[Congressional Record Volume 146, Number 50 (Thursday, April 27, 2000)]
[Senate]
[Pages S2966-S3011]
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
Mr. KYL. Mr. President, we are in the process of attempting to work
out an arrangement of time for the debate on the pending motion. I ask
for all concerned if the Chair will describe the pending business of
the Senate.
The PRESIDING OFFICER. The question is on the motion to proceed to
S.J. Res. 3.
Mr. KYL. I thank the Chair.
We are in the process of determining just how much time speakers are
going to need in order to conclude debate on the motion to proceed.
Senator Feinstein and I both have some preliminary remarks we would
like to make in connection with that debate as the two chief proponents
of the resolution. We understand Senator Leahy and Senator Byrd wish to
take some time, and Senator Biden as well a little later on.
As soon as we can confirm the amount of time people will need, we
will probably propound a unanimous consent request in that regard.
Mr. LEAHY. Will the Senator yield?
Mr. KYL. I am happy to yield.
Mr. LEAHY. Mr. President, I am perfectly willing, from this side, to
work with the distinguished Senator from Arizona and the distinguished
Senator from California on time. I do not expect an enormous amount of
time to be consumed. It has not been announced, but there is a certain
sense that there may not be any more rollcall votes this week so a lot
of people are probably going to be leaving. I will definitely try to
accommodate them.
The distinguished Senator from West Virginia does have a statement he
wishes to make. I have a statement I wish to make. I am simply trying
to protect some others who may want to speak, as I am sure the Senator
is on his side. But I will continue to work with the distinguished
Senator to cut down this time any way we can.
Mr. KYL. We will announce to all Members, if we can work that time
arrangement out, just exactly how this will proceed.
In the meantime, let me see if I can set the stage so everyone will
know where we are in this debate. Then I would like to thank some
people and then move on to a colloquy with Senator Feinstein, if I
might.
Because of the way the Senate works, we have moved back and forth in
Senate business. But the pending business is the motion to proceed on
S.J. Res. 3; that is, the crime victims' constitutional rights
resolution sponsored by Senator Feinstein and myself.
We gained cloture earlier this week so we could proceed, and the
motion to proceed will certainly be agreed to, if we carry the debate
that far. Senator Feinstein and I, however, are of the view that
because of various things that have occurred, it is unlikely that a
cloture motion, if filed, would be supported by the requisite number of
Senators to succeed early next week.
Therefore, what we are prepared to do is speak to the issue of the
resolution, where we are with respect to the resolution, to thank the
many groups and sponsors and other individuals who have been so
supportive of this effort, and to seek permission of the Senate, when
people have finished their comments, to withdraw the motion to proceed
and to move to other business. That merely means a timeout in our
efforts to secure passage of this constitutional amendment.
We recognize at this point in time that proceeding will simply
encourage more Senators to use a great deal of the Senate's time in
unproductive speeches that really do not go to the heart of our
constitutional amendment but take time away from the Senate's important
business. We have no intention of doing that.
So we will make some remarks that will set the stage for what we are
about to do. But let me begin by noting the tremendous amount of
support around the country that has accompanied our effort to bring
this measure to the floor of the Senate. I have to begin by thanking
two people in particular, Senator Dianne Feinstein and Majority Leader
Trent Lott. We could not have brought this amendment, over the course
of the last 4 years, to the bipartisan level of support it now enjoys
without the ability to work on both sides of the aisle. No one could
have carried this matter on the Democratic side more capably than
Senator Dianne Feinstein. Before she came to the Senate, she was a
passionate advocate for victims of crime. As mayor of San Francisco,
she was a proponent of area residents who were victims of crime and
carries that passion with her to this debate now.
She and I have worked closely with victims' rights advocates to shape
the legislation. I might say, while some of our colleagues have
suggested there is something wrong with the fact that we have conducted
dozens of meetings with the administration, Department of Justice, and
many others, and honed this amendment in 63 different drafts, we are
very proud that we have included anyone who wanted to talk about this
in our circle of friends working to get an amendment that could pass
the Senate and that we have carefully taken their suggestions into
account, thus accounting for the many different drafts as the 4-year
progress of this resolution has brought us to this point.
The fact that we have taken their suggestions to heart and
continually polished this amendment we think is a strong point. While
we were criticized yesterday on the floor for engaging in yet more
negotiations that might result in a final, 64th draft, I must say that
was largely at the instigation of Senator Feinstein, who said, given
the fact the Department of Justice has four concerns still pending with
regard to our specific proposal, let's meet with them and see if we can
come to closure on those items.
Because of her leadership, we were able to come to closure on three
of them. We believe we made more than a good faith effort with respect
to the fourth, which had to do with the protection of defendants'
rights. We were willing to acknowledge that the rights enumerated in
this proposal take nothing whatsoever away from defendants' rights. I
do not know how more clearly we can say it. That was not acceptable to
the Department of Justice.
But it is not for want of trying, on the part of Senator Feinstein,
that we have been unable to secure the support of the Department of
Justice for this amendment. So my first sincere thanks go to the person
without whom we would not be at this point, my colleague Senator
Feinstein.
I also thank Leader Lott. When I went to him with a request for floor
time for this amendment, his first response was: You know all the
business the Senate has to conduct. Are you sure you want to go forward
with this? I said we are absolutely certain.
Despite all the other pressing business, he was willing because he,
too, believes strongly in this proposal, as a cosponsor, to give us the
floor time to try to get this through. It is partially out of concern
for his responsibilities as leader that we recognize that to proceed
would result in a vote that would not be successful, and therefore,
rather than use that precious time, we are prepared to visit privately
with our colleagues to further provide education to them about the
necessity of this amendment since, clearly, the methodology we have
engaged in thus far was not working. We would make strong arguments,
but I daresay it didn't appear that anyone was here on the floor
listening because when various opponents would come to the floor, they
would repeat the same mantra over and over again that we had already
addressed.
Part of that mantra was, Did you know this amendment is longer than
the Bill of Rights? We would patiently restate that is not true, that
all of the rights of the defendants in the Constitution are embodied in
language of more words than this amendment that embodies the victims'
rights and so on.
[[Page S2967]]
Then that individual would leave the floor, and another individual
would come to the floor and repeat the same erroneous information, and
we would have to patiently respond to that.
Rather than continue that process, we believe it is better that we
visit with our colleagues when we are not using this time on the floor
and explain all of this to them, with the hope they will then be better
able to support us in the future.
So I thank Senator Feinstein. We have gone through a lot together on
this. There is nobody in this body for whom I have greater respect.
Again, I thank Senator Lott, the majority leader, for his support for
us as well.
The National Victims' Constitutional Amendment Network is one of the
really strong victims' rights groups that has backed us throughout this
process. Roberta Roper has been involved in that. She was in my office
this morning. She was with us yesterday. She has been with us
throughout the process, helping us evaluate these various proposals and
assisting us.
The National Organization for Victim Assistance, known by the acronym
NOVA, headed by Marlene Young and John Stein, and all the people on the
NOVA board, we are enormously appreciative of their strong support and
assistance throughout this effort. They are going to continue to fight
for sure.
Marsha Kight, whom Senator Feinstein and I have come to know and
respect because of her advocacy as someone whose daughter was killed in
the Oklahoma City bombing, brought the experience of that trial and the
firsthand knowledge of how victims were denied their rights even to
attend the trial. She has been an important witness for us before the
Judiciary Committee and at various other forums.
One of the groups in the country that is most strongly in support,
and has provided a lot of grassroots support, is Mothers Against Drunk
Driving, or MADD. Also, Students Against Drunk Driving, SADD, a group
of younger people, has been helpful. Tom Howarth, Millie Webb,
Katherine Prescott, and others have been very helpful to us in that
regard.
Parents of Murdered Children has been enormously helpful. Rita
Goldsmith is from my State of Arizona, from Sedona.
We have had tremendous help from legal scholars such as Professor
Laurence Tribe, Professor Doug Beloof, and Professor Paul Cassell. I
thank them for their enormous help in this effort, including their
testimony before the Judiciary Committee.
There are many prosecutors. I need to mention a couple from my own
State. The two largest counties in Arizona are Maricopa and Pima
Counties. Rick Romley, the Republican-elected attorney from Maricopa
County, the sixth largest county by population in the country, and
Barbara LaWall, a Democratic-elected attorney from Pima County, have
been very strong supporters and helpful in our work.
Law enforcement has been very well represented by organizations and
individuals. From the Law Enforcement Alliance of America, Darlene
Hutchinson and Laura Griffith have been helpful.
Various attorneys general, such as Delaware Attorney General Jane
Brady, Wisconsin Attorney General Jim Doyle, and Kansas Attorney
General Carla Stovall. By the way, these are Democrats and Republicans
alike. It is a totally bipartisan effort. As a matter of fact, the
National Association of Attorneys General--we have a very good letter
signed by the vast majority of attorneys general in support of our
crime victims' constitutional rights amendment.
We also have support from former U.S. Attorneys General: Ed Meese,
Bill Barr, and Dick Thornburgh are strongly supportive of our proposal.
From a show with which Americans are familiar, ``America's Most
Wanted,'' John Walsh has been an early and strong supporter of our
proposal.
From the Stephanie Roper Foundation--I mentioned Roberta Roper--but
Steve Kelly of the Stephanie Roper Foundation has been very helpful.
Arizona Voice for Crime Victims; a person who helped Senator
Feinstein in the early years, Neil Quinter, a superb former Senate
staff member and with whom I visited just this morning, continues his
support for this.
Matt Lamberti and David Hantman of Senator Feinstein's office; Jason
Alberts, Nick Dickinson, and Taylor Nguyen of my office; and, most
important, Stephen Higgins of my staff and Steve Twist, an attorney
from Arizona, whose support and competence in helping us through this
process was, frankly, simply indispensable.
Also, I will submit for the Record two things. One is a list of crime
victims' rights amendment supporters. This list includes, in addition
to those I mentioned, more than half a page of law enforcement
organizations. I mention this because there has been some suggestion
that law enforcement does not support us:
The Federal Law Enforcement Officers Association, Law Enforcement
Alliance of America, American Probation and Parole Association,
American Correctional Association, the National Criminal Justice
Association, the National Organization of Black Law Enforcement
Executives, National Troopers Coalition, Concerns of Police Survivors,
and on and on.
This amendment is strongly supported by prosecutors, law enforcement,
legal scholars, attorneys general, Governors, former U.S. Attorneys
General, and many more. I ask unanimous consent to print this list of
supporters in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Crime Victims' Rights Amendment Supporters
public officials
42 cosponsors in the U.S. Senate (29R; 13D).
Former Senator Bob Dole.
Representative Henry Hyde.
Texas Governor George W. Bush.
California Governor Gray Davis.
Arizona Governor Jane Hull.
Former U.S. Attorney General Ed Meese.
Former U.S. Attorney General Dick Thornburgh.
Former U.S. Attorney General William Barr.
The Republican Attorneys General Association.
Alabama Attorney General Bill Pryor.
Alaska Attorney General Bruce Botelho.
Arizona Attorney General Janet Napolitano.
California Attorney General Bill Lockyer.
Colorado Attorney General Ken Salazar.
Connecticut Attorney General Richard Blumenthal.
Delaware Attorney General M. Jane Brady.
Florida Attorney General Bob Butterworth.
Georgia Attorney General Thurbert E. Baker.
Hawaii Attorney General Earl Anzai.
Idaho Attorney General Alan Lance.
Illinois Attorney General Jim Ryan.
Indiana Attorney General Karen Freeman-Wilson.
Kansas Attorney General Carla Stovall.
Kentucky Attorney General Albert Benjamin Chandler III.
Maine Attorney General Andrew Ketterer.
Maryland Attorney General J. Joseph Curran, Jr.
Michigan Attorney General Jennifer Granholm.
Minnesota Attorney General Mike Hatch.
Mississippi Attorney General Mike Moore.
Montana Attorney General Joseph P. Mazurek.
Nebraska Attorney General Don Stenberg.
New Jersey Attorney General John Farmer.
New Mexico Attorney General Patricia Madrid.
North Carolina Attorney General Michael F. Easley.
Ohio Attorney General Betty D. Montgomery.
Oklahoma Attorney General W.A. Drew Edmondson.
Oregon Attorney General Hardy Meyers.
Pennsylvania Attorney General Mike Fisher.
Puerto Rico Attorney General Angel E. Rotger Sabat.
South Carolina Attorney General Charlie Condon.
South Dakota Attorney General Mark Barnett.
Texas Attorney General John Cornyn.
Utah Attorney General Jan Graham.
Virgin Islands Attorney General Iver A. Stridiron.
Virginia Attorney General Mark Earley.
Washington Attorney General Christine O. Gregoire.
West Virginia Attorney General Darrell V. McGraw, Jr.
Wisconsin Attorney General James Doyle.
Wyoming Attorney General Gay Woodhouse.
Alaska State Legislature.
law enforcement
Federal Law Enforcement Officers Association.
Law Enforcement Alliance of American (LEAA).
American Probation and Parole Association (APPA).
American Correctional Association (ACA).
[[Page S2968]]
National Criminal Justice Association (NCJA).
National Organization of Black Law Enforcement Executives.
Concerns of Police Survivors (COPS).
National Troopers' Coalition (NTC).
Mothers Against Violence in America (MAVIA).
National Association of Crime Victim Compensation Boards
(NACVCB).
National Center for Missing and Exploited Children (NCMEC).
International Union of Police Associations AFL-CIO.
Norm Early, former Denver District Attorney.
Maricopa County Attorney Rick Romley.
Pima County Attorney Barbara Lawall.
Shasta County District Attorney McGregor W. Scott.
Steve Twist, former chief assistant Attorney General of
Arizona.
California Police Chiefs Association.
California Police Activities League (CALPAL).
California Sheriffs' Association.
Los Angeles County Sheriff Lee Baca.
San Diego County Sheriff William B. Kolender.
San Diego Police Chief David Bajarano.
Sacramento County Sheriff Lou Blanas.
Riverside County Sheriff Larry D. Smith.
Chula Vista Police Chief Richard Emerson.
El Dorado County Sheriff Hal Barker.
Contra Costa County Sheriff Warren E. Rupf.
Placer County Sheriff Edward N. Bonner.
Redding Police Chief Robert P. Blankenship.
Yavapai County Sheriff's Office.
Bannock County Prosecutor's Office.
Los Angeles County Police Chiefs' Association.
victims
Mothers Against Drunk Driving (MADD).
National Victims' Constitutional Amendment Network (NVCAN)
National Organization for Victim Assistance (NOVA)
Parents of Murdered Children (POMC)
Mothers Against Violence in America (MAVIA).
Justice for Murder Victims.
Crime Victims United of California.
Justice for Homicide Victims.
We Are Homicide Survivors.
Victims and Friends United.
Colorado Organization for Victim Assistance (COVA).
Racial Minorities for Victim Justice.
Rape Response and Crime Victim Center.
Stephanie Roper Foundation.
Speak Out for Stephanie (SOS).
Pennsylvania Coalition Against Rape (PCAR).
Louisiana Foundation Against Sexual Assault.
KlaasKids Foundation.
Marc Klaas.
Victims' Assistance Legal Organization, Inc. (VALOR).
Victims Remembered, Inc.
Association of Traumatic Stress Specialists.
Doris Tate Crime Victims Bureau (DTCVB).
Rape Response & Crime Victim Center.
John Walsh, host of ``America's Most Wanted''.
Marsha Kight, Oklahoma City bombing victim.
other supporters
Professor Paul Cassell, University of Utah School of Law.
Professor Laurence Tribe, Harvard University Law School.
Professor Doug Beloof, Northwestern Law School (Lewis and
Clark).
Professor Bill Pizzi, University of Colorado at Boulder.
Professor Jimmy Gurule, Notre Dame Law School.
Security on Campus, Inc.
International Association for Continuing Education and
Training (IACET).
Women in Packaging, Inc.
American Machine Tool Distributors' Association (AMTDA).
Jewish Women International.
Neighbors Who Care.
National Association of Negro Business & Professional
Women's Clubs.
Citizens for Law and Order.
National Self-Help Clearinghouse.
American Horticultural Therapy Association (AHTA).
Valley Industry and Commerce Association.
Mr. KYL. Mr. President, finally, I ask unanimous consent to print in
the Record a series of a dozen or so statements and letters from
supporters of the amendment. Included in those, incidentally, is a
strong statement of support for our specific amendment by Governor
George Bush of the State of Texas. I ask unanimous consent to print
these in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement by Governor George W. Bush--April 7, 2000
I strongly support passage of the Victims' Rights
Amendment. Two years ago, I joined my colleagues on the
National Governor's Association in calling for a national
Amendment, like the one we have in Texas and 30 other states.
For too long, courts and lawyers have focused only on the
rights of criminal defendants and not on the rights of
innocent victims. We need to make sure that crime victims are
not forgotten, that they are treated fairly and with respect
in our criminal process.
____
March 14, 2000.
Dear Senators Kyl and Feinstein: During our years of
service as Attorneys General of the United States, we saw
first hand how the criminal justice system must command the
respect of all our citizens if it is to be effective. That
respect can only be eroded when the system unfairly treats
those it is supposed to serve.
For victims, the system is neither fair nor just. Despite
federal statutes and states constitutional amendments passed
to ensure fair treatment of crime victims, in too many
courtrooms across the country, crime victims continue to be
excluded and silenced; they are neither informed of
proceedings nor given a right to be present or heard.
We believe the only way to extend the fundamental fairness
demanded of our system for crime victims, is to secure their
rights in our fundamental law, the U.S. Constitution. That is
why we are writing now to express our strong and unqualified
support for the constitutional amendment you propose, the
Crime Victims' Rights Amendment (S.J. Res. 3). This
amendment, once ratified, will restore to our justice system
the basic fairness necessary to command the respect of all
our people. The rights spelled out in the amendment are
simple, yet profound. They are practical and attainable, and
they will transform our justice system so that it will truly
protect the rights of the law abiding as well as the lawless.
Sincerely,
William Barr.
Edwin Meese III.
Richard Thornburgh.
____
Office of the
Maricopa County Attorney,
Maricopa County, AZ, April 14, 2000.
Hon. Jon Kyl,
U.S. Senate,
Washington, DC.
Dear Senator Kyl: As the chief prosecutor for the sixth
largest prosecutor's office in the nation, handling over
40,000 felony and delinquency prosecutions each year, I have
first hand knowledge of the ramifications of providing
constitutional rights for victims.
I have been a strong proponent for victims' rights for many
years, having served on the Arizona Victim's Bill of Rights
Steering Committee that was responsible for the passage of
constitutional rights for victims in 1990. I also
participated in subsequent legislative ad hoc committees
charged with developing the enabling legislation. I strongly
support S.J. Res. 3 and your efforts to see constitutional
rights for victims become a reality in the United States
Constitution.
I recently read the Minority views in the Judiciary
Committee's Report on S.J. Res. 3. The ``worst case''
examples that were raised were for the most part extreme
predictions which we in Arizona have not experienced,
notwithstanding our long history with victims' rights. I
would like to take this opportunity to address several of the
Minority report concerns.
Victims' Rights Do Not Result in Substantial Costs To The
System--
Providng victims with constitutional rights has not
resulted in substantial costs to law enforcement,
prosecutors, the courts, corrections or probation
departments. My office provides victims' rights services to
over 30,000 victims each year and although the ``exact cost''
is difficult to determine, our estimates are that it costs my
office approximately $15.00 per victim.
While we have experienced an increase in trials, the
increase cannot be attributed to our constitution amendment
for victim rights. Any such increase has been in response to
our mushrooming population and the resulting increase in case
filings.
The Arizona Court of Appeals and the Arizona Supreme Court
have not been besieged with appeals based on victim rights
arguments.
Victim Rights Do Not Restrict The Discretion Of The
Prosecutor--
A victim's right to be heard regarding a plea agreement
does not mean a crime victim can veto a judge's final
decision. Judges, of course, consider the victim's opinion
when determining whether or not to accept a plea agreement,
however that opinion is merely one factor among others which
contribute to the deliberative process. In Arizona, the
victim's right to allocution has not caused our judicial
officers to abrogate their responsibility to render a
decision free of bias. There is no reason to believe that
federal judicial officers will act otherwise when weighing
the appropriateness of accepting a negotiated plea.
I have implemented a policy in which prosecutors solicit
the victim's opinion regarding the final outcome of the
prosecution and take the victim's opinion into consideration
when neogitating a plea agreement. In this way, the
prosecutor considers the victim's wishes, including the harm
caused by the crime, throughout the plea negotiation process
and pretrial phase of prosecution. Consideration of the
victim's views are again but one factor considered by the
prosecutor. Our experience has been that my deputies are not
inappropriately influenced by emotion. To presuppose
otherwise does a disservice to these dedicated public
servants who have sworn to strive for equal justice.
[[Page S2969]]
Prosecutors are responsible for informing victims of the
plea agreement and the reasons for the negotiated settlement.
It has been our experience that very few victims object to a
plea agreement when fully informed of the reasons and
benefits of the plea. However, in some instances, after
considering the plea and victim's opinion, the judge will
reject the plea agreement holding that the interests of
justice are not served by the plea. When this happens,
although rare in our experience, the court has fulfilled its
function as an arbiter not an advocate.
Victim Rights Do Not Under Cut The Rights Of The Accused--
Victims desire to see justice, first and foremost. their
natural desire to gain justice, is not something to fear. In
our experience it has helped our office achieve that goal.
While victims have a right to be present throughout the
course of trial in Arizona, it has been our experience that
defendants and/or the friends and family of the defendants
are much more likely than victims to become disruptive during
trial. In the rare cases where a victim has been emotionally
overwhelmed in court, he or she has either voluntarily left
the courtroom to calm down, or is requested to do so upon
instruction by the court. In every courtroom in our land, the
judge has the responsibility of maintaining order and
ensuring that the jury is not influenced by factors other
than those presented from the witness box. To assume that the
presence of a victim in the courtroom will somehow so
prejudice a jury that they would disregard the evidence and
return a verdict of guilty predicated and influenced by an
individual sitting in the spectator section of the court,
presupposes that juries will ignore the instructions of the
court to be fair and impartial and to base their decision
exclusively on the evidence. To adopt this position, one must
conclude that juries will ignore the law. To do so, would be
to conclude that our jury system is incapable of justice.
Defendants have a constitutional right to a speedy trial.
Oftentimes defendants waive this right for strategy
advantage--hoping for memories to fade, critical witnesses to
relocate, or victims to die. Victims have as much an interest
in the timely disposition of the criminal case as do the
defendants and need to have equal consideration when a judge
considers whether or not to delay the disposition of a case.
Federal Constitutional Rights Do Not Infringe On State's
Rights--
While those victimized by crime in Arizona are afforded
victim rights in state court, that same victim would not be
afforded constitutional rights if that offense occurred on
federal land, or if an Arizona resident were victimized in a
state that does not have constitutional rights. These rights
are too important to be left to a patchwork of rights from
state to state. Consistency in the application of our laws
are paramount if our citizens are to realize the benefit of a
judicial system that is balanced between the accused and the
interest of society at large. Inconsistency breeds contempt
and cynicism. Adoption of a federal constitutional amendment
will recognize that there is but one law for all.
My office has nearly a decade of experience championing in
assisting victims in exercising their state constitutional
rights. It would be disingenuous if I were to say that there
had been no costs, yet the benefit to the victim, to the
citizens of Arizona and our system of justice far outweighs
those costs.
Our state constitutional amendment has increased
cooperation of victims with police and prosecutors. Victims
feel more of a part of the criminal justice process. I
believe that this has enhanced the ability of law
enforcemenet to put criminals behind the bars, and thus has
been a factor in the decrease in crime that we have
experienced in recent years.
The scales of justice must be balanced, providing victims
with equal access to the courts, information and a voice in
the criminal justice system. Our system of justice is
dependent upon the voluntary participation of those who have
been harmed by crime--without their participation, our
country would see an increase in lawlessness and vigilantism.
Balancing the scales of justice by providing for victim
rights restores faith in our system without detracting from
the rights of those accused.
Sincerely,
Richard M. Romley,
Maricopa County Attorney.
____
National Association of
Attorneys General,
Washington, DC, April 21, 2000.
Hon. Jon Kyl,
U.S. Senate,
Washington, DC.
Hon. Dianne Feinstein,
U.S. Senate,
Washington, DC.
Dear Senators Kyl and Feinstein: We are writing to express
our strong and unequivocal support for your efforts to pass
S.J. Res. 3, the proposed Crime Victims' Rights Amendment,
and send it on to the States for ratification.
As Attorneys General from diverse regions and populations
in our nation, we continue to see a common denominator in the
treatment of crime victims throughout the country. Despite
the best intentions of our laws, too often crime victims are
still denied basic rights to fair treatment and due process
that should be the birthright of every citizen who seeks
justice through our courts. We are convinced that statutory
protections are not enough; only a federal constitutional
amendment will be sufficient to change the culture of our
legal system.
The rights you propose in S.J. Res. 3 are moderate, fair,
and yet profound. They will extend to crime victims a
meaningful opportunity to participate in each critical stage
of their cases. At the same time, they will not infringe on
the fundamental rights of those accused or convicted of
offenses. Neither will these rights interfere with the proper
functioning of law enforcement. Attorney General Reno spoke
for many of us in law enforcement when she noted,
``[T]he President and I have concluded that a victims'
rights amendment would benefit not only crime victims but
also law enforcement. To operate effectively, the criminal
justice system relies on victims to report crimes committed
against them, to cooperate with the law enforcement
authorities investigating those crimes, and to provide
evidence at trial. Victims will be that much more willing to
participate in this process if they perceive that we are
striving to treat them with respect and to recognize their
central place in any prosecution.''
Some have argued that federal constitutional rights for
victims will infringe on important principles of federalism.
We disagree. Each of our state criminal justice systems
accommodates federal rights for defendants. To provide a
similar floor of rights for victims is a matter of basic
fairness.
Please share this letter with your colleagues so that they
may know of our strong support for S.J. Res. 3.
(Signed by 30 attorneys general.)
____
Statement of Marsha A. Kight, Director, Families and Survivors United,
Oklahoma City, OK., March 24, 1999
My daughter, Frankie Merrell, was murdered in the Oklahoma
City bombing, and in tribute to her and all the others, I
founded Families and Survivors United, which took a leading
role in advocating for the victims and survivors before and
during the trials which followed. This is now I first came to
meet Beth Wilkinson.
Having attended every day of the McVeigh trial, I came to
regard Beth Wilkinson as the most effective advocate on the
prosecution team. More than that, I and others trusted her to
bring the victims' perspective into the courtroom, and she
lived up to that trust. So I believe that her statement
before the Judiciary Committee today is from the heart--that
she really believes that if our Victims Rights Amendment were
in place, it might have jeopardized a very basic right--the
``right of just conviction of the guilty,'' as she puts it.
But she is wrong. As she describes so well, the prosecution
team worked hard to earn our trust, and for the great
majority of the 2,000-plus of us who were designated victims
under the law, we gave them our trust. But on the one
tactical issue she says argues against the Amendment, the
prosecution team chose not to trust us for the reasons she
describes, and in the process, that team broke both our trust
and the law.
She claims that, had the Amendment been in place, its right
for victims to be heard before a plea bargain is accepted
might have harmed the prosecution. Specifically the
suggestion that might have persuaded the judge to not accept
the guilty plea of Michael Fortier--and thus might have
jeopardized the eventual conviction of Timothy McVeigh and
Terry Nichols. There are three things wrong with this
conjecture.
First, Michael Fortier's testimony was not critical to
either conviction, as several jurors later made clear to me.
Second, had the Justice Department taken us into its trust
on the usefulness of the Fortier plea, the great majority of
us would have reciprocated that trust and encouraged the
judge to accept the plea. I think from everything else Beth
Wilkinson describes about the trust-building between the
prosecution and the victims confirms this belief. We were not
blind sheep, willing to accept everything the prosecutors
said was so--we were, most of the time, informed citizens who
were persuaded by the prosectuors' reasoning. Beth Wilkinson
as much as admits this when she notes that the victims
overwhelmingly asked for a provable and sustainable case
against the guilty.
And third, the prosecution team's mistrust of us over the
Fortier plea agreement was so great that it chose not to
notify us over the hearing in which the plea was offered, and
it chose not to confer with any of us beforehand about the
plea--both of which were in violation of existing federal
law.
So when Beth Wilkinson says that statutory reform will meet
our just demands, we must ask, what happened to the statutes
already on the books?
I am increasingly persuaded that the most formidable enemy
of crime victims' aspirations for getting justice under our
Constitution are criminal justice officials--even well-
meaning ones like Beth Wilkinson--who believe that only
government lawyers know best. Her testimony is in fact
Exhibit A in the case for the Amendment because it is the
voice of a superior government extending handouts as an act
of grace, not protecting legitimate rights of a free people.
She says that the ``concerns'' of the victims must be
balanced with the ``need for a just trial,'' as though these
important values were somehow in conflict, and that only the
government knows how to achieve this goal.
I cannot tell you how these words hurt me; they confirm my
worst fears about the treatment of victims in our justice
system and
[[Page S2970]]
how nothing will change without constitutional rights.
It is painfully obvious to me that she thinks of us as mere
meddlers who must be kept out of this important government
business for fear that we might break something. Beth
Wilkinson may believe that she ``grew to understand my grief
first hand,'' but clearly she does not. For me and so many of
our families our grief was profoundly extended when our
government minimized and discounted our interests by refusing
to consult with us about this important development early in
the case.
For example, consider the point Beth Wilkinson makes about
grand jury secrecy. She says, ``Due to the secrecy rules of
the grand jury, we could not explain to the victims why
Fortier's plea and cooperation was important to the
prosecution of Timothy McVeigh and Terry Nichols.'' Under
existing federal law, however, courts are authorized to
enter appropriate orders allowing for the disclosure of
grand jury information in advance of a court proceeding.
It apparently did not even occur to her then, nor does it
today, to have sought such a court order for disclosure.
Nor is clear that such an order would even have been
necessary, as surely there would have been ways to explain
the circumstances to the victims without going
confidential grand jury matters.
Perhaps most disturbing of all to me is Beth Wilkinson's
assertion that the Victims Rights Clarification Act of 1997
``worked--no victims were precluded from testifying.'' In
fact, I was precluded from testifying in the sentencing phase
of the trial. As she is well aware, I very much wanted to be
a penalty phase witness. But because of my philosophical
beliefs in opposition to capital punishment, I was not
allowed by the government prosecutors to testify. Clearly the
statute did not work for me.
In addition, a number of victims lost their right to attend
the trial of Timothy McVeigh because of legal uncertainties
about the status of victims' rights. As I testified before
the Senate Judiciary Committee in 1997, Judge Matsch rejected
a motion made by a number of us to issue a final ruling
upholding the new law as McVeigh's trial began. His
reluctance led the prosecution team (including Beth
Wilkinson) to tell us that, if we wanted to give an impact
statement at the penalty phase, we should seriously consider
not attending the trial. Some of the victims on the
prosecution's penalty phase list followed this pointed
suggestion and forfeited their supposedly protected right to
attend McVeigh's trial. Our lawyers also sought further
clarification from the judge (unsuccessfully), but had to do
so without further help from the prosecution team. The
prosecutors were apparently concerned about pressing this
point further because the judge might become irritated.
Beth Wilkinson urges the Congress to ``consider statutory
alternatives to protect the rights of victims.'' While she
says that she opposes the Victim's Rights Amendment in its
``current form,'' the context of this statement makes it
clear that she opposes any constitutional rights for crime
victims. She concludes with the following prescription: ``We
must educate prosecutors, law enforcement and judges about
the impact of crimes so that they better understand the
importance of addressing victims' rights from the outset.''
But the truth is that there will be no real rights to
address, as my experience makes clear, unless those rights
are enshrined in the United States Constitution. Only then
will victim's rights be meaningful and enforceable.
Mr. KYL. Mr. President, I am going to make some concluding remarks
about why we believe so strongly in this amendment, how we intend to
pursue the amendment, and why supporters of this amendment should take
heart about how far we have come in this process and not at all be
dispirited by the fact that there will not be a final vote on the
amendment at this time. I will make those comments after Senator
Feinstein has had an opportunity to make some comments that I know she
strongly wishes to make.
Mr. SCHUMER. Mr. President, will the Senator yield?
Mr. KYL. Yes.
Mr. SCHUMER. Mr. President, I asked the Senator to yield for two
quick requests. I forgot to do this yesterday. I mentioned a letter
from the Judicial Conference on this amendment. I ask unanimous consent
to print this letter in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Committee on Criminal Law of the Judicial Conference of
the United States,
Greenville, SC, April 17, 2000.
Hon. Charles E. Schumer,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Re: S.J. Res. 3, the Victims' Rights Amendment
Dear Senator Schumer: Thank you for your letter requesting
the views of the Judicial Conference of the United States
regarding S.J. Res. 3, the Victims' Rights Amendment to the
Constitution. On behalf of the Judicial Conference, I
appreciate the opportunity to have its viewpoint considered
as the Senate takes up this important legislation.
In March of 1997, the Judicial Conference resolved to take
no position at that time on the enactment of a victims'
rights constitutional amendment. However, if the Congress
decides to affirmatively act in this area, the Judicial
Conference strongly prefers a statutory approach as opposed
to a constitutional amendment.
A statutory approach would allow all participants in the
federal criminal justice system to gain experience with the
principles involved without taking the unusual step of
amending our nation's fundamental legal charter, with its
concomitant application to the various state systems. Many of
the principles contemplated in S.J. Res. 3 represent a
significant change in our criminal justice system, literally
realigning the interests of defendants and victims, as well
as the process by which criminal cases are adjudicated. The
rights and protections heretofore afforded to citizens under
the Constitution were largely part of the fabric of the law
well-known and understood by the Founding Fathers, while many
of the concepts in the victims' rights area are largely
untested, at least in the federal system. It could take years
for a settled body of law and judicial administration to
evolve. A statutory approach would accommodate this process.
A statutory approach would also vitiate the potential
specter of significant federal court involvement in the
operations of the state criminal justice systems under a
victims' rights constitutional amendment. Finally, a
statutory approach is more certain and immediate, an
advantage to victims. Conversely, an amendment potentially
would not be effective for many years, awaiting the ponderous
and uncertain ratification process required under Article V.
While S.J. Res. 3 appears to have less potential adverse
impact on the federal judiciary than some previous amendment
proposals, there remain a number of fundamental concerns:
classes of crimes and victims to which the amendment will apply
Under S.J. Res. 3, the proposed amendment will apply to any
person who is a ``victim of a crime of violence, as these
terms may be defined by law.'' It is not clear from the
proposed amendment whether these terms are to be defined by
Congress, the states or through case law. The term ``crime of
violence,'' which is commonly utilized in legal parlance, has
many meanings under state and federal law. Thus, it is
unclear as to which specific crimes this provision would
actually apply. This problem is magnified by the fact that
this provision applies to misdemeanor cases, the number of
which is particularly large in the state courts. Failure to
provide a clear and practical definition of this term may
well result in protracted and unnecessary litigation that
will likely take years and great expense to resolve.
Closely associated with this issue is the question of what
classes of persons will qualify as a ``victim.'' We note that
the proposed amendment includes no definition of victim. This
leaves many fundamental questions unanswered, including:
Must a person suffer direct physical harm to qualify as a
victim?
Is it sufficient if the person has suffered pecuniary loss
alone?
What if the person is alleging solely emotional harm? Is
that enough to qualify him or her as a victim?
Are family members of a person injured by a crime also
victims?
Suppose that a defendant is accused of committing a series
of ten violent armed robberies. Due to evidence strength and
efficiency considerations, the prosecutor sends only six of
those cases to the grand jury. Are the other four injured
persons victims under the proposed amendment?
Suppose an agreement is reached whereby the defendant
agrees to plead guilty to just one of the cases. Are the
other nine injured persons victims under these circumstances?
Will the answer affect a prosecutor's ability to obtain plea
agreements from defendants?
Extending the definition of victim to those who claim
emotional harm from criminal offenses dramatically
exacerbates the potential impact of this proposal. The number
of persons who could claim to be emotionally harmed by
significant, well-publicized crimes could be quite large.
Moreover, substantial litigation could result from the
requirement of restitution, especially in cases involving
non-economic injury. Finally, cases involving large numbers
of victims, particularly victims of terrorist acts, are
particularly troubling. Providing the rights
[[Page S2971]]
enumerated in the proposed amendment to large numbers of
victims could overwhelm the criminal justice system's ability
to perform its primary function of adjudicating guilt or
innocence and punishing the guilty.
enforcement
The proposed amendment states that nothing ``in this
article shall provide grounds to stay or continue any trial,
reopen any proceeding or invalidate any ruling.'' Unlike some
previously introduced victims' rights constitutional
amendment proposals, S.J. Res. 3 does not stipulate that a
victim has no grounds to challenge a charging decision. This
addition would be a significant and valid limitation.
Allowing victims to challenge a prosecutor's charging
decision could result in significant operational problems. We
suggest that Congress also consider modifying the proposed
amendment to prohibit a victim from challenging a
``negotiated plea.'' Permitting the challenge of a proposed
plea interferes with the prosecutor's ability to obtain
convictions of defendants whose successful prosecution may
rest on the cooperation of another defendant. Guilty pleas
are sometimes also negotiated because the prosecution
witnesses are, for various reasons, not as strong as they
appear to be on paper. Also, the sheer volume of cases would
generally overwhelm any prosecutor's office and the courts
unless the vast majority were settled. Permitting challenge
to a prosecutor's judgment regarding an accepted plea could
lead inadvertently to a failure to secure a conviction. The
significance of this issue should not be underestimated.
federalism
The matter of victim enforcement raises significant
federalism concerns. While the proposed amendment includes
provisions that bar monetary damages as a remedy, it appears
that victims may be able to seek injunctive relief against
state officials for violation of their new constitutional
rights. Such claims, almost inevitably filed in federal
courts, could cause significant federal court supervision of
state criminal justice systems for the purpose of enforcing
the amendment. These conflicts between federal courts and
state governments would be avoided by a statutory approach to
victims' rights.
administration of justice exception
S.J. Res. 3 permits Congress to create exceptions to the
proposed amendment ``when necessary to achieve a compelling
interest.'' While this is a very valid and useful provision,
Congress should carefully consider the need for a further
exception based on adverse impact on the administration of
justice. Inevitably, courts will handle cases where the
rights of victims collide with the functional administration
of justice. Such cases might fall into two general
categories. The first category relates to the very real
practicalities of the administration of justice. One
example would be an action involving exceptionally large
numbers of possible victims wishing to attend the
proceedings and overwhelming any available courtroom or
other suitable location. A similar problem would be
encountered if large numbers of victims wished to exercise
their rights to allocution at sentencing, unduly
prolonging the proceedings and pushing back other cases
that need to be heard. The second category of cases are
those in which the rights of victims, exercised under
certain circumstances, may have a substantive effect upon
the rights of defendants or others, impairing due process
or the right to a fair trial. An example of such a case
would be if a victim wished to both attend the trial and
testify at the guilt phase, even though the trial judge
had ordered all witnesses sequestered. This could impair
the fundamental integrity of the trial.
Congress should consider modifying the proposed amendment
to allow a judge, while recognizing the rights of the victims
to the extent practicable, to provide for exceptions in
individual cases when required for the orderly administration
of justice. Congress may also wish to consider modifying the
proposed amendment to additionally allow Congress to
statutorily enact exceptions in ``aid of the administration
of justice.'' At the very least, Congress should provide an
exception permitting the sequestration from trial proceedings
of a victim who will appear as a witness at the guilt phase
of the trial. This could be accomplished through a general
provision in the proposed amendment stating that the victim's
rights should not ``interfere with the constitutional rights,
including due process rights, of the person accused of
committing the crime.'' It could also be accomplished through
a more narrow provision, similar to that in the Wisconsin
Constitution, by the addition of a phrase allowing
sequestration when ``necessary to a fair trial for the
defendant.'' Another approach, similar to that taken under
the Constitution of Florida, would add a phrase allowing
sequestration ``to protect overriding interests that may be
prejudiced by the presence of the victim.''
speedy trial considerations
The proposed amendment includes a victim's right to
``consideration of the interest of the victim that any trial
be free from unreasonable delay.'' Determining the meaning of
this phrase and how it interacts with existing speedy trial
provisions should be a fertile source of diversionary
litigation.
In federal court, the sixth amendment right to a speedy
trial and the Speedy Trial Act, see 18 U.S.C. Sec. Sec. 3161-
3173, not only guarantee the defendant's right to a speedy
trial, but also recognize the public's, and therefore the
victim's, interest in swift justice. However, the Speedy
Trial Act also recognizes several legitimate bases to
postpone trial, including plea negotiations. See 18 U.S.C.
Sec. 3161. This mechanism is an integral part of the criminal
justice system, balancing the desirability of a speedy trial
with the realistic requirements of a fair proceeding.
How is this right to consideration of the interest of the
victim that any trial be free from unreasonable delay to be
enforced? Will the victim have a right to seek relief from
unreasonable delay? A motion to move the case faster would
require a collateral hearing to determine the extent of the
delay and whether it is unreasonable. The victim would then
be in an adversarial position to the prosecutor and perhaps
to the presiding judge. Would another judge be required to
make the determination? Would a federal judge be asked to
pass judgment on the efficiency of a state court?
With ever increasing criminal dockets and limited
prosecutorial and judicial resources, victims in several
cases on the same docket, insisting upon speedier
proceedings, could potentially cause severe internal
conflicts within units of the same court.
notice
It is important that the responsibility for providing
notice of proceedings and of the release or escape of a
defendant be appropriately allocated to the prosecution, law
enforcement agencies, or corrections agencies as is the law
and practice in virtually all the states providing for
victims' rights. Many of the rights under the proposed
amendment must attach long before a defendant is formally
charged in court. The judiciary would not have access to much
of the information necessary to provide the required notice.
It has neither the personnel nor resources to provide such
notice to large numbers of victims or to provide the
specialized types of victim assistance that is available from
the first line of contact that victims have with the criminal
justice system. The situation is likely no better--and
possibly worse--in the state courts.
Once again, I thank you for the opportunity to express the
views of the Judicial Conference on this important issue. If
you have any questions regarding the matters discussed
herein, please do not hesitate to contact me. I may be
reached at 864/233-7081. If you prefer, your staff may
contact Dan Cunningham, Legislative Counsel at the
Administrative Office of the U.S. Courts. He may be reached
at 202/502-1700.
Sincerely yours,
William W. Wilkins, Jr.
Mr. SCHUMER. Mr. President, second, I thank both Senator Kyl and
Senator Feinstein for the passion, the erudition, the conviction, and
for the cause. It is, obviously, wise to delay this. I know we may be
back for another day. Maybe we can all come together. I plead with them
to consider a proposal of making this a Kyl-Feinstein statute, as
opposed to a Kyl-Feinstein constitutional amendment, where I think it
might get close to unanimous support on the floor.
I thought the debate we were having and may well continue to have, at
least to my young years in the Senate, was one of the best times of the
Senate, where we each talked about the issue with our concerns, our
intelligence, and our passions. We tried to meet the issue head on. I
thank both the Senator from Arizona and the Senator from California for
their good work on this and hope we can come together on some sort of
compromise on an issue about which we all care so much.
Mr. KYL. Mr. President, I reiterate what I said yesterday, and that
is, the best part of the debate we had was the debate with Senator
Schumer whose approach to this was serious and intelligent. He asked
the best questions. I believe we answered them, but we did not come to
agreement. Of course, we will be working with him in the future on this
matter and, hopefully, persuade him that a constitutional amendment is
the best way to go. The debate we had among Senator Feinstein, Senator
Schumer, and myself I thought was the highlight of this debate. I
appreciate his remarks.
I yield to Senator Feinstein for comments I know she wants to make.
Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from
Arizona. I also thank the Senator from New York, and I thank you, Mr.
President, for allowing me to proceed.
I begin by thanking the Senator from Arizona. Mr. President, I say to
Jon Kyl, working with him on this amendment has truly been one of the
highlights of my 7 years in the Senate. He has worked with credibility
and with integrity. He has been fulsome in his sharing of detail. We
have gone shoulder to shoulder through virtually every rung of this,
through 4 years of discussions, of conferences, of hearings, of 800
pages of testimony, some 35 witnesses.
[[Page S2972]]
I agree with everything he said about the inclusive nature of the
process.
I must tell Senator Kyl how much I admire him. We worked together on
the Technology and Terrorism Subcommittee of the Judiciary Committee. I
saw it there. I have never seen it with another Senator as pronounced
as it was in these past 4 years in the work on this issue. I believe a
friendship has developed in the process, one which means a great deal
to me. His leadership has been superb, and there is certainly nothing
either one of us has done for the misunderstanding out there still
about what we are trying to do and the importance of it. We will come
back another day; there is no question in my mind about that. I cannot
thank him enough. From the bottom of my heart, I thank Senator Kyl for
his credibility, his intelligence, his integrity. He did his party
proud. I am very happy to be a colleague of his and a friend as well.
Before I get into my remarks, I also echo the thanks Senator Kyl
provided to a whole host of victims, literally tens of thousands of
them, to 37 State attorneys general, to many Governors, to all those
across both party lines who support this and understand it. I
particularly thank three legal scholars who were with us every step of
the way.
I thank Larry Tribe, a professor of constitutional law at Harvard
University, for his testimony, for the phone calls, for the advice he
has provided and for the statements he has made.
I also thank one of the primary legal scholars in this country who
has been a victims' rights representative, legal counsel--just a
wonderful human being I have also gotten to know--and that is Professor
Paul Cassell, professor of law at the University of Utah.
I would be remiss if I did not thank Steve Twist on behalf of both
Senator Kyl and myself. There are few people who have been as ardent in
the cause as Steve Twist has been, with his knowledge, with his
expertise, with his representation of victims throughout this entire
process.
I know that none of the three above-mentioned individuals is going to
go away. We have them as part of this enormous victims coalition. We
will come back, and we will fight again another day.
But today, Mr. President, I rise with a sad heart because we must
postpone our battle for a crime victims' rights constitutional
amendment.
This is a fight that actually began 18 years ago when the President's
Task Force on Victims of Crime recommended an amendment to the
Constitution of the United States which would address victims' rights.
This isn't a new idea. It has been around. There is a track record to
show why it is necessary.
As I said, Senator Kyl and I introduced that amendment 4 years ago.
We have worked long and hard. I think enough has been said about that.
What is unbelievable to me is that we have also been criticized for
the hard work we have put into this amendment over the past 4 years.
Senators have come to the floor and told us that the fact that we put
our amendment through so many drafts and consulted so many interested
parties shows that our amendment does not deserve to be in the
Constitution of the United States. Yet, in fact, drafting an amendment
to the Constitution of the United States requires an uncanny kind of
precision. Because this isn't 1791 when the Bill of Rights was written,
or 1789 when the Constitution was adopted, there has been a whole
panoply of case law and interpretations that have come throughout the
ages that makes the drafting of a constitutional amendment such as this
one very difficult. However, I believe we have developed a document
that will, in fact, stand the test of time.
What we have tried to do, in essence, is very simple. I would like to
show a chart, once again. We have tried to take the Constitution, which
provides 15 specific rights to the accused, and no rights to victims of
violent crimes--with a scale of justice which we believe is weighted in
a certain way to exempt victims from the administration of criminal
justice--and give victims some status and standing in the
administration of criminal justice, so that the scale of justice would
not be so badly tilted but would look something like this other chart
where the accused would have certain basic rights, and victims would
have certain basic, although limited, rights: The right to notice when
a trial takes place; the right not to be excluded from a public
proceeding; the right to be heard at that proceeding, if present; the
right to submit a statement in writing; the right to notice of the
release or the escape of an attacker; the right to consideration for
the assurance of a speedy trial; the right to an order of restitution;
and the right to consideration of their safety in determining any
conditional release of an attacker--simple, basic rights of status and
standing.
We have heard much about the fact that this should not be in the
Constitution. There has been much talk on the floor about James Madison
and other framers. Senators have suggested that our forefathers would
not support the amendment.
I tried to point out why our forefathers did not have reason to
consider the amendment because when both the Constitution and the Bill
of Rights were written, victims had a role in the process. Up until
1850, victims had a role in the process. But it was with the
development of the public prosecutors, when victims were no longer in
the courtroom, that they became summarily excluded from the process.
I point out that if we look back in history, I find my views very
commensurate with those of Thomas Jefferson. He was not among those who
wrote the Constitution, but he thought deeply about the Constitution
and how and when we should amend it. He was also the inspiration for
our Bill of Rights, a document actually drafted by James Madison.
In 1816, 25 years after the Bill of Rights became the law of the
land, Thomas Jefferson wrote to Samuel Kercheval, stating his views on
amending the Constitution. I think it is important that the Record
reflect these views. He said:
I am certainly not an advocate for frequent and untried
changes in laws and constitutions. I think moderate
imperfections had better be borne with; because, when once
known, we accommodate ourselves to them and find practical
means of correcting their ill effects. But I know also that
laws and institutions must go hand in hand with the progress
of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths
disclosed and manners and opinions change with the change of
circumstances, institutions must advance also and keep pace
with the times.
Similarly, 13 years earlier, he said in a letter to Wilson Nicholas:
Let us go on perfecting the Constitution by adding by way
of amendment, those forms which time and trial show are still
wanting.
I believe very deeply that time and trial show that our amendment is
still wanting and should be adopted.
I ask unanimous consent to have printed in the Record, in recognition
of the widespread support we have received, letters from virtually
every law enforcement agency and every crime victims group.
There being no objection, the material was ordered to be printed in
the Record, as follows:
County of Shasta,
Office of the District Attorney,
Redding, CA, April 17, 2000.
Re: Crime Victims' Rights Constitutional Amendment
Hon. Dianne Feinstein,
U.S. Senate, Senate HWA Office,
Washington, DC.
Dear Senator Feinstein: I write to offer my wholehearted
support for your efforts in sponsoring the Crime Victims'
Rights Constitutional Amendment. Your proposed amendment
would fill a gaping hole in the rights guaranteed to citizens
in our Constitution by providing basic, essential rights to
victims of crime in our nation. As a prosecuting attorney, I
have all too often seen the rights of perpetrators of
horrendous crimes protected at all costs while the basic
human rights of victims and families of victims of those
crimes are ignored and forgotten. It will be great day when
our Constitution and criminal justice system work as hard to
protect the rights of victims as they do the rights of
criminals. I commend you on your efforts to make that day a
reality. Do not hesitate to call upon me if there is anything
I can do to support you with this work.
Thank you for your attention to this matter.
Sincerely,
McGregor W. Scott,
District Attorney.
[[Page S2973]]
____
State of Nevada
Executive Chamber,
Carson City, NV, May 24, 1996.
Hon. Dianne Feinstein,
U.S. Senate, Senate Hart Office Building,
Washington, DC.
Dear Senator Feinstein: I am writing to lend my support to
your efforts to protect victims' rights. As one of the
original nine members of President Reagan's Task Force on
Victims of Crime, I have long supported a Constitutional
Amendment to protect the rights of victims of crime.
As the vice-Chairman, and soon to be Chairman, of the
National Governor's Association, I would like to assist you
by raising this issue with our nation's governors.
In Nevada, we've made great strides in protecting victims'
rights through legislative measure ranging from guarding
consumers against auto repair fraud to expanding our domestic
violence laws to cover people in dating or live-in
relationships. Despite these efforts, more changes need to be
made to ensure that victims are treated fairly. The criminal
justice system should not overlook the interest of victims in
light of protecting the rights of the criminals. I firmly
believe that a speedy trial and information about the
proceedings of the trial are minimal rights that the
constitution should grant to all victims.
Please let me know what other ways I can help you with this
cause.
Sincerely,
Bob Miller,
Governor.
____
Justice for Murder Victims,
San Francisco, CA, April 19, 2000.
Hon. Dianne Feinstein,
U.S. Senate, Washington, DC.
Regarding: Support of S.J. Res. 3, the Victims Rights
Constitutional Amendment
Dear Senator Feinstein: On behalf of Justice for Murder
Victims, I would like to inform you of our strong support of
S.J. Res. 3, the ``Victims Rights Constitutional Amendment''
Criminals' rights are inherently included in America's
criminal justice system, while crime victims, historically,
have not had a place and/or voice within the criminal justice
system. In fact, to add insults to injury, the majority of
victims are violated and betrayed a second time by the
system. S.J. Res, 3 will secure basic rights for countless
victims of crime throughout our nation as they struggle to
survive their victimization.
Under this legislation, victims would have a right to
receive notice of public proceedings related to the crime
perpetrated against them, notice of the offender's escape or
release from custody, as well as notification of parole
hearings and to have a voice at these hearings. Without the
help and determination of so many crime victims, the system
cannot hold criminals accountable and stem the tide of future
crime.
Victims of crime need to have the same rights across this
great nation. We ``THANK YOU'' for taking an active role in
this very important legislation and for the concern and
support that you continue to show victims of crime and their
survivors.
Please feel free to call on us anytime we may be of help.
Sincerely,
Harriet Salarno,
President.
____
May 20, 1996.
Senator Dianne Feinstein,
U.S. Senate Hart Building, Washington, DC.
Attention: Neil Quinter
Dear Senator Feinstein: Thank you for meeting with me on
such short notice last week and sharing the Crime Victims'
Rights Amendment. As I am currently spending the majority of
my days in court attending the trial of my daughter's killer,
I know too well the inequities facing the families of
victims.
For that reason I wish to offer my whole hearted
endorsement and approval of your attempt to guarantee rights
for the victims and families of victims of violent crime. If
there is anything that I can do to promote your efforts,
please feel free to call on me at any time.
Sincerely,
Marc Klaas.
____
Victims & Friends United,
Sacramento, CA, April 21, 2000.
Hon. Dianne Feinstein,
U.S. Senate, Washington, DC.
Re: Support of Crime Victims' Rights Amendment
Victims and Friends United (VFU), a California grassroots
organization is the representative of nearly 20,000 members
which consists of crime victims, their families, and other
concerned citizens. We have been at the forefront of the
fight for the rights of crime victims for nearly 20 years. We
ensure that existing victims' rights laws are zealously
enforced, and encourage the drafting of new legislation to
further protect the rights of crime victims and improve
public safety.
As President and Board member of VFU, I am writing to ask
you and your co-sponsored Senators to urge the full Senate to
pass the Crime Victims' Rights Amendment to the U.S.
Constitution. In supporting this amendment, the Senate has an
historic opportunity to take a stand for the millions of
Americans who are victimized each year in this country.
For decades we have seen court decisions expanding the
``rights'' of criminals. Finally, it is encouraging to see
legislators beginning to place equal emphasis on the rights
of crime victims. The rights to be present, heard and
informed throughout the criminal justice process are basic
tenets guaranteed by our U.S. Constitution to those accused
or convicted of crimes in our nation, yet the rights of their
innocent victims are not articulated in our U.S.
Constitution. The Crime Victims' Rights Constitutional
Amendment is necessary to ensure that victims' rights are
respected and enforced in our criminal justice process.
Thank you for all that you do for Californians, keep up the
good work, and realize that you have our full support. If we
can be of further assistance or you need someone from our
organization to testify, please give us a call.
Sincerely,
Patsy J. Gillis,
President and Co-Founder.
____
The Law Enforcement
Alliance of America,
Lynbrook, NY, April 12, 2000.
Hon. Dianne Feinstein,
U.S. Senate, Washington, DC.
Dear Senator Feinstein: On behalf of the Law Enforcement
Alliance of America, I would like to inform you of our strong
organizational support of S.J. Res. 3, the ``Victims Rights
Constitutional Amendment.'' LEAA is asking for your active
support of this important legislation that is expected to go
for a Senate floor vote in late April. Additionally, LEAA
asks that you oppose any attempts to dilute the intent of
this critical legislation.
LEAA is the nation's largest coalition of law enforcement
professionals, crime victims, and concerned citizens
dedicated to finding solutions to the problems plaguing our
country's criminal justice system. Fighting for passage of
victims' rights legislation is of paramount importance in
realizing just one of LEAA's many goals.
Paradoxically, criminals' rights are inherently included in
America's most supreme document while crime victims,
historically, have not had a place and/or a voice within the
criminal justice system. In fact, to add insult to injury,
the majority of victims are violated and betrayed a second
time by the system. S.J. Res. 3 will secure basic rights for
countless victims of crime throughout our nation as they
struggle to survive their victimization.
Under this legislation, victims would have a right to
receive notice of public proceedings related to the crime
perpetrated against them, notice of the offender's escape or
release from custody, as well as notification of parole
hearings and a voice at these hearings. As the President's
Task Force on Victims reported in 1982, ``The criminal
justice system is absolutely dependent upon the cooperation
of crime victims to report and to testify. Without their
help, the system cannot hold criminals accountable and stem
the tide of future crime.''
LEAA feels it is imperative to pass legislation to protect
the country's violent crime victims. The high number of
victims in this country (including the tens of thousands of
officers assaulted each year and dozens murdered) indicates
that we cannot afford to overlook this proposed amendment.
Another reason to endorse this amendment is that in the 18
years we've discussed this provision, 32.4 million Americans
have been victims of violent crime. And they simply deserve
better treatment in the criminal justice system.
Once again, we urge you to take an active role in passing
this very important legislation. If there is any information
LEAA can provide on S.J. Res. 3, please don't hesitate to
call me or LEAA's Crime Victims Advocate Darlene Hutchinson
at (703) 847-2677.
Sincerely,
James J. Fotis,
Executive Director.
____
WEAVE,
Sacramento, CA, April 21, 2000.
Senator Dianne Feinstein,
Senate Hart Office Building,
Washington, DC.
Dear Senator Feinstein: On behalf of Women Escaping a
Violent Environment, Inc. (WEAVE), I am happy to lend our
support of your Crime Victims Rights Constitutional Amendment
(Senate Joint Resolution 3). This amendment is supported
throughout our nation by 49 of 50 governors as well as
Mothers Against Drunk Driving, Parents of Murdered Children
and the National Organizational for Victim Assistance.
While criminal defendants have almost two dozen separate
constitutional rights, fifteen of which specifically provided
as constitutional amendments, victims of crime have no
constitutional rights. The Crime Victims Rights Amendment
brings much needed balance to our justice system by granting
victims the right to be informed, present and heard at
critical stages throughout trials.
We should not forget that justice is an attempt to give
back to victims the sense of closure and fairness taken by
their perpetrators. This amendment is a long overdue step
toward justice for victims.
Please convey WEAVE's strong support to your colleagues in
the U.S. Senate. Thank you for your advocacy efforts on
behalf of victims and victim advocacy organizations.
Sincerely,
Mary Struhs,
Associate Director.
[[Page S2974]]
____
Federal Law Enforcement
Officers Association,
East Northport, NY, April 21, 2000.
Hon. Dianne Feinstein,
U.S. Senate, Washington, DC.
Dear Senator Feinstein: On behalf of the National Executive
Board of the Federal Law Enforcement Officers Association and
out more than 17,000 members across America, I want to
formally announce FLEOA's strong support for S.J. Res. 3, the
``Crime Victims' Rights Constitutional Amendment.''
FLEOA, the voice of America's federal criminal
investigators, agents, and officers, is the largest
professional association in the nation exclusively
representing the federal law enforcement community. FLEOA, a
non partisan, volunteer organization comprised of active and
retired federal law enforcement members from the agencies
listed on the left side of this document is dedicated to the
advancement of the federal law enforcement community.
We are an organization comprised of individuals who have
dedicated their lives to protecting and serving the American
public. It is our belief that the time is right to amend the
Constitution to correct the injustice that that has developed
in this area. This amendment will ensure that those who have
been touched by crimes of violence are not further victimized
by laws that may prevent them from being notified, and
provided the opportunity to be present and heard at critical
stages of their cases. We believe that the Founders created
the Constitution to be a living document and this proposed
amendment is consistent with that principle.
FLEOA looks forward to working with Congress and the States
in securing passage of the Crime Victims' Rights
Constitutional Amendment. Please do not hesitate to contact
me on this issue or on any other legislative matter impacting
federal law enforcement. I can be reached at (202) 258-7884.
Respectfully,
Brian M. Moskowitz,
Legislative Director, National Executive Board Member.
____
National Center for
Missing & Exploited Children,
Arlington, VA, April 25, 1996.
Senator Dianne Feinstein,
Hart Senate Office Building,
Washington, DC.
Dear Senator Feinstein: I am writing on behalf of the
National Center for Missing and Exploited Children to
formally express our support and endorsement of the Victim's
Rights Amendment you have introduced with Senator Kyl and
Congressman Hyde. The passage of this resolution will go far
to helping victims nationwide begin and continue the
difficult healing process necessary after victimization.
The National Center for Missing and Exploited Children
spearheads nationwide efforts to locate and recover missing
children, and raise public awareness about ways to prevent
child abduction, molestation and sexual exploitation. As you
continue your work in support of children and others
victimized by criminal offenders, please do not hesitate to
contact us if we can be of assistance in any way.
Again, we strongly commend your efforts and thank you for
your dedication to the interests of America's millions of
criminal victims.
Sincerely,
Teresa Klingensmith,
Manager, Legislative Affairs.
____
California Police Chiefs
Association, Inc.
Sacramento, CA, April 18, 2000.
Hon. Dianne Feinstein,
Senate Hart Office Building,
Washington, DC.
Re: Crime Victims Rights Constitutional Amendment
Dear Senator Feinstein: The California Police Chiefs
Association fully supports your Crime Victims Rights
Constitutional Amendment (Senate Joint Resolution 3). This
amendment is very much needed as demonstrated by the support
of Mothers Against Drunk Driving, Parents of Murdered
Children and the National Organization for Victim Assistance
as well as 49 of 50 Governors.
Law Enforcement has long recognized that crime victims
deserve to have a rightful place in our justice system. While
criminal defendants have almost two dozen separate
constitutional rights, fifteen of them specifically provided
as constitutional amendments, victims of crime have zero
constitutional rights. The Crime Victims Rights Amendment
brings much needed balance to our justice system by granting
victims the right to be informed, present and heard at
critical stages throughout trials.
While many could claim that this legislation places burdens
on the justice system, we should not forget that the spirit
of justice is to attempt to give back to victims the sense of
closure and fairness taken by their perpetrators.
Unfortunately, we as a nation have often forgotten the
victims of crime. With today's population increasingly living
longer, we are seeing more and more victimization of our
elderly. They, along with our children, are the least able to
fight back against the criminal element and therefore need
this amendment.
The California Police Chiefs Association is very pleased to
stand with you on this amendment and fully supports your
efforts.
Respectfully,
Craig T. Steckler,
Chief, Fremont Police Department and President, California
Police Chiefs' Association.
____
California Narcotic
Officers' Association,
Santa Clarita, CA, April 24, 2000.
Hon. Dianne Feinstein,
Hart Senate Office Building,
Washington, DC.
Re: Crime Victims Rights/Constitutional Amendment
Dear Senator Feinstein: The membership of the California
Narcotic Officers' Association is in strong support of your
Crime Victims Rights Constitutional Amendment (Senate Joint
Resolution 3). As members of law enforcement community, we
recognize that crime victims must have voice in the criminal
justice system. Traditionally, they have been treated with
less respect than those accused of terrible crimes.
The California Narcotic Officers' Association is very
pleased to stand with you on this very important amendment
and fully support your efforts.
Sincerely,
Walter Allen,
President.
____
California Police Activities
League (PAL),
Oakland, CA, February 8, 2000.
Hon. Dianne Feinstein,
U.S. Senate, Washington DC.
Dear Senator Feinstein: The California Police Activities
commends you on your efforts to protect the rights of crime
victims. The California Police Activities League supports
your Amendment to the Constitution of the United States. As
law enforcement personnel, we understand the importance of
this Constitutional Amendment to the many victims of crime
that we meet during a criminal investigation. In many cases,
it is youth, which are the victims. They should have the same
rights as every citizen of the United States of America. A
victim of a violent crime should have the following rights:
To reasonable notice of public judicial proceedings
To attend all public proceedings.
To be heard at crucial stages in the judicial process.
To receive reasonable notice of the offender's release or
escape.
To consider in the interest of the crime victim that the
trial is free from unreasonable delay.
To receive restitution from the convicted offender.
To consider for the safety of the victim any conditional
release from custody.
The California Police Activities is only asking that the
8.6 millions victims of violent crime in our country receive
fair treatment by the judicial system, which they deserve.
For those accused of crimes in our country, the Constitution
specifically protects them. However, nowhere in the text of
the United States Constitution does there appear any
guarantee of rights for crime victims.
The time has come for a Victim Bill of Rights. The
California Police Activities in the name of its members
support your drive for the passage of this Constitutional
Amendment. Please call us if we can be of help in your effort
to protect the rights of crime victims. CAL PAL commends you
for taking up this cause in the name of 8.6 million
Americans.
Sincerely,
Ron Exley,
Government Relations Director.
____
City and County of San Francisco, Office of the Sheriff,
San Francisco, CA, April 24, 2000.
Hon. Dianne Feinstein,
Senate Hart Office Building,
Washington, DC.
Dear Senator Feinstein: I write to lend my support to
Senate Joint Resolution 3, the proposed amendment to the
Constitution intended to protect the rights of crime victims.
As Sheriff of San Francisco, I have witnessed the
empowerment experienced by victims of crime when given the
opportunity to speak about how their lives were impacted by
violence. I have also witnessed the effect on violent
offenders of hearing how their crimes harmed individuals and
the entire community. As part of our Resolve to Stop the
Violence Project, an in-custody treatment program for men
with violent criminal histories, victims come to the jail to
tell how the violence done to them changed their lives. For
the first time, many offenders realize that their actions
have serious and harmful consequences, and this is often the
catalyst for real change. Not only does the experience give
voice to crime victims, it gives both victim and offender the
opportunity to work toward the common goal of the eradication
of violence.
Participation of victims in the criminal justice dialogue
is essential to their well being and that of the entire
community. I am proud to support the Crime Victims Rights
Constitutional Amendment.
Sincerely,
Michael Hennessey,
Sheriff.
[[Page S2975]]
____
San Diego County
Sheriff's Department,
San Diego, CA, April 24, 2000.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Feinstein: It is with great pleasure that I
add my support to S.J. Res. 3, to provide constitutional
rights for crime victims. There are rights articulated in the
U.S. Constitution to provide rights for crime victims.
Criminal defendants have almost two dozen separate
constitutional rights, fifteen of them provided by amendments
to the U.S. Constitution.
Your proposed Crime Victims' Rights Amendment will bring
balance to the justice system, by giving crime victims the
rights to be informed, present and heard at critical stages
throughout their case.
The need for this measure is evidenced by the forty-two
bipartisan senators who have agreed to cosponsor this
amendment. I look forward to working with you on this and
other legislation that we mutually agree upon.
If I might be of further assistance, please don't hesitate
to call me.
Sincerely,
William B. Kolender,
Sheriff.
____
Sacramento County
Sheriff's Department,
Sacramento, CA, April 21, 2000.
Hon. Dianne Feinstein,
Senate Hart Office Building,
Washington, DC.
Dear Senator Feinstein: I am writing to offer my support
toward your efforts in sponsoring the Crime Victim's Rights
Constitutional Amendment. Your proposed amendment would fill
a void in the rights guaranteed to citizens in our
Constitution by providing basic, essential rights to victims
of crimes all across our nation.
Law Enforcement has long recognized that crime victims
deserve a rightful place in the criminal justice system.
While criminal defendants have nearly two dozen separate
constitutional rights, fifteen of which are specifically
provided as constitutional amendments, crime victims have no
constitutional rights as it relates to being the victims of
crimes. The Crime Victims Rights Amendment will bring much
needed balance to our justice system by providing victims the
right to be informed, present and heard at all critical
stages throughout their respective trials.
The opponents of this legislation claim that the amendment
would place burdens on the justice system, we cannot afford
to forget the intent of justice is to give back to victims,
the sense of security, closure and fairness, taken by the
perpetrators of their crimes.
I applaud you for your efforts and I stand with you as you
pursue this important issue. Please do not hesitate to call
on me if I can provide any assistance. I can be reached at
(916) 874-7146.
Sincerely yours,
Lou Blanas,
Sheriff.
Mrs. FEINSTEIN. One of the unfortunate aspects of the debate in these
hallowed Halls is the fact that many have chosen to ignore the fact
that this amendment would actually help poor minority communities beset
by crime. It would give victims in these communities rights our
criminal justice system often deny them through bureaucratic neglect
and casual racism.
Among the many supporters of the amendment, for example, is a group
called Racial Minorities for Victim Justice. This group includes Norm
Early, the former district attorney of Denver, CO, and the founding
president of the National Black Prosecutors' Association. It includes
Joseph Myers, executive director of the National Indian Justice Center;
David Osborne, an Asian American who is assistant secretary of the
State in California; Azim Khamisa; Christine Lopez; Steven Njemanze.
The group includes minority victims such as Teresa Baker, whose rights
were denied after her son was coldbloodedly murdered in Maryland;
Clementine Garfield, whose two teenage sons were shot in Detroit; Sarah
Fletcher, whose husband Reginald, son Ricky, daughter Crystal, and
unborn granddaughter were all murdered. They wrote me an eight-page
letter laying out their thoughts about the amendment. I will read some
of that letter.
The undersigned are founding members of Racial Minorities
for Victim Justice which strongly support Senate Joint
Resolution 3, the Crime Victims' Rights Constitutional
Amendment. We are aware that some groups that seek
conscientiously to speak for the interests of racial
minorities have expressed opposition to your proposed
amendment. We claim some understanding of the fundamental
concerns that guide their position--concerns we share--but we
also believe that they have reached the wrong conclusion on
this issue.
To put it in the simplest terms, no one in our society
stands to benefit more from the adoption of the Victims'
Rights Amendment than people of color--for it is our people
that suffer the highest rates of victimization in the Nation.
Let us start with some common ground on which the great
majority of racial minorities stand in this country.
Historically, we have had deep suspicions of the agencies of
criminal justice. Speaking specifically of the African
American experience, it was the agents of criminal justice
who were the enforcers of the Fugitive Slave Act and all the
Jim Crow laws--often with lawless brutality.
While we are proud of recent progress to end this pattern
of bigotry in the administration of justice--proud because
African Americans and other minorities have led the way in
reforming these practices--we are not so naive as to believe
that our criminal justice system has grown altogether color-
blind.
More than most Americans, we believe criminal justice has
become too fearful of people of color, too punitive toward
minority offenders, with too few opportunities for their
treatment and rehabilitation.
This is where we share common ground with most members of
the minority communities in America. What we cannot
understand, however, is why some in those communities have
concluded that one way to bring justice agencies into harmony
with our higher ideals is to deny the victims of crime any
effective and enforceable rights. To us, that makes no sense.
We do nothing to improve the fair treatment of minority
defendants by impeding the fair treatment of minority
victims.
I couldn't agree with that more. They go on to say:
Leaders of America's criminal defense bar have testified
frequently and heatedly against passage of the Crime Victims'
Rights Amendment, citing amorphous dangers to defendants'
rights and liberties. And how many cases did they cite where
their millions of clients had run afoul of some overzealous,
unfair and harmful interpretation of a crime victim's rights
already provided in State Constitutions? Two hundred? Twenty?
Two? Not even one!
It is important to understand that victims' rights statutes
echoing those in the proposed Amendment are to be found on
the books of every state--buttressed by constitutional
amendments in 32 of them. While compliance with those laws is
woefully spotty (more on that below) it is fair to estimate
that in hundreds of thousands of cases, the victims rights
were fully implemented, giving rise to not one single appeal
as to the fairness of the application of those laws.
In our opinion, people of color should be especially
outraged at these disproportionate deprivations of our legal
and human rights, for it is our minority communities who
disproportionately suffer the pain of criminal victimization.
I agree with that very much. There is perhaps none but, at most, very
few minority victims of violent crime who can afford the counsel to
process their rights under State constitutions, under State laws, or
under the patchwork of laws to protect victims across this Nation at
this time. Every time, if they do, they will eventually lose because
the rights of the defendants or the accused are deeply embedded in the
heart of this great Constitution. They will find that, in effect, as
they press a case in court, they have no standing under the
Constitution of the United States. That is what this is all about, to
give victims standing in the Constitution of the United States. No case
demonstrated that more clearly than the Oklahoma City bombing case.
As we sum up, I will quickly refresh why that is the case. We had
passed two statutes--one in 1990--which allowed victims to watch the
trial and testify at sentencing. The Victims of Crime Bill of Rights, a
1990 law, passed by the House, passed by the Senate, and signed by the
President, references the right to be present at all public court
proceedings related to the offense, unless the court determines that
testimony by the victim would be materially affected if the victim
heard other testimony at the trial. In spite of that statute, the court
denied the prosecutors' request. The victims made a similar request,
and the court denied that request, holding that victims lacked standing
to raise their rights under that statute.
The prosecutors and the victims were not satisfied. They both had
good attorneys, Washington attorneys, Paul Cassell, distinguished
attorneys. They appealed that to the Court of Appeals of the Tenth
Circuit. As Professor Cassell, one of the lawyers put it:
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 that victims had no right to attend
[[Page S2976]]
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.
We heard about that. We responded with alacrity. The House passed the
Victims' Rights Clarification Act of 1997. That statute said,
notwithstanding any statute, any rule or other provision of law, a U.S.
district court shall not order any victim of an offense excluded from
the trial of a defendant accused of that offense because such victim
may, during the sentencing hearing, testify as the effect of the
offense on the victim and the victim's family or as to any other factor
for which notice is required. That is clear. We cleared it up. We gave
them standing by law, passed by the House, passed by the Senate, signed
by the President of the United States. But the district court then said
that this statute might be unconstitutional and postponed a decision
until after the trial. So the judge paid no attention to the House of
Representatives, the Senate of the United States, or to the signature
of the President of the United States.
This is why we press this cause today. This is why we do not believe
that a statute will ever be adequate to give victims basic rights. Push
sort of comes to shove. There is an old expression called ``carrying
water on both shoulders.'' It is sometimes a way that people feel, in
our business--that they can appease a group by saying, oh, something
else will do. This case, to me, is irrevocable evidence that the
challenge of making a statute work is extraordinarily difficult to give
any minority or impoverished victim any meaningful right in real life.
So we intend to continue to press this case.
I want to ask the distinguished Senator from Arizona now that he has
heard the outline of what happened--some people have criticized me, I
think, because I have used this case over and over again, but it is the
only clearly definable case we have following the passage of two laws
passed by our bodies to make a judgment--and, true, we are making that
judgment just on the Tenth Circuit Court--nonetheless, does the Senator
not believe it is an applicable judgment to add to this to confirm the
fact that a statute probably won't work in this situation?
Mr. KYL. Mr. President, Senator Feinstein is exactly correct. I think
it illustrates the inconsistency of the opponents of the amendment. In
the first place, they say we should try a statutory remedy. When we try
the statutory remedy and the court says you lose, you still don't have
the rights--and as Senator Schumer said, the court essentially ignored
what Congress did, and that was offensive to him because he had been
one of the authors of that legislation--we come back and say that
illustrates the fact that you need a constitutional protection because
until you have that, the courts can't continue to ignore these
statutes. Then Senator Schumer said: But courts cannot ignore statutes;
they are just like the Constitution. You have to apply statutes. The
answer to that is, well, you should, but what is the remedy if you
don't?
As the Senator pointed out, until we provide standing in a
constitutional amendment, if the courts don't abide by the statutes,
there is no recourse. That is the bottom line as to why a
constitutional amendment is necessary in these kinds of cases.
The other inconsistency is the other side says you don't have a lot
of court decisions overturning statutes for State constitutional
protection, so we don't need a constitutional amendment.
That is an odd argument. Most of the constitutional protections are
not the result of a Supreme Court decision to strike down a statute or
a State provision. In fact, I don't know of any that are, frankly.
Most of the constitutional protections for defendants and other
citizens have come about because of the recognition that there are
certain fundamental rights that need to be protected, and we ought not
to wait for courts to strike something down in order to assume that it
is time to propose a constitutional amendment. But if that were the
proper standard, then we have a clear reason to do so because as the
Senator from California pointed out, the Tenth Circuit Court of Appeals
has now ruled that is the precedent, and for at least, I think, seven
States in the Tenth Circuit, they have a very bad ruling on their
hands; namely, victims have no standing to assert the rights we
provided for in statute. So if that is to be the standard--that you
have to have a court decision that proves the need for a constitutional
protection--we have it. So whichever way you want to argue it, I think
the point is made that we need a constitutional amendment to provide
real protection for victims of crime.
Mrs. FEINSTEIN. I thank the Senator for that comment. I would like to
follow up with something. My staff has handed me a letter from
Professor Tribe dated today. It is on this point. I think it adds some
additional very distinguished credibility to what the Senator is
saying. It says:
I am writing to address one consideration in particular
that is highlighted by the proposed Crime Victims Assistance
Act, S. 934, whose sponsors--many of whom are my good
friends--evidently hope that by this Federal statute they
obviate the need for the proposed constitutional amendment. I
favor S. 934's enactment, at least in principle. I assume
that closer study of the detailed provision than I have been
able to undertake would disclose ways in which it might be
improved. But minor technical flaws, or even design defects
in the contemplated statute would be beside the point and are
not my focus. After all, detailed problems with the statute's
terms could be cured by redrafting and would not in
themselves explain why only an amendment to the Constitution
could meet the need for fuller national protection of
victims' rights.
Then he goes on to say this--and I am skipping some:
The mere brandishment of the banners of defendants' rights
or of prosecutorial needs too often suffices to push the
needs and interests of victims--to be notified, to observe,
to be heard, to have their views considered, to achieve
closure, and to be compensated if possible--into the
background. Rather than creatively and determinedly seeking
ways to protect victims' rights in ways that manage fully to
respect the genuine rights, privileges, and needs both of the
accuser and the accused, state and local officials are
understandably but unfortunately tempted to relegate victims
and their rights to second-class status or to shelf them
altogether, as merely hortatory and aspirational provisions
of law enacted with something much stronger and more
operational in mind.
He essentially goes on to say again why a statute won't work. He
says:
The argument is flawed first, because it fails entirely to
come to terms with the basic reasons, set forth above, that
merely statutory measures would be unable to combat the
deeply rooted attitudinal problems confronting victims and
their claims of right; and second, because insofar as it
assumes broad congressional power to act under Section 5 of
the Fourteenth Amendment, it is simply ignorant of the series
of decisions in the 1990s and reaching into 2000, beginning
with the invalidation of the Religious Freedom Restoration
Act and continuing with the invalidation of provisions of the
Patent Reform Act and the Age Discrimination Employment Act,
in which the modern Supreme Court has dramatically curtailed
the legislative authority of Congress to use its Section 5
power to protect interests that Congress, but not yet the
Court, is prepared to recognize as constitutional rights, or
even to protect Court-recognized constitutional rights in
circumstances, or by means, not shown in the legislative
record to be ``necessary.''
What Professor Tribe at this stage is adding to this is that any
statute passed by us does not take into consideration the courts
striking down of the Religion Freedom Restoration Act, the Patent
Reform Act, the Age Discrimination and Employment Act. He is saying
that the authority of Congress is now more limited to use its section 5
power to protect interests that we think are valid.
The striking down of these bills, in effect, makes the
constitutionality of anything that we might pass by way of a Federal
statute extraordinarily vulnerable. I think this is new information
which we have not had a chance to analyze and consider which may enable
us to come back and fight another day.
Mr. KYL. Mr. President, another point Senator Feinstein made
yesterday which people need to continue to focus on is that a Federal
statute is going to apply to Federal crimes. A U.S. constitutional
amendment applies to all cases in all courts in every State, whether at
the trial court level in the county--we call it superior court in
Arizona--all the way to any other court,
[[Page S2977]]
including Federal courts. But a statute that we pass applies to Federal
court trials for the most serious crimes. In Federal law, that accounts
for about 1 percent of the victims of violent crime in the entire
country.
Almost always the local police catch the perpetrator, that
perpetrator is tried by the local county prosecutor in the county
courts, and the appeals go up through the State court process.
Sometimes they can jump over to the Federal court because of a
constitutional issue involved. But except on military reservations,
Indian reservations, certain kinds of kidnapping cases, and things of
that sort where it is not a Federal case, a Federal statute doesn't
apply.
Mrs. FEINSTEIN. Of course that is right. I think the Senator from
Arizona said it very well.
The PRESIDING OFFICER. The Chair notes that the time of the Senator
from California has expired.
Mrs. FEINSTEIN. I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, the Senator from California may have time
yielded to her from someone else in her party to advance the rest of
her argument. She might find out how much time there is.
I inquire of the Chair. How much time do I have remaining?
The PRESIDING OFFICER. The Senator from Arizona has 2 hours 13
minutes.
Mr. KYL. I shall not take nearly that much time. It is my
understanding that I can't yield any of that time to Senator Feinstein.
The PRESIDING OFFICER. The Senator has time under the cloture rule to
yield time to other Senators.
Mr. KYL. I ask unanimous consent to yield 1 hour of my time to
Senator Feinstein.
The PRESIDING OFFICER. The Senator has that right as manager of the
bill.
Mr. KYL. I appreciate it. I thank the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. I thank the distinguished Senator from Arizona. I
thank the Chair.
Let me briefly summarize. I sincerely believe that the only way to
afford victims of violent crime standing under the Constitution to be
able to assert a right that is provided is by amendment to the
Constitution. I don't use my judgment. This is the judgment of the most
distinguished legal scholars.
I know there are strong forces at work in this in front of the scenes
and behind the scenes. I know there are some people who believe what we
are trying to do is weaken defendants' rights. That is simply not
correct. Defendants' rights, as I see them, are basically rights that
do not come into collision with the rights we would afford the victims.
They are totally different rights. If there is a collision, our view is
that the judge then provides the balancing mechanism. This gives the
victim a standing in law to assert the right that, in a sense, can't be
trusted.
This issue goes down--let me be very candid--on one phrase. That one
phrase is the addition of language that would say nothing in this
Constitution would abridge the right of a defendant as provided by this
Constitution.
That is a paraphrase of what it is.
The Department of Justice insists on that language. We will not get
administration support, I believe, without that language. The victims
movement believes they would not have sufficient standing in these
rights to really assert them in a meaningful way unless they were able
to be balanced against the rights of the defendant.
The question I wanted to ask my friend and colleague, Senator Kyl, is
I think our challenge in proceeding may be how we could reconcile this
with the very real concern of victims that they once and for all--
albeit for a limited right but nonetheless real rights--have standing
for those rights in a court of law.
Mr. KYL. Mr. President, Senator Feinstein has touched on a central
point because none of the advocates for victims have ever sought to
deny one single right to the defendant. In point of fact, the victims'
rights that we protect do not deny or abridge the defendants' rights
under the Constitution. It is not our intention, and it doesn't happen.
We have been willing to acknowledge that in a variety of ways and in a
variety of words in the Constitution.
We are not willing to say if there is ever a case in which the
defendant asserts a right under the Constitution then that right
automatically wins over any of these victims' rights. What we said, and
what people in the Department of Justice and the President and others
have agreed with, is there should be a balancing just as there is a
balancing of two constitutional rights, defendants' rights to a speedy
and public trial, a fair trial, and the right of free press.
When the press wants to get into the courtroom, sometimes, as we all
know, the judges say: No. We are only going to allow a limited number
of certain kinds of media in the courtroom. We don't want a media
circus in the courtroom. That wouldn't be fair to the defendant.
The media says: Wait a minute. We have a first amendment right.
The defendant says: I have a constitutional right, too, which amounts
to a right for a fair trial.
The judge says: You are both right, and you are both going to get
your rights vindicated, but neither of you have an absolute right that
excludes any other consideration. The judge says to the defendant: I am
not going to allow your case to be prejudiced by a media circus. Media,
you are going to have to restrain yourselves to the following
conditions. Judges say that every day.
The defendant has a right to sit at his trial. But he can't sit there
if he is going to be yelling, screaming, and jumping up and down and
threatening people. The judge has a way to control his courtroom, and
so on.
We are perfectly willing to make it crystal clear in our language
that the enumeration of these rights for victims does not abridge any
rights guaranteed in the Constitution for defendants or those accused
of crime. We are unwilling to say, if there has to be any balancing,
the defendant always wins. That would deny exactly what we are trying
to achieve for the victims, which is some equal consideration under the
Constitution for their fairness given all of the things we have rightly
done for defendants.
Mrs. FEINSTEIN. I thank the Senator. I think the analogy is actually
a very good one. I know defendants' rights are extraordinarily
privileged, and well they should be. Senator Kyl and I have discussed
this. We believe that our amendment does not collide, and we understand
how victims feel.
I think one of the points is that throughout all of this we have
communicated with victims groups. We have been their advocates. We have
tried to march to the sound of their drum.
The tragedy for me, today, is that we are so close that, if we could
bridge that one gap, getting the support of the Justice Department, the
President's support, the Vice President's support, perhaps we might, on
our side, pick up some votes. That one inability to reach this kind of
consensus within the timeframe we have, in view of the feelings of our
colleagues, is really the necessity of what we are doing here this
afternoon. But I think at this stage there is an impasse. Does my
colleague agree?
Mr. KYL. I do. If I may read one paragraph from a piece written by
Professor Paul Cassell, I think it helps to elucidate what we are
talking about, if the Senator would not mind.
We are talking about potentially conflicting rights under the
Constitution. Senator Biden has made this point. Hopefully, he will be
here a little bit later to speak to this, but he made the point he
can't see there ever being an irreconcilable conflict between the
defendant's rights and the victim's rights, and in one sense I think he
is absolutely correct because you can vindicate two conflicting rights
through a balancing test. But the fact is, there is only one situation
I can think of in which you even have that conflict, and that is the
right to attend a trial, where the defendant would say, it is not fair
to me if the victim or the victim's family attends the trial, and the
victim's family or the victim says, wait a minute, that's one of my
most fundamental rights, and the Senator guaranteed that in this
provision.
There are ways to accommodate both the defendant's and victim's
rights, of
[[Page S2978]]
course. At least the Senator and I understand that, but there are some
who find that very difficult and troubling. But here is the analogous
situation which I think makes our case. This is what Professor Paul
Cassell says:
Confirmation of the constitutional worthiness of victims'
rights comes from the judicial treatment of an analogous
right: the claim of the media to a constitutionally protected
interest in attending trials. In Richmond Newspapers v.
Virginia, the Court agreed that the First Amendment
guaranteed the right of the public and the press to attend
criminal trials. Since that decision, few have argued that
the media's right to attend trials is somehow unworthy of
constitutional protection, suggesting a national consensus
that attendance rights to criminal trials are properly the
subject of constitutional law. Yet the current doctrine
produces what must be regarded as a stunning disparity in the
way courts handle claims of access to court proceedings.
Consider, for example, two issues actually litigated in the
Oklahoma City bombing case. The first was the request of an
Oklahoma City television station for access to subpoenas for
documents issued through the court. The second was a request
for various family members of the murdered victims to attend
the trial, discussed previously. My sense is that the
victims' request should be entitled to at least as much
respect as the media request. Yet under the law that exists
today, the television station has a First Amendment interest
in access to the documents while the victims' families have
no First Amendment interest in challenging their exclusion
from the trial. The point here is not to argue that victims
deserve greater constitutional protection than the press, but
simply that if press interests can be read into the
Constitution without somehow violating the ``sacredness of
the covenant,'' the same can be done for victims.
That is the end of Professor Cassell's quotation, the point being--to
those who say the Constitution is sacred; we cannot change it--it
includes rights of the media to attend trials, but somehow it would be
wrong to grant those same rights to victims. That, indeed, is a
disparity. To the extent a defendant might say, ``but I don't want the
victim or the victim's family in the courtroom,'' just as the
Constitution says, but there is a right that we have to balance with
your concerns--and that is the media's right--we would be saying here:
The victim also has some consideration here, and the court needs to
take that into account in deciding the circumstances under which
victims and victims' families would be present.
If we were to somehow insert language that made it possible for
courts to rule that the defendant would always win in the case of such
an assertion, then we would have, I think, perpetrated a cruel hoax on
victims who would think they had something that in fact they would not
have. It would be similar to what victims experienced when they proudly
went into court with their new statute that the Congress had passed,
saying: ``Now, judge, we have a right to attend the trial,'' and he
ignored it. If we put it in the Constitution, the judges can't ignore
it.
But if we said in the Constitution: However, the defendant is always
going to prevail in the case of a conflict, then that would be a cruel
hoax. I think we have gone so far as to suggest we are willing to
acknowledge that the rights enumerated for victims do not abridge
rights guaranteed in the Constitution to defendants. I do not know how
much more clearly we can say that. It leads us, and those who are
supportive, to conclude, if that is not good enough, that perhaps there
really is not a desire on the part of those on the other side to come
to an agreement here in a way that could permit us to have a chance of
succeeding in this debate this week or next.
That is the unfortunate state of play. Senator Feinstein is
absolutely correct. Perhaps in the ensuing weeks we will have an
opportunity to explore other ways of expressing this that make it clear
we are not taking anything away from defendants. But by the same token,
we have to give meaningful rights to victims.
Mrs. FEINSTEIN. If I may, I think the Senator has summarized it very
well. I retain the remainder of my time and yield the floor. I know
there are some other distinguished Senators who wish to come to the
floor and speak.
Mr. KYL. Mr. President, until those in opposition wish to be here,
then, I will speak to close out, really, what I have to say about this.
I would like to do two things: Just to reiterate a couple of
circumstances why this is necessary, and, second, to respond to some of
the arguments that have been adduced against what we propose.
Why do we need these rights? Suppose your daughter was raped and
murdered and you wanted to attend the trial and you were told that,
under the law, you were going to have to sit outside the courtroom
every day. The defendant, the defendant's family and friends, they can
be in the courtroom, they can watch the trial, but you are going to
have to sit outside on the bench in the hallway. That is not fair. It
tears at the gut of those who have been victimized already by the
commission of the crime that hurt or killed their loved one.
Suppose you pick up the newspaper someday and read that the person
who raped you, or assaulted you, is out on the street. He had been
incarcerated. Your testimony helped put him there. You have no idea he
is running free. His may be the knock on your door or the person at the
other end of the telephone which rings. You did not get notice of his
parole hearing. You could not even go down and tell the parole board
how vicious a person this was and why they ought to think twice before
releasing him on parole. You did not even have a chance to go down and
say, ``Will you please consider my safety in establishing conditions
for his release, that he has to stay away from me,'' for example.
We are talking about things that are serious, not frivolous. These
are real cases. Both of the examples I cited are real cases--multiple
cases, I might add. What are the arguments against it? One argument is
it is too long and specific. Right after that, we heard it is too
general. Senator Schumer said we should just have a general statement
about the fairness that victims are entitled to and leave it at that.
Others say that would be far too general. How would we ever define
``unreasonable,'' which is one of the words in our amendment here? Of
course, one could have argued that same thing about some of the
protections for defendants in the Bill of Rights. How will we define
``unreasonable search and seizure,'' it could have been argued. We have
done all right on that.
We were fairly specific about the enumerations of these rights
because we didn't want to take anything away from defendants. We wanted
it to be crystal clear exactly what the rights were so nobody could
contend they went further than they go, so that nobody could argue we
might be stepping on the toes of a defendant. We didn't want to step on
the defendant's toes.
We wanted to make sure the government wouldn't deny victims access to
certain points in the criminal justice process. We were very careful to
define this. Indeed, the Department of Justice met with us on numerous
occasions and said we would have to be more precise in our description
because they could envision possible problems if we do not nail it
down. We nailed it down. That took a few words.
Then we were criticized for having too long an amendment; it is
longer than the Bill of Rights. We pointed out, it is not longer than
the Bill of Rights. Indeed, our amendment is shorter than all of the
rights guaranteed to defendants in the Constitution. The defendants'
rights consume 348 words; the victims' rights consume 179 words. There
are 307 words in our amendment, excluding the purely technical
provision.
Isn't it amazing we have gotten down to a word count, if that is one
of the big objections of opponents? ``It is a little too long.'' It is
not too long. If it were shorter, their argument would be it is not
specific enough, we need to be more specific--and that takes more
words.
Perhaps the least argument--and there will be others propounding this
argument--is that because the Constitution is sacred, it should not be
amended. Maybe it is appropriate to read something in the sacred
document, article V: Whenever two-thirds of both Houses shall deem it
necessary, shall propose amendments to this Constitution . . . when
ratified by the legislatures of three-fourths of the several States, it
becomes effective as part of this Constitution.
Thomas Jefferson said: I am not an advocate for frequent changes in
laws in the Constitution, but laws and institutions must go hand in
hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new truths
discovered and manners and
[[Page S2979]]
opinions change, with the change of circumstances, institutions must
advance to keep pace with the times.
Indeed, Thomas Jefferson also said: Happily for us, when we find our
Constitution is defective and insufficient to secure the happiness of
our people, we can assemble with all the coldness of philosophers and
set them to rights, while every other nation on Earth must have
recourse to arms to amend or restore their constitutions.
It is certainly a reflection of our wonderful United States of
America and our Constitution that from time to time we have found it
necessary to grant rights in this sacred document: the right to vote,
the right to vote when you are 18, the right to vote and not to be
defined by one's sex, the right to a speedy trial. These are rights
that were granted by amendment to citizens after this sacred document
was written. We all agree with the proposition that it is a wonderful
document, a sacred document, a document that ought not lightly be added
to, which has a wonderful and glorious history. Indeed, I submit that
some of the most profound and glorious aspects of the history of this
Constitution are found in its amendments.
To suggest that somehow those who propose an amendment to the
Constitution are doing a great disservice and are assaulting the
Constitution is itself a great disservice to the process set forth in
the Constitution.
It is said that the Constitution ordinarily precluded the government
from affecting the rights of citizens, whereas we are granting rights
to people. I talked about three or four amendments that granted rights
to people: the right to vote if you are 18, the right to vote if you
are a woman, the right to a speedy trial. Those were rights granted to
citizens. Other rights are expressed in terms of preventing the
government from intruding on your rights. For example, the government
will not preclude you from having a speedy trial. They will not deny
you the right to a speedy trial. They won't deny you the right to
counsel.
You can express it either way--as a grant of a right or the
government not denying you the ability to do these things. We say the
government cannot exclude you from the courtroom. They can't exclude
you from the trial. We are not really saying you have a right to attend
the trial; we are saying you have a right not to be excluded from the
trial. There is a difference. The former could lead to assertions that
the government should pay for your getting to the trial, that your
employer should have to let you off work or pay. We don't address that.
We only say if you show up, you get to attend; the government cannot
exclude you.
Some of the other rights are expressed in terms of direct rights.
However, they all infer that the government can't exclude you from
these proceedings. We are doing exactly what other amendments to the
Constitution have done. They are similar rights. The right of the press
to be able to cover a trial, it seems to me, should be no greater than
the right of a victim to be present at the trial. What is the
difference? I conclude by challenging anybody to tell me what the
difference is between granting the media the right to attend a trial
and granting the victim in the case the right to attend the trial.
I don't understand why there is such a visceral negative reaction to
what we are trying to do. If you have ever been a victim or been part
of a tragedy that has affected others, you know how much they want to
bring closure to the event, why they want to witness the criminal
justice process that brings the matter to a close, why they want to
participate at a couple of the stages, particularly at the time of
sentencing and also at the time of a conditional release so that their
safety can be considered, as well as the safety of others.
No one opposing our amendment has suggested that those are unworthy
of protection. Rather, they have said we can do it by statute. But what
did we find yesterday when we looked at the data according to the
National Institute of Justice? After 18 years of Federal and State
statutes and State constitutional provisions, looking at the statistics
from the States that do it the best, that have the most stringent
requirement for notice, fewer than 60 percent of victims were notified
of the sentencing hearing and fewer than 40 percent were notified of
the pretrial release of the defendant.
As I said yesterday, would we consider those adequate percentages for
defendants being given their Miranda warnings, something which isn't
even in the Constitution? No. But somehow we think it is OK that
statutes provide notice to only 40 percent of the people who want to be
present at the parole board, or at least have the opportunity to be
present, to say, please, don't let my assailant go; he will hurt
someone. We are no longer talking about somebody accused of a crime; we
are talking about somebody who has been convicted and who has been
serving time for the commission of that crime.
I mentioned the case of Patricia Pollard--because it is a case from
Arizona--who was brutally raped and left to die. She wasn't told that
the parole board was meeting to consider and then eventually decided to
let her assailant out of prison on a home arrest kind of program. By
accident, she was made aware of it. When she went back to the parole
board and asked them to reconsider their decision, after hearing her
story, they kept him in prison.
When I asked her if she thought her life was in danger had he gotten
out, she said: Maybe he would have tracked me down, but, frankly, I was
a random opportunity for him. I came along at just the time he wanted
to do this to somebody, and he did it to me. Mostly I was concerned
what would happen to somebody else because if he got out he would be
sure to do this to somebody else.
This is what we are talking about. This is not frivolous. This is not
trivial. This is people's lives we are talking about. When opponents
say, we can protect it by statute, we say, the State of Arizona had a
very good statute. In fact, it was better than a statute; it was a
constitutional provision in the State. She still didn't get notice. In
fact, 60 percent of people don't get notice under these constitutional
provisions and State statutes.
Opponents say: That is good enough; maybe we can pass a Federal
statute.
We say a Federal statute can only affect 1 percent of all of these
cases, and there is little reason to believe a Federal statute would be
observed any better than State constitutional provisions are, as the
Oklahoma City bombing case reveals.
I am at a loss. I agree with Senator Feinstein. We are moved by these
cases. We are moved by the people. We want to help. Everybody wants to
help. Even opponents, I am convinced, want to help. So let's do
something about it. It is not doing something effective about it to
fall back on the notion: Well, we will just rely on another statute;
let's pass another law. That is not the answer.
We are at this point now because we have not done enough to educate
our colleagues, and I will accept part of the blame for that. I should
have spent a lot more time--although I must confess my colleagues got
tired of me coming around saying: Are you sure you wouldn't like to
hear a little bit more about this? Maybe we should have tried a little
harder to say: Will you please listen one more time to our plea?
What has happened is a very superficial mantra of inaccuracies and
falsehoods have persuaded colleagues to oppose this to the extent they
would not be willing to allow it to come to a vote. In other words,
when we would seek to bring this to a final vote, we would not be able
to stop the talking, to stop the filibuster, in effect, to get 60 of
our colleagues to agree to bring the matter to a vote or to prevent
nongermane amendments. There had been a suggestion by some that if we
proceed, then we can expect a whole flurry of amendments that have
nothing to do with what we are talking about.
Obviously, we do not want to tie up our colleagues' time with that,
so we come to the unhappy conclusion that we have more work to do.
The good news is that we prevailed with 80-some votes--perhaps the
Senator can recall exactly how many votes we got on the cloture motion
to proceed. But it was over 80, as I recall. We have 41 cosponsors of
our amendment now, which is real progress. We got a good bipartisan
vote out of the Judiciary Committee.
This is the first time this Federal constitutional amendment has been
brought to the floor of either House. We have reached a real milestone.
We
[[Page S2980]]
have done well. Most constitutional amendments never pass. All of them
take a long time. I do not know of any, at least in modern history,
that passed the first time they were presented on the floor of the
Senate.
The fact we have been thwarted part way down the road temporarily,
while a setback of sorts, should not dissuade those advocates or crime
victims in their efforts. As Senator Feinstein said, we will be back,
and hopefully next time when we are back, more of our colleagues will
have had an opportunity to study this carefully, more victims and
victims' rights organizations will have had an opportunity to visit
with Senators and Representatives, and we will have been able to
persuade a sufficient number of them to allow us to proceed to a final
vote.
While there is some sorrow in our inability to bring this to
conclusion today, I am buoyed by the prospect and the fact we have at
least gotten to this point.
Mrs. FEINSTEIN. Mr. President, will the Senator yield for a moment?
Mr. KYL. I yield.
Mrs. FEINSTEIN. Mr. President, I also am buoyed by the prospects. As
we go through this more and more, I understand more and more what is
happening behind the scenes. I do want to enter into the record this
latest letter from Professor Larry Tribe. Senator Kyl will be
interested in one quote. He says deep into his letter:
I can count on the fingers of one hand the number of
ostensibly ``liberal'' lawyers and scholars who do not look
askance when they learn of my support for this amendment.
Friends who otherwise respect me and admire my work have a
difficult time, it seems, assimilating the notion that a
liberal champion of defendants' rights--something I think I
have been all my life--should take seriously the idea that
the victims of violent crime actually have ``rights'' that
the Constitution should compel government to take seriously
and to treat with respect, rather than merely being the
unfortunate--well, victims--of criminal predations that the
state is charged with combating, in a system where the only
``rights'' worth naming and treating as such of course belong
to those unfortunate enough to find themselves on the wrong
end of the machinery of criminal justice. With all respect, I
do not share that perspective. Rather, I regard its deeply
ingrained nature as the principal argument for the conclusion
that statutory measures will never fully suffice.
Mr. President, I ask unanimous consent to print Professor Tribe's
letter in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Harvard University
Law School,
Cambridge, MA, April 27, 2000.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Feinstein: I have previously set forth my
reasons for supporting S.J. Res. 3, the proposed Victims'
Rights Amendment now under consideration in the Senate, and
little purpose would be served by my repeating those reasons
here. I understand the objections some have raised to the
proposed amendment and have enormous respect for many who
oppose the measure, but on balance I am persuaded that the
considerations favoring the amendment outweigh those against
it, even placing an appropriately skeptical thumb on the
scale's negative side.
I am writing to address one consideration in particular
that is highlighted by the proposed Crime Victims' Assistance
Act, S. 934, whose sponsors, many of whom are my good
friends, evidently hope by this federal statute to obviate
the need for the proposed constitutional amendment. I favor
S. 934's enactment, at least in principle. I assume that
closer study of its detailed provisions that I have been able
to undertake would disclose ways in which it might be
improved, but minor technical flaws or even design defects in
the contemplated statute would be beside the point and are
not my focus here. After all, detailed problems with the
statute's terms could be cured by redrafting and would not in
themselves explain why only an amendment to the Constitution
could meet the need for fuller national protection of
victims' rights.
My concerns are different ones. First, I am concerned that,
as the authors of S. 934 doubtless realized given how they
wrote their bill, it does nothing directly for the vast
majority of crime victims--those victimized by violations of
state or local rather than federal law. To be sure, S. 934
would offer the states money for pilot projects and the like,
and money of course helps, but the basic reasons for the
dramatic underprotection of state crime victims are more
attitudinal than fiscal: Even when states enact victims'
rights measures of their own in response to pressures from
constituents, there is a tendency to ignore or underenforce
such rights whenever they appear to rub up against either the
rights of the criminally accused or the needs or wishes of
the prosecution. And I do mean to say ``appear to rub up
against,'' for the problem I have in mind arises in those
situations where a careful analysis would reveal that the
seeming conflict between victims' rights and the rights of
the accused or the interests of the state is a false or a
readily avoidable one. The mere brandishment of the banners
of defendants' rights or of prosecutorial needs too often
suffices to push the needs and interests of victims--to be
notified, to observe, to be heard, to have their views
considered, to achieve closure, to be compensated if
possible--into the background. Rather than creatively and
determinedly seeking ways to protect victims' rights in
ways that manage fully to respect the genuine rights,
privileges, and needs both of the accuser and of the
accused, state and local officials are understandably but
unfortunately tempted to relegate victims and their rights
to second-class status or to shelve them altogether,
treating as merely hortatory and aspirational provisions
of law enacted with something much stronger and more
operational in mind.
State statutory and constitutional provisions cannot
overcome this phenomenon so long as the only parties whose
rights receive federal constitutional recognition,
recognition that reinforces and amplifies traditional habits
of mind at the state and local levels, are the defendants in
criminal prosecutions. And S. 934, which obviously could not
touch the actual conduct of state and local criminal
investigations, prosecutions, and adjudications, is
manifestly incapable of affecting this pervasive tendency.
Indeed--and this is my second major concern--even in the
federal criminal context within which S. 934 would operate,
the proposed statute would take effect against the background
of a legal culture in which the very notion of ``victims'
rights'' has traditionally been dismissed either as a vague
metaphor or as an atavistic throwback to a primitive era of
private justice. In a federal universe within which victims
are pervasively perceived as mere passive beneficiaries of
government protection--as bystanders to the majesty of the
criminal process rather than as entitled participants in that
process--a merely statutory codification of certain
``rights,'' removable by the grace of the same Congress that
bestowed them, is most unlikely to effect the pervasive
attitudinal change that is so badly needed. When push comes
to shove, even where adequately protecting victims does not
in truth entail any abridgment of the federal constitutional
rights of criminal defendants or of the needs of government
prosecutors to protect the public and vindicate the law, any
superficially plausible protest from either the prosecution's
table or the defense bar is likely to shove victims and their
S. 934 rights back into the shadows, from which a federal
judiciary steeped in precisely the same legal culture is
unlikely to rescue them.
Evidence of the depth and pervasiveness of this basic
attitude, and of the view that to defend the rights of
victims is to engage in a primitive exercise in emotionalism,
incompatible with the structure of our adversary system of
justice and with the rational character of the modern
bureaucratic state, is the ferocity and generality of the
opposition to a constitutional amendment to protect victims'
rights, at least among the elite and especially in the
supposedly enlightened circles with which I like to think I
associate. I can count on the fingers of one hand the number
of ostensibly ``liberal'' lawyers and scholars who do not
look askance when they learn of my support for this
amendment. Friends who otherwise respect me and admire my
work have a difficult time, it seems, assimilating the notion
that a liberal champion of defendants' rights--something I
think I have been all my life--should take seriously the idea
that the victims of violent crime actually have ``rights''
that the Constitution should compel government to take
seriously and to treat with respect, rather than merely being
the unfortunate--well, victims--of criminal predations that
the state is charged with combating, in a system where the
only ``rights'' worth naming and treating as such of course
belong to those unfortunate enough to find themselves on the
wrong end of the machinery of criminal justice. With all
respect, I do not share that perspective. Rather, I regard
its deeply ingrained nature as the principal argument for
the conclusion that statutory measures will never fully
suffice.
Permit me to add one point before closing: I want to
address the argument that S. 934 should not be faulted for
failing to reach state proceedings because, after all, it is
designed only to operate at the federal level, and because
either state statutes or state constitutional provisions or
perhaps federal civil rights-like legislation enacted under
Section 5 of the Fourteenth Amendment could fill the state
and local gap that S. 934 necessarily leaves unfilled. That
argument is flawed first, because it fails entirely to come
to terms with the basic reasons, set forth above, that merely
statutory measures would be unable to combat the deeply
rooted attitudinal problems confronting victims and their
claims of right; and second, because, insofar as it assumes
broad congressional power to act under Section 5 of the
Fourteenth Amendment, it is simply ignorant of the series of
decisions in the 1990s and reaching into 2000, beginning with
the invalidation of the Religious Freedom Restoration Act and
continuing with the invalidation of provisions of the Patent
Reform
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Act and the Age Discrimination in Employment Act, in which
the modern Supreme Court has dramatically curtailed the
legislative authority of Congress to use its Section 5 power
to protect interests that Congress, but not yet the Court, is
prepared to recognize as constitutional rights, or even to
protect Court-recognized constitutional rights in
circumstances, or by means, not shown in the legislative
record to be ``necessary.''
In sum, although S. 934 represents an intelligent step in
the much-needed strategy of operationalizing and
institutionalizing the rights of victims, neither by itself
nor as part of a series of measures, both federal and state,
can it hope to provide a satisfactory substitute for the more
fundamental constitutional step represented by S.J. Res. 3, a
step that I consider not only wise but necessary despite--and
(paradoxically) in part because of--its current lack of
appeal for ``the usual suspects'' on the criminal justice
scene, both in the defense and civil liberties bars and among
prosecutors and their champions.
I hope you find these observations to be of some use, and I
apologize for my inability to get them to you sooner. I wish
you well in the difficult effort to obtain passage of this
amendment by the requisite two-thirds vote and, should you
succeed in that respect, in the onerous effort to win its
ratification by the requisite three-fourths of the state
legislatures.
Sincerely yours,
Laurence H. Tribe.
Mrs. FEINSTEIN. Mr. President, I extend my deepest thanks to
Professor Tribe for his letter and for his support. We will certainly
be consulting both he and Professor Cassell again and come back to
fight again another day.
I want to say something to the victims who have been so heartrending
in this process. Those of us who are political come to grips with the
sophisticated lobbying around this place. One of the things I have seen
in the people whom we represent is they are real people. They have been
maimed, they have been harmed, they have been hurt, and with this--I
have seen this in the past when I was active in the criminal justice
system--victims almost become catatonic. They almost become unable to
go out and do the lobbying that is necessary to move something such as
this.
I want them to know how much we identify with their cause, how much
we intend to continue to pursue this cause. It is a just cause. It is a
cause that deserves remedy and recognition in the Constitution of the
United States. It is a cause where, once victims have these rights,
they lost them.
This Congress--the other body and our body--should provide these
rights again. I am hopeful that in the coming years, we will be able to
continue our work on this. Perhaps we will be able to solve this one
dilemma of the balancing. It is interesting; anytime one reads a
statement by the President or by the Attorney General, it mentions the
balancing of these rights. Yet when we write something in the
Constitution which, in effect, would provide for this, it brings out
the criminal defense bar; it brings out the liberal scholars; it brings
out people who say: You can't do this. You can't give victims these
rights.
The cause is just that they have these rights. A statute, we believe,
will be unable to provide them, but as to their standing in the
Constitution, there is a time and there is a place, I predict, when
that standing will happen and take place.
Mr. KYL. Mr. President, I want to add something to a point Senator
Feinstein just made. I do not think she would take offense at my
mentioning what occurred in my office about 4 hours ago.
We were summarizing the events and what led to the inability to get
this across the goal line this week. I said it is partially my fault
for not bringing more victims to the Senate to talk directly with
Senators and share their personal stories.
I told that to Roberta Roper, who heads up the Stephanie Roper
Foundation. Stephanie Roper was brutally murdered, and Roberta, her
mother, has carried this cause in Stephanie's name. They do a lot of
good in terms of victim support, in addition to victim advocacy.
She said: You have to understand, though, we are conditioned not to
present these stories in an emotional, personal way. We have been told
over and over again in the court that ``there can be no display of
emotion.'' Those are the words the judges used. I have been told that a
display of emotion would be wrong.
Now, think about that. Part of what makes us great as a people is the
willingness to act out of our heart as well as our mind. We should
never do incorrect things or unintelligent things, acting purely on the
basis of emotion, but nor should we deny that emotion can be a potent
force in developing public policy.
I tried to tell Roberta that I think it was a mistake, on my part,
not to appreciate what she was telling me, not to understand it in
advance, and not to counsel her to go ahead in this environment and
express it in emotional terms. This is not a court of law. This is
where the people's business is done.
I believe that until one fully appreciates what a victim goes
through, it is hard to appreciate the necessity for what we are doing
here.
Perhaps I could conclude by reading a paragraph again from the
remarks of Professor Paul Cassell before the Judiciary Committee.
He said:
The available social science research suggests that the
primary barrier to successful implementation of victims'
rights is ``the socialization of [lawyers] in a legal culture
and structure that do not recognize the victim as a
legitimate party in criminal proceedings.''
He is talking about a professor, a colleague of his, who disagrees
with our position, Professor Mosteller.
He says:
Professor Mosteller seems to agree generally with this
view, explaining that ``officials fail to honor victims'
rights largely as a result of inertia and past learning,
insensitivity to the unfamiliar needs of victims, lack of
training, and inadequate or misdirected institutional
incentives.'' A constitutional amendment, reflecting the
instructions of the nation to its criminal justice system, is
perfectly designed to attack these problems and develop a new
legal culture supportive of victims. To be sure, one can
paint the prospect of such a change in culture as ``entirely
speculative.'' Yet this means nothing more than that, until
the Amendment passes, we will not have an opportunity to
precisely assay its positive effects. Constitutional
amendments have changed our legal culture in other areas, and
clearly the logical prediction is that a victims' amendment
would go a long way towards curing official indifference.
This hypothesis is also consistent with the findings of the
National Institute of Justice study on state implementation
of victims' rights. The study concluded that ``[w]here legal
protection is strong, victims are more likely to be aware of
their rights, to participate in the criminal justice system,
to view criminal justice system officials favorably, and to
express more overall satisfaction with the system. It is hard
to imagine any stronger protection of victims' rights than a
federal constitutional amendment. Moreover, we can
confidently expect that those who will most often benefit
from the enhanced consistency in protecting victims' rights
will be members of racial minorities, the poor, and other
disempowered groups. Such victims are the first to suffer
under the current, ``lottery'' implementation of victims'
rights.
I think that expresses well the reason for the frustration we have
shared, the reason so many of our colleagues have come here repeating
the mantra of the legal profession that it has never been this way
before. Maybe it is time to change the way things have been. That is
why we have been so strongly in support of this amendment.
I see one of the opponents of the amendment is here. I know he wishes
to speak. Therefore, let me conclude my remarks by again thanking
Senator Feinstein for her stalwart, effective support and her desire to
continue this battle on behalf of the victims of crime.
I assure you, Mr. President, that even though we will be withdrawing
our motion to proceed on S.J. Res. 3, we will continue to meet with,
and work with, anyone who wishes to work with us on this--opponents and
proponents--to try to get it into the condition that will finally be
approved by two-thirds of this body and two-thirds of the other body.
That is our challenge. That is our commitment. It is our promise that
we will continue in this effort.
Mr. LEAHY. Mr. President, I am pleased that the sponsors of S.J. Res.
3 have decided to withdraw their proposal to amend the Constitution.
One of the reasons they gave for their decision is that the many
Senators who came to the floor to oppose their amendment have not, in
their view, engaged on the merits of their specific language. Because
of this, and because they have vowed to continue in their efforts to
amend the Constitution to address victims' rights, I feel obliged to
say a few words about some of the most glaring defects of S.J. Res. 3.
One of the most fundamental responsibilities of United States
Senators is to make sure that we understand what
[[Page S2982]]
we are enacting into law. That duty is heightened when we are
considering a constitutional amendment. Justice John Marshall said that
the Supreme Court ``must never forget, that it is a constitution we are
expounding.''
We, too, must never forget that it is a constitution--the
Constitution of the United States of America--that we are being urged
to amend.
I could speak for hours about the defects of this proposed amendment,
but I trust that Senators have had an opportunity to consider the
minority views in the Committee report that I submitted, along with
Senators Kennedy, Kohl, and Feingold.
The minority views run about 40 pages, and identify several specific
problems with the drafting of this amendment.
I would also direct Senators to the additional views to the
Committee's 1998 report, submitted by our distinguished Chairman.
Senator Hatch's views subject this amendment to penetrating criticism.
He reiterated such concerns just yesterday in his statement to the
Senate in which he indicated the following reservations about the
proposed constitutional amendment:
Its scope: the amendment's protections apply only to
violent crimes;
Its vagueness: some of its definitions are unclear and will
be subject to too much judicial discretion; and
Its effects on principles of federalism: the proposed
amendment could pave the way for more federal control over
state legal proceedings.
For the moment, I will just focus on a few fundamental flaws.
Let us start with the first, and most important, seven words of the
amendment. The amendment gives rights to ``a victim of a crime of
violence.'' Supporters of this amendment have often compared it to the
fifth and sixth amendments, which give rights to those accused of
crimes. So let us compare them.
The most basic point about any constitutional right is, whose right
is it? The fifth and sixth amendments are clear on that point: They
give rights to people who have been charged with committing crimes, and
we know who those people are. Of course, the other amendments to our
present Constitution are no less clear, since they apply without
exception to ``the people,'' or to ``citizens of the United States,''
or, in the case of the fourteenth amendment, to ``all persons born or
naturalized in the United States and subject to the jurisdiction
thereof.'' But do we know who would have rights under the proposed
victims' rights amendment?
The answer in the text of the amendment is ``a victim of a crime of
violence.'' Who is that? Let us make it easy by taking the most obvious
crime of violence--murder. Who is the victim of a murder? The last time
I prosecuted a murder case, the victim was the dead person. But that
answer, what Justice Scalia might call the plain language approach to
interpretation, will not do here, unless the purpose of the amendment
is to enable the corpse to attend the trial.
So who, if anyone, gets the benefit of the proposed constitutional
rights in a murder case? Maybe nobody. Or maybe the reference in
section 2 to ``the victim's lawful representative'' refers to the
trustee of the victim's estate in a murder case, although I do not see
what the trustee of a murder victim's estate would have to contribute
to a bail or parole hearing. Or maybe the amendment's supporters are
banking on what I believe are called ``activist judges'' to add words
to the amendment that are not there and extend rights to a murder
victim's family.
This would raise other questions, like what happens when members of
the victim's family hold different views about parole, or each wants a
share of the mandatory restitution order? Would unmarried couples, be
they heterosexual or homosexual, count as families? Would the six-year-
old son of a victim be entitled to make arguments in connection with a
negotiated guilty plea?
Okay, you may say, so murder is a problem. What about other crimes of
violence? Let us take robbery. Let us say there is an armed robbery of
a bank. A gun is pointed at a lot of people, tellers and customers. A
security guard is shot and injured. The bank loses a lot of money. A
pretty simple factual story, and one that I know, from my time as a
prosecutor, happens all too often.
Pretend I am the prosecutor in this bank robbery. Tell me who are the
victims I have to notify. The security guard? The 20 customers who were
uninjured but had a gun pointed at them? The 10 bank tellers? The CEO
of the bank? And while you are at it, tell me who gets the mandatory
restitution--the bank that lost the money, the security guard who was
injured, or the customers and tellers who were scared, or the teams of
plaintiffs'--or, I guess, victims'--lawyers who are fighting out these
questions.
And who gets to reopen the restitution hearings? Or the bail
hearings? Feel free to assume that I am a competent prosecutor who can
figure out some administrative details. But, if you are going to pass
this amendment, do not pass the buck to me to decide who has
constitutional rights and who does not. That is your job if you want to
be a Framer of the Constitution; it is not the job of individual courts
and prosecutors.
I have talked about two of the most infamous crimes of violence,
murder and robbery. Other crimes, such as compound crimes under the
federal RICO statute that can include lots of different criminal acts,
some violent and some non-violent, over an extended period of years,
will involve even harder problems when we try to identify who is and
who is not a ``victim of a crime of violence.'' But we should also
consider the most common form of violence that afflicts our society,
domestic violence.
Here is a typical scenario. The police get a call from neighbors who
hear shouting and screaming and pots and pans being thrown. They reach
the house and find the husband and wife hysterically angry at one
another and a young child cowering in the corner. It is not entirely
clear who attacked whom, but the husband is injured and the police
arrest the wife and charge her with assault. The wife's bail hearing
comes up, or maybe there are plea negotiations. The wife claims it was
self-defense; the husband claims she attacked him without provocation.
The wife claims she is a victim of a crime of domestic violence; so
does the husband. Maybe the child is too. The proposed amendment leaves
us with no clue whether a witness to violence who is psychologically
but not physically injured by the violence has the new constitutional
status of ``victim''.
Under current law, it is up to the jury to determine who is the
victim and who is the criminal in this sad domestic scenario, and the
jury makes that determination after hearing all the evidence from both
sides at trial. Under the proposed amendment, that determination must
be made before the wife's bail hearing or plea negotiation. If the
husband can persuade the prosecutor that he is the victim, and not the
instigator of the violence, he gets the special new constitutional
rights of a crime victim at the bail and plea bargaining stage, before
the wife has even had a chance to present her evidence to the jury that
the husband is really the guilty party.
Or maybe the wife can insist on extra-judicial proceedings to contest
the husband's status as a victim--although I do not know how you would
squeeze in extra proceedings before bail or indictment hearings.
Assuming that the husband is the ``victim'' for purposes of our new
constitutional amendment, what does that get him? Maybe he will push
for bail or for a plea with a minimum sentence conditioned on his
getting custody of the child, perhaps accompanied by a new kind of
child support called ``restitution.''
Or maybe the husband will be satisfied with his new constitutional
right to notice of his wife's release from custody, which will help him
track her down and exact revenge.
In some cases, the right end result may be reached. But the process
that the proposed amendment seem to involve bypassing a trial on the
merits and potentially bypassing family court. By creating pre-trial
rights for an undefined category of victims, it requires someone--I
guess the prosecutor--to decide who is the victim of a given crime, and
who gets special constitutional rights before there has been a trial or
even an indictment.
Deciding who has constitutional rights and who does not before there
has been even an ex parte judicial proceeding is un-American. Doing so
in a
[[Page S2983]]
case, like a domestic violence case, where there are likely to be self-
defense issues, risks giving special constitutional rights to the
criminal instead of the victim.
One more comment on this half-baked, undefined term ``victim of a
crime of violence.'' Thus far, I have discussed the easy cases in terms
of what constitutes a ``crime of violence''--murder, robbery, and
assault. But there are a lot of hard cases, too.
Is drunk driving a crime of violence if the driver physically injures
a pedestrian? What if the driver runs over the pedestrian's dog, or
crashes into a parked car? Can the same offense be a crime of violence
if someone is physically injured, but not otherwise?
What about elder abuse or child abuse? We have all heard heart-
breaking stories of seniors and disabled people who have suffered
horrible abuse and neglect at the hands of their so-called care-givers,
and of children locked up in squalid conditions and subjected to
appalling psychological abuse by their parents.
Neglect of the weak and vulnerable in our society by those who have
taken the responsibility of being their care-givers can cause as much
harm as almost any violence, without a hand ever being lifted against
them. But are neglect and non-physical abuse ``violence''? What about
the horrifying slavery case involving more than 50 Mexican immigrants
in New York a few years ago? Is enslavement a crime of violence? And
what about kidnapping? If a parent who has been denied legal custody of
a child kidnaps the child, is that a crime of violence, and if so, who
is the victim, the child, the custodial parent or both?
The words of the proposed amendment do not answer these questions.
The majority report suggests answers, some of which seem to stretch the
concept of a ``crime of violence'' to the breaking point. It suggests,
for example, as possible crimes of violence burglary, driving while
intoxicated, espionage, stalking, and the unlawful displaying of a
firearm--very serious crimes, but crimes that usually do not involve
``violence'' in the normal sense of the word.
Last year, Senator Hatch criticized the proposed amendment's reliance
on the term ``crime of violence'' as ``arbitrary.'' I can do no better
than to quote his language:
I believe we must tread carefully when assigning
constitutional rights on the arbitrary basis of whether the
legislature has classified a particular crime as ``violent''
or ``non-violent.'' Consider, for example, the relative
losses of two victims. First, consider the plight of an
elderly woman who is victimized by a fraudulent investment
scheme and loses her life's savings. Second, think of a
college student who happens to take a punch during a bar
fight which leaves him with a black eye for a couple of days.
I do not believe it to be clear that one of these victims is
more deserving of constitutional protection than the other.
While such distinctions are commonly made in criminal
statutes, the implications for placing such a disparity into
the text of the Constitution are far greater.
It is interesting to note that in their additional views in this
year's Committee report, Senators Kyl and Feinstein do not in any way
disagree that the scope of their proposed amendment is arbitrary.
Instead, they explain it as a political compromise.
I do not recall Madison and Jefferson saying at the constitutional
convention that the provisions they drafted were not great, but
politics are politics and you should not expect too much. I believe
that we owe the American people something more than arbitrary political
compromises when we amend their Constitution.
For anyone who shares Senator Hatch's and my concerns about the
arbitrariness of focusing on ``crimes of violence,'' there is, by the
way, a solution at hand. Vote against the proposed constitutional
amendment and, instead, pass the Crime Victims Assistance Act, which
provides strong and effective rights for all crime victims.
I have said a lot about the first, and most important, seven words of
the proposed amendment; and I could identify many more problems. But
let us sum up where we are so far. We are not sure whether the
amendment applies at all to the most obvious ``crime of violence,''
murder, and we have no idea who gets the new constitutional rights for
``victims'' in a murder case if it does. In other fairly common crimes
of violence such as robbery, the amendment appears to apply, but even
assuming clear and simple facts, we are not sure which type of person
affected by the crime gets to exercise the ``victim's'' rights, and the
answer may well be a large number of people affected in vastly
different ways--some physically, some emotionally, and some
financially--who have vastly different views and interests. In what is
probably the most common violent crime scenario, domestic violence, the
amendment appears to require the prosecutor to decide who is the
criminal and who is the victim as a constitutional matter, without the
benefit of evidence at trial and without participation of judge or
jury. And then we have what perhaps we should call ``borderline
crimes,'' a wide range of crimes that may or may not be classified as
crimes of violence.
On the ``of violence'' issue, Senator Hatch has raised troubling
concerns that it is arbitrary as a matter of principle. I agree, and
add the further concern that it is yet another huge point of
uncertainty as to the meaning of this amendment. On this and other
points, the answer of the amendment's supporters appears to be ``don't
worry, someone else will figure this out later.''
``Don't worry, someone else will figure this out later.'' I think we
can all agree that is not a principle that Congress should ever follow,
especially not in the context of a constitutional amendment. Supporters
of the amendment will no doubt contend that it is an unfair
characterization of their position. Well, let us see what their
amendment says.
The amendment seems quite candid in admitting that its central terms
are yet to be defined. Section 1 says that the new constitutional
rights created by the amendment go to ``A victim of a crime of
violence, as these terms may be defined by law.'' I take it that
``these terms'' mean the two terms that we have identified as
hopelessly vague: (1) ``victim'' and (2) ``crime of violence.''
The phrase ``as these terms may be defined by law'' is a new one for
the United States Constitution. There is a reason for this. Our
Constitution was conceived as, and is, ``the supreme Law of the Land.''
As Chief Justice John Marshall explained in Marbury versus Madison in
1803, our Constitution, as interpreted by the U.S. Supreme Court, is
the law by which our other laws, State and Federal, are to be judged;
it is not whatever our other laws, enacted by shifting political
majorities from time to time, say it is.
Take, for example, the fourteenth amendment guarantee of equal
protection of the laws. That does not mean equal protection ``as
defined by law.'' If it did, the legislature and Governor of Arkansas
might have been entitled to do what they did in 1957, when they
``defined'' the equal protection rights of public school students to be
rights to a ``separate but equal,'' racially segregated education. But
our Constitution has never worked that way, and in 1958, in Cooper
versus Aaron, the Supreme Court rightly ruled that Arkansas' attempt to
redefine the fourteenth amendment was unconstitutional, and
desegregated Arkansas' schools.
Our Constitution has a provision, and a process, for defining new
constitutional rights or for redefining existing constitutional rights.
That provision, the amendment provision, is in Article V. Article V
provides for two-thirds of the members of both Houses of Congress, plus
three-fourths of the State legislatures, to amend the Constitution when
``necessary''. It does not provide for us to pass the buck to bare
majorities in State legislatures or in a future Congress to define or
redefine constitutional rights as we go along.
As a matter of principle, therefore, I believe that an ``as may be
defined by law'' provision is an abdication of our duty, sitting as we
do today as constitutional Framers, to provide clear constitutional
standards against which other laws may be judged. In a constitutional
democracy, the rule of law means that constitutional rights are to be
found in the Constitution, not in ordinary statutes passed from time to
time.
If we are going to pass the buck, we should at least be clear about
who we are passing it to. Who gets to write the ``law'' that
``define[s]'' the critical terms of this constitutional amendment? This
is yet another basic question that the amendment itself does
[[Page S2984]]
not answer. So I have studied the Committee report for an answer.
In a statement that must be profoundly troubling to those Senators
who complain regularly about ``activist judges'' making law, the report
first says that ``[t]he `law' which will define a `victim' (as well as
`crime of violence') will come from the courts interpreting the
elements of criminal statutes until definitional statutes are passed
explicating the term.'' This, I suppose, is the ``don't worry, the
courts will figure it out'' theory. Anyone who subscribes to this
theory should be prepared to confirm the most activist judges this
country has ever seen, because that is certainly the vaguest, blankest
check that has ever been written to the judiciary.
The Committee report ``anticipates'' that judicial law-making under
this constitutional amendment may be short-lived--that Congress and the
State legislatures would quickly step in and enact ``definitional
laws'' for purposes of their own criminal systems.
It is worth pausing for a moment to consider what this means. One of
the main arguments that we have heard in support of this amendment is
that we need to eliminate the current ``patchwork'' of victims' rights.
We are told we need this amendment because even though all 50 States
provide rights for victims, the rights vary from State to State. A
constitutional amendment that may be defined differently from State to
State would not correct this situation --it would simply replace one
patchwork with another. The superficially simple concept of basic
baseline rights for victims will fracture into more than 50 different
schemes of rights. I do not think that there is anything wrong with
such diversity; indeed, I believe that the present system of defining
crimes and the rights of crime victims and enforcing criminal justice
primarily at the State level has served this country well throughout
our history. But I do object to a shell game that dresses up rights
defined by State law as Federal constitutional rights, thus
trivializing the United States Constitution and casting doubt on the
rights that it currently protects.
Finally, I should note that the ``as these terms may be defined by
law'' provision is not the only delegation in this proposed amendment.
Section 3 provides that ``The Congress shall have the power to enforce
this article by appropriate legislation.'' In their additional views,
Senators Kyl and Feinstein note that they originally proposed to give
enforcement power to the States as well as to Congress, but then
reached another of this amendment's political compromises.
I am, however, mystified as to what function the section 3
enforcement power could possibly serve. Similar provisions are
contained in the fourteenth amendment and in the various amendments
that protect voting rights. In the fourteenth and voting rights
amendments, the Federal enforcement power against the States was
justified by the long history of resistance of certain States to the
Federal constitutional mandates for equal protection of law and equal
voting rights. But there is no such history of State abuses with
respect to victims' rights. In fact, many States provide more
protections for crime victims than Federal law provides.
The majority report alleges no conflict between States and the
Federal Government that would necessitate a Federal enforcement power.
Rather, the reason given by the amendment's principal sponsors for
putting victims' right in the Federal Constitution at all is that the
States supposedly need Federal help to protect them effectively. They
claim that:
States have had difficulty extending rights to victims of
crime through State statutes and constitutional amendments
precisely because courts are used to considering, first and
foremost, Federal constitutional rights. By extending Federal
rights to victims throughout the States, it will then become
easier for State criminal justice systems to protect the
rights of victims.
I frankly do not understand this explanation. If you want to empower
State courts to take State statutes and constitutional amendments
seriously, the last thing you do, I would think, is impose a complex
new Federal mandate on them. If you want to help willing States protect
victims, the last thing you do, I would think, is to place their
criminal justice systems under congressional supervision and subject
them to Federal enforcement through the Federal courts.
We are left, therefore, with an enforcement provision that mimics
other amendments, but without any suggestion of the need to coerce
recalcitrant States that justified such provisions elsewhere. Coercing
the States here because we have done it before in other contexts is
harmful to State sovereignty. And empowering Congress to enforce
against the States constitutional rights which it is up to the States
to define is likely to be futile. If the goal is, as asserted, to help
the States protect victims' rights, we should not be piling new
constitutional duties on the States; we should be providing assistance.
Instead of threatening them with the stick of federal enforcement, I
believe that we should offer the States the carrot of funding for the
protection of victims' rights. If you agree with me, you should reject
this amendment and, instead, support the Crime Victims Assistance Act.
Senators Kyl and Feinstein urge us not to make perfect the enemy of
the good. If this amendment responded to an urgent need that could not
be met by statute, and if it were well-drafted but imperfect, I would
give that argument serious consideration. I have explained before why I
believe the goals of this amendment are not merely adequately served,
but better served, by statute. But I want to highlight briefly the
other problem with this amendment. Not only is it not perfect; it is
not well-drafted. In fact, it is remarkably sloppy.
I have just discussed the two major problems with the text of the
amendment. Section 1 creates a complex scheme of new federal
constitutional rights without saying with any clarity who is entitled
to those rights, then says ``don't worry; someone, somewhere, in a
court or in Congress or in the States, will make a law that will
identify who gets these rights.'' Section 3 then empowers Congress to
enforce those rights on behalf of these yet-to-be-identified people
against the States, not because the States are unwilling to recognize
those rights, but because Congress has been empowered to enforce other
constitutional rights in the past, so ``why not here.''
I do not want to skip section 2. Let me read you a sentence:
Nothing in this article shall provide grounds to stay or
continue any trial, reopen any proceeding or invalidate any
ruling, except with respect to conditional release or
restitution or to provide rights guaranteed by this article
in future proceedings, without staying or continuing a trial.
Let us call that ``the tax lawyer's provision,'' since it is so
obscure that I think only someone who has spent half their life
plumbing the depths of the tax code could understand it. It would
certainly be the first triple negative in the United States
Constitution. I think that ``Nothing in this article shall provide
grounds to stay or continue any trial'' should be a sentence on its
own, since I do not think that this rule ends up being subject to the
exception, in light of the exception to the exception, but frankly I am
not sure.
I am also puzzled by the exception that appears to allow victims to
reopen proceedings or invalidate rulings ``to provide rights guaranteed
by this article in future proceedings.'' If the concern is with future
proceedings, I see no need for the exception to allow the reopening of
present proceedings. But maybe I missed a turn somewhere in the
drafters' maze.
Regardless of how it is ultimately interpreted, this intricate web of
exceptions is not the stuff of a Constitution. One of the great virtues
of our Constitution is that it speaks with a clear voice, articulating
principles of justice that ordinary Americans can understand. The
proposed amendment fails to meet that standard.
Finally, let me say a few words about section 5, which states that
the new constitutional rights for victims shall apply ``in Federal and
State proceedings, including military proceedings to the extent that
the Congress may provide by law, juvenile justice proceedings, and
proceedings in the District of Columbia and any commonwealth,
territory, or possession of the United States.'' This section is truly
an enigma. No provision of the current Federal Constitution goes into
detail about its geographic scope. There is a reason for that.
[[Page S2985]]
The purpose of the Bill of Rights, as envisioned by the Framers, was
to provide a fundamental uniform platform of rights enjoyed by all
people throughout the United States. Of course every provision of the
Constitution applies throughout the United States. The fact that the
drafters of this amendment felt the need to state that here suggests a
fundamental confusion about the nature of the Federal Constitution,
which is, by definition, the supreme law of the land. It was, perhaps,
that same confusion that led them to provide for the key phrase of this
federal constitutional amendment, ``a victim of a crime of violence,''
to be defined by a patchwork of State and Federal statutes.
A degree of uncertainty at the margins on questions of law and fact
may be inevitable in legislation. But, despite the fact that it would
be one of the longest-ever amendment to the Constitution, the half-
baked proposal before the Senate is hopelessly vague on the basics. I
do not know from looking at this amendment and listening to its
supporters when it applies and who it applies to, or how that will be
figured out.
Senator Hatch has made many of the same points about this proposed
constitutional amendment. At our last Committee markup in September
1999, however, the distinguished Senator from Utah said that he
intended to vote for this amendment, even though he has ``real
questions'' about it, ``because of the hard work that has been put into
it.'' I cannot go along with that reasoning. I commend the efforts of
those who have worked on this amendment, as I commend the efforts of
Federal and State legislators across the country who have worked to
provide rights for victims of crime.
But ``A'' for effort is not good enough if it means subjecting the
American people to a ``C''-grade Constitution.
As a Senator, I believe I have a constitutional duty not to inflict
on the American people and our busy courts a new constitutional
provision when I and they have no idea what it means in the most
obvious type of case to which it theoretically might apply. And I have
a constitutional duty as a Senator not to pass the buck to the courts
by saying, ``Here's a new constitutional provision that no one
understands. Go make something up.''
When Madison, Jefferson and their compatriots wrote the original
Constitution, they did not settle for ``don't worry, someone else will
figure this out later.'' Nor should we.
I ask unanimous consent to include in the Record, a letter to me from
the NAACP dated April 10, 2000, opposing the proposed constitutional
amendment, and a letter to Senators Lott and Daschle dated April 19,
2000, from over 300 law professors opposing the proposed amendment as
unnecessary and dangerous.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Washington Bureau--National Association for the
Advancement of Colored People,
Washington, DC, April 10, 2000.
Hon. Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: Since this nation was first founded,
Americans of color have been the victims of all types of
crimes--both violent and non-violent--in disproportionately
high numbers. It is for this reason that the National
Association for the Advancement of Colored People (NAACP) has
always had a keen interest in seeing that crime victims are
treated honorably, fairly and compassionately by the American
judicial system, and that in the end they feel that justice
has been served.
Yet people of color have also historically been wrongly
accused in this nation of crimes varying from the very minor
to the most heinous. It is for this reason that the NAACP has
also been a strong and steadfast supporter of the
Constitution, the Bill of Rights, and the concept of due
process in the American judicial system. It is our deeply
held belief in the need to protect the innocent and allow
every American the right to a fair trial that leads us to
oppose S.J. Res. 3, the proposed constitutional amendment to
protect the rights of victims of crimes.
While we are very sympathetic to the rights and the needs
of crime victims throughout this nation, and while we agree
that victims are often not treated as compassionately as they
should be by the judicial system, the NAACP does not believe
that S.J. Res. 3 is the answer. Rather than expend the time
and energy necessary for the enactment of an amendment to the
Constitution, the NAACP urges you to work together and with
state legislatures to develop comprehensive packages of laws
that address the specific and diverse needs of crime victims.
The statutory route is preferable as it is easier to update
laws and to fit them to the changing yet very specific needs
of victims, and laws, as opposed to a broadly worded
constitutional amendment which is less likely to have long-
lasting negative repercussions on the rights of the accused.
The NAACP appreciates and commends the attempts of the
members of the Senate to improve the way in which the
American judicial system treats crime victims, and we agree
that we can and should do more to see that victims feel safe
and have closure after their ordeal. We support efforts to
pass laws that help victims of crimes, and we would like to
work with you to develop a more narrowly tailored and
effective package. Yet we cannot support S.J. Res. 3 for, as
well meaning as it is, we have grave concerns that the
negative effects this amendment would have on the rights of
the accused seeking a fair and impartial trial would outweigh
the benefits it bestows upon victims.
Thank you in advance for your attention to the concerns of
the NAACP. If you have any questions or comments, I hope that
you will feel free to contact me at (202) 638-2269. I look
forward to working with you on this serious and important
issue.
Sincerely,
Hilary O. Shelton,
Director.
____
April 19, 2000.
Hon. Trent Lott,
Senate Majority Leader, Russell Senate Office Building,
Washington, DC
Hon. Tom Daschle,
Senate Minority Leader, Hart Senate Office Building,
Washington, DC.
Dear Senators Lott and Daschle: We are law professors and
practitioners who oppose adding a ``Victims' Rights
Amendment'' to the Constitution (S.J. Res. 3). Although we
commend and share the desire to help crime victims, amending
the Constitution to do so is both unnecessary and dangerous.
Indeed, ultimately the amendment is likely to be counter-
productive in that it could hinder effective prosecution and
put an enormous burden on state and federal law enforcement
agencies.
The Constitution has been amended only 17 times since
ratification of the Bill of Rights in 1791. Amendments should
be added to our basic charter of government only when there
is a pressing need that cannot be addressed in any other way.
No such necessity exists in order to protect the rights of
crime victims. Virtually every right contained in the
proposed Victims' Rights Amendment can be safeguarded by
statute.
Thirty-three states have passed constitutional amendments
and every state has either a state constitutional amendment
or statute that protects victims' rights. Many of the rights
offered by the VRA are already protected by these laws. For
example, restitution for crime victims is required in federal
court by the Antiterrorism and Effective Death Penalty Act of
1996 and in every state by statute or constitutional
amendment. Similarly, the right of victims to attend
proceedings can be protected by statute as shown by laws that
exist in many states and by the recent federal legislation
that mandates that victims be allowed to attend even if they
will be testifying during the sentencing phase of the
proceedings. Victim impact statements are now a routine part
of sentencing proceedings at both the federal and state
levels. There is every reason to believe that the legislative
process will continue to be responsive to protecting crime
victims so that there is simply no need to amend the
Constitution to accomplish this.
Not only is the VRA unnecessary, there are grave dangers in
amending the Constitution. The framers were aware of the
enormous power of the government to deprive a person of life,
liberty and property in criminal prosecutions. The
constitutional protections accorded criminal defendants are
among the most precious and essential liberties provided in
the Constitution. The VRA will undermine these basic
safeguards. For example, the proposed Amendment would give a
crime victim the right ``[t]o a final disposition of the
proceedings relating to the crime free from unreasonable
delay.'' Any victim of a violent crime has standing under
the Amendment to intervene and assert a constitutional
right for a faster disposition of the matter. This could
be used to deny defendants needed time to gather and
present evidence essential to prepare their defense,
resulting in innocent people being convicted. It could
also be used to force prosecutors to trial before they are
ready, leading to guilty people going free.
Section three of the proposed Amendment authorizes Congress
to enact legislation to enforce the Amendment. This authority
could be used to negate the rights of criminal defendants in
an effort to protect crime victims. Courts would then face
the enormously difficult task of determining the extent to
which legislation to implement the new Amendment can
undermine the rights of those accused of crimes.
Moreover, the Amendment is likely to be counter-productive
because it could hamper effective prosecutions and cripple
law enforcement by placing enormous new burdens on state and
federal law enforcement agencies. Prosecutions could be
hindered by the creation of an absolute right for crime
victims to attend and participate in criminal
[[Page S2986]]
proceedings. In many instances, the testimony of a
prosecutorial witness will be compromised if the person has
heard the testimony of other witnesses. Yet, the proposed
Amendment creates a constitutional right for a victim to be
present at criminal proceedings even over defense or
prosecution objections.
Prosecutorial efforts could also be hampered by the ability
of crime victims to ``submit a written statement . . . to
determine . . . an acceptance of a negotiated plea or
sentence.'' It is unclear how much weight judges will be
required to give to a crime victim's objection to a plea
bargain. Over 90 percent of all criminal cases do not go to
trial but are resolved through negotiation. Even a small
increase in the number of cases going to trial would unduly
burden prosecutors' offices. There are many reasons why
prosecutors enter into plea agreements such as allocating
scarce prosecutorial resources, concerns about weaknesses in
the evidence, or strategic choices to gain the cooperation of
one defendant to enhance the likelihood of convicting others.
Prosecutorial discretion would be seriously compromised if
crime victims could effectively obstruct plea agreements or
require prosecutors to disclose weaknesses in their case in
order to persuade a court to accept a plea.
The Amendment would impose tremendous financial costs on
state and federal law enforcement agencies. These departments
would be constitutionally required to make reasonable efforts
to find and notify crime victims every time a case went to
trial, every time a criminal case was resolved, and every
time a prisoner was released from custody. Additionally, the
Amendment can be interpreted as creating a duty for the
government to provide attorneys for crime victims. The term
``victim's representative'' in section two might well be seen
as creating a right to counsel in order to adequately protect
these newly created rights. Criminal defendants do not
receive adequate counsel in many cases. Adding the financial
burden of providing counsel to victims will likely further
limit defendants' access to counsel.
Protecting crime victims by federal and state statutes
provides flexibility that is absent in a federal
constitutional amendment. Moreover, amending the Constitution
in this way changes basic principles that have been followed
throughout American history. Principles of federalism always
have allowed states to decide the nature of the protection of
victims in state courts. The ability of states to decide for
themselves is denied by this Amendment. Also, no longer would
protecting the rights of a person accused of crime be a
preeminent focus of a criminal trial.
Crime victims deserve protection, but that must not be
accomplished at the expense of the rights of the accused. As
law professors and practitioners we urge the rejection of the
proposed Victim's Rights Amendment as unnecessary and
dangerous.
Sincerely,
Prof. Richard Abel, University of California, Los Angeles
School of Law; Prof. David Abraham, University of Miami
School of Law; Prof. Catherine Adcock Admay, Duke
University School of Law; Prof. Albert W. Alschuler,
University of Chicago Law School; Prof. Scott Altman,
University of Southern California Law School; Prof.
Anthony G. Amsterdam, New York University School of
Law; Prof. Roger Andersen, University of Toledo College
of Law; Prof. Ellen April, Loyola Law School, Los
Angeles, CA.
Asst. Prof. John A. Barrett, Jr., University of Toledo
College of Law; Prof. Elizabeth Bartholet, Harvard
University Law School; Prof. Katharine T. Bartlett,
Duke University Law School; Prof. Robert Batey, Stetson
University College of Law; Prof. Christopher L.
Blakesley, Louisiana State University Law Center; Prof.
Jack Charles Boger, University of North Carolina School
of Law; Prof. Jean Boylan, Loyola Law School, Los
Angeles, CA; Prof. Ralph Brill, Chicago-Kent College of
Law.
Prof. Peter Arenella, University of California, Los
Angeles School of Law; Prof. David Baldus, University
of Iowa College of Law; Prof. Fletcher N. Baldwin, Jr.,
University of Florida College of Law; Prof Susan
Bandes, DePaul University College of Law; Prof. Stephen
F. Barnett, University of California, Berkeley School
of Law; Prof. Donald F. Clifford, University of North
Carolina School of Law; Prof. Donna Coker, University
of Miami School of Law; Prof. David Cole, Georgetown
University Law Center; Prof. John O. Cole, Mercer
University Law School; Prof. Doriane L. Coleman, Duke
University School of Law; Prof. George Copacino,
Georgetown University Law Center; Prof. James D. Cox,
Duke University School of Law; Prof. Jerome McCristal
Culp, Duke University School of Law.
Prof. Mark Brown, Stetson University College of Law;
Prof. John Burkoff, University of Pittsburgh School of
Law; Prof. Paul D. Carrington, Duke University School
of Law; Prof. George C. Christie, Duke University
School of Law; Prof. C. Antoinette Clarke, University
of Arkansas at Little Rock School of Law; Prof.
Christine Desan, Harvard University Law School; Prof.
Norman Dorsen, New York University School of Law; Prof.
Donald W. Dowd, Villanova University School of Law;
Prof. Joshua Dressler, McGeorge School of Law,
University of the Pacific; Prof. Robert F. Drinan,
Georgetown University Law Center; Assoc. Prof. James
Joseph Duane, Regent University School of Law; Prof.
Melvyn R. Durchslag, Case Western Reserve University
Law School; Prof. Fernand N. Dutile, Notre Dame Law
School.
Prof. Harlon L. Dalton, Yale Law School; Prof. Wes
Daniels, University of Miami School of Law; Prof.
Richard A. Danner, Duke University School of Law; Prof.
George C. Christie, Duke University School of Law;
Prof. Derryl D. Dantzler, Mercer University Law School;
Prof. James J. Fishman, Pace University School of Law;
Prof. Catherine Fisk, Loyola Law School, Los Angeles
CA; Prof. Alyson Floumoy, University of Florida College
of Law; Prof. Judy Fonda, Loyola Law School, Los
Angeles CA; Prof. Eric M. Freedman, Hofstra University
School of Law; Prof. Monroe H. Freedman, Hofstra
University School of Law; Prof. Richard D. Friedman,
University of Michigan Law School; Prof. Edward McGuinn
Gaffney, Jr., Valparaiso University School of Law.
Prof. Phoebe Ellsworth, University of Michigan; Prof.
Anne S. Emanuel, Georgia State University College of
Law; Prof. Deborah Epstein, Georgetown University Law
Center; Assoc. Prof. Bryan K. Fair, University of
Alabama School of Law; Prof. Roger Findley, Loyola Law
School, Los Angeles CA; Prof. Richard K. Greenstein,
Temple University School of Law; Prof. Ariela Gross,
University of Southern California Law School; Prof.
Phoebe A. Haddon, Temple University School of Law;
Prof. Eva Hanks, Yeshiva University, Benj. Cardozo,
School of Law; Dean Joseph D. Harbaugh, Nova
Southeastern University, Shepard Broad Law Center;
Prof. David Harris, University of Toledo College of
Law; Prof. Lynne Henderson, Stanford Law School; Prof.
Susan N. Herman, Brooklyn Law School.
Prof. William S. Geimer, Washington and Lee University
School of Law; Prof. Bennett L. Gershman, Pace
University School of Law; Prof. Daniel J. Goldberger,
Ohio State University College of Law; Prof. Phyllis
Goldfarb, Boston College Law School; Prof. Robert D.
Goldstein, University of California, Los Angeles School
of Law; Prof. Ken Graham, University of California, Los
Angeles School of Law; Prof. Samuel Gross, University
of Michigan Law School; Prof. Martin Guggenhein, New
York University School of Law; Prof. Paul M. Kurtz,
University of Georgia School of Law; Prof. David L.
Lange, Duke University School of Law; Prof. Richard
Lempert, University of Michigan Law School; Prof. David
Leonard, Loyola Law School, Los Angeles CA.
Prof. Randy Hertz, New York University School of Law;
Lecturer Kenneth E. Houp, Jr., University of Texas
School of Law; Prof. Alan Hyde, Rutgers University
School of Law; Prof. Stewart Jay, University of
Washington School of Law; Prof. Paul R. Joseph, Nova
Southeastern University Law Center; Prof. Yale Kamisar,
University of Michigan Law School; Prof. Mark Kelman,
Stanford Law School; Prof. Bailey Kuklin, Brooklyn Law
School; Prof. Brenda Jones Quick, Detroit College of
Law at Michigan State; Assoc. Prof. Kathleen Ridofi,
Santa Clara University School of Law; Prof. Dean H.
Rivkin, University of Tennessee College of Law; Prof.
Robert Rosen, University of Miami School of Law.
Prof. Christine A. Littleton, University of California,
Los Angeles School of Law; Prof. Holly Maguigan, New
York University School of Law; Prof. Mari Matsuda,
Georgetown University Law Center; Prof. Christopher
May, Loyola Law School, Los Angeles CA; Prof. Carolyn
Mc Allaster, Duke University School of Law; Prof.
Andrew McClurg, University of Arkansas, Little Rock
School of Law; Prof. Joel S. Newman, Wake Forest
University School of Law; Prof. James O'Fallon,
University of Oregon School of Law; Prof. Robert
Popper, University of Missouri-Kansas City School of
Law; Assoc. Prof. Grayfred B. Gray, University of
Tennessee College of Law; Prof. Clyde Spillenger,
University of California, Los Angeles School of Law;
Prof. Joan Steinman, Chicago-Kent College of Law.
Prof. Thomas D. Rowe, Jr., Duke University School of Law;
Prof. Susan Rutberg, Golden Gate University School of
Law; Assoc. Dean Rob Saltzman, University of Southern
California Law School; Prof. Michael Meltsner
Northeastern University School of Law; Prof. Wallace J.
Mlyniec, Georgetown University Law Center; Prof. Andre
Moenssens, University of Missouri-Kansas City School of
Law; Prof. Emeritus Melvin G. Shimm, Duke University
School of Law; Prof. Kenneth W. Simons, Boston
University School of Law; Prof. J. Clay Smith, Jr.,
Howard University School of Law; Prof. Girardeau A.
Spann, Georgetown
[[Page S2987]]
University Law Center; Prof. H. Richard Uviller,
Columbia University School of Law; Prof. William W. Van
Alstyne, University of California, Los Angeles School
of Law.
Prof. Margaret Stewart, Chicago-Kent College of Law;
Prof. Allen Sultan, University of Dayton School of Law;
Prof. Nkechi Taifa, Howard University School of Law;
Prof. J. Alexander Tanford, Indiana University School
of Law Bloomington; Prof. Andrew E. Taslitz, Howard
University School of Law; Prof. David C. Thomas,
Chicago-Kent College of Law; Prof. Jack L. Sammons,
Mercer University Law School; Prof. Jane Schacter,
University of Wisconsin Law School; Prof. Stephen
Schnably, University of Miami School of Law; Prof.
Peter Tillers, Yeshiva University, Benj. N. Cardozo
School of Law; Prof. Laura Underkuffler, Duke
University School of Law; Prof. Charles Ogletree,
Harvard Law School.
Prof. Michael Vitiello, McGeorge School of Law,
University of the Pacific; Prof. Welsch S. White,
University of Pittsburgh School of Law; Prof. Donald E.
Wilkes, Jr., University of Georgia School of Law; Prof.
Gary Williams, Loyola Law School, Los Angeles CA; Prof.
Bernard Wolfman, Harvard University Law School; Prof.
Larry W. Yackle, Boston University School of Law; Prof.
George C. Thomas III, Rutgers, S.I. Newhouse Center for
Law and Justice; Prof. Larry Alexander, University of
San Diego; Assoc. Dean Fred G. Slabach, Whittier Law
School; Prof. William Wesley Patton, Whittier Law
School; Assoc. Prof. Rachel Vorspan, Fordham University
School of Law; Prof. Alyson Cole, University of
Michigan.
Prof. Angela Jordan Davis, Washington College of Law
America University; John Payton, Wilma, Cutler &
Pickering Washington, DC; Assoc. Prof. Paulette J.
Williams, University of Tennessee College of Law; Prof.
Susan Looper-Friedman Capital University Law School;
Asst. Prof. Mellissa Cole, St. Louis University School
of Law; Prof. Beatrice Moulton, University of
California Hastings College of the Law; Prof. Victor
Romero, Pennsylvania State University, Dickinson School
of Law; Prof. Peter Edelman, Georgetown University Law
Center; Prof. Richard B. Bilder, University of
Wisconsin Law School; Prof. Robert P. Schuwert,
University of Houston Law Center; Prof. Ellen Suni,
University of Missouri-Kansas City School of Law; Prof.
Nancy Levit, University of Missouri School of Law.
Prof. James G. Wilson, Cleveland State University Law
School; Lecturing Fellow Brenda Berlin, Duke University
Law School; Prof. Gilbert Paul Carrasco, University of
Oregon Knight Law Center; Prof. Douglas J. Whaley, Ohio
State University College of Law; Dean McClindon, Howard
University; Dean Michael Newsom, Howard University;
Prof. Morell E. Mullins, University of Arkansas-Little
Rock Law School; Prof. Joseph F. Smith, Jr., Nova
Southeastern University Law Center; Prof. Dan Simon,
University of Southern California Law School; Assoc.
Prof. Gary L. Anderson, University of Tennessee College
of Law; Prof. Derrick Bell, New York University Law
School; Prof. Leroy D. Clark, Catholic University Law
School.
Prof. Sarah Welling, University of Kentucky College of
Law, Prof. Sally Frank, Drake University Law School;
Prof. Kevin W. Saunders, University of Oklahoma; Prof.
Elizabeth Samuels University of Baltimore School of
Law; Prof. Anne Schroth, University of Michigan Law
School; Prof. David M. Skover, Seattle University of
Law School; Prof. Paul H. Brietzke, Valparaiso
University School of Law; Prof. Christopher D. Stone,
University of Southern California Law School; Prof.
Theodore J. St. Antoine, University of Michigan Law
School; Prof. Paul Finkelman, University of Tulsa
College of Law; Prof. Robert A. Sedler, Wayne State
University, Detroit Michigan; Prof. Joseph Dodge,
University of Texas Law School; Prof. David E.
Vandercoy, Valparaiso University School of Law.
Prof. Glenn Harlan Reynolds, University of Tennessee
College of Law; Prof. Peter Linzer, University of
Houston Law Center; Prof. Robert A. Burt, Yale Law
School; Prof. Jerome H. Skolnick, New York University
Law School; Prof. Jordan Paust, University of Houston
Law Center; Prof. Speedy Rice, Gonzaga University
School of Law; Prof. Larry Yackle, Boston University;
Prof. Stanley Fisher, Boston University; Prof. Thomas
Baker, Drake University Law School; Prof. Lee
Pizzimenti, University of Toledo College of Law; Prof.
Howard M. Friedman, University of Toledo College of
Law; Prof. Daniel J. Steinbock, University of Toledo
College of Law; Prof. Alexander M. Capron, University
of Southern California Law Center.
Prof. Gary S. Gilden, Pennsylvania State University;
Prof. Gary Blasi, University of California, Los Angeles
Law School; Prof. Stephen C. Yeazell, University of
California, Los Angeles Law School; Prof. Kenneth
Brown, University of North Carolina Law School; Prof.
John Copacino, Georgetown University Law Center; Prof.
James Klein, University of Toledo College of Law; Prof.
Jane R. Wettach, Duke University Law School; Prof.
Naomi Mezey, Georgetown University Law Center; Brian
Wolfman, Public Citizen Litigation Group, Washington,
DC; Prof. Kimberley Hall Barlow, University of
California at Los Angeles Law School; Prof. Diane
Dimond, Duke University Law School.
Prof. Eugene Volokh, University of California, Los
Angeles Law School; Prof. James G. Pope, Rutgers State
University S.I., Newhouse Center for Law and Justice;
Prof. Mary Ellen Gale, Whittier Law School; Prof. Susan
H. Herman, Brooklyn Law School; Prof. Nadine Strossen,
New York Law School; Prof. Richard Klein, Touro College
Jacob D. Fuchsburg Law Center; Prof. Lori Andrews,
Chigago-Kent College of Law; Prof. Craig Bradley,
Indiana University-Bloomington School Law; Prof.
Christine Goodman, University of California, Los
Angeles School of Law; Prof. Peter Lushing, Yeshiva
University, Benj. N. Cardozo School of Law; Prof. John
Scanlan; Indiana University-Bloomington, School of Law.
Prof. David L. Chambers, University of Michigan Law
School; Prof. Stewart J. Schwab, Cornell University Law
School; Prof. Bridget McCormack, University of Michigan
Law School; Prof. Natsu Taylor Saito, Georgia State
University Law School; Prof. Patricia Bryan, University
of North Carolina Law School; Prof. Harlon L. Dalton,
Yale Law School; Prof. Diane Geraghty, Loyola
University-Chicago; Prof. Susan Herman, Brooklyn Law
School; Prof. Marina Hsieh, University of Maryland;
Prof. Martha Moran, University of Alabama; Prof. Susan
Poser, University of Nebraska; Prof. David Rudovsky,
University of Pennsylvania; Prof. Stanley Fisher,
Boston University; Prof. Sarah Burns, New York
University School of law.
Prof. Roger Goldman, Saint Louis University; Prof. Frank
Askin, Rutgers School of Law-Newark; Prof. Vivian
Berger, Columbia Law School; Prof. Louis D. Bilionis,
University of North Carolina School of Law; Prof.
Ronald Chen, Rutgers School of Law-Newark; Prof.
Margaret Russell, Santa Clara University; Prof.
Phillipa Strum, Wayne State University Law School,;
Prof. Leland Ware, Saint Louis University; Prof. Gary
Williams, Loyola University-Los Angeles; Prof. Emeritus
Eugene Feingold, University of Michigan; Prof. Frances
Ansley, University of Tennessee College of Law; Prof.
Gerald E. Uelmen, Santa Clara University; Prof.
Elizabeth M. Schneider, Brooklyn Law School; Prof.
David R. Dow, University of Houston Law Center.
Prof. Michael Kent Curtis, Wake Forest University School
of Law; Assoc. Prof. Morris Bernstein, University of
Tulsa College of Law; Prof. John M. Levy, William and
Mary Law School; Prof. Denise Morgan, New York
University Law School; Assoc. Prof. Stephen C. Thaman,
Saint Louis University; Prof. Lefty Becker, University
of Connecticut School of Law; Prof. Ira C. Lupu, George
Washington University Law School; Assoc. Dean Ralph G.
Steinhardt, George Washington University Law School;
Prof. Judith T. Younger, University of Minnesota; Prof.
Ruti Teitel, New York Law School; Assoc. Prof. Sibyl
Marshall, University of Tennessee Law School; Prof.
Janet Cooper Alexander, Stanford Law School; Prof.
Arnold H. Loewy, University of North Carolina School of
Law; Mr. Norman Dorsen, New York University Law School.
Prof. Joel M. Gora, Brooklyn Law School; Prof. David
Weissbrodt, University of Minnesota; Prof. David
Kairys, Temple University School of Law; Prof. Don
Doernburg, Pace University School of Law; Prof. Lois
Cox, University of Iowa College of Law; Prof. Emeritus
Samuel Mermin, University of Wisconsin; Prof. Steven G.
Gey, Florida State University College of Law; Prof.
Aviam Soifer, Boston College Law School; Prof. Arthur
S. Leonard, New York Law School; Prof. Emeritus Ted
Finman, University of Wisconsin-Madison; Prof. Lawrence
M. Grosberg, New York Law School; Prof. Eric Janus,
William Mitchell College of Law; Assoc. Prof. Michael
J. Gilbert, University of Texas-San Antonio; Prof.
Jordan J. Paust, University of Houston Law Center.
Prof. Carlin Meyer, New York Law School; Prof. Lawrence
O. Gostin, Georgetown University; Prof. Mark Strasser,
Capital University Law School; Prof. Bruce J. Winick,
University of Miami School of Law; Prof. Brian Bix,
Quinnipiac Law School; Prof. Ronald D. Rotunda,
University of Illinois College of Law; Assoc. Prof.
Kathleen Wait, University of Tulsa College of Law;
Prof. Donald N. Bersoff, Villanova Law School; Prof.
[[Page S2988]]
Emeritus Donald P. Rothschild, George Washington
University Law School; Mr. Paul Lawrence, Preston Gates
& Ellis, Seattle, WA; Ms. Wendy C. Nakamura, San Diego,
CA; Luz Buitrago, Berkeley, CA; Ms. Marjorie Esman,
Adjunct, Tulane Law School.
Prof. Kenneth Lasson, University of Baltimore; Prof.
Jayne W. Barnard, William and Mary Law School; Prof.
Colin S. Diver, University of Pennsylvania; Asst. Prof.
Judge Steve Russell, University of Texas-San Antonio;
Prof. A. Michael Froomkin, University of Miami School
of Law; Ms. Alice Bendheim, Phoenix, AZ; Mr. Roland
O'Hare, Detroit, MI; Mr. William Hinkle, Hinkle &
Smith, P.C., Tulsa, OK; Mr. John Burnett, Little Rock,
AR; Ms. Sandra Michaels, Atlanta, GA; Mr. Jeremiah
Gutman, New York, NY; Mr. Paul Grant, Juneau, AK; Prof.
David Rudovsky, University of Pennsylvania Law School.
Ms. Gwen Thomas, Aurora, CO; Ms. Allison Steiner,
Hattiesburg, MS; Ms. Candace M. Carroll, Sullivan,
Hill, Lewin, Rez & Engel, San Diego, CA; Prof. Donald
N. Bersoff, Villanova Law School; Ms. Jeanne Baker,
Miami, FL; Ms. Denise LeBoeuf, Adjunct Prof, Loyola Law
School, New Orleans; Prof. Rodney Uphoff, University of
Oklahoma Law Center; Prof. Paul Bergman, University of
California, Los Angeles School of Law.
The PRESIDING OFFICER (Mr. L. Chafee). The Senator from West
Virginia.
Mr. BYRD. Mr. President, I have been asked by the two distinguished
principal proponents, as I understand it, to allow the motion to
proceed to be withdrawn by unanimous consent, after which I and others
who are opposed to the constitutional amendment could proceed to make
our speeches.
I am opposed to that procedure. I think that if we are going to call
up constitutional amendments around here--and certainly Senators have a
right to offer constitutional amendments--but if they are going to be
called up, I think we ought to take the full time and discuss them, the
full time allowed to us under the rules and discuss those amendments--
pro and con--and not allow them to be withdrawn and then, afterwards
make our speeches.
That does not make sense to this Senator. They have a perfect right--
the proponents--to seek consent to have the amendments withdrawn. But I
say, let's have a full discussion of them and then give consent to
their being withdrawn.
I honor those proponents who have worked hard, especially the two
principal ones, Mr. Kyl of Arizona and Mrs. Feinstein of California.
They are very dedicated, very worthy, very formidable protagonists. I
respect them and respect their viewpoints. They have as much right to
disagree with me as I have with them. They certainly have the right to
their viewpoints. I do not quarrel with that right at all.
Let me also say to the victims of crime, wherever they may be, if
they be watching, listening or reading the congressional record of
these statements, I certainly am not against victims' rights. I am sure
I speak for all of those in this body who oppose this constitutional
amendment. We are not against victims' rights. I am for victims'
legitimate rights. As one who has been about as firm as any other
Senator could be when it comes to dealing with criminals, as one who
believes in capital punishment, as one who believes in the death
penalty, as one who has seen a public execution, as one who believes in
making the criminals pay, I certainly do not take a back seat to anyone
when it comes to supporting legitimate victims' rights. I am for that.
But I am not for this amendment to the Constitution of the United
States.
I think victims' rights can be secured, are being secured, and will
continue to have my support, when statutes are devised to protect those
rights. But when it comes to amending the Federal Constitution, that is
something else. That is entirely another matter. We don't need to amend
the Federal Constitution to secure victims rights.
I saw them tearing a building down,
A group of men in a busy town;
With a ``Ho, heave, ho'' and a lusty yell,
They swung a beam and the sidewall fell.
I said to the foreman, ``Are these men skilled
The type you'd hire if you had to build?''
He laughed, and then he said, ``No, indeed,
Just common labor is all I need;
I can easily wreck in a day or two,
That which takes builders years to do.''
I said to myself as I walked away,
``Which of these roles am I trying to play?
Am I a builder who works with care,
Building my life by the rule and square?
Am I shaping my deeds by a well-laid plan,
Patiently building the best I can?
Or am I a wrecker who walks the town,
Content with the labor of tearing down?''
That is the picture we have before us. We are talking about the
higher law of our land, the Constitution of the United States of
America. It was centuries in the making, but it can be trivialized in a
day.
We are talking about the Federal Constitution, the Constitution of
the United States of America, the Constitution that was signed by 39
delegates on September 17, 1787.
Listen to them: New Hampshire, Nicholas Gilman and John Langdon;
Massachusetts, Nathaniel Gorham and Rufus King; Connecticut, Roger
Sherman and William Samuel Johnson; New York, Alexander Hamilton; New
Jersey, William Paterson, David Brearley, William Livingston, Jonathan
Dayton; Pennsylvania, Benjamin Franklin, Thomas Mifflin, Robert Morris,
George Clymer, Jared Ingersoll, Thomas FitzSimons, Gouverneur Morris--
the tall man with the peg leg--and James Wilson; Delaware, George Read,
John Dickinson, Jacob Broom, Richard Bassett; Maryland, Daniel of St.
Thomas Jenifer, Daniel Carroll, James McHenry; Virginia, George
Washington, John Blair, James Madison; North Carolina, William Blount,
Richard Dobbs Spaight, Hugh Williamson; South Carolina, Charles
Pinckney, Charles Cotesworth Pinckney, John Rutledge, Pierce Butler;
Georgia, William Few and Abraham Baldwin.
What would they think? What would they think of this amendment? Not
what professor so-and-so of such-and-such university may think, but
what would those framers of the Constitution say if they were here?
Most Americans can recall seeing the statue of ``Blind Justice''
holding aloft a balance scale in a courthouse or as a logo for a
favorite TV crime show. It is an impressive and powerful representation
with roots in Greek and Roman mythology.
The scale symbolizes the impartial weighing of evidence, while the
blindfolded figure, the goddess Themis, symbolizes equal justice under
the law for the accused.
But in a larger sense, the scale symbolizes something even more
significant. It symbolizes competing interests--universal tensions, if
you will--such as innocence versus guilt, truth versus falsehood,
personal privacy versus the public welfare, the power of the State
versus the rights of the individual. When those scales are put into
equilibrium, they are said to be in balance, the right side weighed to
be exactly at level with the left.
When it comes to human affairs, balance is a very difficult state to
achieve. But once achieved, the sweet harmony of balance--one tension
offset by just the right measure of the competing tension--allows for
the calmest, most rational functioning of man's institutions of order.
Nowhere is the example of beautiful and near-perfect balance, despite
competing and conflicting ambitions, goals, and passions more
profoundly demonstrated than in that venerable charter, the U.S.
Constitution, which I hold here in my right hand.
Our Constitution embodies the accommodation of such difficult-to-
rectify aspirations as the National Government's need for supremacy and
the individual State's need for autonomy. Our Constitution satisfies
the States' desire to maintain order without trampling on the
individual's right to enjoy liberty. Liberty. That is the key word.
Liberty. Our Constitution bestows power on the institutions and offices
of Government in such a way as to allow them to adequately carry out
their duties and yet be curbed and checked by the duties and
responsibilities of other officials and institutions. Such is the
brilliance and the genius of our national charter that it has been
amended only 27 times in our more than 200-year history. Ten of those
27 amendments, of course, comprise the Bill of Rights, leaving only 17
amendments in these 212 years. Seventeen amendments.
One of those--the prohibition amendment of 1919--was repealed, wiped
out--that was the 18th amendment; it was wiped out by the 21st
amendment. So take one away--the 18th amendment--and that leaves only
16 amendments.
[[Page S2989]]
One might say: How about the 21st amendment, which wiped it out?
Don't subtract that one because there is a portion of that amendment
that is still in the Constitution, and it will remain there until such
time as it may be repealed. But you might say there are 16 amendments.
Over 11,000 amendments to the Constitution have been introduced in both
Houses.
The men who created this amazing--and it is amazing. One may read
Shakespeare and one may read the Bible time and time and time again,
and each time one reads that Holy Writ, he or she will find something
new--every time. But think of this truly amazing, durable Constitution.
It is a durable crucible for liberty. The men who created this durable,
amazing, wonderful crucible for liberty were students of history and
students of various methods of governing going back, back, back, back,
back into the misty centuries of antiquity, long before 1787. They were
students of the philosophies of the various methods of government.
These men who wrote the Constitution came fresh from the mistakes of
the experience of the Articles of Confederation, the first Constitution
of the United States. They lived under the Articles of Confederation;
they knew what the flaws of the Articles were. They knew where they
fell short. They knew where those provisions were lacking. The memory
of the Revolutionary War and the bloodshed in that struggle for freedom
were at the forefront of their minds. They--the framers--God bless
their names--bequeathed to me, to us, something very profound--
something strong, yet something also quite delicate. Over the years, I
have come to believe that we should tinker with their magnificent work
only very, very rarely.
Each Member of this body takes an oath when he or she becomes a U.S.
Senator, and there have only been 1852 men and women who have taken
that oath to be Members of this great body. Think--just think--for a
moment about that oath. Think about the words: ``Support and defend the
Constitution of the United States against all enemies, foreign and
domestic.'' Then think, if you will, about the extreme difficulty of
the procedure laid out in that same Constitution for changing that
Constitution in any way. I do believe that the framers were quite wary
of injudicious disruptions to, and even the meddling, piddling,
tinkering, and tampering with the careful balance that they had so
laboriously achieved. As in most things, they were only too right.
In the 106th Congress, as of April 17 of this year, there had been 63
constitutional amendments proposed--63 constitutional amounts proposed.
The Senate has only been in session 43 or 45 days this year. In the
105th Congress, there were 107 constitutional amendments proposed. I
think that it is clear the framers' fears were quite well founded.
These amendments are proliferating at an unalarming level.
That is why I have taken the floor on yesterday, that is why I have
taken it today, and that is why I shall take it, the Lord willing, time
and time again in the days to come.
These amendments are proliferating at an alarming level. It seems
that we are almost intent on disrupting what has served us and
continues to serve us so well--the elegant wisdom and the very careful
balance inherent in the Constitution. For the second time within 30
days, the U.S. Senate--that remarkable body which Gladstone, who had
been Prime Minister of Britain four times, remarked about--``that
remarkable body,'' the U.S. Senate, ``the most remarkable of all of the
inventions of modern politics,'' the U.S. Senate is being called upon
to adopt an amendment to the U.S. Constitution.
It would be laughable if it weren't so serious.
Who are we to conjure up all of these myriad amendments to that great
document?
So I say the Senate perhaps had better adopt a resolution designating
April as ``Amend the Constitution Month.''
Let's have at it. Let's have a resolution calling April, the fourth
month of this year of our Lord, the year 2000, the last year in the
20th century, the last year in the second millennium.
Fie on the media, and fie on politicians who try to hand the American
people all of this flimflam about this year's being the first year of
the 21st century--this year's being the first year of a new century.
Take the old math, take the new math, whatever math you want to take.
It all comes out the same.
There are 100 years in every century, and 1,000 years in every
millennium. We are today in the last year of the 20th century.
I was invited down to the White House a few days before the beginning
of the new year. I don't go down very often. I don't get invited down
as much as I used to, but it doesn't bother me. I went down when I was
majority leader, when I was minority leader, and when I was majority
leader again, and when I was President pro tempore of the Senate--all
too much. I got tired of going down there.
I must say they were very kind to invite me down to what I think they
called the New Millennium party.
I said to my fine staff person, you tell that nice lady that the new
millennium hasn't begun yet, and it won't begin until the year 2001,
January.
Now we have the latest constitutional amendment--something called the
crime victims' rights constitutional amendment, with the Senate poised
to consider it following, you guessed it, ``National Crime Victims'
Rights Week,'' a week during which the Senate was in recess.
Does this suggest something to us? To me, it suggests a less than
serious, dare I say somewhat frivolous, view of the gravity and far-
reaching nature of constitutional amendments in general, and of this
constitutional amendment in particular.
To those victims out there who are watching over that electronic eye,
let me assure you again that I am for your legitimate rights. But I am
not for adding an amendment to the Constitution. It isn't necessary.
The amendment which is being proposed is intended to restore and
preserve--although I understand there were some negotiations going on
with respect to this amendment as to how it might be changed and
altered from what it is in the printed amendment upon the desks of
Senators, negotiations going on with the White House, I understand. Why
the White House? What do they have to do with it? The President of the
United States doesn't sign a joint resolution that carries a
constitutional amendment. That is a joint resolution that doesn't go to
the President's desk. He can't veto it. He can't sign it. Why negotiate
with him?
The amendment which is being proposed is intended to restore and
preserve, ``as a matter of right for the victims of violent crimes, the
practice of victim participation in the administration of criminal
justice that was the birthright of every American at the founding of
our Nation.''
This is a very impressive goal for the amendment, and, if the matter
only stopped there, undoubtedly it would enjoy the sympathy and the
support of every Member of this body because who is there who would be
opposed to the legitimate rights of victims of violent crime? The title
and the substance of the measure are certainly worthy of consideration.
The Committee on the Judiciary recommended that victims' rights under
nine general headings be protected in the amendment to the Federal
Constitution. These nine rights are set forth as follows: (1) a right
of victims to receive notice of criminal justice proceedings; (2) a
right of victims to attend criminal justice proceedings related to
crimes perpetrated against them; (3) a right of victims to be heard at
five points in the criminal justice process, namely, plea bargains,
bail or release hearings, sentencing, parole hearings, and pardon or
commutation decisions; (4) a right of victims to notice of, and an
opportunity to submit a statement concerning, a proposed pardon or
commutation of sentence; (5) a right of victims to notice of release or
escape of the accused; (6) a right to consideration of the victims'
interest in a trial free from unreasonable delay; (7) a right of
victims to an order of restitution; (8) a right of victims to have
their own safety considered whenever an accused or convicted offender
is released from custody.
These sound like good things, good amendments. They are good.
No. 9, notice to the victims of these rights inasmuch as such rights
are of little use if the victims remain unaware of them.
[[Page S2990]]
What is wrong with that? Nothing is wrong with that. We can all be
for that.
These participatory rights of victims are laudable and are worthy of
consideration, certainly in the instance of legislation, but not when
it comes to amending the Federal Constitution.
Such rights can already be assured--here is the problem--such rights,
as those we are talking about, can already be assured to victims by
Federal or State legislation.
The majority states in the committee report that the first Federal
constitutional amendment to protect the rights of crime victims was
introduced with hearings thereon in 1996 and that additional hearings
were conducted in 1997, 1998, and 1999. The report also indicates that
over these years, many changes were made to the original draft, several
of which responded to concerns expressed in the hearings.
The fact that so many changes were made over the years indicates to
me that the subject matter could be better dealt with by legislation
than by a Federal constitutional amendment. If it needs changing, if it
needs modifying, if it needs altering, it can be done by legislation.
And if we find that something is wrong and it isn't working right, we
can change that law again the next session. We can even change it
during this session. Congress can change, can alter, can modify, can
amend the law almost overnight, if necessary, but not a constitutional
amendment. That would take years to do. Statutes can be modified and
refined by subsequent legislation during a single session of the
legislative branch. But once a constitutional amendment is set into
place, the only way to refine or amend that constitutional amendment is
to further amend the Constitution of the United States, a procedure
which necessarily requires years to do. The Prohibition amendment was
on the books from January 1919 to December 1933. It took years.
What are we talking about? This Constitution may not be perfect, but
this amendment wasn't perfect. It was changed, and then it was changed,
and then it was changed again, and now it is being pulled back because
there need to be further changes. What does that tell us? What if it
had been welded into the Constitution of the United States and then
they would have found, lo and behold, this ought to be changed, this
isn't right, this is wrong, we need to change it. That is a long
process.
I was interested, as I scanned the committee report, to note that the
two legal experts who testified in support of the amendment in the
first hearing in 1996 testified again and again and again in the
subsequent three hearings. Professor Paul Cassell--I have never had the
pleasure of meeting that gentleman--Professor Paul Cassell of the
University of Utah College of Law and Steve Twist, former chief
assistant attorney general of Arizona, were the chief legal experts.
They may have been the best in the Nation; I don't know. Professor
Cassell appears at all four hearings in support of the amendment. It
seemed to me there was a paucity of expert academic witnesses who
appeared in furtherance of the amendment.
This duo--and I say it with great respect for them; they may be the
best two in America--the same duo were heard over and over again.
Wouldn't it have been well to have a few more? Wouldn't it have been
well to add to the list of experts?
It should not go unnoticed that the committee report states that the
U.S. Judicial Conference favors a statutory approach because it ``would
have the virtue of making any provisions in the bill which appeared
mistaken by hindsight''--that is 20/20, you know--``to be amended by a
simple act of Congress.''
The report also says that the State courts favor a statutory approach
to the protection of victims' rights, citing the fact that the
Conference of Chief Justices--we only have one Chief Justice of the
United States, but there are many chief justices of the 50 States--
citing the fact that the Conference of Chief Justices has underscored
``the inherent prudence of a statutory approach'' which could be
refined as appropriate.
Other major organizations, including several victims' groups, opposed
the amendment, as is stated in the Committee report. For example, the
National Clearinghouse for the Defense of Battered Women takes the
position that statutory alternatives are ``more suitable'' than an
amendment to the Federal Constitution. Victim Services, the nation's
largest victim assistance agency, also opposes S.J. Res. 3, arguing
that the proposed amendment ``may be well intentioned, but good
intentions do not guarantee just results''. The National Network to End
Domestic Violence, as well as the National Organization for Women Legal
Defense and Education Fund, and Murder Victim's Families for
Reconciliation, a national organization of family members of murder
victims, are united in opposing the joint resolution. Moreover,
prosecutors and other law enforcement authorities all across the
country ``have cautioned that creating special Constitutional rights
for crime victims would have the perverse effect of impeding the
effective prosecution of crime.''
It seems to me that one of the foremost rights of a victim of crime
would be to see the perpetrator of that crime brought to justice,
tried, convicted, and punished. That is the first and foremost right of
the victim.
The National District Attorneys Association has cautioned that the
proposed amendment would ``afford victims the ability to place
unknowing, and unacceptable, restrictions on prosecutors while
strategic and tactical decisions are being made about how to proceed
with the case.''
Prosecutorial discretion over plea bargaining ``is particularly at
risk'' if S.J. Res. 3 were to be adopted. While I personally believe,
and have long believed, that there is entirely too much plea
bargaining--I believed that for a long time--the committee points out
that a prosecutor may need to obtain the cooperation of a defendant who
can bring down an entire organized crime ring, or may need to protect
the identity of an informant-witness, or may think that the evidence
against the defendant will not convince a jury beyond a reasonable
doubt, in which case the accused killer, or whatever he might be, would
go scot-free. Will the victim's rights have been upheld? Will the
victim's rights have been secured if the killer goes free? If the
robber goes free? If the burglar goes free?
In any event, I support the main objectives in the measure for the
protection of victims' rights, but such protection can be afforded by
legislation at the Federal and State levels, and there is absolutely no
need for a Federal constitutional amendment to meet the needs set forth
in the resolution.
The chief justices of the States have expressed grave concerns that
the proposed constitutional amendment would lead to ``extensive lower
federal court surveillance of the day to day operations of state law
enforcement operations.''
Now, get that. How many times have we heard it said, ``Get the
Government off our backs! Get the Government off our backs!'' Wasn't
that one of the complaints in the great, so-called--what was it
called?--contract, the great contract they talked about some few years
ago, the Contract With America. Why, of course, that was one of the
great things they talked about--Get the Government off our backs;
Contract With America. Whoopee. Well, I will tell you, I have my
Contract With America right here in my pocket. I know this Senator
here, from Vermont, he had two men from Vermont who signed this
Constitution, John Langdon and Nicholas Gilman. He has his Contract
With America in his pocket--I have. It is called the Constitution of
the United States.
Here we have grave concerns expressed by the chief justices of the
States, grave concerns that the proposed constitutional amendment would
lead to ``extensive lower federal court surveillance of the day to day
operations of state law enforcement operations.'' Get the Government
off our back, they say on one hand. Then they say, Oh, let's adopt this
constitutional amendment.
The minority view on the Senate Judiciary Committee shares these
concerns, but states that the laudable goal of making State and law
enforcement personnel more responsive to victims should not be achieved
by establishing Federal court oversight of the criminal justice and
correctional systems of the 50 States. They do not want the Government
on their backs, so they do not
[[Page S2991]]
support this proposed constitutional amendment.
The minority on the committee states that there is no pressing reason
to displace State laws in an area of traditional State concern, and
that there is no compelling evidence pointing to the need for another
unfunded mandate.
They passed a bill here a few years back dealing with unfunded
mandates. That was one of the first great so-called great plaints in
the Contract--what was it? The Contract With America?
Mr. LEAHY. Mr. President, if the Senator will yield, I called it the
Contract On America. They called it the Contract With America. I think
it was a Contract On America.
Mr. BYRD. The Contract On America. All right. Call it a Contract On
America.
The minority also states that there is no need for more Federal court
supervision and micromanagement of State and local affairs, when every
State is already working hard to address the issues in ways that are
best suited to its own citizens and its own criminal justice system.
There have been some 63 drafts of the proposed amendment, and it
remains both excessively detailed and decidedly vague. The level of
detail provided in this amendment is inconsistent with the structure
and the style of our country's great governing document, and, indeed,
the resolution reads like a statute, which suggests that that is, in
fact, how the problem of protecting the rights of crime victims should
be addressed.
The majority report cites examples of overwhelming popular support
and demonstrates that change toward better implementation of victims'
rights is occurring now, already, in the States. The majority admits
that ``there is a trend''--the majority in this subcommittee report
issued by the Judiciary Committee of the U.S. Senate--admits that
``there is a trend toward greater public involvement in the process,
with the federal system and a number of states now providing notice to
victims.'' Hence, it is my belief that we, here at the Federal
legislative level, should avoid the adoption of a Federal
constitutional amendment and that we should allow the States to
continue to come up with innovations of their own without undue Federal
intervention in a matter which, basically, is in the purview of the
States.
Our illustrious friends who are the chief cosponsors of the
amendment, very honorable Members of this body, one from the Democratic
side and one from the Republican side, have told us that they will be
back. ``We'll be back,'' they say.
In the meantime, I hope we can educate ourselves a little better with
respect to the constitutional principles that we are here to defend and
to protect. I hope that during this interim, while they are preparing
to come back, that we will be educating ourselves a bit further and
helping to educate others as to the history of American
constitutionalism so that Senators, in the future, may be a little
better prepared to take on this new amendment when it is brought back
before the Senate, as we are assured that it will be.
I have heard, during this debate, that you can include these victims'
rights in statutes, but they won't be enforced. Some of them are
already in statutes, but they are not being enforced. That is what we
heard the proponents say. They are not being enforced. They won't be
enforced. They are in the laws of various States, but they are not
being enforced so what we need is a constitutional amendment. How about
that? How can be assured that a constitutional amendment will be
enforced?
Let's return to the Book our fathers read:
19 There was a certain rich man, which was clothed in
purple and fine linen, and fared sumptuously every day:
20 And there was a certain beggar named Lazarus, which was
laid at his gate, full of sores.
21 And desiring to be fed with the crumbs which fell from
the rich man's table: moreover the dogs came and licked his
sores.
22 And it came to pass, that the beggar died, and was
carried by the angels into Abraham's bosom: the rich man also
died, and was buried;
23 And in hell he lift up his eyes, being in torments, and
seeth Abraham afar off, and Lazarus in his bosom.
24 And he cried and said, Father Abraham, have mercy on me,
and send Lazarus, that he may dip the tip of his finger in
water, and cool my tongue; for I am tormented in this flame.
25 But Abraham said, Son, remember that thou in thy
lifetime receivedst thy good things, and likewise Lazarus
evil things: but now he is comforted, and thou art tormented.
26 And beside all this, between us and you there is a great
gulf fixed: so that they which would pass from hence to you
cannot; neither can they pass to us, that would come from
thence.
27 Then he said, I pray thee therefore, father, that thou
wouldest send him to my father's house:
28 For I have five brethren; that he may testify unto them,
lest they also come into this place of torment.
29 Abraham saith unto him, They have Moses and the
prophets; let them hear them.
30 And he said, Nay, father Abraham: but if one went unto
them from the dead, they will repent.
31 And he said unto him, If they hear not Moses and the
prophets, neither will they be persuaded, though one rose
from the dead.
That is the lesson. If the people in the States will not be persuaded
by the statutes of the States that are already on the books, if they
cannot be enforced, then will they listen to Moses and the prophets
even if they rose from the dead? Will they hear even if it is a Federal
constitutional amendment?
Why should we think they will hear better, that they will see better,
that they will honor more, that they will abide more by words that are
written into the Federal Constitution than they will those words that
are already written in the statute books of the States and the Federal
statutes as well? If they will not hear them, they will not hear Moses
and the prophets, even though they were brought from the dead.
If they will not abide by the statutes, if they will not enforce
them, what is there to ensure us that they would enforce the strictures
of a new constitutional amendment? And if they did not, what would we
be doing to the Federal Constitution? We would trivialize it; we would
minimize it; we would lower it in the estimation of the people.
When it comes to amending the highest law in our constitutional
system, it behooves us to step back and behold the forest, not just the
trees.
Once before in our history we amended the Constitution without
carefully thinking through the consequences. That was when the 18th
amendment, dealing with prohibition, was ratified on January 16, 1919.
I can remember as a boy seeing those revenue officers come around to
the coal company houses. I can see them climbing the hills of the coal
mining community going to various houses, going into the woods, looking
for the moonshine stills. Those were the revenuers, as they used to
say--the revenuers. That was under prohibition. That amendment opened a
Pandora's box, or as Senator Jeff Bingaman says, a box of Pandoras.
That amendment opened a Pandora's box of unintended and unforeseen
consequences, and it was not until almost 15 years later that the 21st
amendment repealing the 18th amendment was ratified on December 5,
1933. It took a long time to get the genie back into the bottle, and we
should have learned a lesson from that experience.
As a principle of simple prudence, we should be ever cautious about
amending the organic law of our Nation. Justice Cardozo was explicit in
his warning, uttered in the case of Browne v. City of New York, and we
should heed that warning. Here it is:
The integrity of the basic law is to be preserved against
hasty or ill-considered changes, the fruit of ignorance or
passion.
Mr. President, the Constitution itself in article V, the article that
provides for amendments to the Constitution, carries such an
implication. Here is what it says--listen carefully--as an implication
against hasty or ill-considered changes:
The Congress, whenever two-thirds of both Houses shall deem
it necessary, shall propose amendments to this Constitution,
. . .
There is the warning, ``whenever two-thirds of both Houses shall deem
it necessary.'' The word ``necessary'' is not just a throwaway word
that was just inserted to fill up space in article V of the U.S.
Constitution. We can be sure that the constitutional framers chose the
word carefully, as they did all other words in that unique document.
It was the word chosen by Governor Edmund Randolph when he presented
the Virginia Plan to the Constitution
[[Page S2992]]
on May 29, 1787. That is my wedding anniversary date. My wife and I
were married on May 29. It will be 63 years ago on May 29. I will never
forget it. And that is the date in 1787 that Edmund Randolph rose at
that Constitutional Convention and laid down his plan containing 15
resolves, 15 resolutions. The 13th of the 15 resolutions, according to
Madison's notes, read as follows:
Resolved that provision ought to be made for the amendment
of the Articles of Union whensoever it shall seem necessary,
. . .
William Paterson of New Jersey laid the New Jersey Plan before the
Convention on June 15, and with respect to amending the Constitution,
he used the words that the Congress be authorized ``to alter & amend in
such manner as they shall think proper''--``in such manner as they
shall think proper.''
When one compares the pertinent language in the two plans, it is
readily apparent that Randolph's language in the Virginia plan was the
stronger and more exacting upon those who would undertake to amend the
Constitution. Paterson's proposal provided for constitutional
amendments in such manner ``as they (the Congress) shall think
proper.'' In other words, there is no requirement of necessity. The
standard, ``as they shall think proper,'' can vary with whim or caprice
or political motivation. Thus, without any firm anchor, what may be
thought ``proper'' one day, might very well not be thought ``proper''
on the next. But on the contrary, Randolph's language, ``whenever two-
thirds of both Houses shall deem it necessary,''--``whenever two-thirds
of both Houses shall deem it necessary''-- provides a surer anchor and
firmer foundation, and like the warning sign at a railroad crossing,
``stop, look, and listen'', commands not only the rapt attention, but
also the considered judgment and focus of those who would alter,
modify, add to, or repeal the fundamental law of the Nation.
Needless to say, Randolph's language weathered the scrutiny of the
Committee of Style and Arrangement; the Committee of Detail; the
Committee of the Whole; and survived the storms and changing
vicissitudes of the Convention itself.
The word ``necessary'' made it through all the committees, all the
disputations, all the disquisitions, all the arguments, and came out at
the end in that almost immortal document, the Constitution of the
United States.
That word ``necessary'' is not just an empty word. It is not just a
place holder. It is not just a word to be thrown in to fill out the
whole. It meant something. It required something. The word was
``necessary.'' ``Whenever two-thirds of the States shall deem it
necessary to amend.''
Supreme Court Justice Campbell, in Marshall versus Baltimore &
O.R.R., offered these words which we might do well to ponder in this
instance. Here is what he said: ``The introduction of new subjects of
doubt, contests and contradiction, is the fruit of abandoning the
Constitutional landmarks.''
We would profit greatly by reviewing the constitutional landmarks as
we are confronted today with this proposed constitutional amendment.
Madison, in The Federalist No. 43, alluded to ``that extreme facility
which would render the Constitution too mutable''; and he proceeded to
implore against appeals to the people that were too frequent.
This was Madison talking. In The Federalist No. 43, he alluded to
``that extreme facility which would render the Constitution too
mutable'' and proceeded to implore against appeals to the people that
were too frequent.
Here we have 11,000 of these proposed amendments to the Constitution
that have been floating around in one or both Houses throughout the
years--11,000.
In the Federalist No. 49 Madison warned: ``. . . As every appeal to
the people would carry an implication of some defect in the government,
frequent appeals would in great measure deprive the government of that
veneration which time bestows on everything, and without which perhaps
the wisest and freest governments would not possess the requisite
stability.''
That was James Madison. He was only 36 years old, less than half my
age. Listen to him. Let me say it again. He warned: . . . ``As every
appeal to the people''--as we are being asked to appeal to the people
here with S.J. Res. 3--``. . . As every appeal to the people would
carry an implication of some defect in the government, frequent appeals
would in great measure deprive the government of that veneration which
time bestows on everything, and without which perhaps the wisest and
freest governments would not possess the requisite stability.''
In this same Federalist paper, Madison went on to say: ``The danger
of disturbing the public tranquility by interesting too strongly the
public passions, is a still more serious objection against a frequent
reference of Constitutional questions to the decision of the whole
society.''
Ah, what if Madison were here today to speak. The galleries would be
filled. The media galleries would be crowded. There would not be a seat
vacant. They would be all ears, all eyes, because this would be
Madison, 36 years of age, purported to be the father of the
Constitution, speaking.
Listen to him.
``But the greatest objection of all is, that the decisions which
would probably result from such appeals, would not answer the purpose
of maintaining the Constitutional equilibrium of the government.''
Finally, Madison clinched his point, when he said: ``It appears in
this, that occasional appeals to the people would be neither a proper
nor an effectual provision, . . .''
Mr. President, an overriding question, therefore, as we examine the
proposed Constitutional amendment, is simply this: ``Is it necessary?''
``Is it necessary?'' That is the standard that is set forth in the
verbiage of the Constitution: ``Is it necessary?''
Penetrating light has been shed upon this question by the minority
views of Senators Leahy, Kennedy, Kohl, and Feingold, who, in the
committee report, beginning on page 57, set forth a litany of major
laws recently enacted by Congress to grant broader protections and
provide more extensive services for victims of crime. Among these laws
are the Victim and Witness Protection Act of 1982; the Victims of Crime
Act of 1984; the Victims' Rights and Restitution Act of 1990; the
Violence Against Women Act of 1994; the Mandatory Victims Restitution
Act of 1996; the Victim Rights Clarification Act of 1997; the Crime
Victims with Disabilities Awareness Act of 1998; the Identity Theft and
Assumption Deterrence Act of 1998, as well as the Torture Victims
Relief Act; and the Child Abuse Prevention and Enforcement Act, of
March 10, 2000.
These are public laws. They have already been passed by both Houses.
They have been signed into law.
Obviously, as the minority on the Senate Judiciary Committee point
out, there is nothing in the U.S. Constitution that currently
constitutes a barrier, that currently inhibits the enactment of State
or Federal laws that protect crime victims.
With 33 States having adopted state constitutional amendments dealing
with victims' rights, and while every State and the District of
Columbia already have some type of statutory provision providing for
increased victims' rights, including some or all of the rights
enumerated in S.J. Res 3, what is needed is better enforcement of State
laws and increased funding, not a Federal constitutional amendment.
This should be ``as clear,'' as our former illustrious and dear
colleague, the late Sam Ervin, used to say, ``as the noonday sun in a
cloudless sky.''
Chief Justice Oliver Wendell Holmes once stated: ``In my opinion, the
Legislature has the whole lawmaking power except so far as the words of
the Constitution expressly or impliedly withhold it.'' There is no
indication whatsoever that the Federal Constitution of today provides
any barrier--either expressly or impliedly--to the lawmaking power in
the subject area of victims' rights. It would, therefore, be far better
for lawmakers at the Federal and State levels to exert their talents
toward enactment of any further legislation that may be needed--I will
be there to join them--rather than pursuing a course of amending the
U.S. Constitution.
Hamilton, in the Federalist No. 85--this is the final Federalist
paper--states: ``It appears to me susceptible of absolute
demonstration, that it would be far more easy to obtain subsequent than
previous amendments to the Constitution.'' How right he was. In the
[[Page S2993]]
light of Hamilton's wise words, members of the Senate should proceed
with the utmost caution in proposing and supporting Constitutional
amendments.
It is more than noteworthy to again reflect upon the fact that during
the 212 years of the American Republic, its organic law has been
amended only 27 times--including the first time in which all ten
amendments were ratified in one fell swoop. Those ten amendments
constituted the Bill of Rights. During this period of over two
centuries, more than 11,000 constitutional amendments have been
proposed in Congress, but Congress has withstood the pressure behind
this flood. Pheobe Cary's I long ago read poem about the lad who put
his finger in the hole in the dyke: he ``held back the sea by the
strength of his single arm''. The Senate must once again act to prevent
a hole in the dyke which, if exploited here, might, in time, become a
virtual flood.
Hamilton, in the Federalist Essay No. 85, states: ``For my own part,
I acknowledge a thorough conviction that any amendments which may, upon
mature consideration, be thought useful, will be applicable to the
organization of the government, not to the mass of its powers; . . .''
It should be preeminently clear to all observers that the amendment we
are considering at this time, would not, as Hamilton had noted, ``be
applicable to the organization of the government,'' but, instead,
pertains ``to the mass of its powers.''
The Founders departed from practically all historical precedents by
producing the system known as American federalism, and they did this
with great care and skill, for the issue of the States' sovereignty was
a flashpoint upon which the endeavor at Philadelphia could very quickly
have disintegrated.
The Constitution really consists of two types of provisions. One set
of provisions is concerned with structure--the separation of functions
and powers, the departments of administration, the House of
Representatives, the Senate, the President, the Judiciary, and their
relations to one another. The other set of provisions is concerned with
the relation of the States to the general government. The powers of the
general government are limited and the powers of the States are also
under certain restrictions.
This federalism was entirely new. There was nothing like it in the
colonial charters or in the state Constitutions of 1776 and 1777. The
development of federalism went through similar stages and took almost
as long in its processes as the development of the structural parts of
the Constitution. It had been an important and a much debated question
for more than a 100 years before 1776, and more than 20 plans of power-
sharing had been suggested and discussed.
As the Articles of Confederation clearly demonstrated, the protection
of the States' prerogatives continued to be held very dear, even in the
face of the exigencies of newly claimed independence and armed conflict
with Britain. What the Framers successfully crafted in 1787 was a
system which retained enough sovereignty for the States to keep them
from rejecting the new Constitution, while at the same time providing
sufficient power to the national government so that it could be
effective at home, and establish a credible presence in international
affairs--quite an achievement!
The minority on the Judiciary Committee--headed by my illustrious
friend, the very able Senator from Vermont the 14th State--indubitably
are of the view that the amendment before us constitutes a significant
intrusion of Federal authority into a province traditionally left to
State and local authorities. The minority viewpoint States a truism:
``Under our federal system the administration of criminal justice rests
with the states except as Congress, acting within the scope of those
delegated powers, has created offenses against the United States.''
Screws vs. United States
Mr. President, let us view, therefore, with a jaundiced eye, this
proposal to amend the Constitution. As I have already indicated, there
is nothing in the Constitution which currently inhibits the National
and State legislatures from enacting legislation and providing the
necessary funds to deal with the many problems surrounding victims'
rights.
Let me say again, for the benefit of those victims who may not be
sitting nearby but who may be out there on the plains, in the
Alleghenies, in the forests, on the lakes of this great country, let me
say to them: There is nothing, absolutely nothing, in this Constitution
which currently inhibits the National and State legislatures from
enacting legislation and providing the necessary funds to deal with the
many problems surrounding your rights, victims' rights--nothing!
All needful legislation at the national and local levels should be
considered and should be exhausted before we embark upon a course that
leads to a further amendment of the Constitution. That is what we are
saying. Let's try all the others, and let's enforce the laws if they
are not being enforced. Once we go down that road of amending the
Constitution, one amendment leads to another amendment, and then to
another amendment, and as Hamilton predicted in Federalist No. 85, ``it
would be far more easy to obtain subsequent than previous amendments to
the Constitution.'' Willy-nilly amendments to the Constitution can only
serve to trivialize it.
As Hippocrates admonished physicians everywhere, ``Do no harm,'' we
Senators who have taken an oath to support and defend the Constitution
of the United States should measure our actions likewise: Let us do no
harm to the Constitution. When amendments to the Constitution become a
political way of life, when they dovetail with hortatory national weeks
for this or for that, then we have transcended mere bumper sticker
politics and entered the very shaky world of bumper sticker amendments
to the U.S. Constitution. As a result, the public respect for that
venerable document will certainly diminish. Just amend it enough and
the public veneration for that unique document, the Constitution of the
United States, will certainly diminish.
This particular amendment appears to contemplate rewriting the
criminal justice code and placing that rewrite into the Constitution.
If we wish to rewrite the criminal justice code, that is one thing. Let
us have at it, let us be about it, and while we are about it, scan this
proposed amendment for its best provisions to incorporate. Certainly,
victims' rights, or rather protections, as I prefer to call them, are a
cause that I can enthusiastically support. I can embrace them and hold
them close to my heart. But why, oh why, do we need to take the step of
pinning such a measure to the Constitution itself, rather like some
sort of artificial tail? It would be quite funny if it weren't so
serious.
The material which has been circulated in support of the need for
this constitutional amendment seems to cite two primary reasons as its
justification--the first being that the criminal justice system does
not give adequate protection to the interests of victims of crimes, and
the second being that existing statutory and State provisions are not
uniform. While both may be true, neither is a reason for a
constitutional amendment.
In the first instance, these concerns can be addressed through
statutory means. In the second instance, the concern can also be
addressed through statutory means, and to achieve it via the route of
amending the Constitution could be deleterious to a very important
bedrock principle in the Constitution. That principle is one of the
main thrusts and achievements of the framers coming out of the
experience of the Articles of Confederation, and one which is a central
pillar of our Republic. What is that? Federalism!
Each of the States in its wisdom, through its legislature and its
electorate, has the power and the right to protect and accommodate the
interests of victims within its own criminal justice system. All of
these decisions--those that have been made, and those that will be made
in all 50 States--would become subservient to a constitutional standard
if we were to adopt this amendment, which in all likelihood no one
State would have chosen for its own particular citizens.
Obviously, the proposed amendment mandates a significant intrusion of
the Federal Government into an area traditionally left to State and
local authorities. Nearly 95 percent of all the crimes are prosecuted
by the States. The Federal Government does not have general
[[Page S2994]]
police power. As the Supreme Court reminded us in United States v.
Lopez:
Under our Federal system, the states possess primary
authority for defining and enforcing the criminal law.
This proposed amendment could drastically shift the responsibility by
forcing States to put consideration of these new victims' rights and
protections on an equal footing with the rights of the accused.
Furthermore, in the majority report accompanying this amendment,
concerns about disruptions to federalism are deflected by the
incredible assertion that States will have ``plenary authority'' to
tailor the amendment to fit the needs of their various criminal
systems--that they may flush out such definitions as ``victims of
crime'' and ``crimes of violence.'' So much for uniformity. They talk
about uniformity. Well, so much for uniformity.
The result of such a reading of this amendment is, again, the very
patchwork of laws that the proponents say they are trying to avoid.
Moreover, for the first time, we will have turned the concept of
federalism on its head by saying that States and various State laws may
be allowed to implement the intent of a constitutional amendment. This
is pure folly. What we will achieve if this poorly conceived amendment
manages to end up as part of our Constitution is a serious aberration
regarding the crowning achievement of the framers--federalism--and a
recipe for a very nasty little stew of conflicting interpretations of
what is and what is not a victim's right. I shudder to think of where
that can lead us.
The term ``victim'' is undefined and could be interpreted to mean any
number of individuals--some quite removed from the usual understanding.
In the case of a murder, couldn't an entire family be considered
``victims''? Take the tragedy at Columbine High School; could not the
entire town of Littleton be considered ``victims''? If a battered
spouse, finally driven to retaliate to repeated violence, strikes back,
is the abuser then also a ``victim'' and therefore entitled to a
victim's protections?
An ``exceptions'' clause is included in this constitutional
amendment. Consider that. Unlike any other part of the Constitution, we
are inviting exceptions without stating who can make the exceptions.
Are we suggesting that Federal constitutional rights can mean different
things from State to State?
Please let us come to our collective senses. Let us come back down to
earth again. Let us not shred the concept of federalism with one ill-
considered vote in the frenzy of an election year.
Let us pay attention to what we are about to do, remembering John
Marshall's words:
We must never forget that it is a Constitution we are
expounding.
This resolution, S.J. Res. 3, consists of 403 words. I counted them.
I learned to count by the old math. Yes, I memorized my multiplication
tables back in that little two-room schoolhouse in southern West
Virginia more than 75 years ago. But it is still the same
multiplication tables; it hasn't changed, and it won't change. This
resolution consists of 403 words. I am including, of course, the
headings. In itself, it exceeds the number of words in 9--not the first
9, but 9 of the 10 amendments comprising the Bill of Rights. Now, many
of us have participated in that little game of counting the words. I
did so, also. Why not? Why should I not?
According to the committee report accompanying this constitutional
amendment, over 450 law professors expressed opposition to this
amendment to the Constitution. Why weren't they invited to the
hearings? In addition, the Cato Institute, the National Sheriffs'
Association, the National Association of Criminal Defense Attorneys,
the National Legal Aid and Defenders Association, the NAACP, the ACLU,
the Justice Policy Institute, the Center on Juvenile and Criminal
Justice, the Youth Law Center, the National Center on Institutions and
Alternatives, the American Friends Service Committee, and the Friends
Committee on National Legislation--among others--have expressed
opposition to such an amendment. They take the position that statutes
work, statutes are more flexible and are more easily enacted and more
easily corrected and are more able to provide specific, effective
remedies on behalf of victims of crimes.
The majority report cites President Clinton as having endorsed the
constitutional amendment. Well, so what! President Clinton also
supported the line-item veto, but the U.S. Supreme Court knocked it
down. Presidents can be wrong and so can majorities.
The majority also cites the National Governors' Association as having
passed a resolution in 1997 supporting a Federal constitutional
amendment on victims' rights. So what?
As I recall, the National Governors' Association not too long ago
also supported a constitutional amendment to balance the budget. Yes--a
constitutional amendment to balance the Federal budget. The National
Governors' Association supported that. The Federal Government has since
balanced the budget, at least on paper, without resorting to a
constitutional amendment.
We didn't need it. We didn't need it all along. But what if we had
written it into the Constitution?
I submit that the rights of victims of crimes can be clarified and
enhanced by legislation at the Federal and State levels without
resorting to an amendment to the Federal Constitution.
For, as Madison cogently stated in the Federal No. 49, ``A
Constitutional road to the decision of the people, ought to be marked
out, and kept open for certain great and extraordinary occasions.'' The
occasion for this amendment falls far short of being either ``great''
or ``extraordinary,'' and does not measure up to Madison's
prescription. Congress can immediately pass a statute and provide the
financial resources necessary to assist the states in giving force to
their own locally-tailored statutes and Constitutional provisions, thus
avoid tampering with our national charter.
Jesus said it well, when he sat at meat in the house of Levi: ``No
man also seweth a piece of new cloth on an old garment: else the new
piece that filled it up taketh away from the old, and the rent is made
worse.'' Let us not add this piece of clashing new cloth to the
venerable and beautiful garment of the Constitution, lest the new piece
trivialize the old and a rent is made in the carefully coordinated
system of federal and state relations.
The Constitution of the United States was not meant to be a
politician's plaything. It is not mine to play with. It is not yours to
play with. It is not ours to play with. It is a sad commentary that we
find ourselves having to prepare in haste, without adequate notice and
under the strictures of possible cloture, to fend off this proposed
change in our Federal Constitution. Think of it!
I do not question the sincerity of the proponents of the measure, but
I do question the necessity for a constitutional amendment to achieve
their goals and our goals. I also question the necessity, which is
being forced upon us, to make such a basic decision under the Damocles'
sword of limited debate. That is not what our forefathers had in mind
for this great Senate.
Surely no Senator needs to reread history in order to remember how
much blood and treasure it has cost throughout the long centuries,
dating back to the Magna Carta and beyond, to establish the greatest
document of its kind that was ever written--the Constitution of the
United States, a Constitution which, in the words of Chief Justice
Story, is ``not intended to provide merely for the exigencies of a few
years'' but ``to endure through a long lapse of ages, the events of
which were locked up in the inscrutable purposes of Providence.''
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I wish to do what I have done several times
on the floor this week, and that is to thank my good friend and
colleague, the distinguished senior Senator from West Virginia. He is
to all our colleagues not only a dear friend but a great mentor. As I
have said--and I realize I repeat myself--I have learned so much
history not only this week but in the 25 years I have served with him.
Senator Byrd was one of the very first Senators I met after I was
elected to the Senate. We chatted at a dinner, in Boston, which he will
recall, at the residence of the then-mayor of Boston--he and I and a
classmate of mine from law school, John Durkin. John and I had both
graduated from law school 10 years before, and probably of hubris,
chutzpah, or foolishness, we
[[Page S2995]]
were both running for the Senate--10 years later, in 1974. We met with
Senator Byrd at that time.
I began my practice of keeping a journal. I recently went back to
read it. The Senator from West Virginia told of his childhood--not
being one born with a silver spoon in his mouth. There probably wasn't
a silver spoon in the house. He told me what he had done--self-taught,
went on to school, learned more, and learned history as few men in this
country ever have. But then he had the opportunity not only to learn
history but to live history, as he has done day after day after day for
over 40 years in the Congress of the United States, in both bodies.
I wrote down some of the things he said that night. I even wrote down
the music we heard that evening.
When I came to the Senate as a 34-year-old--I was going to say
``former prosecutor'' but the first time I met him was before I was
sworn in. I was still a prosecutor. I recall meeting with him during
the lame duck session. I don't want to embarrass my good friend from
West Virginia, because he met so many young Senators. But I remember so
well that it was a lame duck session. I sat in the reception room and
Senator Byrd came out. I started to reintroduce myself--after all, he
meets so many--and he immediately referred to having met me and
Senator-elect Durkin. He had absolute, total recall of that time.
I think about this because recently in an unpleasant and unfortunate
constitutionally necessary event in this body a year ago when all 100
Members of the Senate sat at the impeachment trial. I recall a member
of the other body made disparaging remarks about the Senate and that
the House Managers would have to simplify things so we Senators could
understand it. He came over to introduce himself to the distinguished
Senator from West Virginia. I was sitting here.
He said: Senator Byrd, I may have somewhat overstated that.
Senator Byrd looked at him and said: I want you to understand two
things: I pay close attention and I have a long memory.
I repeated that to my oldest son and he said: Dad, Senator Byrd's
right on both accounts.
I know that long memory and we benefit by it.
I was thinking today when I came to work how fortunate I am. I have
said many times on the floor of the Senate, we serve at the wishes of
our State, but service is a privilege. Every time I come to the Capitol
I feel privileged. I have felt no more privileged in my 25 years than
in the past few days in this debate on the constitutional amendment. We
can not debate anything more significant on this floor, anything that
will affect history, long after we have gone. Some day, all 100
Senators who now serve will be gone and others will take our place. I
hope they revere the Constitution, too.
I have not enjoyed any debate more than I have the past few days,
partly because of my friend from West Virginia. We stood on many
battles together on constitutional amendments. The Senator mentioned
the balanced budget. I am sure we could go to West Virginia, Vermont,
or anywhere else and take a poll on whether voters want a balanced
budget amendment to balance the budget and, resoundingly, yes would be
the answer. Senator Byrd, myself, and others had to go back and explain
to the people of our States: You have trusted us with this vote. If we
pander to you on this, we misplace your trust. We have to do it the
right way.
We have a dear friend, a former colleague, a man for whom we both
have respect and great affection, the distinguished former Senator from
Oregon, Mark Hatfield. He and the Senator from West Virginia have
served alternately as chairman and ranking member and then as ranking
member and chairman of the Senate Appropriations Committee. I have
quoted Senator Hatfield on this floor, and I believe my friend from
West Virginia remembers very well that balanced budget vote under
enormous pressure on the Senator from Oregon, especially when he knew
it would be a 1-vote margin. He said he would vote to protect the
Constitution and do what was right. Both the Senator from West Virginia
and I complimented him afterwards. I remember the steadfastness of
Senator Hatfield.
That is what we have to do on this floor. We have stood together on
very difficult treaty matters. We have stood side by side casting votes
that at the time were unpopular. History has proven us right.
The Senator from West Virginia has cast well over 15,000 votes; I
became the 21st person to cast 10,000 votes, so I have a long way to
catch up. We can all go back and find votes we might do differently
today. But if it is a statute, if it is an amendment, if it is a
procedural motion we usually get a chance to vote on it again.
If it is a budget matter, whatever the issue might be, it is going to
come up again and again. Use your experience to make sure you do it
right--maybe modify it, maybe change it, maybe repeal it, maybe add to
it. There is one exception--a constitutional amendment. Write a
constitutional amendment. If that is then ratified, if that goes into
effect, we do not come back and change it.
Look at the example the distinguished Senator from West Virginia
mentioned about prohibition, a bad mistake in the Constitution. A lot
happened. Finally it was changed, but only after a great battle.
That is why we should always hesitate. That is why the dean of our
party, the No. 1 in seniority in our party, has opposed this proposed
constitutional amendment. From one who is No. 6 in seniority to the
Senator who is No. 1, I applaud what the Senator has done.
This is not a party issue. The Senator from West Virginia knows we
have had Senators from both sides of the aisle, even some who were
cosponsors, say, ``You are right, let's back up.'' This proposed
amendment will be withdrawn some time today. I hope the United States
has learned the Constitution is not something to treat in a cavalier
fashion.
I thank my friend from West Virginia.
Mr. BYRD. Mr. President, I thank the able senior Senator from Vermont
for his overly charitable words concerning me. I thank him for his
steadfast support on the Constitution. I thank him for the positions he
has taken on many occasions during the years we have served together--
positions that were in the best interest of the Constitution, best
interest of this institution, and in the best interest of our country.
I join with the Senator in recalling the new profile in courage that
was established by our former colleague, Senator Hatfield. He stood as
a rock under the pressures of colleagues. Those were difficult
pressures, in the party conference. He was threatened with his position
as chairman of the Appropriations Committee. That took courage. And he
had it. He had the real stuff. I hope he is listening today. We don't
forget men such as Mr. Hatfield.
Again, I thank my friend; he is my friend, and I think of him as my
friend. He is a very generous person, a person whom I would think of as
a Good Samaritan in this journey of life.
I thank him for his work here. He will be here, he will be, long
after the good Lord has taken me away. But he will be there holding the
torch, holding the Constitution, holding up this institution. And there
will by others, and I hope there will be more, day by day.
I thank the Senator, and I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, in my capacity as ranking member of the
Senate Judiciary Committee, I also think it is necessary, as we wind
down this debate, that I take care of a couple of misconceptions that
occurred during the debate.
My late father, a man who had so much to do with shaping my views, a
man who was a self-taught historian--a very good one, I might say--
always told me if somebody misstates history, it is wise that someone
else stands up and states it correctly so the mistake does not go down
to the next generation.
There was a popular misconception behind the proposed constitutional
amendment. The distinguished Senator from California, Mrs. Feinstein,
touched on this on the first day of the debate, and actually again
today, when she discussed her theory as to why victims are not
specifically mentioned in either the original Constitution or the Bill
of Rights.
[[Page S2996]]
According to Senator Feinstein, when the Constitution and the Bill of
Rights were written in the late 18th century, public prosecutors did
not exist. I should quote exactly what the distinguished Senator, my
good friend, told us on this point. She said:
When the Constitution was written, in America in the late
18th century and well into the 19th century, public
prosecutors did not exist. Victims could, and did, commence
criminal trials themselves by hiring a sheriff to arrest the
defendant, initiating a private prosecution. The core rights
of our amendment to notice, to attend, to be heard were
inherently made available to a victim of a violent crime.
She then quotes the following passage from an article by Juan
Cardenas, in the ``Harvard Journal of Law and Public Policy'':
At trial, generally, there were no lawyers for either the
prosecution or the defense. Victims of crime simply acted as
their own counsel, although wealthier crime victims often
hired a prosecutor.
She then continued:
Gradually, public prosecution replaced the system of
private prosecution. . . . [T]his began to happen in the mid
19th century, around 1850, when the concept of the public
prosecutor was developed in this country for the first time.
She then argued the Constitution must now be amended to rebalance the
criminal justice system and ``restore'' rights to crime victims.
The distinguished chairman of the Judiciary Committee, also my
friend, Senator Hatch, told us on Tuesday that he draws the same
conclusion from history. He said that when the Constitution was
drafted:
There was no such thing as a public prosecutor; victims
brought cases against their attackers.
He then said:
When the Constitution was drafted, victims of crime were
protected by the same rights given to any party to
litigation.
Not surprisingly, the majority views in the report of the Senate
Judiciary Committee are likewise predicated on the notion of
``restoring''--``restoring'' rights to crime victims that they enjoyed
at the time the Constitution and Bill of Rights were being ratified.
The majority views said the following:
The Crime Victims' Rights Constitutional Amendment is
intended to restore and preserve, as a matter of right for
the victims of violent crimes, the practice of victim
participation in the administration of criminal justice that
was the birthright of every American at the founding of our
Nation.
At the birth of this Republic, victims could participate in
the criminal justice process by initiating their own private
prosecutions. It was decades after the ratification of
the Constitution and the Bill of Rights that the offices
of the public police and the public prosecutor would be
instituted. . . .''
When I heard my distinguished colleague say there was no such thing
as a public prosecutor in this country when the Constitution was
drafted, I was surprised. I had been a public prosecutor. I was the
vice president of the National District Attorneys Association at the
time I was elected to the Senate. The fact is that, had I not opted for
the anonymity of the Senate, I was next in line to become president of
that association, one of my few regrets in having to leave to come
here, but the Senate would not wait. And, frankly, I did not want to
wait.
But as a former public prosecutor and one who studied a great deal of
history of prosecution, I was quizzical. So I did a little research.
I might say, when I state that, you understand, of course, we
Senators are often times but constitutional impediments to our staff.
But, by the same token they deserve a lot of credit, Julie Katzman, in
my office, an able lawyer, did a lot of research as did Bruce Cohen
from the Judiciary Committee. They found this article by Mr. Cardenas
that Senator Feinstein quoted, which does appear in volume 9 in the
``Harvard Journal of Law and Public Policy.'' In fact, if you take the
passage the distinguished Senator from California quoted and relied
upon, from page 367, about how victims of crime used to act as their
own counsel, it is describing the general practice in this country in
the 17th century, not in the late 18th century when the Constitution
was written.
Mr. Cardenas discusses what happened at the time of the American
Revolution on page 371, a few pages after the passage quoted by the
sponsor of this proposed constitutional amendment. He writes:
Whatever its derivation, the American system of public
prosecution was fairly well established at the time of the
American Revolution.
Mr. Cardenas notes that Connecticut was the first colony to establish
a system of public prosecutors, in 1704, over 80 years before the
Constitution was written.
In Vermont, the Office of the State's Attorney is established in
chapter II, section 50 of the State constitution of 1793. Even before
Vermont joined the Union as the 14th State, it had a system of public
prosecutions run by the State's Attorneys. Samuel Hitchcock was State's
Attorney for Chittenden County, VT, from 1787 to 1790, during the time
that the Federal Constitution and the Bill of Rights were being
written. Samuel Hitchcock was State's Attorney in Chittenden County,
from 1787 to 1790, some time before I became State's Attorney, in the
last century--or, this century, depending upon how we do this. In May
of 1966, until 11:59 in the morning on January 3 of 1975, I served as
State's Attorney, also, of Chittenden County. At 12 noon, January 3, I
took a different job. I have held it ever since.
Now, private prosecutions may not have been eliminated in all the
colonies by the time the Constitution was written. They were, however,
eliminated in Virginia, home of some of the foremost architects of the
Constitution. Mr. Cardenas writes:
[B]y 1711, the attorney general [of Virginia] appointed
deputies to each county in the state, and these deputies
began exercising their authority to prosecute not only in
important cases, but in routine ones as well. . . . By 1789,
the deputy attorney general had complete control over all
prosecutions within his county.
There was a place that had the sort of criminal justice system that
the distinguished chairman of the Senate Judiciary Committee and others
attributed to the time the U.S. Constitution was written, but that
place was not the United States. Mr. Cardenas describes it on page 360
of his article:
The right of any crime victim to initiate and conduct
criminal proceedings with the paradigm of prosecution in
England all the way up to the middle of the 19th century.
It was England that had a system of private prosecution in the 18th
and 19th centuries, not the United States, not even New England in the
United States.
To make sure I had my facts straight, I had to look through some
other historical source material. I looked at an essay in volume 3 of
the ``Encyclopedia of Crime and Justice'' by Professor Abraham S.
Goldstein on the history of the public prosecutor in America. Professor
Goldstein tells us essentially the same thing as Mr. Cardenas.
Most American colonies followed the English model of private
prosecutions in the 17th century, but as Professor Goldstein tells us,
that system ``proved even more poorly suited to the needs of the new
society than to the older one.'' For one thing, victims abused the
system by initiating prosecutions to exert pressure for financial
reparation. These colonies shifted to a system of public prosecutions
because they viewed the system of private prosecutions as
``inefficient, elitist, and sometimes vindictive.''
According to Professor Goldstein, some of the colonies have no
history at all in private prosecutions. In the areas settled by the
Dutch in the 17th century, consisting of parts of what are now
Connecticut, New York, New Jersey, Pennsylvania, and Delaware, the
Dutch brought public prosecutions with them.
In any event, Professor Goldstein comes to the same conclusions as
Mr. Cardenas. On page 1287, he writes:
[B]y the time of the American Revolution, each colony had
established some form of public prosecution and had organized
it on a local basis. In many instances, a dual pattern was
established within the same geographical area, by county
attorneys for violations of state law and by town prosecutors
for ordinance violations. This pattern was carried over into
the states as they became part of the new nation.
Actually, for almost 200 years that was the system in my own State of
Vermont. Now prosecutions are done by the State's Attorneys of the 14
counties and, in some instances, by the Attorney General.
Professor Goldstein goes on to discuss the fact that the Federal
system of prosecution was always a system of public prosecution. Under
the Judiciary Act of 1789, enacted the same year
[[Page S2997]]
the Constitution was ratified, the U.S. Attorney General was ``to
prosecute and conduct all suits within the Supreme Court of the United
States in which the United States might be concerned.'' The general
authority to ``prosecute in each district'' for Federal crimes was
vested in local U.S. district attorneys appointed by the President.
Professor Goldstein is a highly respected scholar. He is the Sterling
Professor of Law at Yale Law School. In fact, at one time he was the
dean of that prestigious institution. He is widely regarded as an
authority on criminal law and criminal procedure. When Professor
Goldstein says every American colony had established some form of
public prosecution by the time of the Revolution, I think we Senators
can probably take that to the bank.
To be on the safe side, since we heard Senators say otherwise about
this, I thought we should check further. We checked another source, a
1995 article by Professor Randolph Jonakait of the New York Law School.
It appears in volume 27 of the Rutgers Law Journal beginning on page
77. Not surprisingly, it says much of the same thing about the history
of public prosecutions as I had already learned from Mr. Cardenas and
Professor Goldstein.
I quote from page 99:
Although the American colonies initially followed the
English prosecutorial pattern, a different process began to
emerge around 1700. Public officials took responsibility for
the prosecution of crimes generally or just for the limited
set of offenses that directly affected the sovereign. As
public prosecutors emerged, private prosecutions in the
colonies disappeared. This evolution of the American criminal
justice system was quick and thorough. By the time of the
Revolution, public prosecution in America was standard, and
private prosecution, in effect, was gone. Indeed, it was so
established and taken for granted at the inception of the new
Federal Republic that public prosecutors, although not
mentioned in the Constitution, were, without debate, granted
exclusive control over prosecutions in Federal courts.
Mr. Cardenas, Professor Goldstein, and Professor Jonakait are all
quite clear that the concept of government-paid public prosecutors did
not develop in this country for the first time ``around 1850,'' as the
Senate was mistakenly told on Tuesday. All these authorities agree that
public prosecutors have been around in this country for much longer--
about 150 years longer--and that they were the rule, not the exception,
by the time Mr. Madison and Mr. Hamilton and all the other framers of
our Constitution got together in Philadelphia in 1787 to draft our
Nation's founding charter.
If the Bill of Rights, which was written a few years later, makes no
specific mention of crime victims, it is not because the framers
thought victims were protected by a system of private prosecutions.
My point, of course, is the proposed constitutional amendment on
victims' rights cannot be justified as ``restoring'' victims' rights
enjoyed at the time the Constitution and the Bill of Rights were
drafted. Rather, if we are to draw any lesson from history, it is that
the framers believed victims were best protected by the system of
public prosecutions that was then, and remains, the American standard
for achieving justice.
Mr. President, I ask unanimous consent to print in the Record a
letter dated April 25 from Assistant Attorney General Robert Raben
opposing the proposed constitutional amendment.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, April 25, 2000.
Hon. Trent Lott,
Majority Leader, U.S. Senate, Washington, DC.
Dear Mr. Majority Leader: I write to convey the views of
the Department of Justice on S.J. Res. 3, a resolution
setting forth the text of a proposed Victims' Rights
Amendment (VRA) to the Constitution, which was voted out of
the Committee on the Judiciary on September 30, 1999, and
sent to the full Senate. The Department continues to have
significant concerns with four aspects of S.J. Res. 3.
Although we continue strongly to support a victims' rights
amendment to the Constitution, and would support S.J. Res. 3
if the concerns detailed in this letter were addressed, we
oppose the amendment in its current form. In the interim, we
hope you will continue to help crime victims through the
enactment of appropriate legislation.
As you know, the President and the Attorney General both
strongly support a victims' rights amendment that will ensure
that victims have a voice in the criminal justice system. See
Pres. Proc. No. 7290, 65 FR 19823 (Apr. 10, 2000); Speech of
Attorney General Janet Reno to the National Organization for
Victim Assistance (Apr. 7, 2000). At the same time, this
Administration believes that our constitutional system, which
the Framers established after much deliberation and debate,
has served our nation well for more than 200 years and should
not be altered without the most cautious deliberation. See
Statement of President Clinton in Support of Victims' Rights
Constitutional Amendment (June 25, 1996). Our support for the
VRA has rested on the premise that the Amendment would not
undermine existing constitutional provisions' thus, our first
concern has been that the resolution lacks an express
provision preserving the rights of the accused. In light of
our role as the chief federal law enforcement agency, our
support has also depended on the Amendment not hampering
effective law enforcement; accordingly, our second concern
has been the unduly stringent standard for creating
exceptions to the Amendment's applicability where necessary
to promote the interests of law enforcement. We are committed
to an amendment that gives real rights to victims while
satisfying these basic criteria. This letter augments our
previous letter of June 17, 1998 (enclosed), regarding the
then-current S.J. Res. 44, in which we noted the above-
mentioned concerns. This letter also reflects further
concerns we have about the Amendment's application to the
pardon power and the reopening of restitution that we
discussed with committee staff before markup in September.
preserving the existing constitution
As we stated in our previous letter, we believe that, to
ensure the protection of existing constitutional guarantees,
the VRA should contain language that expressly preserves the
rights of the accused. To that end, we urged that the
following language be added: ``Nothing in this article shall
be construed to deny or diminish the rights of the accused as
guaranteed by the Constitution.''
Moreoever, we are concerned that new language that has been
added to the proposed VRA would further alter our existing
constitutional framework. Section 1 of S.J. Res. 3 has been
amended to grant victims the right ``to reasonable notice of
and an opportunity to submit a statement concerning any
proposed pardon or commutation of a sentence.'' This
provision would create an unprecedented incursion on the
President's exclusive power to grant pardons, commute
sentences and remit restitution. See U.S. Const. art. 2,
Sec. 2, cl. 1 (pardon power); Schick v. Reed, 419 U.S. 256,
263-64 (1974) (commutation power falls within the pardon
power); see also Knote v. United States, 95 U.S. 149, 153-155
(1877) (pardon power includes authority to remit unpaid
financial obligations imposed as part of a sentence). The
Supreme Court has observed that ``the draftsmen of [the
pardon clause] spoke in terms of a `prerogative' of the
President, which ought not be `fettered or embarrassed.' ''
Schick, 419 U.S. at 263. The Court has also observed that
``whoever is to make [the pardon power] useful must have full
discretion to exercise it.'' Ex parte Grossman, 267 U.S. 87,
121 (1925). In addition, we note that this provision could
encroach upon the clemency powers of governors in states
where their authority is also plenary.
S.J. Res. 3 does more than simply diminish the control over
pardons that the Framers vested in the President; it does so
in particularly significant ways. The proposed language would
require the President to give victims notice and an
opportunity to submit a statement (Section 1), and would
arguably permit a court to reopen a pardon, commutation, or
remission of restitution (Section 2). It also seemingly would
authorize Congress to regulate the pardon power in some
respects by granting Congress ``the power to enforce [the
VRA] by appropriate legislation,'' rather than reserving
enforcement authority to the President (Section 3). By
contrast, under our existing constitutional framework, the
President has both the responsibility and authority to
determine the procedures for his Administration's handling of
executive clemency requests so that he may receive the
information he deems necessary, including input from victims
and others. The current procedures are set out at 28 C.F.R.
Sec. Sec. 1.1-1.10. The Department is presently exploring
how, and under what circumstances, additional victim
interests can be best integrated into the Department's
advisory role in counseling the President as he makes
decisions about clemency.
Furthermore, the pardon provision differs from the rest of
the VRA, which focuses on criminal proceedings. Although
other provisions of the VRA would give victims rights
in proceedings in which defendants have rights, the pardon
provision would grant victims rights in a setting in which
no one--including defendants--has ever possessed rights,
and that has always been controlled entirely by the
President. The Framers assigned this power wholly to the
President, and we oppose any amendment that would encroach
upon it.
law enforcement concerns
As we have noted previously, we are concerned that the very
high standard for exceptions to the Amendment's victims'
rights guarantees in Section 3 of S.J. Res. 3 would render
the government unable to remedy the practical law enforcement
problems that may arise under the Amendment. We believe
[[Page S2998]]
that the authority to create exceptions should exist where
necessary to promote a ``significant'' government interest,
rather than the ``compelling'' interest required by the
current draft. It is important that the VRA be flexible
enough to permit effective and appropriate responses to the
variety of difficult circumstances that arise in the course
of implementing the Amendment. This concern is explained in
more detail in our letter of June 17, 1998.
Our last issue concerns the addition of restitution to the
list of proceedings and rulings subject to retrospective
relief. We believe that any remedies provision should strive
to make rights of victims real and enforceable, while
ensuring that society's and victims' interests in finality
and effective law enforcement are not undermined. Measured
against these objectives, we believe Section 2 of S.J. Res. 3
is overly broad and would unduly disrupt the finality of
sentences. The current language would appear to permit a
victim to reopen the restitution portion of a sentence for
any reason at all, at any time, even after a sentence has
been served in full. The problems for law enforcement that
could be caused by this provision include, for example, the
possibility that because of the limited economic means of
many defendants, restitution awarded to some victims at
sentencing might have to be decreased to accommodate
subsequent claims by victims who come forward after
sentencing; the potential that defendants will litigate the
reopening of a restitution order without the reopening of
other parts of the sentence; and the difficulty in reaching
and defending plea agreements in light of possible reopenings
of and changes in the terms of restitution. In our view,
these issues constitute serious obstacles to including
restitution among the matters subject to retrospective
relief.
Further, we believe the inclusion of restitution in Section
2 is not necessary in light of existing legislation providing
relief for victims who are denied restitution or whose
restitution is inadequate. If a federal court fails to impose
restitution in accord with controlling statutes, the
government can appeal the unlawful sentence without impairing
the defendant's Double Jeopardy rights. See 18 U.S.C.
Sec. 3742(b); United States v. DiFrancesco, 449 U.S. 117, 137
(1980). Likewise, the States can legislatively protect
victims in this regard by authorizing state prosecutors to
appeal criminal sentences that do not satisfy state
restitution statutes. Congress and the States can also enact
legislation to address perceived gaps in current laws without
going so far as to amend the Federal Constitution.
doing more for victims while improving the amendment
This Administration, with Congress, as kept its commitment
to victims of crime, even as it has pushed aggressively for a
victims' rights amendment. We have witnessed historic
reductions in violent crime over the past seven years, and
through our efforts, criminal victimization is at its lowest
point in twenty-five years.
Even with the significant drop in violent crime, we have
not become complacent. In 1994 the President signed into law
the Violent Crime Control and Law Enforcement Act, which
gives victims of violent crime and sexual abuse the right to
speak out in court before sentencing, providing them the
opportunity to describe the impact such victimization has had
on their lives.
The Department, working with Congress, has also provided
unprecedented levels of funding for victims' services. Since
1993, we have received over $2.2 billion in the Crime
Victims' Fund, over 90 percent of which has been distributed
to the states and victims' compensation and assistance funds.
The Violence Against Women Act has also infused new dollars
into victim services: under that act, the Department has
funded nearly $1 billion in new domestic violence programs
for states, communities, and tribes since 1995.
In addition to funding, the Department has taken other
steps to improve the way it provides services to victims. We
are auditing every component that has any responsibility for
our contact with victims to assure appropriate staffing,
improve practices and address problems. We have also revised
and updated the Attorney General's guidelines for victim
assistance.
There is more yet that can be done while we continue to
strive for an appropriate constitutional amendment. For
example, as then Associate Attorney General Raymond Fischer
testified before the Senate Judiciary Committee in 1998, we
can enact federal legislation that will improve victims'
rights and services in the federal system while at the same
time providing funds and other incentives to states to
improve their own victims' rights laws and policies.\1\ By
passing such legislation, we can build a crucial bridge to
the victims' rights amendment.
---------------------------------------------------------------------------
\1\ In this regard, it is worth noting that, thanks to the
concerted efforts of crime victims' advocates and
governmental bodies at all levels, all fifty States have now
enacted laws safeguarding crime victims' rights in the
criminal justice process, and 32 States have amended their
constitutions accordingly.
---------------------------------------------------------------------------
We appreciate the Judiciary Committee's willingness to work
with the Department on issues relating to the Victims' Rights
Amendment over the last four years. Although we continue
strongly to support a victims' rights amendment to the
Constitution, and would support S.J. Res. 3 if the concerns
detailed in this letter were addressed, we oppose the
amendment in its current form because it fails to do so. We
urge the Senate to continue to work with the Department in
improving the constitutional amendment, while in the interim,
continuing to assist crime victims through the enactment of
appropriate legislation. Should you have any questions,
please do not hesitate to contact me.
Sincerely,
Robert Raben,
Assistant Attorney General.
Mr. LEAHY. Mr. President, I have said over and over that no one in
the Senate is against crime victims. I care deeply about the rights of
crime victims, just as I care about the rights of all Americans.
I established one of the first formal systems in my State to make
sure crime victims are heard. It is something that is done all the time
now. In fact, one of the distinguished family court judges, Judge Amy
Davenport, was in town yesterday and listened to part of this debate.
She said: There is nothing you talked about here that we just don't do
automatically. In Vermont, we do not need a constitutional amendment to
do it.
We all care about the rights of crime victims. This is not a case of
for or against amending the Constitution. We establish whether we care
about crime victims. We all do. I care about their rights. I also care
about the rights of mothers and expectant mothers, the rights of
immigrants, the rights of workers, the rights of farmers, the rights of
hospital patients, the rights of the young, the rights of the old, the
rights of people seeking housing, the rights of students, the rights of
artists, journalists, and scientists, the rights of those people who
care about the environment, and the rights of families.
I do not know anybody in this body, Democrat or Republican, who does
not care about the rights of all these people.
We all care about the rights of all law-abiding Americans. We could
easily pass unanimous resolutions to that effect. But Americans want
practical solutions to practical problems from their Government, not
just expressions of concern. They certainly do not want us to try to
define every one of these rights in a separate constitutional
amendment.
So the issue is not whether we care about the rights of crime
victims. I point out that a couple weeks ago my dear friend Senator
Feingold voted against a constitutional amendment to limit campaign
contributions. Anyone who would infer from that vote that Senator
Feingold is not passionate about campaign finance reform knows nothing
about Senator Feingold and his attitude about campaign finance reform.
In all the years I have been here, I have never seen anybody as
passionate about it as he.
Recently we voted on a constitutional amendment to criminalize
physical destruction of the American flag. Senators Bob Kerrey, Robert
Byrd, Mitch McConnell, Bob Bennett, Daniel Inouye, Daniel Patrick
Moynihan, and many others voted against that constitutional amendment.
Many of them are decorated war veterans. Bob Kerrey, for example, is
the only Member of this body to hold the Congressional Medal of Honor.
The vote did not mean they do not respect the flag.
When Gen. Colin Powell and Senator John Glenn opposed the flag
amendment, it was not because they lack devotion to this country.
Anybody would be hard pressed to find two people more patriotic than
they. Far from it, they are American heroes who showed their patriotism
by standing up for the Bill of Rights. Frankly, that is ultimate
patriotism.
There have been studies over time in which people are asked about
different parts of our Bill of Rights that we all rely upon, and the
study would say: Would you vote for the right of free speech today, the
right of assembly, or some of these others? People say: Yes, all except
this or all except that. Thank goodness people had the courage to write
and vote for it earlier. Our country has it. And then others made sure
we did not go back and change it because we might have some problems.
In my years in public life, I cannot think of more times that
devotion to the first amendment has been tested or that any area in the
Constitution has been tested more than the first amendment. We do not
need the first amendment to protect popular speech; we need it to
protect unpopular speech.
[[Page S2999]]
That really is the crux of why we should care about amending our
Constitution and carving exceptions or making changes in our
Constitution.
We had a Member of Congress in Vermont who was prosecuted under the
Alien and Sedition Act in a way that we all know would be highly
unconstitutional. Why? Because he criticized the Federal Government.
They locked him up. You know what? This is why I love my native State
of Vermont: We do not let other people tell us what to think. While he
was locked up, what did we do? We reelected him and sent him right back
down to Congress. And the shame was on those who supported the Alien
and Sedition Act, they were soon gone.
It was a Vermonter, I think the most outstanding Vermont U.S. Senator
of the 20th century, who stood on the floor of this body--a
quintessential conservative--Republican Ralph Flanders of Vermont, who
introduced a motion of censure against Joseph McCarthy, the late
Senator from Wisconsin. Joseph McCarthy ran roughshod for too long over
the first amendment of the United States, and lives and careers were
ruined because of his accusations. Ralph Flanders stood up and called a
halt to that. Then other Senators came forward and joined with him.
That reign was over.
I would say to anyone who visits the United States, from whatever
country, if you want to guarantee a democracy, guarantee two things:
Guarantee the freedom of speech, including the freedom to say things
that might be unpopular at the moment because you may find within a few
years they will be the popular ones; and, secondly, guarantee the right
to practice any religion you want, or none, if you want. Because if you
protect those two rights, you protect diversity. If you protect
diversity in your country, you protect democracy.
I say that those who have opposed this constitutional amendment are
not doing it because they lack concern for victims' rights. Decent and
sincere people in both parties who serve in this Chamber respect
victims' rights, but many of us oppose this amendment. I support crime
victims' rights. I do not support a victims' rights constitutional
amendment.
The issue before the Senate is whether to amend the U.S.
Constitution--and almost double the length of the entire Bill of
Rights--by adding a complex listing of constitutional victims' rights
and limitations that may diminish the Constitution and do little to
protect victims. It is not like passing a commemorative resolution.
Do we have to pass constitutional amendments to prove we care about
people? We care about victims, but we also care about mothers,
immigrants, workers, farmers, hospital patients, the young, the old,
artists, journalists, scientists, nature lovers, and families.
We have heard complaints in this Chamber more than a few times about
``group entitlements.'' We are not going to have a constitutional
amendment for every group.
Stuart Taylor recently wrote in the National Journal about this
amendment. He wrote:
Most of us agree, of course, that prosecutors and judges
should be nice to crime victims (as they usually are). Most
of us also agree that parents should be nice to their
children. But would we adopt a constitutional amendment
declaring, ``Parents shall be nice to their children''? Or
``Parents shall give their children reasonable notice and an
opportunity to be heard before deciding whether and how to
punish older children who have pushed them around''? Would we
leave it to the courts to define the meaning of terms like
``reasonable'' and ``nice''?
A ban on spanking, perhaps? A minimum of one candy bar per
day? Would we let the courts override all state and federal
laws that conflict with their interpretations?
We don't need constitutional amendments to embody our broad
agreement on such general principles. And we should leave it
to the states (and Congress) to detail rules for applying
such principles to the messy realities of life.
There is no precedent in a national constitution for a victims'
rights amendment. But there is precedent for treating constitutional
provisions as group entitlements. For most of the 20th century, there
was a nation that rejoiced in criticizing America for not caring about
the rights of various groups of law-abiding people because we did not
have such provisions in our Constitution. That nation had special
constitutional provisions for mothers, immigrants, workers, farmers,
hospital patients, the young, the old, artists, journalists,
scientists, nature lovers, and families.
I would have brought a copy of its 1977 constitution along with me
today if I could carry it. But some of our visitors today know that
country is no longer here, the former Union of Soviet Socialist
Republics. Back then, I felt confident that Mr. Madison and his
compatriots had done a better job of drafting a Constitution than Mr.
Lenin, Mr. Stalin, or Mr. Brezhnev, and I am no less proud to be an
American today. Madison, Jefferson, Washington, and the other founders
understood three key lessons other countries are only learning now, 200
years later.
First, in a democracy, it is better to have a short constitution
everyone can read and understand rather than a long one full of
symbolic declarations, legalese, and procedural details. I hold the
Constitution, including the Bill of Rights and the Declaration of
Independence in this little booklet.
The distinguished senior Senator from New York mentioned a country we
all respect, a democracy, France, which amended its Constitution so
many times to fit in every single little thing they could possibly
think of so that, as the story goes, in the libraries they do not file
it under ``constitution,'' they file it under ``periodicals.'' Well, I
do not want that to be the U.S. Constitution.
Secondly, in a free society, the purpose of a constitution is to
constrain the government, to establish a government of limited powers,
with the rest of the powers to the people, not a government of
expanding responsibilities. Jefferson and Madison trusted to the States
and the American people to care for the rights of victims of crime and
of other misfortunes by means of the democratic process and by using
the tool at hand to solve problems as they arose. They did not mandate
a set of procedures for relief of every problem by calling them rights
and then tacking them on to the Constitution. Instead, they reserved
the Constitution for the protection of the people from the government
itself.
Thirdly, in a nation of ordinary practical people, what is needed are
practical responses to practical problems, not symbols of concern that
at the end of the day are empty. Madison and Jefferson designed the
original Bill of Rights to respond to actual government abuses such as
suppression of unpopular speech or unpopular religion or unpopular
newspapers, that the States and the Federal Government could not be
otherwise trusted to remedy in the normal course of events.
Likewise, the Reconstruction Amendments did not enact a long litany
of procedural rights without substance. Instead, they responded to a
real, practical history of abuse by State governments of the rights of
African-Americans. Even then our Nation was shamefully slow in
implementing the anti-slavery amendments.
The proposed amendment under consideration is fundamentally
misconceived. It would be the most procedurally complex provision of
the entire Constitution, within just a few words of doubling the length
of the entire Bill of Rights. Every school child, every senior citizen,
every American can pick up this Constitution and read it and understand
it. That is the beauty of it. That is the strength of it. That is why a
quarter of a billion people live in such freedom.
We have referred to the last American precedent for a constitutional
amendment to increase the power of government over law-abiding
citizens. That was prohibition. It was well intentioned but, my word,
what a disaster. It ended up staining the reputation of Senator
Volstead and others who championed its cause. It was so ill suited to
the framework of our Constitution that it bears the distinction of
being the only constitutional amendment that had to be repealed.
I still remember the stories I was told as a child, many in Vermont,
of good, upright citizens who prospered greatly during prohibition,
perhaps because of the fortuitous aspect of our geographical location
bordering on Canada.
If I could digress for a moment, we have a large lake in the northern
part of Vermont, Lake Memphremagog. My wife was born on the shores of
Lake Memphremagog, as she quickly points out, on the Vermont side. Her
parents,
[[Page S3000]]
of French Canadian descent moved there to take up life as new American
citizens. She became a first-generation American.
Lake Memphremagog is a magnificent lake that is half in Vermont and
half in Canada. During prohibition time, some of the farmers who had
little farms, one or two cows and a falling down barn along the lake,
had very expensive Chris-Craft speedboats. I mention this because the
local Customs official had a slower boat with an outboard motor. Every
evening about dusk, these farmers would go out with their high-powered
speed boats and they would have their fishing rod and a couple worms
and they would head out across the lake toward Canada to go fishing,
their speedboats riding high.
About 2 o'clock in the morning, you would hear this awful roar across
the lake as several of these came back, obviously the ``fishing''
having been very successful because the boats are now riding much, much
lower. You can imagine the chagrin of the poor Customs agent who had to
try to fulfill the prohibition provision of the Constitution, as he
wondered which one of these fishing boats he should try to intercept,
knowing he could not intercept any of them because he could not catch
them.
Whether it was because of the ``fishing'' or not, for at least a
generation thereafter, the two most popular brands of alcohol in
Vermont were the two that are also the most popular in the Province of
Quebec, right across the lake.
As I said, I digress. But prohibition caused such a disrespect for
the law. It really made us look foolish, but it took forever to change
it because it was in the Constitution. If we made the mistake of doing
it as a statute, we could have amended it. We could have changed it
within a year. Everybody knew it was not working. Everybody knew it was
increasing the power of organized crime. Everybody knew it was bringing
about corruption and bribery and everything else. But worse than that,
a democracy can enforce its laws only if people respect the laws. A
democracy can work only if we know that these laws are fair and these
laws are just.
We do not have a police officer in everybody's house. We do not have
a police officer on every corner. We expect people to obey the laws.
But if they have no respect for them, then they do not. In all the
years it took to repeal this, for over a decade, the laws in this
country and the people's respect for the laws of this country
diminished every single year. Nobody could do anything about it because
it takes so long to repeal a constitutional amendment.
So let us look at statutes when we can. Let us think of article V of
the Constitution, which says you amend only when necessary.
Last, but by no means least, the proposed amendment is not a
practical response to a practical problem. Many States are ahead of the
Federal Government in protecting victims' rights. Recent years have
seen huge advances in protection of victims' rights in State
constitutions and State legislation, in the provision of restitution or
other compensation where practical, and in improvement of law
enforcement resources and techniques to ensure proper regard for
victims.
While Congress has been focusing its attention on more than 60 drafts
of a constitutional amendment on victims' rights, it has actually
slowed us down from doing real improvement to the way crime victims are
treated in Federal courts and by Federal prosecutors. Our legislative
achievements of the period from 1994 through 1997 have not been matched
in the last several years. I fear this debate on the proposed
constitutional amendment will be in lieu of consideration of scores of
significant legislative proposals introduced by Senators on both sides
of the aisle to help victims.
Violent crime is a serious practical problem in our society--far more
than it was even when I was a prosecutor. As a parent, as a
grandparent, that troubles me greatly. But there is not a fundamental
problem--certainly not one requiring a rigid, one-size-fits-all set of
constitutionally mandated procedures--in how the States treat victims
of violent crimes today.
We have visitors in the gallery today from Russia, the successor to
the former Soviet Union. The old Soviet Constitution demanded the
obedience of Russians. It really was not very subtle about it. Article
59 declared that every citizen was ``obliged to observe the
Constitution and comply with the standards of socialist conduct.''
Well, the U.S. Constitution does not command; instead, it counsels
humility. It is humbling to consider the great minds that drafted it,
its clarity and simplicity in laying down a framework to protect law-
abiding people by ensuring limited, democratic government. It is also
humbling to think how it has stood the test of time. It remains
extraordinary what was achieved in 4 short months in Philadelphia in
1787, when communication meant walking from one building to another to
talk to somebody, or sending a letter by horseback. In 4 short months,
look at what they wrote.
By contrast, we have been waiting twice that long for the House-
Senate conference on the juvenile crime legislation to meet and
complete its work--something that could really help victims of crime in
this country, something that could be done now and something that could
be sent down to the President and signed into law and it would be the
law of the land immediately. But we do not meet because the gun lobby
said do not meet.
We ought to be very slow in this Chamber to presume that we know
better than the founders how to balance the power of government and the
rights of the accused. We should be reluctant to presume that we can
draft a one-size-fits-all set of detailed procedural rules that will
work to protect different people who are victims of different crimes in
cases in different States--the kind of constitutional micromanagement
of the judicial process the framers were too wise to attempt. These
400-odd words of the 63rd draft of this proposed amendment do not fit
with the size and style, the limited Government vision, or the
practical approach of the U.S. Constitution and the Bill of Rights.
I hope when we finish this debate all Senators will join in efforts
to improve victims' rights through the States and through Federal
legislation.
I see the distinguished Senator from Delaware on the floor. As
chairman and as the ranking member of the Senate Judiciary Committee,
Senator Biden has worked very hard on legislation to help victims of
all kinds of crime. The distinguished Senator from Delaware has helped
write laws that can take effect and have money and teeth in them to
help victims. I have done some, as have others. Usually, we join in
bipartisan efforts to do it. But they have been pieces of legislation
that, once signed into law, we could watch. We could see if they were
working, and if they did, fine, we could expand them and give them more
money. If they did not work, we could change them. We cannot do that
with a constitutional amendment.
I ask those who are for victims' rights to support congressional
action on S. 934, the Crime Victims Assistance Act.
Mr. President, we have editorials in opposition to this
constitutional amendment from the Asheville Citizen-Times, the
Baltimore Sun, the Chicago Tribune, the Herald, the Philadelphia
Inquirer, the Richmond Times-Dispatch, the San Francisco Chronicle, the
San Francisco Examiner, the San Jose Mercury News, the Seattle Post-
Intelligencer, the St. Petersburg Times, the Washington Times, the
Collegiate Times, the Pittsburgh Post-Gazette; and the South Bend
Tribune.
I ask unanimous consent that several of these articles be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Times, Feb. 15, 2000]
An Uncluttered Constitution
(By Bruce Fein)
What keeps our Constitution sacred and accessible to the
ordinary citizen is majestic brevity and a confinement to
essentials.
Amendments should thus be limited to issues of great and
enduring moment that cannot be safely entrusted to popular
majorities. The pending Victims' Rights Amendment, under
active consideration by the House and Senate and lukewarmly
supported by the Clinton administration, falls short of that
historically exacting standard.
The amendment, House Joint Resolution 64, would dictate an
array of victims' rights in federal or state criminal or
auxiliary proceedings. The motivation is irreproachable:
[[Page S3001]]
to guarantee crime victims a minimum opportunity to be heard
or to be otherwise involved when the disposition of their
predators in question. But good motivation, without more,
does not justify a constitutional coronation. If it did, the
1964 Civil Rights Act, the 1965 Voting Rights Act, the 1968
Fair Housing Act, Title IX of the Higher Education Act, the
American With Disabilities Act, and an endless list of
companion federal laws would be elevated to constitutional
status and the document would smack more of Edward Gibbon's
``Decline and Fall of the Roman Empire'' than of Lincoln's
Gettysburg Address.
VRA crusaders have cobbled together an assortment of
unpersuasive reasons for their constitutional cause, as
though adding zero to zero repetitively may eventually equal
something. It is said criminal defendants and prisoners enjoy
constitutional rights that trump victims' rights enumerated
in scores of statutes and state constitutions. But nothing in
the constitutional text or United States Supreme Court
precedents even hints at a conflict with victims' rights
that command lower statutory status: the right to notice
and to have views considered in prosecutorial, sentencing,
parade, or commutation decisions and to attend criminal
trials. Amendment proponents have searched in vain for a
single court decision that supports their fretting.
Crime victims have demonstrated stunning success in
majoritarian politics who need no constitutional protection
from potentially hostile legislation. As a chief sponsor of
the Amendment, Rep. Steve Chabot, Ohio Republican, testified
last Thursday before the House Judiciary Subcommittee on the
Constitution, ``In 1982, California became the first state to
pass a Victims' Rights Amendment to its constitution. Since
that time, 32 states, including my home state of Ohio, have
passed similar amendments . . . ratified [by an average of]
79 percent of the vote in state-wide referendums.''
That is no surprise. Crime victims evoke almost universal
sympathy, and no one campaigns boasting, ``I will vote
against victims' rights.''
Amendment apostles also urge that state laws are
disrespected by state judges or prosecutors. But that is
unvariably true of new laws during their childhoods. Legal
training and habits are customarily backward-looking, and
legal bureaucracies lie midpoint between sclerosis and rigor
mortis. But troglodyte judges, prosecutors, and clerks will
die or retire; their replacements will be victims' rights
enthusiasts indoctrinated in the new gospel. The problem of
inattention to state or victims' rights laws will solve
itself, in the same way that unionization rights flowered in
the legal system in the 1930s after decades of crabbed
interpretations and applications of statutes.
Amendment champions retort that victims' rights would
command more prosecutorial and judicial respect if enshrined
in the Constitution. But prosecutors and judges take oaths to
defend state laws every bit as much as they vow to enforce
the Constitution. If they would honor the first more in the
breach than in the observance, the second would fare no
better. History also speaks volumes. The 1866 Civil Rights
Act protecting freedom leaped into the Constitution with the
1868 14th Amendment, but the civil rights of blacks were
routinely ignored by courts, including the United States
Supreme Court, for almost a century during the ugly era of
Jim Crow. Similarly, did the Roman Catholic creed induce
greater compliance with the proclamation of Papal
infallibility in 1870?
Victims' rights paladins wrongly equate their cause with
the constitutional protections of persons accused of crime.
But criminal defendants, unlike crime victims, are generally
pariahs who need safeguards against an infuriated public
clamoring for instant justice. Further, what is at stake for
the accused is his life or liberty, the most precious of our
natural rights.
* * * * *
Every constitutional amendment dents our system of
federalism. It removes an issue from the agendas of state
governments that can more closely tailor solutions that
satisfy constituents and serve as laboratories for sister
states and the federal government without risk to the entire
nation. Errors can be corrected by simple legislation, which
is nimble compared to overcoming a constitutional misstep,
like the Prohibition Amendment. Deference to stale choice
additionally offers citizens greater opportunities to
participate directly in the responsibilities of self-
government, indispensable to sustaining a robust democratic
culture.
In sum, the Victims' Rights Amendment has nothing to
commend and much to deplore.
____
[From the San Francisco Chronicle, April 25, 2000]
A Victims' Rights Plan That Goes Much Too Far
Victims of crime deserve consideration and compassion, but
a constitutional amendment giving them a new category of
``rights'' goes too far.
The U.S. Senate will attempt this week to alter the
Constitution again, this time with a Victims' Rights
Amendment drafted on the premise that victims should have
more say about the trials and dispositions of defendants.
Specifically, it would give victims the right to attend all
proceedings, to make their views known about sentencing and
plea arrangements, to be notified whenever an offender is
released from custody, to demand a speedy trial and to get
restitution from the offending party.
Considering the often deep pain they suffer, victims
deserve to be heard and protected by the criminal justice
system, but tinkering with the Constitution is no way to do
it. Many of these concerns can and have been addressed
through legislation, which can be amended as problems and
unintended consequences are identified.
One of the problems with this amendment is that its
definition of ``victim'' is too vague, creating a financially
onerous and otherwise impossible mandate. For example, in the
Oklahoma City bombing, who would the victims be? The office
workers who survived the bombing, the family members and
friends of the hundreds killed or maimed, or anybody in town
still suffering the horrifying aftermath?
As such, all would have to be notified about trial
proceedings, have the right to speak and to push for specific
prosecution. And if they didn't agree on sentencing or the
way the case was adjudicated, what would the court do then?
Meanwhile, advocates for battered women dread what would
happen if a women is arrested for responding to domestic
abuse--namely that the abuser could become the victim with
rights to oppose her bail and seek restitution. Perhaps
that's why a slew of victims' rights groups is among those
most opposed to the amendment.
Although a grand gesture, this proposed constitutional
change is clumsy and cumbersome, destroying the very core of
our justice system--the right to a speedy trial and the
presumption of innocence. Both Congress and state
legislatures have the ability to strengthen victims' rights
without trying to alter the principles of justice set forth
in the U.S. Constitution.
____
[From the San Francisco Examiner, April 14, 2000]
No Victims in the Constitution
Dianne Feinstein is wrong on this one. The usually astute
Democratic U.S. senator from California is leading a campaign
to get a victims' rights amendment added to the federal
Constitution.
Along with Sen. John Kyl, R-Ariz., and 40 other senators,
she is sponsoring legislation that would allow the states to
vote on ratification of the 28th amendment. The votes of 67
senators are needed for passage. Three-quarters of the states
must ratify the amendment before it goes into effect.
Victims' rights is an idea that's seductive by its very
simplicity. Of course victims should have rights. Who can
deny that? But enshrining them in the Constitution is a feel-
good exercise of dubious value that carries potential harm.
``The Constitution,'' argues Feinstein, ``gives 15 specific
rights to the accused, but victims have no basic rights under
the Constitution.''
That misses the point of what the Constitution and the Bill
of Rights are about. The rights enumerated are protections
for individuals against the awesome power of the government.
They are not intended to referee fights between citizens or
redress the grievances of victims of private action, no
matter how terrible the consequences.
Littering the Constitution with other matters cheapens it
and opens the door to inclusion of the flotsam and jetsam of
some citizens' oddball desires. If you think this overstates
the case, just look at the junk foisted on the California
Constitution by an overactive initiative process.
This is not to say there shouldn't be a law. In fact,
legislation is exactly where victims' rights belongs.
As a bill in Congress, the planks of victims' rights would
be unobjectionable. Consider the constituent parts of the
amendment. Among other features, it would give some 9 million
victims of violent crimes and their families the right to
notice of criminal proceedings in their cases and the right
to attend them; the right to testify or submit statements at
trials, parole hearings and other proceedings; the right of
notice if the felon escapes or is released, and the right of
restitution from the perpetrator of the crime.
So far, 32 states have passed legislation or constitutional
amendments specifying victims' rights. But Feinstein
complains that until the U.S. Constitution is changed, a
defendant's rights trump a victim's rights when there's a
conflict between the two.
We're glad she's not also proposing to change the standard
of criminal guilt from ``beyond a reasonable doubt'' to a
``preponderance of the evidence.'' Presumably that would also
make trials more fair for victims. But the American system of
criminal justice is built on the sane principle that letting
a possibly guilty defendant go free is a thousand times
preferable to convicting an innocent person.
The 13 men released from death row in Illinois after new
exonerating evidence was uncovered would be glad to tell Sen.
Feinstein why legal protections for the accused are splendid
ideas. Anyway, the guts of a sensible victims' rights program
wouldn't conflict with legal protections for defendants.
Victims and their families sometimes do get poor treatment
from prosecutors and courts. Trying to remedy that by
amending the Constitution is a grandstand play that generates
a lot of publicity. But it is unnecessary and wrong. It would
dilute the time-
[[Page S3002]]
tested and trusted document that defines relations in this
nation between citizens and their government.
Don't make us all victims of an ill-considered crusade.
____
[From the San Jose Mercury News, April 20, 2000]
Victims of Crime Don't Need Congress' Constitutional Meddling
(By Joanne Jacobs)
You have the right to remain silent, when accused of a
crime.
You have the right to speak up, when victimized by a
criminal. California and 31 other states have passed victims'
rights amendments to their constitutions; all the rest have
statutes.
So why do we need to amend the Constitution of the United
States of America to include a Crime Victims' Rights
Amendment?
Because it's an election year.
Next week, on April 25, the Senate will debate the victims'
amendment, sponsored by California Senator Dianne Feinstein,
a Democrat, and Arizona Senator John Kyl, a Republican. The
vote may be April 27 or 28.
Some 46 senators have signed on to the bill, but it will
take a two-thirds majority (67) and two-thirds of the House
(291) for passage, plus three-fourths of state legislatures
to ratify.
The Constitution shields Americans--especially the
unpopular--from governmental power.
The amendment grants rights to a politically popular and
sympathetic group, victims. But no legislation can guarantee
sensitivity by prosecutors and judges or competence by clerks
assigned to notify victims about changing court dates. No
amendment or law can give Americans what we really want:
freedom from killers, rapists and robbers.
Instead, the amendment would federalize rights already
offered by the states: Victims must be notified about bail,
plea bargains, trials, sentencing and parole hearings, and
about a prisoners' release or escape. They're entitled to a
restitution order, which is usually uncollectible.
Feinstein-Kyl also includes ``consideration of the interest
of the victim that any trial be free from unreasonable
delay,'' which means the victim could ask for a speedy trial
but the judge wouldn't have to grant it.
Victims would have a right to attend the entire trial, even
if they're going to be called as witnesses and might tailor
their testimony to fit an earlier witness's statement.
However, the judge could decide the defendant's
constitutional right to a fair trial outweighs the victim's
constitutional right to attend.
Other than adding a symbolic statement--``Pols (hurt)
Victims''--to the U.S. Constitution, this wouldn't change
much. Except to provide more ways to file lawsuits, which
isn't going to make justice any swifter.
Both presidential candidates are pro-victim.
``I will lead the fight to pass a Victims' Rights Amendment
to the United States Constitution--so our justice system puts
victims and their families first again,'' Al Gore said in a
Boston speech last July.
Apparently, he hasn't started yet. Gore's ``Fighting
Crime'' agenda on his www.gore2000.org site doesn't mention
victims rights, and the vice president hasn't endorsed the
Feinstein-Kyl amendment.
The Clinton administration is wavering on the amendment,
worried about interfering with prosecutors, denying
defendants' rights and impinging on the president's power to
grant executive clemency. (If President Gore wanted to pardon
ex-President Clinton's perjury, who'd be the victim: Paula
Jones? Ken Starr? 275 million Americans?)
George W. Bush ``strongly supports'' the Feinstein-Kyl
amendment. It's not on his Website, www.georgewbush.com
however; there's no issue statement on crime.
Most victim's groups are for it, but not all.
Bud Welch, whose daughter was killed in the 1995 Oklahoma
City bombing, chairs Citizens for the Fair Treatment of
Victims, which opposes the amendment. Emotional relatives
might hamper prosecutors, Welch argues. Many relatives of
victims objected to a plea bargain made to secure testimony
of an accomplice of Timothy McVeigh and Terry Nichols, Welch
Writes. ``Had this amendment been in place, the judge may
have refused the plea agreement, making it significantly more
difficult for the government to convict McVeigh and
Nichols.''
Furthermore, consulting all the family members of all the
victims--168 were killed and many more injured--would have
created chaos, delaying the trial.
Feinstein cites the Oklahoma City bombing as proving the
need for the amendment. The judge told victims' families they
couldn't sit through the trial if they wanted to testify at
the sentencing hearing. When Congress passed a law allowing
it, the judge said the Constitution, guaranteeing a fair
trial to the defendants, trumped the law.
This is Feinstein's only example of a conflict that would
require a constitutional amendment.
The amendment also gives victims rights before a court has
determined they're really victims, noted Robert P. Mosteller,
a Duke law professor, in testimony before the House Judiciary
Committee.
Imagine the Rodney King case, with no videotape, Mosteller
said. The police officers charge King attacked them. As
victims, the officers could ``sit in the courtroom during the
testimony of all other witnesses as a matter of federal
constitutional right. This provision would permit the true
perpetrators of the crime to coordinate their false version
of the facts'' and convict the real victim.
A judge could weigh witness-victims' right to attend and
the defendant's right to a fair trial, Feinstein argues. The
defendant might win.
Or be convicted by tainted testimony, leading to more
appeals.
It's not worth it.
My bottom line is simple: Don't mess with the U.S.
Constitution. Since the Bill of Rights was added 209 years
ago, only 17 amendments have been added to the Constitution.
It should not be changed unless absolutely necessary. It's
not necessary in this case, not even close. Leave the
Constitution alone.
____
[From the Chicago Tribune, April 25, 2000]
The Wrong Way on Victims' Rights
Some national issues of grave importance can be dealt with
adequately only by amending the United States Constitution.
That was true of slavery, women's suffrage, and the income
tax. But the same can't be said about the treatment of crime
victims.
Their needs are real and worthy of concern. The Victims'
Rights Amendment due for a Senate vote this week, however, is
overdoing a good thing.
Every state has a law or constitutional provision assuring
that crime victims may attend judicial proceedings that
concern them, be notified of the impending release of their
attackers, sue the offender for restitution, and the like.
Many of these measures are relatively young and, according to
victims' rights advocates, have not fulfilled the hopes
lodged in them.
That's an argument for better funding and more meticulous
implementation. It's grounds for electing prosecutors and
judges who will take them seriously. It's also grounds for
realistic expectations: Some goals are not likely to be
realized no matter what. Restitution, for example, is largely
a vain hope simply because most criminals are poor and thus
lack the money to pay it.
The proposed constitutional amendment, however, threatens
to do more harm than good. Its guarantees could sometimes
conflict with the rights of defendants, as when it gives
victims the right to demand a speedy trial. In such
instances, the suspect's right to defend himself could be
compromised, increasing the risk that innocent people will go
to jail. Or the defendant's right could trump--in which case
the new amendment would amount to little more than empty
symbolism.
In either case, the decision will be made by judges, not
legislators or voters. The advantage of protecting victims'
rights by law is that different states can experiment with
different approaches to see which are most effective and
affordable. Once this amendment is entrenched in the federal
Constitution, though, the entire nation will have to live
with a ``one size fits all'' approach--and we may find that
one size fits none.
Someone once said that a vice is often just a virtue taken
too far. The Senate shouldn't make that mistake on victims'
rights.
Mr. LEAHY. Mr. President, I have so much respect and affection for
two key sponsors, Senator Kyl of Arizona and Senator Feinstein of
California. They, as the other 98 Senators of both parties, care deeply
about the rights of victims. Anybody who has seen some of the violent
crimes in this country could not feel otherwise. A great, powerful,
wealthy nation ought to care about the victims of child abuse, or
fraud, and victims of all crime. That is not the issue. The issue, I
say to my friends, is the legacy we leave to the next generation. So
much of that legacy as Senators is what is in the Constitution.
We will not vote on anything more important than constitutional
amendments, unless it is a declaration of war. There have been
thousands of votes I have cast, and many that I can remember were
inconsequential. Virtually all of them were on issues on which, if we
did not like the results we could come back and revisit it the next
Congress and change it. You cannot do that with a constitutional
amendment. You do it with practical, pragmatic legislation that
actually helps people--legislation that the Senator from Delaware has
passed, legislation that I have passed, legislation that Senators on
both sides of the aisle have passed, including Senators Nickles,
DeWine, and others. I do not mean to exclude other people who have
joined in on real legislation that really works for victims.
Mr. President, how much time is still available to the Senator from
Vermont?
The PRESIDING OFFICER (Mr. Helms). There are 48 minutes remaining.
Mr. LEAHY. I yield the floor to the Senator from Delaware.
Mr. BIDEN. Mr. President, is the Senator from Delaware under a time
constraint?
[[Page S3003]]
The PRESIDING OFFICER. Under the cloture situation, the Senator has
up to 1 hour.
Mr. BIDEN. I thank the Chair. Mr. President, I thank my friend from
Vermont for his kind comments. It is rare on matters of constitutional
law and matters of civil rights and civil liberties that the
distinguished Senator from Vermont and I end up on opposite sides of
the issue. We are on opposite sides of this issue. I, as the Senator
from Vermont, have been very reluctant over my 28 years in the Senate
to support constitutional amendments. I think they are a matter of
significant concern and should not be undertaken without significant
need and only after it is concluded that the same result could not be
accomplished statutorily. So it is after some considerable thought--
and, I might add, a considerable amount of work with the two primary
sponsors of this amendment--that I have arrived at the point where I
support this amendment.
Before I begin to discuss the details of the amendment, let me
suggest to the Senator from Vermont that I came in at the tail end of
his initial comments regarding public prosecution as opposed to
privately going out and hiring a prosecutor to redress a criminal wrong
that had been done to you, and his discussion about whether or not it
was an established principle that the founders thought public
prosecution was appropriate at the time of the Constitution. He is dead
right on the facts. But I suggest to him, and others, that I suspect
the points being made--and I have been in Colombia spending a good deal
of time with President Pastrana on the drug and narcotrafficking
problem he faces, so I missed a day of debate on this. So I may be
mistaken in what I am about to say. But I expect that those who talked
about public prosecution versus private prosecution were trying to make
the generic point--I hope they were--that at one point in our English
jurisprudential history, and for a number of centuries early on, the
issue of moving forward to prosecute a wrong against you was totally in
the hands of the victim. The victim made that judgment.
Early on, to overstate it, in the 14th, the 15th, the 16th and 17th
century, if I were mugged in the stable, it would be Biden v. Jones. It
would not be the Crown v. Jones. I was not represented by anyone but
myself. This process evolved. The only good part of that process was
that the victim controlled his or her own fate to a significant degree.
All of the years and years that I was chairman of the Judiciary
Committee and the ranking member, we held hearing after hearing about
how victims feel disenfranchised. One of the things that victims of
violent crime need to be able to come to closure with is the dilemma
and the horrible position in which they were placed. They have to see
it come to fruition. They have to be able to know that they had some
hand in the idea that the person who did bad things to them was
pursued, and they got their day in court--``they,'' the victim.
Also, there is an overwhelming amount of evidence that began to pile
up in the 1960s, 1970s, and then in the 1980s it reached a high pitch.
In the 1990s it pertained as well. That is where people lost respect
for the government and lost respect for the law because they believed
they were not treated with respect--where victims found themselves, in
their view, victimized not only by the criminal but victimized by the
system.
That is why, I note parenthetically, when I wrote the Violence
Against Women Act I provided for a means by which a woman who was a
victim of violent crime could, if the prosecutor chose not to go after
her assailant, after the person who did those bad things to her, she
could at least go into the civil court and sue that individual.
Again, there was overwhelming testimony from psychiatrists and
psychologists that there is a need for healing. Part of the catharsis
in healing is to be able to go through the process and believe you are
getting fair and decent treatment.
There are two things at stake when this cause of victims' rights
begins to arise.
The public prosecutors, not because they were no longer caring, but
because of the overwhelming burden, found themselves becoming
increasingly callous about the plight of the victims.
I used to be a public defender. When I was a young lawyer, I would be
assigned three or four or five cases to be tried in 1 day. The
prosecutor would be assigned five, six, seven, or eight cases to be
tried in 1 day. Everyone knew that plea bargaining process was
necessary.
Often, looking back on it, the victim, or the alleged victim of the
crime, found himself or herself showing up for court and learning from
some prosecutor that they had dismissed the case. We didn't think there
was sufficient evidence, or we decided to allow them to plead to petty
larceny rather than robbery or burglar, or we decided so on and so on.
The impact upon victims and their faith in the system and their
notion of whether or not government worked was always damning--always
impacting upon them in a negative way.
To make a long story not quite so long, the Senator from Vermont is
correct. Public prosecution did take place when our Republic became a
republic. There were not, for example, in the city of Philadelphia,
25,000 felonies tried a year in one little city. There were not 68,000
habeas corpus out there. There was not the need for a prosecutor to
find himself or herself in the position where they dismissed a large
number of cases just because they didn't have time to get to them.
There were not circumstances where the victims of crime who were so
callously treated that they weren't even informed, and the person
against whom they had sworn out the warrant they found sitting in the
trolley car with them on the way home. They were not in that position.
What are constitutional amendments about?
Constitutional amendments are about dealing with serious concerns of
the public that come about as a consequence of changed circumstances.
One of the circumstances changed--and I suspect what previous speakers
have been speaking to when they talked about how the system used to
work--is that there is a feeling on the part of the vast majority of
the victims of crimes that they have no control over the situation.
They have no control. Not only were they victimized by the criminal,
but they go in and either find themselves in the circumstance where
there has been a deal made which they were no part of, or there was a
sentencing that took place and they didn't get a chance to tell the
judge how badly this guy beat them up, or that money that was stolen
from them was the last money they had in the whole world, and they lost
their home. Just the need to cry out and say: Listen to me, listen to
me. Just listen to me. That is all I am asking you to do.
It is not that the prosecutors are bad guys or bad women. They are
incredibly overloaded.
As the Presiding Officer knows, we have an incredible amount of time,
notwithstanding the fact it has dropped the last 7 years in a row.
This is about going back to a time when public prosecutors had the
time and exercised judgment to make a decision relative to moving
forward against a defendant in conjunction with the concerns of the
needs of and the desires of the victims.
That is what is missing.
We are here today to discuss two matters that I have cared about for
many years. The first is crime--more specifically, the victims of
violent crime. The second is the Constitution of the United States of
America.
As the Presiding Officer knows, we came at the same time, and both of
us dedicated a significant portion of our life in the Senate to various
issues. We developed different interests, expertise, and/or
assignments. In my case, it has been both the plight of crime victims
and the preservation of our constitutional liberties. That is why I
have thought long and hard about amending the Constitution to guarantee
the victims of crime the elemental rights that they deserve, but too
often are denied.
Time and again, I wrote and supported many statutory protections for
victims. To cite just a few examples:
The 1990 Victims Bill of Rights gave victims a number of important
procedural rights, including the right to notice of court proceedings,
the right to confer with the prosecutor, and the
[[Page S3004]]
right to information about the conviction, sentencing, imprisonment,
and release of the offender.
The 1994 Biden crime law:
Gave federal victims of sexual and child abuse the right to mandatory
restitution;
Gave victims of violent crimes and sexual abuse the right to be heard
at the sentencing of their assailants;
Provided special court-appointed advocates for child victims of
crime;
And it also included the piece of legislation closest to my heart:
the Violence Against Women Act, which provided ground-breaking and
sweeping assistance to victims of family violence and sexual assault--
and which, I might add, needs to be re-authorized this year through my
Violence Against Women Act II bill, which has 46 cosponsors.
The 1996 Anti-Terrorism Act included Hatch-Biden provisions
guaranteeing mandatory restitution to all victims of violent federal
crimes;
And, now, I am pleased to support--and urge all of you to support--a
constitutional amendment to protect victims' rights.
I am proud of my track record on victims' rights. But I am convinced
that federal statutory guarantees are not enough. Judges are simply too
quick to conclude, almost reflexively, that the defendant's
constitutional rights trump the victim's mere statutory rights, even
when conflict is illusory or could readily be resolved. You heard about
the difficulties we had after the Oklahoma City bombing with a federal
statutory approach to help the victims and their families. Senator
Feinstein outlined in detail the chronology of events there, and so I
will not repeat them.
But equally important, because more than 95 percent of all crimes are
handled at the state level, our federal statutory rights simply do not
reach the great majority of crime victims.
Regrettably, the hodge-podge of protections for victims in place at
the state level is spotty and inadequate. There is no common
denominator of rights that victims are guaranteed in every state of the
union. As a December 1998 report by the National Institute of Justice
found:
Enactment of state laws and state constitutional amendments
alone appears to be insufficient to guarantee the full
provisions of victims' rights in practice.
This report found numerous instances in which victims were not
afforded the rights to which they were entitled.
For example, even in states identified as providing ``strong
protection'' to victims' rights, more than 40 percent of victims were
not notified in advance of the defendant's sentencing hearing. And more
than 60 percent of victims in these strong-protection states did not
receive notice of a defendant's pre-trial release.
And so, I have come to the conclusion that it is time to write a
basic charter of victims' rights into our Constitution setting a
national, uniform baseline of rights for all victims of violent crimes.
Now, one of reasons there were more than 60 drafts of this
constitutional amendment is because I insisted on a number of basic
changes before I would agree to support it. And with the help of
Professor Larry Tribe, I proposed these changes, and the sponsors
accepted them.
My three key specific ``principles'' for drafting the language of the
amendment were as follows:
Principle No. 1: The amendment must set out the specific rights to be
accorded constitutional status--the core of which should be rights of
participation. Victims should be entitled to the following rights of
participation:
The right to be informed about, and not excluded from, any public
proceedings involving the crime;
The right to make a statement to the court about bail, the acceptance
of a plea, and sentencing;
The right to be informed about, and to participate in, parole
proceedings to the same extent as the convicted offender; and
The right to be informed of an escape or release from custody.
Principle No. 2: The amendment must not unintentionally hamstring
criminal prosecutions. We cannot forget: the best thing for victims is
to catch and convict the bad guys; we have to make sure that nothing in
the amendment would make that job more difficult.
Principle No. 3: The amendment must not abridge the rights of the
accused. The protections in our Constitution for the accused--such as
the right to counsel, the right to a jury of one's peers, and the right
against self-incrimination--are there, above all, so that our system
does not convict an innocent person. Locking up an innocent person
benefits no one--except the guilty.
Let me describe for you a few of the changes on which I insisted, and
which I believe makes this an amendment everyone can and should
support:
Originally, the constitutional amendment would have covered the
victims of all crimes. But prosecutors worried that the extension of
rights to non-violent crimes--particularly those crimes affecting
massive numbers of victims, such as may be the case with mail fraud or
environmental crimes--would backfire, making it too difficult, too
burdensome, to bring these cases. I insisted that the amendment be
limited to the victims of violent crimes, and that change was made.
Earlier drafts of the amendment gave victims the right to ``a final
disposition of the trial proceedings free from unreasonable delay.''
Prosecutors believed that this could allow victims to force them to
proceed to trial before they are prepared.
Defense lawyers believed that the language created the risk that the
defendant might be forced to proceed to trial without sufficient time
to prepare a defense. In other words, this language would have made it
both more difficult for prosecutors to get convictions and easier for
those defendants who are convicted to overturn their convictions on
appeal.
We want to make sure--above all--that we get the right criminal, and
that we don't convict an innocent person. And we also want to make sure
that the great police power of the government is not exercised in
heavy-handed, over-reaching ways that threaten the constitutional
liberties of all of us.
And so I insisted on modifying that language so that victims have the
right ``to consideration of the interest of the victim that any trial
be free from unreasonable delay.''
This is an important change. This means--in plain English--that
before granting a third, fourth, or fifth continuance, judges in every
state--from Delaware to Utah to California--must take into account the
inconvenience and hardship to a victim and must proceed with the trial
unless there is a good reason to wait.
What this does not mean is that judges must push lawyers to try cases
before they're ready.
Next change: prosecutors and others worried that with the old drafts,
a defendant could withdraw his plea or a judge could be forced to throw
out a sentence after it had been accepted, jeopardizing the
government's ability to get a conviction of guilty defendants.
I insisted on new language that makes it clear that nothing in the
amendment provides grounds to overturn a sentence or negotiated plea.
Finally, I was concerned with earlier drafts that the amendment could
be perceived as giving a victim's rights a higher constitutional
standing than those of the criminal defendant--in other words, that
victims' rights would be perceived as trumping defendants' rights.
Section 2 of an earlier draft stated that nothing in the amendment
would ``provide grounds for the accused or convicted offender to obtain
any form of relief.''
I insisted that we change that language, and with the help of
Professor Tribe, we redrafted Section 2 and removed that restriction on
the rights of the defendant.
While the language is clear that nothing in the amendment itself
gives rise to a claim of damages against the United States, a State, a
political subdivision, or a public officer or employee, at the same
time, it does nothing to bar defendants from obtaining relief for
violations of their own constitutional rights.
And let me comment further about the rights of the accused--an issue
that I know gives some of you pause about this amendment. I have spent
my entire career in the U.S. Senate looking
[[Page S3005]]
out for the rights of the criminal defendant. There is an obvious and
natural tension in the system between protecting the rights of the
criminal defendant and ensuring that law enforcement is effective, and
I have always worked to achieve a balance between these competing
interests.
I say to you that this constitutional amendment, with the changes
upon which I have insisted, strikes that balance. Judges will have the
power under this amendment to strike a balance.
I keep hearing critics of the amendment say that defendants' rights
will not be adequately protected if this amendment becomes part of the
fabric of our Constitution.
For example, we heard testimony before the Judiciary Committee and
statements on the Senate floor giving examples of how judges
routinely--almost reflexively--exclude victims from the courtroom when
they are potential witnesses in the case. Critics of the amendment
contend that maybe that is how it should be, and they complain that the
amendment would change that presumption of exclusion.
These critics argue that the presence of victim-witnesses at trial
will undermine the defendant's right to a fair trial by giving the
victims the opportunity to observe the other witnesses testify and
tailor their testimony accordingly.
I submit to you that that is not as it should be. That is not how it
needs to be. The witness sequestration rule is a prophylactic measure
rather than a constitutional imperative. The purpose of the rule can be
accomplished through defense cross-examination of fact witnesses,
defense argument about the opportunity to tailor, and jury
instructions, without categorically excluding victims from the trial.
There is nothing that remarkable about the scenario of one witness
having the opportunity to listen to the testimony of others: the
defendant who is a witness has that opportunity. And the defendant who
is a witness is also open to cross-examination and argument by the
prosecutor that he had the opportunity to tailor his testimony.
Just last month, the Supreme Court ruled in a case called Portuondo
v. Agard, that despite the fact that a defendant has the constitutional
right to be present at his trial, the prosecutor was entitled to
comment in her closing argument on the fact that the defendant had the
opportunity to hear all other witnesses testify and to tailor his
testimony. This same type of argument would be available in cases where
the victim-witness is present during the trial.
The constitutional amendment takes away nothing from the rights of
the defendant. If the defendant's constitutional rights actually
conflict with the participatory rights the amendment would guarantee
the victim--and I submit to you that these conflicts would be few and
far between--the judge is permitted under this amendment to balance
these competing interests and grant exceptions where necessary.
Let me repeat: a constitutional amendment for victims does not mean
that victims' rights will take precedence over defendants' rights.
Both the criminal defendant and the victim can and should have the
chance to participate at trial and at other related public proceedings.
There should be a balance. This amendment permits courts to balance.
A constitutional amendment is needed to set a national floor of
rights for all victims of violent crimes. In every state--as well as in
the federal system--the doors of the criminal justice system must be
opened to victims--to make sure that they are meaningful participants,
and not just spectators, in a system that has for too long kept them on
the outside looking in.
With a victims' constitutional amendment, we will be telling
prosecutors and judges, loud and clear: victims must be respected and
included. They have rights--constitutional rights--that must be taken
into account during the entire case.
I believe that the contradiction that many people see between the
rights of defendants and the rights of victims is a false one. Our
Constitution is not a zero-sum game. We do not diminish the rights of
defendants by recognizing the rights of victims.
That is why I cosponsored this amendment. This amendment will give
the victims of crime a voice and a measure of dignity and respect in
the criminal justice process.
Mr. BINGAMAN. Mr. President, before I discuss my position on Senate
Joint Resolution 3, the crime victims rights constitutional amendment,
I would like to briefly talk about my views on amending the
Constitution.
A recent letter each of use received from our colleagues Senator Byrd
and Senator Leahy provides some of the history of our Constitution and
efforts to amend it.
They note that, since its ratification, over 11,000 amendments have
been proposed to the Constitution. In the last month alone, the Senate
has voted on three constitutional amendments. However, while thousands
of amendments have been proposed, only 27 amendments have been adopted.
Of those, the first 10, the Bill of Rights, were ratified in 1791.
Therefore, since ratification some 200 years ago, we have generally
heeded the caution of James Madison, one of the architects of the
Constitution, that amendments to the Constitution should be reserved
for ``certain great and extraordinary occasions''. In other words,
amending the Constitution should not be done in response to what is
politically popular at the moment or because of passions of the moment.
If it was, I'm afraid many of those 11,000 amendments would now clutter
our Constitution and undermine the very foundation of the freedoms and
liberties it gives each of us.
Mr. President, the victims of violent crime are a compelling group of
Americans and deserve our supports and our attentions. Nothing is more
devastating to a family than loosing a loved one through a senseless,
random act of violence. Nothing is more devastating to a community than
the kind of violence we see in our schools and on our streets almost
daily. Yet it is only in the past few years, perhaps 15 or 20, that our
laws and lawmakers have begun to focus on the group of people we now
refer to as ``crime victims''.
During those years, however, the states have not ignored the
legitimate calls of crime victims and their families for more
protection and more participation in the criminal justice process.
Thirty-three states, including my own, have passed either crime victims
rights amendments to their constitution or statutes intended to provide
many of the same rights contained in S.J. Res. 3.
In New Mexico, the voters passed a constitutional amendment in 1992
that is very similar to S.J. Res. 3 and the legislature subsequently
passed enabling legislation. This, I think is appropriate and I am glad
that New Mexico recognizes the rights of crime victims to more fully
participate in the criminal justice system. In fact, it is particularly
appropriate that the states have acted in this area because the states
are responsible for approximately 99 percent of the criminal
prosecutions in this country.
From many indications, these amendments and statutes have worked. Not
perfectly perhaps, but they have at least begun to bring victims of
violent crime into the judicial process in a meaningful way.
Because New Mexico has acted to protect the rights of crime victims,
district attorneys who I've spoken with often ask why we need to amend
the United States Constitution when New Mexico has already addressed
this issue? That, Mr. President, is an extremely important question to
ask ourselves before we vote on S.J. Res. 3.
Mr. President, the Constitution provides a process for amendment when
``both Houses deem it necessary . . .'' Today I would argue that only
when absolutely necessary or, in the words of Madison, for great and
extraordinary occasions, should we vote to amend the Constitution. I
would also argue that, where doubt exists as to the absolute necessity
of the occasion, the Senate should defer on amending that document.
While I support the participation of crime victims in our judicial
process Mr. President, and support the efforts of New Mexico and other
states to give those rights to crime victims, I simply do find the
evidence of a great occasion or compelling need to amend the
Constitution in the arguments made by the sponsors of the amendment and
therefore will vote no on S.J. Res. 3.
As others have pointed out, S.J. Res. 3 is almost as long as the
entire Bill of
[[Page S3006]]
Rights. It reads like a statute and not a constitutional amendment.
This is significant and more than simply a matter of form. Part of the
reason why our Constitution and republican form of government have
survived largely intact for over 200 years while virtually every other
in the world has undergone radical, revolutionary change is the wisdom
of the drafters in setting out clear principles and a coherent system
to ensure the liberties that the Constitution guarantees. However, as I
read the amendment before us today, I do not see the clarity or the
simplicity of principle that I see in the Bill of Rights or the other
amendments we've adopted. Because this amendment lacks clarity, I am
concerned about the litigation this amendment could potentially spawn
and the additional costs to an already overburdened legal system.
Litigation over who is a ``victim'' alone would likely fill volumes.
Mr. President, one of the biggest concerns with this amendment is
that, because of its vagueness, it will inevitably lead to a result
which I think none of us, even the proponents, want, the diminishing of
the rights of the accused.
No where in the amendment does it guarantee that it will not be
construed to interfere with the rights of the accused. I understand
that an amendment was offered in the Judiciary Committee that would
have made that clear but was rejected. That to me is very troubling
because, as important as the rights of victims are, we absolutely have
to keep in mind that the rights of the accused must be paramount. That
is because it is the accused that stands to lose life and liberty at
the hands of the government. This is a bedrock principle of our
judicial system, without argument the best system in the world, and we
must not diminish that principle even in the name of a good cause.
Finally, Mr. President, I am concerned by the lack of case law to
support the arguments of the proponents of S.J. Res. 3. As I understand
it, the proponents are unable to point to any cases in which victims'
rights laws or State constitutional amendments were not given effect
because of defendants' rights in the Federal Constitution. Nor, as the
committee report noted, is there any case law where a defendant's
conviction was reversed because of victims' rights legislation or a
State constitutional amendment. Why then are we amending the
Constitution when there is no body of law that justifies the
extraordinary step of amending the U.S. Constitution? This is very
different from the situation we were in a few weeks ago when the Senate
voted on an amendment to the Constitution on the issue of the
desecration of the flag on campaign finance limits. In both of those
instances, at least we had a final determination by the Supreme Court
with which we could take exception. Without such a body of law I do not
find the arguments in favor of a Federal constitutional amendment
compelling.
Mr. President, I strongly support the right of victims of violent
crime to be included in the criminal justice system in a meaningful
way. I think it helps bring closure to the inured victims and provides
an important balance to a system that admittedly has not always been
sympathetic to the rights of victims. I would support additional
funding and resources for victims rights programs and to properly train
the judiciary in the need to be sensitive to the rights of crime
victims. However, before we take the drastic and, for all intents and
purposes, irreversible step of amending our Constitution for only the
28th time in our history, I believe we must be absolutely certain that
we have exhausted all other avenues. As the National Clearinghouse for
the Defense of Battered Women argues:
The Federal constitution is the wrong place to try to
``fix'' the complex problems facing victims of crime,
statutory alternatives and state remedies are more suitable.
Our Nation's constitution should not be amended unless there
is compelling need to do so and there are no remedies
available at the state level. Instead of altering the U.S.
Constitution, we urge policy makers to consider statutory
alternatives and statewide initiatives that would include the
enforcement of already existing statutes, and practices that
can truly assist victims of crimes, as well as increased
direct services to victims.
Mr. President, I believe we should give the states additional time to
implement their victims rights amendments and statutes. Change occurs
slowly, but I am convinced that real change for the victims of crime
will be addressed more effectively by the states and that the federal
government should not impose a one-size-fits-all, the federal
government knows best, solution on the states. Additionally, if we
determine that action at the federal level is absolutely necessary, I
believe we should try to fashion a legislative solution before we amend
the Constitution. I believe that we can do that and provide meaningful
rights to victims of crime.
If, failing that, we find that victims are still not being afforded
reasonable and real participation in the criminal justice system, then
perhaps only a constitutional amendment will work but I am not
convinced that we have done all that we can do short of that.
Mr. President, good intentions do not necessarily produce good
results. The intentions of the supporters of S.J. Res. 3 are certainly
good and just and I share those intentions, as well as their belief
that we should be doing more for the victims of violent crime. However,
I do not believe that this amendment will produce good results and may
actually harm those it is intended to help and for that reason, I will
vote against S.J. Res. 3.
Mr. DASCHLE. Mr. President, I rise to recognize all the Senators who
participated in this important and healthy debate. In particular, I
thank Senator Leahy and Senator Byrd for their tireless defense of the
Constitution.
In addition, however, I also want to recognize Senator Feinstein for
her commitment to victims of violence and for working to ensure that
they are treated with fairness and decency and respect. While I
strongly disagree with the approach the proponents of this amendment
have taken, I completely agree with the sentiments they express.
Victims should have a strong voice in our criminal justice system.
Senator Feinstein has been committed to this cause for decades and I
believe her passion has brought new focus to this important issue.
Like many of us, I know what it is like when violence strikes your
own family. I would not wish that pain on anyone. And I certainly do
not want to see any victim's grief compounded by a needlessly callous
or insensitive judicial system.
The question we have been debating, however, is not whether victims
should have a voice in the criminal justice process. The question
before us is whether we must amend our nation's Constitution to achieve
that goal. I believe the answer is ``no.''
On September 17, 1789, as our new Constitution was about to be
signed--after four long months of debate--Benjamin Franklin announced
with typical irony: ``I consent, sir, to this Constitution because I
expect no better, and because I am not sure it is not the best.''
Two-hundred and 12 years later, Mr. President, the United States
Constitution is still the best constitution this world has ever known.
It is, in my opinion, nearly sacred. James Madison, who penned most of
our Constitution, urged that it be amended only in--quote--``certain
great and extraordinary occasions.''
For 212 years, Americans have heeded his words of caution. As Senator
Leahy and Senator Byrd remind us, our Constitution has been amended
only 17 times since 1791, when the first 10 amendments--Our Bill of
Rights--was added.
More than 11,000 amendments have been offered during that time. But
only 17 have actually been added to our Constitution. Because of the
genius of the Framers, and the wise restraint of those who came after
them, we have today a document that we can fit in our pockets . . .
that we can understand . . . that we can refer to, and live by.
This beautiful document contains fundamental, unifying principles
that protect our individual liberties and guarantee our democratic
rights. The amendment we have been considering--while clearly well-
intentioned--does not belong in this document.
With all due respect to its authors, it is not a constitutional
amendment. It does not describe universal and eternal truths about
human nature, or set forth the broad working of government. It is a
statute.
Last month, we debated another Constitutional amendment--to make
flag-
[[Page S3007]]
burning a crime. During that debate, some members of this Senate said
it was right to take that extraordinary step because Americans had died
to defend our flag.
Mr. President, this Constitution is why Americans have fought and
died for more than 200 years--not to protect a flag, but to protect the
principles enshrined in this document. As United States Senators, we
take an oath to defend the Constitution. It is our most important
obligation, our most sacred duty.
There is no ``great and extraordinary occasion'' requiring us to
adopt this Victims' Rights Amendment. This amendment is popular. But it
is not necessary. Every state--every single state--has some type of
statute that identifies and protects victims' rights. Thirty-two states
have passed state constitutional amendments protecting victims' rights.
Not one of those statutes has been overturned. Not one of these state
constitutional amendments has been found to conflict with our federal
Constitution.
Amending--re-writing--our Constitution--is a remedy that ought to be
tried only when we have exhausted every other possible means, and they
have been found inadequate. When it comes to protecting victims'
rights, there is much we can do, short of amending the Constitution.
Indeed, in my home state of South Dakota, every single protection
identified in this proposed amendment is guaranteed by state law. In
South Dakota, victims are included in every stage of the criminal
justice process. They have the right to be notified about every court
proceeding involving their case. They are told in advance about bond
hearings, plea offers and sentencing hearings, and they have the
opportunity to have their opinions heard on these matters.
Crime victims in South Dakota are told about all of these rights, and
offered help, if they need it, to exercise them. These state laws
provide South Dakotans with wide-ranging and effective protections.
They may not, however, be a blueprint for Massachusetts, or
Mississippi, or California.
There is another reason we should reject this amendment, Mr.
President. Not only is it unwarranted. But also, ironically, this
amendment could actually weaken victims' rights by making it harder for
police and prosecutors to do their jobs. That is not simply my opinion.
This is a letter from the Chief Justice of the South Dakota Supreme
Court. ``Victims' rights will not be furthered by SJR 3--and may indeed
be harmed--as past state efforts in this area run headlong into an
ethereal national standard that is incapable of responding to the
constantly changing circumstances of the justice system.''
Here is another letter--this one from the State's Attorney and the
Victim Witness Advocate representing my most heavily populated county.
Quote--``While victims' rights are a very important issue, this
amendment would make it difficult for us to do our jobs and make
appropriate decisions regarding the prosecution of criminal cases.''
Many of my fellow Senators have voiced similar concerns. Senator
Thompson has said--quote--``This constitutional amendment will make the
procedure by which the District Attorneys around the country are trying
to prosecute defendants more complex, more costly, more time-consuming
in many respects, and ultimately will harm [the goal] that the victim
is the most interested in--seeing justice done and a guilty defendant
found guilty by our court system.''
The federal government should encourage states to set minimum
standards for victims' rights. But we should not trample the principles
that have served us so well for so many years. Under our system of
government, police powers are reserved for the states. That is why 95
percent of all crimes are prosecuted at the state and local level.
Do we really believe it is time to re-write this fundamental division
of responsibility? Do we really believe we need to supercede state and
local police powers with a national standard? A standard that can only
be enforced by an act of Congress? Wouldn't the wiser, more prudent
course of action be to encourage or require states to devise and
enforce their own victims' rights standards?
In addition to the threat this amendment poses to our constitutional
framework, I am also concerned it may erode the rights of the accused.
I know full well that accused criminals are not a popular group. But
the cornerstone of our justice system is the belief that we are all
presumed innocent until proven guilty. If we undermine that basic
principle in any way, we are all hurt.
Our Bill of Rights reflects our framers deeply held belief that the
enormous power of the government to deprive persons of life, liberty
and property in criminal prosecutions must be checked. Thus, the
document I hold in my pocket protects us all from unreasonable searches
. . . guarantees us all impartial juries, and protects us all against
cruel and unusual punishments.
When these rights are diminished for some, they are diminished for
all. For that reason, they should not be compromised lightly--no matter
how politically popular it might be to do so. What crime victims need
is real hope, not paper promises. For that reason, I strongly support
both the Leahy ``Crime Victim Assistance Act'' and the Biden ``Violence
Against Women Act'' re-authorization. Let's pass these bills.
Let's also look at making certain federal funds contingent on states'
implementation of meaningful victims' rights at the state level. In
fact, I declare today that I will work tirelessly with any member of
this Senate who wishes to enact legislation to bolster the rights of
victims. But let us stop treating our Constitution so cavalierly.
I am deeply troubled by the increasing tendency of this Congress to
turn to constitutional tinkering to solve problems, rather than taking
up the hard job of legislating. This is the second constitutional
amendment we have debated in this Senate in a month!
In his final speech to the Constitutional Convention, just before the
Constitution was signed, Benjamin Franklin said something that pertains
here. After calling the Constitution very likely ``the best'' human
beings could hope for, he told his fellow signers: ``I hope for our own
sakes and for the sake of our posterity, we shall act heartily and
unanimously in recommending this constitution and turn our future
thoughts and endeavors to the means of having it well administered.''
That is our real responsibility as members of this Senate--not to
second-guess the genius of this document not to alter and undermine it
but to see that it is well administered. In that regard, we have much
work to do. Let us do that work.
Again, I say to the sponsors of this amendment, I am as committed as
anyone in this body to working with you to strengthen victims' rights.
Indeed, I would consider every option--even conditioning federal funds
on state implementation of basic protections for victims. I cannot,
however, and will not--as much as I respect the Senators from
California and Arizona--amend our great Constitution unless absolutely
necessary.
By withdrawing their amendment, I believe the sponsors have acted
responsibly, in Senatorial fashion. The Senate should be proud that one
more time we have resisted the urge to tamper with the miracle created
in Philadelphia in 1787--our Constitution.
At this time, I ask unanimous consent that letters from United State
District Judge Lawrence Piersol, Chief Justice Robert Miller, State's
Attorney Dave Nelson, Victim Witness Assistant Becky Hess and Marshal
Lyle Swenson be inserted into the Record following my remarks.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
U.S. District Court,
District of South Dakota,
Sioux Falls, SD, April 19, 2000.
Hon. Tom Daschle,
U.S. Senator, Hart Senate Office Building, Washington, DC.
Dear Senator Daschle: I was surprised to learn that Senate
Joint Resolution 3 would be up on the calendar next week in
the Senate. I am very much opposed to this proposed
constitutional amendment. To begin with, I think it
diminishes our Constitution to attach to it what amounts to
legislation. That proposition is true not only of this
proposed constitutional amendment but also some other
amendments that have been promised but failed.
I realize at first impression that the public might find
such a resolution attractive because the rights of victims of
crime have
[[Page S3008]]
sometimes in the past not received the attention that they
should. I know from my day-to-day experience as the Chief
Judge for the District of South Dakota that victims' rights
are considered. I have had victims testify on various
occasions in my Court at the time of sentencing and I
regularly consider the views of victims both in their letters
as well as in comments that are made in the presentence
investigative reports as a result of the interviews of
victims by the presentence report writers. The writers of
those presentence reports are Court personnel and a part of
my staff. In addition, when restitution is paid, it is paid
first to the victims and then applies to other monetary
obligations that are paid to the government after the victim
has been monetarily compensated. I say ``monetarily
compensated'' because I recognize that in some instances
money alone cannot compensate a victim. In other instances,
in an attempt to compensate victims, I have had Defendants,
as a part of their sentence, write to victims and I have
reviewed the letters before they went to the victims so that
I could make sure that the letter was appropriate. As you
know, Congress has done much in recent years by legislation
to enhance the rights of crime victims. If Congress would
choose to do more it would do so by legislation.
On the other hand, a constitutional provision as broad and
as sweeping as this one is, especially without limiting
definitions in the language, poses many problems. Once those
problems come to light upon implementation, the problems will
not be able to be solved because it would be a constitutional
amendment. On the other hand, when legislation is passed and
it turns out upon implementation that there are problems or
that the solution should be addressed in a different way,
then the legislation can be amended. After I have drafted
this letter to you, I received a copy of a letter to Senator
Charles Schumer from Judge William Wilkins, Chair of the
Committee on Criminal Law for the Judicial Conference of the
United States. I am attaching his letter because it considers
in detail various problems with the proposed amendment. In
addition, it does make some suggestions for its improvement
if it is to be passed.
Legislation enhancing victims' rights can be passed now--
the amendment process and then its implementation if passed
by the states will take more than seven years.
Finally, from my point of view and experience as a trial
judge, and that experience includes 180 sentencings last
year, the amendment would prevent many guilty pleas in state
and federal court. With all of the additional criminal
trials, the courts would virtually be brought to a
standstill, affecting civil and criminal cases.
I urge that victims' rights continue to be addressed by
Congress by legislation.
Thank you for considering my views.
Sincerely yours,
Lawrence L. Piersol.
____
Supreme Court,
State of South Dakota,
March 14, 2000.
Hon. Thomas Daschle,
U.S. Senate, Office of the Democratic Leader, Capitol
Building, Washington DC.
Dear Senator Daschle: I want to thank you for taking time
from your busy schedule to meet with me on Thursday, March 2.
I truly appreciated the time I was able to spend with you and
your staff. I am also deeply thankful for your interest in
our juvenile intensive probation program (JIPP) and your
efforts to secure more funding for it. The JIPP program
clearly demonstrates that community corrections can work for
certain juveniles who would otherwise be committed to
expensive institutions.
There is one other matter that I need to bring to your
attention. As you may know, the Senate has under
consideration Senate Joint Resolution 3 ``Proposing an
amendment to the Constitution of the United States to protect
the rights of crime victims.'' It is difficult, on principle,
to argue against SJR 3. We are all clearly concerned that
victims of crime receive proper treatment by the justice
system. It is senseless for the system to re-victimize the
victims of crime through inattention to their needs and
concerns. In South Dakota, for example, we have built our
probation programs around a restorative justice philosophy
that seeks to restore victims of crime while working with
offenders to reduce recidivism. Regardless of how we consider
crime in the hypothetical world of legal theory, crime
produces real victims whose needs must be addressed by the
justice system.
The fact remains, however, that SJR 3 will not radically
change things for victims. Most if not all states in this
country have victim rights provisions. South Dakota law
provides a long list of victim rights, including the right to
restitution, notices of scheduled hearings and releases, an
explanation of the criminal charges and process, the
opportunity to present a written or oral victim impact
statement at trial, etc. There is little in SJR 3 that is not
already in place in most if not all states.
On the other hand SJR 3 creates a national standard against
which every aspect of the state and federal criminal justice
systems will be measured, regardless of local efforts to
address crime victim needs. In essence, SJR 3 would produce
federal oversight of state court operations far beyond what
may be in the interests of victims. For example, Congress,
believing that unreasonable delays in court proceedings are
harming the interests of victims, could pass national
legislation imposing time processing standards that may be
completely inapplicable to the peculiar circumstances of
state and local courts. Victims who do not believe proper
notice is being provided could seek a federal court
injunction to compel or prohibit certain state court
practices.
I cannot emphasize enough that the criminal justice system
in South Dakota is committed to restoring victims of crime.
We have not always done this as well as we should have, but
we have always had it as a focus of our efforts. We continue
to work on improving victim access to the court system while
maintaining our independence, neutrality and impartiality. It
is important for everyone to understand that our courts must
balance the interests of victims with the interests of the
accused, the interests of the state, and the constitutional
rights we all possess. This is a delicate and difficult
balance. I believe setting a single legal standard--as a
matter of our national constitution--is ill advised. it can
too easily be used in the future to upset this delicate
balance.
I hope you will give very careful consideration to SJR 3
before casting your vote. Clearly our response to the needs
and interests of victims should be and must be improved. But
I believe those needs and interests are best addressed at the
state and local level through new programs and state laws
recognizing victim rights. Victims' rights will not be
furthered by SJR 3 and may indeed be harmed as past state
efforts in this area run headlong into an ethereal national
standard that is incapable of responding to the constantly
changing circumstances of the justice system.
Most sincerely,
Robert A. Miller,
Chief Justice.
____
Office of the State's Attorney,
Minnehaha County, SD, April 21, 2000.
Re Victim's Rights Amendment.
Senator Tom Daschle,
Hart Senate Office Building,
Washington, DC.
Dear Senator Daschle: As you ponder your vote on the
Victim's Rights Amendment, we would like to express our
concerns about a Constitutional Amendment of that nature
being passed. We would strongly urge you to vote against this
amendment.
Under our law in South Dakota, the victims' are afforded
many, if not all, of the rights contained in the amendment.
We currently have victim/witness assistants in many of the
prosecutor's offices across the state and are actively
working with victims on a daily basis. Each morning, our
office contacts by phone, if possible, all victims of crimes
against persons from the evening or weekend prior. We make
our attorneys aware of the victims' wishes and concerns
regarding the cases prior to arraignment. Following
arraignment, victims are notified of the next phase of court
either by phone or by letter. As the case proceeds, victims
are advised of any plea offers or possible issues or concerns
the attorneys may have with the case and are kept appraised
of the ongoing procedures. Additionally, victims are invited
to attend bond hearings, motion bearings, plea hearings,
sentencing hearings and any other hearings relevant to the
case. Victims are also encouraged to write victim impact
statements or letters to the court regarding their thoughts
and feelings about how this crime has affected them or their
family. Victims are also invited to speak at sentencing
hearings regarding these same issues.
In 1999, we averaged approximately 85-90 cases per month
involving crimes against persons. We attempted contact with
all of these except when the victim is transient and has no
phone or address of any kind. Of those cases, an average of
51 cases per month were domestic assaults. Our office has
adopted a `victimless' prosecution position in that the
victim does not need to be cooperative on a domestic case for
our office to prosecute. Due to the nature of domestic
violence, our concerns have been that the defendant has a
great deal of power over the victim and can often convince
the victim to be unavailable for court or to ask that we
dismiss the charges. While our victim's input is important,
we hesitate to allow it to become the driving force in the
prosecution of these cases. Our fear is that given the
influence of the defendant in domestic violence, we would be
doing defendant driven prosecution. Typically, our victims
report assault many more times than they actually agree that
prosecution is necessary or important. Consequently, our
ability to get convictions on domestic cases would be greatly
hindered if the victim were allowed to run the case or make
the final plea negotiation decisions. Our ability to
prosecute without the victim makes it possible to get
conditions on defendants and keep our victims and our
community safe.
I have enclosed copies of the letters that are sent to all
victims of every crime against persons. While there may be an
occasional victim that we fail to locate, we make every
effort to find them whenever possible. Occasionally, a victim
may ask that we stop notifying them of the next phases of
court and we honor that request.
Please consider these concerns and understand that while
victim's rights are a very important issue, this amendment
would make it difficult for us to do our jobs and make
appropriate decisions regarding the prosecution of criminal
cases.
Sincerely,
Becky Hess, LSW,
[[Page S3009]]
Victim Witness Assistant.
David R. Nelson,
State's Attorney.
____
U.S. Department of Justice,
U.S. Marshals Service,
District of South Dakota, April 24, 2000.
Hon. Thomas Daschle,
U.S. Senator, Office of the Democratic Leader,
Capitol Building, Washington, DC.
Re Senate Joint Resolution 3, Proposing an amendment to the
Constitution of the United States to protect the rights
of crime victims.
Dear Senator Daschle: As you are well aware, prior to my
current position as the United States Marshal for the
District of South Dakota, I served as the elected Sheriff of
Davison County for 32 years where I dealt directly with
victims of crime on a day to day basis. That experience
created a great deal of empathy towards victims on my part
and caused me to wonder about our system of justice at times.
I do have very strong feelings of support for victims of
crime and wish to help them in anyway possible.
That said, I strongly believe that amending the
Constitution is absolutely the wrong way to correct the
problem and will accomplish nothing other than a ``feel
good'' attitude and cost the American taxpayers endless
dollars! We already have many laws to protect victims so that
all that is needed is enforcement by prosecutors and the
Courts to correct any problem areas. If it is found that more
laws are necessary to better protect them, pass those laws as
needed but setting a national standard for all states to
follow may cause many more legal problems in the future than
we can imagine today.
In addition, consider the problems that will immediately
occur within all of our penal institutions, city and county
jails throughout the country. Many of the victims of crimes
are in those same institutions and/or are becoming victims
within those places. This amendment will bring on
transportation nightmares for those various institutions as
they try to get each prisoner to their necessary hearings
creating great cost problems and worse yet possible escape
situations.
Having 40 years experience dealing directly with prisoners
at the county jail level to the state penitentiary, I know
that most every one of them will attempt to use the system if
for no other reason than it would be a chance to abuse and
misuse the system! As an administrator now charged with the
responsibility of transporting prisoners to courts, to and
from institutions, I believe the associated problems would be
endless besides being very expensive.
I ask for your kind consideration in this matter and I
stand ready to work with you to ensure that all victims
rights are preserved and they are fairly represented in all
criminal proceedings. I believe that can be best accomplished
at the state and local level without tampering with the
Constitution.
Sincerely,
Lyle W. Swenson,
United States Marshal.
Mr. DASCHLE. I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Stevens). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I read the committee report relative to
this constitutional amendment from beginning to end. I did so because
of the extraordinarily important issue which has been raised by
Senators Kyl and Feinstein, and others: an effort on their part to
provide some compassion and some relief to victims of crime. I have
tremendous respect for their effort and those of their cosponsors.
After reading the committee report and giving a lot of thought to
this issue, I have decided to oppose the amendment for a number of
reasons.
First of all, we all start with the proposition that we want victims
to have rights and Congress and the State legislatures should act to
provide those rights. I do not think there is a lot of dispute about
that issue. The question that is before us in this constitutional
amendment is whether or not the way to achieve that goal is through an
amendment to our basic document.
I believe it is fundamentally wrong to amend the Constitution for a
number of reasons. First, the desired goals can be achieved by statute.
Every State has a constitutional amendment or a statute which protects
victims' rights. I do not believe there is one statute or one
constitutional amendment in any State protecting victims' rights that
has been held to be unconstitutional.
One of the complaints seems to be that State statutes and State
constitutional provisions are not being enforced adequately. Take, for
example, a story that Marlene Young, executive director of the National
Organization for Victim Assistance, brought to the attention of the
House Judiciary Committee Subcommittee on the Constitution in February.
This is what she said:
Just within the past 2 weeks, our office received a copy of
a letter published in the Sumter (Georgia) Free Press. It
reads in part: ``I write this letter as a victim, not only of
the person who violated me but as a victim of a system gone
bad. . . . I was sexually battered here in Sumter County. I
chose to press charges. Several days after the arrest and
release of the accused, I received a packet from the court
which included a list of my rights as defined by Georgia
State law. I should have received this information from (the
detective) the day I gave my statement. Georgia Law states
that the investigator will provide the victim with a copy of
Georgia Victims Bill of Rights in plain English upon initial
contact. . . . Victims are everywhere and we have the right
to be protected under Georgia Law. How many other victims are
there who don't know what their rights are because the
agencies are not working together? Lucky for me, to date, I
have not been further injured by the accused. Others in this
country may not be as lucky as I have been. It is time the
victims of crimes be treated with respect and the laws set
forth by the State of Georgia be followed. At what point are
the laws of this state important to the authorities?''
So, the problem in that case, and in so many other cases, was not
that the law in Georgia was incapable of protecting the victim; the
problem was that the law was not carried out or enforced. Georgia has a
State statute guaranteeing victims' rights, and the officials in Sumter
County did not abide by that statute or implement it in her case. Is
that a reason for a Federal constitutional amendment? Or is it,
instead, a plea to the Georgia attorney general--who supports a
constitutional victims' rights amendment, by the way, as is documented
by his signature on a letter to us--to enforce the laws of his State? I
argue that it is the latter.
Then we have the extraordinary testimony of Professor Laurence Tribe.
Professor Tribe starts our with the proposition that:
The States and Congress, within their respective
jurisdictions, already have ample affirmative authority to
enact rules protecting these rights,
referring to the rights of victims.
Then he says:
The problem . . . is that such rules are likely, as
experience to date sadly shows, to provide too little real
protection whenever they come into conflict with bureaucratic
habit, traditional indifference, sheer inertia. . . .
What Professor Tribe is saying is that it is justifiable to amend the
Constitution of the United States because statutes that are on the
books are not enforced. That argument not only falls short of Madison's
test that there be a ``great and extraordinary'' need before the
Constitution is amended, it does not even come close.
It is particularly inappropriate to amend the Constitution when the
interests sought to be protected are so complex and are still in
formation. The question of who is a victim alone is a subject of much
discussion.
We have had tragic instances in recent history, in New York City and
in Oklahoma City, where the bombings of buildings created literally
hundreds of victims--the families of those who were killed and the
survivors.
Are all of them to be given the protection that is set forth in this
constitutional amendment? What restrictions can be put on their rights
by statute? What about persons making false claims against others,
charging others with a crime? That person, an alleged victim, is given
standing to argue against bond in order to keep the person he falsely
accused in jail, without bond, awaiting a trial.
We have had too many instances of false accusations, including one
recent notorious story of schoolteacher of 32 years, who taught not too
far from here, and was falsely accused by his students of sexual
harassment and sexual assault.
The possibility for injustices of many varieties should be explored,
as they are currently being explored in the 50 States, all of which
have either statutes or constitutional amendments that provide various
means of protection for victims.
The pending amendment will be implemented by congressional enactment.
Congress will be legislating for 50 State criminal court systems, which
handle
[[Page S3010]]
95 percent of the criminal cases in this country. Far better for us to
pass legislation that will strengthen victims' rights in Federal
criminal cases, over which we have jurisdiction, and test the dozens of
critical concepts which are involved in the effort to provide victims
with rights, including: Who victims are? What is the impact on
prosecutions? Is it negative, as some in law enforcement believe? Will
there be undue delays caused by the meaning of the many issues that are
open to litigation?
The Conference of Chief Justices of the States of the United States
wrote a very compelling letter, part of which reads as follows:
. . . all states have some type of statutory guarantee for
the protection of victims' rights, most of which have been
enacted recently. At least 31 of the states also have
constitutional provisions and these enactments provide
victims with the opportunity to be heard at the various
stages of criminal litigation, particularly at the point of
sentencing and in respect to release on bail or on parole.
Most states are considering further constitutional changes.
If the sponsors of S.J. Res. 3 are searching for a single
settled law governing victims, the goal will not be achieved
through a Federal Constitutional Amendment. Preempting each
State's existing laws in favor of a broad Federal law will
create additional complexities and unpredictability for
litigation in both State and Federal courts for years to
come. We believe that the existing extensive state efforts
provide a significantly more prudent and flexible approach
for testing and refining the evolving legal concepts
concerning victims rights.
When the chief justices of our State courts make such a compelling
argument, it seems to me that this body--always sensitive to the fact
that we live in a Federal system--should give it great attention.
Supporters have argued in the report at one place that the reason for
this constitutional amendment is to ``establish consistent, uniform
rights'' for crime victims in this country. On the other hand, in the
same report the sponsors talk about giving the 50 different States the
authority to ``flesh out the countours of the amendment by providing
definitions of victims' and crimes of violence.' '' They cannot have
that argument both ways.
The subject of trying to provide rights for victims in Federal
criminal cases is ripe for Federal statute, but it is wrong--it is
simply wrong--to treat the Constitution as though it were a statute
book.
This amendment does not meet the test of Federalist No. 49. This
great document, written by James Madison, said that a constitutional
amendment provision should be reserved ``for certain great and
extraordinary occasions.''
This is an occasion where the cause is surely important and great,
but the cause may be achieved by statutory means. It is not appropriate
to amend the Constitution for this occasion.
As a student and as a young lawyer, I grew to revere the
Constitution. As an American, I thank God for it every day. Amending
this hallowed document should be done when a great interest cannot
otherwise be protected and when it can be described simply and in
transcendent language. The amendment before us does not meet that test.
Mr. President, I yield the floor.
Mr. KENNEDY. Mr. President, over the past few days, there has been a
great deal of discussion on the rights of victims and the need for
increased participation of victims in the criminal justice system. I
believe that all of us support victims' rights, greater federal
recognition of these rights. Clearly, they deserve enforceable rights
that are guaranteed by law. But, just as clearly, these rights can be
achieved without taking the extraordinary step of amending the
Constitution of the United States.
The Constitution is the foundation of our democracy, and it reflects
the enduring principles of our country. The framers deliberately made
it difficult to amend the Constitution, because it was never intended
to be used for normal legislative purposes. Chief Justice Rehnquist
captures the essence of why this proposed amendment is misguided, when
he states that a statute, rather than a constitutional amendment,
``would have the virtue of making any provisions in the bill which
appeared mistaken by hindsight to be amended by a simple act of
Congress.''
The Constitution is not a billboard which to plaster amendments as if
they were bumper sticker slogans. In this Congress alone, over a dozen
constitutional amendments have been introduced. With every new proposed
amendment of this kind, we undermine and trivialize the Constitution
and threaten to weaken its enduring strength.
One of the guiding principles that has served the nation well for two
hundred years is that if it is not necessary to amend the Constitution,
it is necessary not to amend it. We have amended the Constitution only
17 times in the two centuries since the adoption of the Bill of Rights.
We should consider such amendments only in rare instances, when the
enactment of a statute is clearly inadequate.
We do have a responsibility to act to assure victims of crime that
their rights in the criminal justice system will not be ignored. But
amending the Constitution is not the appropriate remedy, and the debate
over such a remedy in recent years has, as a practical matter, delayed
the implementation of basic protections that are needed and that should
be accomplished by statute.
For too long, our criminal justice system has neglected the hundreds
of thousands of victims of crime whose lives are shattered by violence
or threats of violence each year. I believe, along with every other
member of the Senate, that the rights of victims deserve better from
our criminal justice system.
Another irony is worth emphasizing in this debate. Many of the
Senators who support the rights of victims and feel so strongly about
this constitutional amendment are the same Senators who refuse to allow
federal action, even by statute, to protect victims of hate crimes. For
the past two years, the Senate has failed to send hate crimes
legislation to the President's desk for signature. I hope that this
debate will at least have the beneficial affect of encouraging Congress
to take action to protect victims of hate crimes. Their needs too can
no longer be ignored.
Too often, the legal system does not provide adequate relief for
victims of crime. They are not given basic information about their
case--such as the case status, scheduling changes of court proceedings,
and notice of a defendant's arrest and bail status. Victims deserve to
know about their case, They deserve to know about hearings and other
proceedings. They deserve to know when their assailants are being
considered for parole. And they certainly deserve to know when their
attackers are released from prison.
Victims of crime and their families deserve legislation that will
guarantee their basic rights and provide urgently needed support.
However, particular provisions in the proposed constitutional amendment
are of grave concern. It is no surprise that victims' rights groups and
domestic violence groups oppose the constitutional amendment for a very
practical reason. If a victim of domestic violence acts in self-
defense, the batterer would be entitled to all of the constitutional
rights created by S.J. Res. 3, including the right to attend court
proceedings and the right to be heard.
Clearly, we can deal with this problem by statute, and I urge the
Senate to do so. I would welcome the opportunity to work with my
colleagues to enact bipartisan legislation to accomplish the goal we
share of genuine protections for victims' rights.
Finally, I commend all of my colleagues who have so eloquently
defended the Constitution and opposed this misguided amendment,
especially Senator Byrd and Senator Leahy. They have given Congress and
the country an excellent lesson in the role of the Constitution in
protecting our liberties. Rarely has there been a better example of
Senators living up to our oath of office ``to support and defend the
Constitution.''
When we began this debate earlier this seek, the conventional wisdom
was that the proposed constitutional amendment was within a vote or two
in the Senate of obtaining the two-thirds majority needed for passage.
The debate has so clearly demonstrated the fundamental flaws of this
amendment that the amendment is likely to be withdrawn. It is a proud
moment for the Senate, and I believe the founders who wrote the
Constitution would be proud of us too.
[[Page S3011]]
Mr. LEAHY. Mr. President, I do not want to conclude this debate
without, again, acknowledging the commitment to crime victims of the
Senator from Arizona and the Senator from California. I know that they
are sincere in their support for crime victims. I compliment them as
well for the manner in which they have conducted themselves throughout
this debate and throughout the Judiciary Committee's work on this
matter. I view them not as opponents but as allies in our mutual
efforts to assist crime victims.
I also want to acknowledge the extraordinary efforts of the senior
Senator from West Virginia and the thoughtful guidance of the
Democratic Leader. Senators Dorgan, Durbin, Schumer, Dodd, Moynihan,
Feingold, Murray, Thompson, Wellstone, Levin, and Bingaman each
contributed greatly to the debate.
I thank Senators from both sides of the aisle--Senators who supported
preserving the Constitution and those who supported the proposed
constitutional amendment. I commend the Senate for doing its duty and
upholding the Constitution and Bill of Rights.
I would also like to thank Rachel King and her colleagues at the
ACLU; Sue Osthoff, Director of the National Clearinghouse for the
Defense of Battered Women; John Albert, Public Policy Director of
Victims Services; Donna Edwards, Director of the National Network to
End Domestic Violence; Renny Cushing, Director of Murder Victims'
Families for Reconciliation; Arwen Bird; Scott Wallace; Beth Wilkinson;
Emmet Welch; and Professor Lynne Henderson. As always, I thank my
staff, as well as the hard-working staff of our distinguished
Democratic Leader.
Finally, my special thanks to Professor Robert Mosteller of the Duke
Law School, who has given so generously of his time, over many years,
to many of us on the Judiciary Committee and in the Senate. Professor
Mosteller is a leading scholar in this field, and his expertise and
counsel have been invaluable.
Mr. FEINGOLD. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, first, I compliment the wonderful
statement by the Senator from Michigan in opposition to this amendment.
On all issues I appreciate his knowledge and his understanding, and
particularly his extremely clear way of presenting his views on this
very important issue.
Mr. LEVIN. I thank my friend.
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