else has been in charge?
  I thank the Senator for her patience. I feel as passionately on our 
side as she does on her side.
  Mrs. FEINSTEIN. I am going to defer to the distinguished Senator from 
Arizona to give the opening response, and then I would like to finish 
up, if I might.
  The PRESIDING OFFICER (Mr. Hagel). The Senator from Arizona.
  Mr. KYL. Mr. President, before she arrived at noon, I had shared some 
specific comments that go directly to Senator Schumer's questions. I 
thought I would repeat what I said here in brief.
  The first objection is that this is too wordy. It is not 15 pages. It 
is about 2\1/5\ pages. But the total number of words that describe 
victims' rights is 179. The total number of words in the amendment, 
except for the technical provisions regarding the effective date, is 
307. If you add them all up, it is 394 words. Again, 179 of those words 
describe the victims' rights. The defendants' rights consume 348 words 
in the U.S. Constitution. The Bill of Rights is 462 words. If you add 
it up word for word, we win, as I said this morning. But that, 
obviously, is hardly a way to evaluate.
  Mr. SCHUMER. It shouldn't be 2\1/5\ pages, it should be 2\1/5\ lines 
in keeping with the way the Constitution is written.
  Mr. KYL. That is the second point. We are criticized on two accounts. 
We literally can't win. On one hand, the Senator from New York and 
others have said it is subject to interpretation. What does 
``reasonable'' mean? On the other hand, we have written too much. We 
ought to just say ``reasonable rights'' and then flesh it out in 
statute. We can't win, if that is the argument.
  What we have done, I submit, is the compromise that the Founding 
Fathers did. They expressed general terminology in order to keep it 
short and succinct, understanding that it would have to be fleshed out. 
But what we have done is to describe in enough additional detail to 
ensure that there could never be a contention that we are infringing on 
a defendant's rights and to be sure there would never be a criticism 
that we weren't specific enough about what these rights were. So we 
have actually enumerated these eight specific rights. But I think we 
have struck the right compromise in that regard.

  Two other quick points, if I may: The Senator correctly pointed out 
that it appears one of the reasons for the judge's decision in the 
Oklahoma City bombing case was that he just ignored it. I think it is 
hard to figure out exactly why he didn't apply it. He couldn't ignore a 
U.S. constitutional provision as he could ignore a Federal statute, 
which is precisely why we need a Federal constitutional amendment. It 
may also be that the Oklahoma City statute was not well enough drafted. 
I think that is exactly correct as well. It is no answer to say that a 
statute would be the way to go here, that it is better than a 
constitutional provision.
  The bottom line is this: In words somewhat similar to those words 
that protect the rights of the accused, we have identified eight 
specific rights. I have yet to see anybody say those eight specific 
rights should not be guaranteed. Rather, the argument is that they 
should be put in statute. Senator Schumer has just pointed out why 
putting it in statute doesn't work.
  Mr. SCHUMER. If the Senator will yield, I think this should be a 
debate that goes on for some time. That is what we are having here as 
opposed to everyone making speeches periodically. I very much 
appreciate that and would be happy when I come to the floor to yield 
time to opponents of the bill to continue this debate.
  But I would simply say to my good friend from Arizona that a statute 
is no less the law of the land than a constitutional amendment. The 
idea that a constitutional amendment should be taken into account more 
than a statute doesn't hold up in terms of jurisprudence. I am sure 
even my good, mistaken friend in this case, Larry Tribe, would agree 
with that. But for whatever reason, one judge ignores a statute. The 
Senator is right. It is murky. It is hard to figure out why. We then 
leap to a constitutional amendment, one with almost as many words as 
the entire Bill of Rights. It doesn't make any sense to me.
  I ask the Senator: Because a judge in Oklahoma City, a case I care 
very much about, ignored statutory language, why don't we try once 
again? Why don't we try, whether that case was on appeal, or in another 
way, to make sure that judges can't? You could easily write a statute 
that says the right of allocution is not granted. You can't proceed 
with sentencing. If some judge somewhere--I doubt there would be one--
should refuse to apply that law, you would win on appeal, pardon my 
saying, in a ``New York minute.'' A constitutional amendment doesn't 
give any more authority for a judge to apply than a statute. The whole 
reason

[[Page S2904]]

we have constitutional amendments, as laid out by Larry Tribe, is for 
restructuring the Government. It is guaranteeing a basic right that 
couldn't be guaranteed otherwise.
  I yield to the Senator from California to answer. But because a judge 
ignores a statute in one case, how do we then leap to a constitutional 
amendment?
  Mrs. FEINSTEIN. I think that is a very important question. I am sure 
I cannot answer as adequately, but let me try. I think any statute 
lasts a ``New York minute.'' Let me state why.

  I think there is bureaucratic inertia. At our caucus yesterday, to be 
very frank, I was amazed at Members' reactions. We are trying to give 
victims certain basic rights. I almost came out of the caucus feeling 
somewhat un-American because I am trying to do something that can stand 
the test of universal time to improve a very convoluted, difficult 
administration of justice process in this country, to ensure victims a 
certain participation in the process.
  Mr. SCHUMER. We all want to do that. The question is the method. The 
issue is not whether we want to give victims' rights or not.
  Mrs. FEINSTEIN. I grant that the 1997 clarification act, which, as I 
understand it, meant to say that a victim could both be present in 
court and make a statement, was simply not answered; it was ignored.
  The 1990 victims' rights amendment was a more considered bill, 
developed over a period of time, and was the one with which the Tenth 
Circuit essentially said that victims lack standing under article III 
because they had no legally protected interest to be present at the 
trial and had suffered, therefore, no injury.
  I don't know how one remedies by statute to withstand the test of 
time, the bureaucratic inertia, the equivocation that goes on.
  From 1850, we have a century and a half in this country where victims 
have had no rights in the process. The process has locked itself. The 
Senator is right, some district attorneys don't want to be responsible 
to send a victim or say, Give me your address and phone number if you 
want to come to court; I will notify you. Then it is up to the victim 
to provide that and be there at the appropriate time. Many don't want 
to do that.
  What makes me very suspect is, that reaction is disproportionate to 
what we are trying to achieve, which is basically status rights. It is 
not like the right to counsel, not like a right of a jury of your 
peers, it is not like protection against double jeopardy or 
unreasonable search and seizure. Those are very ``meaty'' rights that 
defendants have that should be provided, including the right to be 
present, the right to make a statement--pretty simplistic rights.
  Mr. SCHUMER. No question; I agree with the Senator, those are 
simplistic and they should be enshrined in law. I have spent a good 
number of years in the other body trying to make that happen.
  When the Senator asks, why is there such passion against this 
amendment, please do not mistake it for the substance of the amendment. 
There may be some who believe that, but not me, and I don't think that 
is the mainstream of the opposition for both Republican and Democrat.
  Mr. KYL. If I might interrupt, all of this is on my time, which is 
fine with me. It is a good exchange, and I agree with the Senator from 
New York, this is the right way to debate the subject. I am happy to 
have the Senator finish his thought, but I want to respond to a 
question asked some time ago.
  Mr. SCHUMER. Mr. President, I ask unanimous consent to respond using 
3 minutes of my time.
  Mr. KYL. That is fine.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I say to the Senator, passion is passion. 
There is not a lack of passion for victims' rights but a passion for 
this wonderful, noble document, the Constitution of the United States. 
I say this in all due respect.
  I think if this amendment were added, it would cheapen the 
Constitution--not cheapen the issue of victims' rights, which is 
important, but we have never done this before. The passion goes to the 
beauty of the Constitution, to the fact that we have never added a 
constitutional amendment, because two judges failed.
  The Senator was good enough to mention that 1990 case. One lower 
court judge said it might not fit with article III. Again, don't leap 
to a constitutional amendment. If we were to have constitutional 
amendments every time a lower court judge ruled that something was 
unconstitutional, we would have a Constitution of the United States 
that would be 10 volumes long. We would spend all of our time revising 
that Constitution. I daresay the structure of government could fall 
because we need two-thirds, two-thirds, three-quarters to do it.
  The passion here is on a fundamental difference about what the 
Constitution of the United States means. I would be the first to join 
the Senator if the U.S. Supreme Court said the same thing that lower 
court said in 1990. But one lower court in 1990, one lower court in 
1997, and now we say let's double virtually.
  Mrs. FEINSTEIN. Circuit court.
  Mr. SCHUMER. A circuit court in 1990, two lower courts, but no U.S. 
Supreme Court.
  I would join the Senator if the Supreme Court said the same thing. I 
agree with her that victims' rights should receive a higher elevation 
in the pantheon of criminal justice. But now the issue is not ripe. The 
Supreme Court hasn't ruled defendants' rights trump victims' rights. We 
have had two poor attempts to draft legislation.

  To their credit, the Senator from California and the Senator from 
Arizona have come up with a better proposal. They have still not 
addressed, to my satisfaction, why we need to do a constitutional 
amendment when I think a statute would do exactly the same job and 
could be passed more quickly. One would not need the two-thirds. We 
could get this done. If then someone fought the statute and the Supreme 
Court of the United States ruled it unconstitutional, we would all be 
on the floor supporting this amendment.
  The passion, to answer the Senator, was a passion for the way of the 
Constitution, a passion that we do not amend the Constitution unless we 
absolutely have to. That does not go to the need to give victims more 
rights. That goes to the fact that none of these victims' rights laws 
has been declared unconstitutional by the highest court of this land or 
where it would still be legitimate by State supreme courts.
  I think my 3 minutes have expired. I will continue the debate with 
the Senator from Arizona and the Senator from California. Again, I 
respect their motivations, I respect their substantive position, but 
please, God--please, God--let us not be precipitous in amending this 
great U.S. Constitution when there is another, quicker, and just as 
efficacious way to accomplish the well-thought-out goal of our 
Senators.
  I reserve the remainder of my time.
  Mr. KYL. Mr. President, I think the Senator from New York has made an 
excellent presentation. As a matter of fact, that is the presentation I 
made about 4 years ago when a very fine attorney in Arizona came to me 
and said these State constitution provisions in statute are not 
working, we need a Federal constitutional amendment. I made essentially 
the same argument, probably not as eloquently as the Senator from New 
York.
  I share with the Senator both the concern for victims' rights and a 
concern for the U.S. Constitution not being unduly tampered with. We 
all acknowledge that it can and sometimes should be amended. However, 
it should be done only when necessary. In that we all agree.
  He made the case to ask the question, Why not a statute? I respond to 
that in three quick ways.
  First, let's get one thing out of the way. We do not want to amend 
the Constitution only when there has been a finding by the U.S. Supreme 
Court that some action we want to take is unconstitutional. Of course, 
there are not findings that State constitutional provisions or statutes 
are unconstitutional. There would be no reason for that. None of them 
conflicts with defendants' rights. That is the only basis on which I 
can think they would be declared unconstitutional. No one wants to 
conflict with or hurt defendants' rights.

[[Page S2905]]

  There is no reason to expect any provision will be declared 
unconstitutional. There is a problem with respect to precedent, and 
that is, the Tenth Circuit has held there is no standing to enforce a 
Federal statute that the Senator from New York helped to draft. That is 
a problem.
  Now I believe in seven different States victims do not have the 
standing to assert rights we provided in a Federal statute.  That is 
bad. That is a precedent we need to overturn and can overturn with a 
constitutional amendment.

  The third point in this respect is that the problem is not that there 
has been or ever would be a finding of unconstitutionality with respect 
to these statutes or provisions. It is, rather, that they are just not 
enforced. As somebody said, they are enforced more in the breach than 
in the observance. That is the problem. Not that there is 
unconstitutionality.
  Let me do the other two things I wanted to do. I see the Senator from 
Vermont is standing.
  Mr. LEAHY. I wonder if the Senator will be willing to yield just for 
a moment to the Senator from Hawaii.
  Mr. KYL. I yield to the Senator from Hawaii.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. AKAKA. Mr. President, I rise to yield my time under the present 
measure to the Senator from Vermont, Mr. Leahy.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. KYL. As soon as I conclude these two points, again I am happy to 
allow the Senator from Vermont to speak. I was waiting for this last 
hour or so and thought we would take up the time, and Senator Schumer 
has provided a very important challenge. Why not a statute? I provided 
the first answer.
  Second, let me provide the answer from a piece Paul Cassell wrote, 
offered earlier by Senator Feinstein. He said:

       In theory victims' rights could be safeguarded without a 
     constitutional amendment. It would only be necessary for 
     actors within the criminal justice system--judges, 
     prosecutors, defense attorneys, and others--to suddenly begin 
     respecting victims' interests. The real world question, 
     however, is how to actually trigger such a shift in the 
     Zeitgeist. For nearly two decades, victims have obtained a 
     variety of measures to protect their rights. Yet, the 
     prevailing view from those who work in the field [including 
     the Justice Department in this fine volume, New Directions 
     from the Field] is that these efforts ``have all too often 
     been ineffective.'' Rules to assist victims ``frequently fail 
     to provide meaningful protection whenever they come into 
     conflict with bureaucratic habit, traditional indifference, 
     or sheer inertia . . . '' The view that state victims 
     provisions have been and will continue to be disregarded is 
     widely shared, as some of the strongest opponents of the 
     Amendment seem to concede the point. For example, Ellen 
     Greenlee, President of the National Legal Aid and Defender 
     Association, bluntly and revealingly told Congress that the 
     State victims' amendments ``so far have been treated as mere 
     statements of principle that victims ought to be included and 
     consulted more by prosecutors and courts. A state 
     constitution is far . . . easier to ignore than the federal 
     one.''

  A fortiori, as we lawyers say, a statute is far easier to ignore than 
the Federal Constitution.
  Just citing a couple of more points in Paul Cassell's piece, he 
quotes from the Department of Justice, the Attorney General herself. 
The Department finding that these various efforts--the State and 
Federal and statutory and constitutional provisions:

       . . . have failed to fully safeguard victims' rights. These 
     significant state efforts simply are not sufficiently 
     consistent, comprehensive, or authoritative to safeguard 
     victims' rights.
  I would intersperse that a Federal statute, of course, is in the same 
category. In fact, it is of a slightly lower category than a State 
constitutional amendment in the State courts. In any event, with 
respect to the number of crimes of violence in the Federal system, you 
are only talking about approximately 1 percent of the crimes. So 
clearly a Federal statute does not give you anything that these State 
statutes do not.
  But here is the point, and I continue to quote here:

       Hard statistical evidence on non-compliance with victims' 
     rights confirms these general conclusions about inadequate 
     protection.

  In other words, now let's go to the tape. Let's look at the numbers, 
not just the conclusions reached by scholars.

       . . . the National Institute of Justice found that many 
     crime victims are denied their rights and concluded that 
     ``enactment of State laws and State constitutional amendments 
     alone appears to be insufficient to guarantee the full 
     provision of victims' rights in practice.''

  Here are the statistics. For example:

       . . . even in several States identified as giving ``strong 
     protection'' to victim's rights [like my State of Arizona and 
     Senator Feinstein's State of California] fewer than 60 
     percent of the victims were notified of the sentencing 
     hearing and fewer than 40 percent were notified of the 
     pretrial release of the defendant.

  Fewer than 40 percent. Would we consider that a good enough job in 
notifying defendants of their right to counsel? Would we consider, if 
the police in 40 percent of the cases remembered to give the Miranda 
warnings, that that would be OK? Absolutely not. That is the 
fundamental difference between a constitutional right and a statute, or 
a State constitutional provision. They just are not enforced with the 
same degree of vigor and consistency and care as the U.S. Constitution 
must be and is. So we find that 40 percent of the people who ought to 
be notified that their assailant is about to be released from prison 
never get the notice. That is in the good States. That is not good 
enough. After 18 years of experience with this, we ought to appreciate 
that statutes and State constitutional provisions just have not done 
the job.
  That is the second reason. I will get to the third one. But that is 
the second key reason why the Senator's question, Why not a State 
statute or State constitutional amendment or Federal statute? just has 
not worked. I will be happy to yield to the Senator from New York.
  Mr. SCHUMER. Just a quick question. One thing we obviously do, and we 
have gotten much better enforcement on a whole lot of Federal statutes, 
is say that they will lose all Federal crime money if they do not 
notify the victim.
  Mr. KYL. I am sorry?
  Mr. SCHUMER. What I was proposing--I think the present statutes are 
not working. I think they were poorly done. One way to get enforcement, 
a good way that we have used in this body over and over again, which 
has not even been tried yet, is to say the State would not get crime 
money, whether it be for Cops on the Beat, for building prisons, for 
Byrne money for the DAs, if they don't notify the victims. The State 
would do much better than 40 percent.
  The reason this statute has not worked is no one has put any teeth 
into it. Why do we not put some teeth into it before jumping to the 
Constitution? I yield.
  Mr. KYL. First of all, the Federal statute applies to Federal crimes 
which constitute about 1 percent of what we are talking about. Even if 
you could put good teeth in the Federal statute, you would be dealing 
with 1 percent of the cases. That leaves, what, 59 percent to go, by my 
calculation.
  Second, these State constitutional provisions are very well written. 
The one that we have in Arizona was adopted with between 70 and 80 
percent of the vote, the one that has been adopted in California and 
these other States--they are very good. It is not that they are not 
well written. The question is, Why should you have to have a penalty 
for somebody, for a judge who fails to provide the notice, for example? 
Why should we deny Federal law enforcement support when everybody knows 
that is really needed? It is not a good enforcement mechanism. The best 
enforcement mechanism, of that which we consider to be fundamental 
rights, is the recognition that they are embodied in the U.S. 
Constitution and nobody wants to deny those. If 40 percent of the 
people who should get notice under State constitutional provisions get 
notice, something is drastically wrong. Until you put that in the U.S. 
Constitution, it is not going to change.
  Mrs. FEINSTEIN. If the Senator will permit me, because I think he so 
well outlined that, I want to add one thing. No matter what we craft--
we have taken two cracks at it and missed. Maybe the third time will 
either be another strike or a home run. I don't know. But, nonetheless, 
no matter how the statute is crafted, it will affect just 1 to 2 
percent of the victims of violent crime all across this great land. For 
me, that is a very great problem.

[[Page S2906]]

  Mr. SCHUMER. If the Senator will yield for a second, we have crafted 
many other criminal justice laws where we told the States, unless they 
did A, B, and C, we would take away their Federal money, and they did 
it. Drunk driving laws, sex offender laws--we can affect all 100 
percent by using the tool of Federal money.
  I yield back.
  Mrs. FEINSTEIN. Then I think it is the wrong tool for what is a basic 
human right against government because it is government that refuses 
these people access. I think then you have to monitor government, and 
it would take a whole new bureaucracy to monitor government to see 
every notice was sent out and every change of address and that kind of 
thing. But I want to read a statement from someone who you do respect. 
I know you respect Professor Tribe. In addition, I know you respect the 
Attorney General of the United States. Just before you leave, I want to 
read a statement:

       Unless the Constitution is amended to ensure basic rights 
     to crime victims, we will never correct the existing 
     imbalance in this country between defendants' irreducible 
     constitutional rights and the current haphazard patchwork of 
     victims' rights. While a person arrested or convicted of a 
     crime anywhere in the United States knows he is guaranteed 
     certain basic protection under our Nation's most 
     fundamental law, the victim of that crime has no guarantee 
     of rights beyond those that happen to be provided and 
     enforced in the particular jurisdiction where the crime 
     occurred.

  This is similar to the discussion of how many angels dance on the 
head of a pin. I supported the first State constitutional amendment in 
1982. It is now 18 years later. Even by constitutional amendments, what 
Senator Kyl said about 60 percent and 40 percent of victims being 
responded to is really correct. We believe it is never going to be 
enforceable, it is never going to be carried out. The bureaucratic 
inertia is too great, the system is too ingrained, and the Constitution 
of the United States should not be so static and so immutable that 
people who have suffered violence do not have a right in a court of 
law. That is what we are about. Thank you.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I thank the Chair. Mr. President, I wish to start by 
acknowledging the outstanding statements that were made during the 
course of yesterday's debate. Senators Dorgan, Feingold, Schumer, 
Durbin, Moynihan, and Thompson each made a significant contribution to 
this debate. I thank them for sharing their views on the Constitution.
  Before we go on in this debate, and before we get to the actual vote 
on the motion to proceed, I want to mention a couple issues that need 
to be considered:
  One, who is a victim for purposes of the proposed constitutional 
amendment, and secondly, what does the amendment mean to prosecutions?
  We asked the Congressional Research Service. This is what they said:

       [S.J. Res. 3 leaves] to another day the definition of 
     ``victim'' for purposes of the amendment. . . . It is yet 
     unclear whether S.J. Res. 3 . . . will wipe the slate clean 
     or simply supplement existing law and whether it will trump 
     conflicting defendant constitutional rights or if the need to 
     accommodate both will in rare instances preclude prosecution 
     in order to avoid conflict.

  Think about that. CRS says under this amendment there are times when 
one might not be able to prosecute at all because of a conflict in its 
wording.
  I do not know how stopping a prosecution with this amendment helps a 
victim in any way, shape, or manner.
  What I wish instead is for those who share the concerns as I do for 
the victims of crime to join with me in finding a way to achieve 
progress without damaging our Constitution. I hope that even the most 
ardent proponents of this proposed constitutional change will try to 
find the best language possible. As Senator Torricelli said during 
debate on the so-called balanced budget amendment in 1997: ``Good is 
simply not good enough when we are amending the Constitution of the 
United States.'' I agree. Constitutional amendments should be held to a 
much higher standard than simply what is good.
  Every one of us begins a Congress by swearing that we ``will support 
and defend the Constitution and bear true faith and allegiance to the 
same.'' We are honored by the constituents of our States. They allow us 
to serve here. We have that duty, if they allow us to serve, to honor 
and defend the Constitution.
  But the oath does more than that. It recognizes our obligation to the 
great constitutional tradition of the United States and for those who 
forged this wonderful document. Our oath recognizes our responsibility 
to those who sacrificed to protect and defend our Constitution, but it 
is also our legacy to those who will succeed us.
  No Member of this body owns a seat in the Senate. One-hundred of us 
are privileged to represent 250 million Americans. In days and years to 
come, others will take our places. Not only do we have to honor the 
commitment of those who put us here now, but we have to make sure we 
preserve the legacy for those who come after us.
  I am afraid, as we see more and more constitutional amendments come 
down the pike--we have had 11,000 proposed since this country began--
that we run the risk of our Constitution, which has served this Nation 
so well for over 200 years, being treated by the Senate as a rough 
draft rather than as the fundamental charter of this great and good 
Nation.
  Over the last 6 years, this institution, the Senate, has been acting 
as though the Constitution is no longer serviceable, as though it needs 
some kind of major overhaul, as if we fortunate few who have been 
chosen to represent the people of our States since coming to Washington 
have acquired some special wisdom that makes us smarter than all the 
patriots and all the public servants who preceded us and wiser than the 
legislatures of all of our States, and certainly more knowledgeable 
than the founders of this Nation.

  In 1995, the Senate debated and rejected three proposed 
constitutional amendments--H.J. Res. 1 on budgeting, S.J. Res. 21 on 
congressional term limits, on which cloture was immediately filed but 
was not invoked, and S.J. Res. 31 regarding the flag. Since that time, 
the Senate Judiciary Committee has continued to report proposed 
amendments at a record clip, and the Senate has been called upon to 
reaffirm its rejection of a proposed constitutional amendment on 
budgeting and to debate and vote on a proposed constitutional amendment 
on campaign finance.
  Last year, the Senate devoted several weeks to an event of truly 
constitutional magnitude. That was the impeachment trial of the 
President. This year the pace of constitutional proposals has 
accelerated again. This is the third proposal to amend the Constitution 
that the Senate has been asked to debate in the last 30 days alone--the 
third constitutional amendment in the last 30 days. We could turn 
ourselves into another country, as referred to on this floor yesterday 
when the distinguished senior Senator from New York said that country's 
constitution changes so rapidly that the libraries should find it under 
periodicals.
  In 1995, when he was to cast the decisive vote against a 
constitutional amendment on budgeting, Senator Mark Hatfield of Oregon 
came to the Senate floor to explain how he would vote. My dear friend 
of over 20 years said:

       The debate on the balanced budget amendment is not about 
     reducing the budget deficit, it is about amending the 
     Constitution of the United States with a procedural gimmick. 
     . . . As I stated during the debate on a balanced budget 
     amendment last year, a vote for this balanced budget 
     amendment is not a vote for a balanced budget, it is a vote 
     for a fig leaf.

  Then Senator Hatfield concluded by saying:

       Voting for a balanced budget amendment is easy, working to 
     balance the budget will not be. The Congress should not 
     promise to the people that it will balance the Federal budget 
     through a procedural gimmick. If the Congress has the 
     political will to balance the budget, it should simply use 
     the power that it already has to do so. There is no 
     substitute for political will and there never will be.

  My friend from Oregon was right. But the same could be said about 
crime victims' rights. Supporting a crime victims' rights 
constitutional amendment is easy, but working to ensure that crime 
victims are afforded their rights and that the protective provisions of 
law are implemented, that is something else again. That takes real 
effort. It takes on-the-ground implementation and the dedication of the 
necessary resources and effort.

[[Page S2907]]

  We have had profiles in courage on constitutional amendments on this 
floor. Last month, the distinguished senior Senator from West Virginia, 
Senator Robert C. Byrd, showed courage and commitment to constitutional 
principles when he voted against S.J. Res. 14, a constitutional 
amendment regarding the flag. I was fortunate to be present during his 
extraordinary statement on March 29. During that statement he counseled 
the Senate, but he also counseled the Nation on how to approach 
proposals to amend the Constitution.
  I said then that his statement was a great history lesson and example 
of political courage because Senator Byrd was reconsidering his vote. I 
must admit, much as I enjoyed his observations, much as I learned from 
them, I did not know they would be so instructive again so soon.
  With respect to this proposed constitutional amendment on crime 
victims' rights, there is an open secret in this body; and that is, a 
number of Senators have begun conceding privately, many over the last 
several weeks, that they have personal misgivings about voting for this 
proposed amendment. They know that it is not necessary. They know that 
it does not meet the standard of Article V of the Constitution to 
justify constitutional amendments. It is not that necessary amendment 
of which Article V speaks.
  Some of these Senators, people I respect greatly, on both sides of 
the aisle, admit they joined as cosponsors because it is popular, 
because there seemed little reason not to, or because another one of 
the sponsors had persistently urged them to do so.
  But as one who has served a long time, as one who has certainly made 
his share of mistakes in votes or positions, but as one who has had the 
privilege to vote on this floor more than 10,000 times, I say to each 
of those Senators, including those who cosponsor this proposed 
constitutional amendment, that you have succeeded by your efforts in 
bringing this matter to debate before Congress. I say this most 
sincerely to the cosponsors, this debate can result in greater 
recognition of crime victims' rights. They could do that without 
amending the Constitution.
  I also say, respectfully, that now it is time to debate and to 
consider that debate and decide how you will vote, whether you are a 
cosponsor or not, because how each of us votes and how the Senate acts 
is what is now the question. Each Senator is responsible for his or her 
own vote. Nobody can tell any one of us how we must or must not vote.
  But for each of us, we should understand that if we vote on a 
constitutional amendment, that is one of the most important 
responsibilities we will ever exercise as an elected representative. It 
is a significant factor in the Senate legacy that each of us creates, 
but it is also what contributes to the lasting legacy of our 
Constitution.
  As Senators--the 100 of us--we are custodians of the Constitution. It 
is a responsibility we should allow to weigh heavily on our shoulders, 
not to be exercised lightly. Each of us  should take seriously our 
responsibility to defend the Constitution.

  I have often said that rather than amending the Constitution we 
should conserve the Constitution. No Senator should rely on 34 others 
to do the right thing and preserve the Constitution. Senators should 
cast their votes only for a constitutional amendment that they can 
wholeheartedly support, that they can honestly say they understand, and 
whose implementation and impact they are confident they can fully 
anticipate. I say to my colleagues, with all due respect, very few of 
us could answer that challenge and vote for this constitutional 
amendment.
  The Constitution is not a bulletin board. It is not an automobile 
bumper on which to affix currently popular slogans. A vote on a 
constitutional amendment is not something to be cast blithely. When it 
comes to amending the Constitution, the popular vote is not necessarily 
the right vote. The founders of this Nation knew that. That is why they 
put various hurdles before us to amend the Constitution.
  Let us not sacrifice the traditional guarantee against an 
overreaching Federal Government that our Constitution provides and 
sacrifice it to a popular siren song. Rather, let us turn to the work 
needed to be done to provide those rights that crime victims need in 
the Federal system and provide the incentives for their implementation 
in the States' criminal justice systems. There is no need for a 
constitutional amendment to achieve these goals. We can achieve these 
goals without amending our Constitution.
  A constitutional amendment is not like an ordinary statute. A statute 
you can revisit. You can say next year: We were a little bit wrong in 
that. Let's redo it. You can tweak it. You can revise it. You can amend 
it. You can change it. You can repeal it.
  It is not so with an amendment to the Constitution. Here we are 
dealing with something else. This is not a commemorative resolution. 
This is not one of those things we rush down to the floor and say to 
somebody: Which amendment is this? Oh. And then voting yes or no. This 
is a constitutional amendment.
  I think if we are going to change the fundamental charter of this 
great Nation, we ought to step back a little bit, step back from the 
political passions of the moment. We are debating a constitutional 
amendment. We are not endorsing the popularity of a notion or a goal.
  The Constitution of the United States is a good document. It is not a 
sacred text. But I would say in a democracy it is as good a law as has 
ever been written. That is probably why our Constitution is the oldest 
existing Constitution today. It has survived as the supreme law of this 
land with very few alterations over the last 200 years.
  Just think, more than 11,000 amendments have been proposed--many very 
popular at the time--but only 27 have been adopted; only 17 since the 
Bill of Rights was ratified over 200 years ago.
  What have we gotten out of this? We have a Constitution that binds 
this country together rather than pushes it apart. It contains the 
Great Compromise that allowed small States, such as my State of 
Vermont, and large States, such as the State of the distinguished 
Senator from California, to join together in a spirit of mutual 
accommodation and respect.
  I believe the State of Vermont may have had more population when it 
was admitted than the State of California. How much changes over time. 
That Great Compromise guaranteed that every State would have a voice in 
this wonderful body, the Senate, this place I love so much and will 
miss so greatly when I leave.
  The Constitution embodies the protections that make real the 
pronouncements in our historic Declaration of Independence and give 
meaning to our inalienable rights to life, liberty, and the pursuit of 
happiness.
  These are not just simply words we hear in Fourth of July speeches. 
These are the words that make up the bedrock of this great Nation.
  The Constitution requires due process. It guarantees equal protection 
of the law. It protects our freedom of thought and expression, our 
freedom to worship as we want, or not, if we want. It also protects our 
political freedom. It is the basis for our fundamental right of privacy 
and for limiting Government's intrusions and burdens in our lives.
  The provisions incorporated in the Bill of Rights ensure that 
Government power is not used unfairly against anyone. These provisions 
have protected us for over 200 years.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. LEAHY. Of course.
  Mr. DURBIN. I first commend the Senator from Vermont for his 
leadership on the Senate Judiciary Committee and the fact that he has 
taken this debate over this proposed constitutional amendment so 
seriously. Senator Leahy has been a leader not just in terms of the 
Democratic side but in terms of the Senate, to make certain that 
although a handful of Members have come to the floor to consider a 
matter of this gravity, he has been here day in and day out.
  My question to him goes to a point he has made so eloquently today in 
his statement and before. It is about the nature of this amendment. Is 
it true that this proposed constitutional amendment before us is longer 
in length, has more words in it, than the entire first 10 amendments to 
the Constitution known as the Bill of Rights?
  Mr. LEAHY. It comes very close to those first 10 amendments. The 
example I used: When we look at copies of

[[Page S2908]]

the Constitution, going to the Bill of Rights, the 4 or 5 lines in the 
first amendment, this goes 66 or 67 lines. This is a long, complicated 
statute. This should not be a constitutional amendment.
  Mr. DURBIN. Is it true that the handiwork of James Madison and Thomas 
Jefferson in crafting the first 10 amendments to the Constitution, the 
Bill of Rights, the wisdom that has endured for over two centuries, is 
going to be rivaled, or is at least close to being rivaled, in length 
by this one amendment that is being proposed?
  Mr. LEAHY. The Senator from Illinois is absolutely correct. That has 
been the case through the 63, 64, or 65 drafts of it, as it has worked 
its way through here.
  Mr. DURBIN. I further ask the Senator from Vermont, it is my 
understanding that at least 63 different drafts of this amendment have 
been circulated around the Senate before it came to the floor today. 
Word has it that draft No. 64 is on the way, which we might get a 
chance to see before we vote on it. My question to the Senator is, in 
terms of victims' rights, does this not suggest that it would be better 
for us to have a statute rather than to amend the Constitution of the 
United States, if it takes so many pages of wording to address the 
concerns of the sponsors of this amendment?
  Mr. LEAHY. I would much prefer a statute because, as the 
distinguished Senator from Illinois and the distinguished Senator from 
West Virginia know, a statute could be easily changed. It could easily 
be repealed, if we are wrong. In fact, if the Senator from Illinois 
will bear with me, I want to follow up on what he was  saying. As an 
old printer's son, I made sure we had the same typeface on both sides 
of this chart. On the left side is the Bill of Rights; on the right 
side is the proposed constitutional amendment. Here is the Bill of 
Rights, all 10, and here is the constitutional amendment. They are just 
about the same length.

  Mr. DURBIN. Will the Senator yield for another question?
  Mr. LEAHY. Of course.
  Mr. DURBIN. Despite the length of this amendment, the fact that it 
has been through 63 or 64 different versions, it is characterized as a 
constitutional amendment to protect the rights of crime victims. In 
this proposed amendment to the Constitution, is the word ``victim'' 
defined? Do we know what we are talking about in terms of what is a 
crime victim or who is a crime victim?
  Mr. LEAHY. Mr. President, I say to my friend from Illinois, there is 
no definition of the word ``victim.'' I must admit, as a former 
prosecutor, that is the first thing I look for. We all know that 
``victim'' means different things to different people. It is not in 
here.
  Mr. DURBIN. I ask the Senator from Vermont, is it not true that under 
Federal statute there are at least two or three different definitions 
currently of what ``crime victim'' might be?
  Mr. LEAHY. The Senator from Illinois again is absolutely correct. 
They are defined very carefully in the statute because you have 
different remedies for different situations. You have different 
situations in which victims are defined differently. That is why we 
need a statute.
  Mr. DURBIN. Is it not interesting that if we are going to give a 
constitutional right to a crime victim without defining who that victim 
might be, we are giving, under this proposed amendment, such things as 
the right to notice of criminal proceedings, so that the Government has 
a responsibility to notify people, without a definition of who those 
people might be or what class of people might be included?
  Mr. LEAHY. The Senator from Illinois is absolutely right. It is one 
of the reasons why so many prosecutors have opposed this, but also why 
many victims groups have opposed this. They believe it is unworkable.
  Mr. DURBIN. Will the Senator from Vermont also give me his thinking 
about section 1 of this proposed constitutional amendment which 
outlines and specifies the constitutional right to ``consideration of 
the interest of the victim that any trial be free from unreasonable 
delay''?
  People such as George Will, a conservative commentator, have asked 
what in the world this could mean, to give to a victim 
``consideration.'' My question is, if you are going to add wording to 
amend the Constitution, if I am not mistaken, since the passage of the 
Bill of Rights, which would be the 18th or 19th amendment we have 
enacted in Congress, whether such vague wording as ``consideration'' of 
victims is adequate to stand the test of time and trial before the 
Federal court system.
  Mr. LEAHY. I say to my friend, you could probably have 25 
constitutional experts who would give you 25 different interpretations 
of what that word means.
  Mr. DURBIN. I thank the Senator from Vermont. Most people, when they 
think of a crime victim, can obviously identify the victim of an 
assault or battery or robbery, of course. In a murder situation, does 
the victim of the crime include the family of the murder victim? You 
might think it would. But if it is going to include family and 
relatives of the actual victims of crimes, how large of a net is being 
cast here to require the Government to give notice of trial to 
accommodate the scheduling of trials and hearings for this group, that 
may be rather large if you consider everyone affected by a crime?
  Mr. LEAHY. I say to my friend from Illinois, in different cases I 
prosecuted, especially sometimes in family crimes of incest, rape, of 
beatings, of murders, sometimes we have a little bit of difficulty to 
make at least an initial determination of who the victim was and who 
the perpetrator was. It creates all kinds of problems.
  Mr. DURBIN. Is it not true that every State in the Union has at least 
a statute or a provision in their constitution protecting the rights of 
crime victims?
  Mr. LEAHY. Yes. I say to my friend from Illinois, we may consider 
sometimes as necessary, under Article V, a constitutional amendment, if 
the States or Federal Government are unable to do these things 
otherwise. The fact is, they are doing it very well without a 
constitutional amendment. Thus, it removes the test of necessity we see 
in Article V.
  Mr. DURBIN. Exactly the question I was going to ask. If we are going 
to amend the Constitution of the United States to take on this awesome 
responsibility, a document which all of us have sworn to uphold and 
defend, should we not be in a situation where there is no other 
recourse, where we have a situation where State statutes are being 
stricken, where there is some controversy at hand as to whether or not 
crime victims across the United States are being accommodated? The test 
of necessity seems to me to be the threshold test which we should meet 
before we come together on the floor of the Senate to consider an 
amendment to the Constitution of the United States.
  Would the Senator from Vermont comment on that, please?
  Mr. LEAHY. I say to my friend from Illinois that they should meet the 
test of necessity. I have always felt it meant in the Constitution that 
the test of necessity should be a high bar. In this case, I don't even 
think it is a low bar. There is no test of necessity here.
  Mr. DURBIN. Is the Senator aware Mr. Will reported in a column 
recently that this is the fourth time in 29 days that Congress is 
voting on an amendment to the Constitution of the United States?
  Mr. LEAHY. Yes, absolutely; one in the Senate and three in the House.
  Mr. President, I know the Senator from Nebraska wishes to yield his 
time to the Senator from Arizona. I yield for that purpose.
  Mr. HAGEL. Mr. President, I ask unanimous consent that my 1 hour of 
debate be allocated to the distinguished Senator from Arizona, Mr. Kyl.
  The PRESIDING OFFICER (Mr. Gregg). Is there objection?
  Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I thank my dear friend from Illinois for 
the questions he has asked. He has worked so hard on this. He has 
spoken, as I said, brilliantly on this matter and I appreciate him 
coming here.
  Earlier this week, I was honored to join in a Dear Colleague letter 
with the senior Senator from West Virginia. I have referred to Senator 
Byrd as the Senate's constitutional sage. Senator Byrd has played a 
leading role in protecting our Constitution over the last several years 
as it has weathered assault after assault. He counseled the Senate on 
the so-called balanced budget amendment, which would have been

[[Page S2909]]

a travesty. He was right. He has preserved the protection of our 
separation of powers against the line-item veto. Again, he was right. 
He showed great courage and wisdom with his vote and statement on the 
flag amendment on March 29. As I said, I was fortunate enough to join 
with the distinguished Senator from West Virginia on a Dear Colleague 
letter. We sent it out on April 24.
  I ask unanimous consent that this Dear Colleague letter be printed in 
the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                  U.S. Senate,

                                   Washington, DC, April 24, 2000.
       Dear Colleague: On Tuesday, April 25, 2000, the Senate will 
     begin its consideration of S.J. Res. 3, the proposed victims' 
     rights amendment to the United States Constitution. We are 
     writing to urge you to consider this matter carefully and 
     protect the Constitution by voting against this unnecessary 
     amendment.
       Article V of the Constitution establishes the process for 
     constitutional amendment. The process is cumbersome because 
     the Framers intended it to be. Under Article V, Congress 
     shall only propose an amendment to the States if two-thirds 
     of both Houses deem it ``necessary.'' James Madison, one of 
     the principal architects of the Constitution, cautioned that 
     constitutional amendment should be reserved for ``certain 
     great and extraordinary occasions,'' when no other 
     alternative is available.
       Of the more than 11,000 constitutional amendments 
     introduced in Congress, only 27 have been adopted. The first 
     10 were ratified as our Bill of Rights in 1791, 209 years 
     ago. There have been just 17 additional amendments. Despite 
     all of the political, economic, and social changes this 
     country has experienced over the course of more than two 
     centuries; despite the advent of electricity and the advent 
     of the internal combustion engine; despite one civil war and 
     two world wars and several smaller wars; despite the 
     discovery of modes of communication and transportation beyond 
     the wildest fancies of the most visionary framers, this 
     document, the Constitution of the United States, has been 
     amended only 17 times since the Bill of Rights.
       No ``great and extraordinary'' occasion calls for passage 
     of this proposed amendment, S.J. Res. 3. Tremendous strides 
     have been made in the past 20 years toward ensuring better 
     and more comprehensive rights and services for victims of 
     crime. Today, there are over 30,000 laws nationwide that 
     define and protect victims' rights, as well as over 10,000 
     national, State, and local organizations that provide 
     assistance to people who have been hurt by crime. There is no 
     evidence that these laws and organizations are failing to 
     protect victims.
       The Constitution creates no impediment to the enactment of 
     State and Federal laws to protect crime victims. Indeed, the 
     proponents of this constitutional amendment cannot cite a 
     single judicial decision that was not eventually reversed in 
     which a victims' rights statute or State constitutional 
     amendment was not given effect because of a right guaranteed 
     to the accused in the Federal Constitution. Moreover, given 
     the extraordinary political popularity of the victims' 
     movement, there is every reason to believe that the 
     legislative process will continue to be responsive to 
     enhancing victims' interests.
       Tinkering with the careful system of Federalism established 
     by the Constitution can have far reaching and unexpected 
     consequences. When it comes to our founding charter, history 
     demands our utmost prudence.
           Sincerely,
                                                   Robert C. Byrd,
                                                     U.S. Senator.

                                                    Patrick Leahy,
                                                     U.S. Senator.

  Mr. KYL. Mr. President, the Senator from South Carolina has asked 
that I ask unanimous consent, on his behalf, that he may yield his hour 
of debate to me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I see the distinguished senior Senator from 
Connecticut. I yield to him.
  Mr. DODD. Mr. President, I will speak briefly, as I know our 
colleague from West Virginia is going to return to the floor to speak 
momentarily. As soon as he arrives, I will be glad to yield 
immediately. At some later point, I will take a little more time to 
express my views on this issue.
  I want to begin with these brief remarks by, first of all, commending 
my colleague from Arizona and my colleague from California. This is a 
legitimate issue, in my view. I don't know how many of my colleagues 
last evening--or in the last two evenings--I can't remember whether it 
was last night or the night before--saw a news program about the 
families of the victims in the Starbucks shootings in this city. It was 
very moving to see these families being considered and their presence 
during the court proceedings in the disposition of this matter. It was 
heartwarming for me to see the families have an opportunity to express 
how they felt about what had happened and what the sentences were going 
to be regarding those charged with this crime. It is not something that 
we have seen with great frequency over the years, but it exists because 
there is a provision within the law in the District of Columbia that 
gives victims some rights.
  To that extent, I begin these brief remarks by saying to my good 
friends from Arizona and California, I have great respect for the issue 
they are trying to address--that victims of crime be given the 
opportunity to be involved in the proceedings where loved ones, family 
members, people they cared about deeply, who have been victimized, are 
going to have a chance to be heard and to be involved.
  The concern I have is not that they have failed to identify a 
problem. They have. My concern is with the solution to the problem they 
have sought. The solution that my good friends from Arizona and 
California have offered to address this issue is to amend the 
Constitution of the United States before considering the opportunity of 
writing statutory language, which might achieve the very same result 
without amending the cornerstone, the most fundamental document each 
and every one of us cherish as Americans.
  A statute can be changed in a minute if there are problems with it, 
as time may prove. When you consider the Constitution of the United 
States, our Founding Fathers wrote the document and made it difficult 
to amend because they didn't want this to become a statute, an 
ordinance, a collection of wishes, a place where we would write party 
platforms. They wanted it to be the embodiment of the fundamental 
principles we embrace as Americans, and to change it would take 
herculean efforts.
  My concern is that there are already on the books numerous statutes 
that give victims the right to be heard in this process, as we saw just 
last evening in the case of the Starbucks crime here in this city. And 
across the country, such statutes exist. I happen to revere, as I know 
my colleagues do, the Constitution of the United States. I carry with 
me every day in my pocket a copy of the Constitution. It was given to 
me by my seatmate, the distinguished senior Senator from West Virginia. 
I carry it with me every single day everywhere I go. I constantly 
remind myself of what I was elected to do, what purpose I am supposed 
to serve as a Member of the Senate.
  The first and foremost of my responsibilities is to protect and 
defend this Constitution. That is my first responsibility. So when 
efforts are made to change this document--this thin document which--to 
protect and defend this Constitution is, in my view, our primary 
responsibility. We have before us a proposal for a constitutional 
amendment, which is represented on the left side of this chart. Here is 
the proposed constitutional amendment.
  It is nearly longer than the entire Bill of Rights. The first 10 
amendments--the Bill of Rights is shorter than this proposed 
constitutional amendment. That in and of itself ought to give us pause 
and cause us to be concerned, to wait and ask: Are we really going to 
add a provision, given the one issue, and write it into the cornerstone 
document of this country which has more sections and more words than is 
included in the Bill of Rights on which all of our individual freedoms 
are grounded?
  I say to my good friends from Arizona and California that I could not 
agree with them more in identifying for the country in this forum the 
issue of victims' rights. It deserves and it demands attention, from 
State legislatures to the United States Congress. But the solution I 
suggest must first be sought in statutory language. If at the end of 
the day the statutory language is found to be unconstitutional, then 
you might consider amending the Constitution. But you don't seek the 
solution to that problem by amending the cornerstone document of our 
Nation first. Try the statute first. Let's see if we cannot address 
this problem through that vehicle and through that process, and if that 
fails, then come to the Constitution. But don't begin the process 
there. That, to me, is too dangerous.

[[Page S2910]]

  We have an obligation to protect victims. We also have an obligation 
to protect the Constitution of the United States.
  For those reasons, with all due respect to my colleagues whom I 
highly respect and have a great regard for--I have worked with my 
colleague from California on numerous issues, and with my colleague 
from Arizona, not as many, but I have a high regard for him, for his 
abilities, and for his contribution to the Senate--I urge them to take 
the language they proposed, and let's work with it. Let's see if we 
can't draft a statute that would allow us to address the legitimate 
concerns of victims. Write it into the ordinances of our land. Test it 
in the courts, if you will, but do not tamper at this juncture with the 
Constitution of the United States.
  I see the arrival of my good friend whom I just referred to by 
thanking him publicly for giving me my copy of the Constitution, which 
I carry with me.
  I yield the floor.
  Mr. LEAHY. Mr. President, earlier I put into the Record the letter 
that I was honored to sign with the distinguished Senator from West 
Virginia explaining why we should not go forward with this amendment to 
the Constitution.
  Let me say one last thing on this. Ours is a powerful Constitution. 
It is inspiring because of what it allows. It is inspiring because it 
protects the liberty of all of us.
  Think of the responsibility the 100 of us here have. Let us be good 
stewards. Let's keep for our children and our children's children the 
Constitution with protections as well considered as those bequeathed to 
us by the founders, the patriots, and the hard-working Americans who 
preceded us. Work together to improve crime victims' rights in 
legislation. Let the States do the same. But let us remember that the 
100 of us are the ones who must reserve constitutional amendments for 
those matters for which there are no other alternatives available, and 
this is not such a matter.
  I yield the floor.

                          ____________________