[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
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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,
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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
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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
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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
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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.
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