[Congressional Record Volume 146, Number 52 (Tuesday, May 2, 2000)]
[Senate]
[Pages S3251-S3253]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  VICTIMS' RIGHTS AMENDMENT OPPOSITION

  Mr. LEAHY. Mr. President, during the debate last week on the proposed 
constitutional amendment on victims' rights, a number of editorials and 
thoughtful essays were printed in the Record. Because of the way in 
which the Senate ended its consideration of S.J. Res. 3, I did not have 
an opportunity to include in the Record all such materials. 
Accordingly, I included additional materials yesterday and do so again 
today, in order to help complete the historical record of the debate. I 
ask unanimous consent to have printed in the Record editorials from a 
number of sources around the country in opposition to the proposed 
amendment.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the Philadelphia Inquirer, Apr. 22, 2000]

                             Misguided Bill

       Crime victims need justice and compassion, not the ability 
     to usurp the rights of others.
       If ever there was a likely booster for the cause of 
     empowering crime victims, it's Bud Welch of Oklahoma City.
       After his 23-year-old daughter, Julie, perished in the 1995 
     federal building bombing there, Mr. Welch recalls wanting to 
     see the co-conspirators ``fried'' rather than tried in court.
       But the latest push in Congress to enshrine a victims' bill 
     of rights in the U.S. Constitution does not enjoy Bud Welch's 
     support. Nor does it have the backing of numerous groups 
     equally as concerned as Mr. Welch with seeking justice for 
     victims.
       The amendment's opponents include advocates for battered 
     women, the families of murder victims--plus the nation's top 
     state judges, civil-rights groups and veteran prosecutors.
       All of them, whether knowingly or not, are heeding James 
     Madison's wise directive that the Constitution be amended 
     only on ``great and extraordinary occasions.''
       This isn't one of those occasions.
       These groups understand that the proposals before Congress 
     would completely restructure federal and state criminal 
     justice systems. As such, the victims' rights measure is 
     dangerous to fundamental rights that protect all Americans. 
     In the Oklahoma case that Mr. Welch knows so well, he cites 
     the plea bargain that led to key testimony by an accomplice 
     of Timothy McVeigh and Terry Nichols.
       Had victims been able to contest that plea--as provided by 
     the rights proposals in Congress--the case might have been 
     more difficult to prosecute or might even have unraveled.
       That's just a hint of the practical problems in according 
     crime victims such rights as court-appointed counsel, a say 
     in prosecution decisions, and the like. How could anyone 
     think things are working so well in the nation's clogged 
     criminal courts that they could handle this wrench tossed 
     into the works?
       There's a more fundamental problem, through, with giving 
     crime victims a virtual place at the prosecutors's table.
       It presumes the guilt of a person charged with a crime 
     before the courts have spoken. With that, out the courtroom 
     window goes a fair trail--and in comes a threat to all 
     Americans' rights.
       What crime victims are owed is compassion, the chance to 
     seek compensation, consideration of the demands a trial 
     places on their time and psyches, and a full measure of 
     justice. That's the intent of victims' rights provisions 
     already enshrined in law or state constitutions by all 50 
     states.
       For instance, the Pennsylvania statute provides for 
     notifying victims of court proceedings, allowing them to 
     comment on--but not to veto--plea bargains, the right to seek 
     restitution, and notification of post-conviction appeals and 
     even convicts' escapes. These are good ideas that don't 
     deprive rights.
       Shame on Congress if it seriously considers a measure that 
     could jeopardize the right to a fair trial. Ditto if the 
     victims' rights cause is turned into just another cynical 
     vehicle to make political hay--like the flag-burning 
     nonsense.
       The region's senators should not be party to that--no 
     matter what their party.
                                  ____


              [From the Providence Journal, Apr. 27, 2000]

                         The Quality of Justice

       Bud Welch, whose daughter Julie was one of the 168 victims 
     of the bombing of the Murrah Federal Building in Oklahoma 
     City five years ago, testified before the U.S. Senate 
     Judiciary Committee against the proposed Victims' Rights 
     Amendment to the Constitution. ``I was angry after she was 
     killed that I wanted McVeigh and Nichols killed without a 
     trial. I probably would have done it myself if I could have. 
     I consider that I was in a state of temporary insanity 
     immediately after her death. It is because I was so crazy 
     with grief that I oppose the Victims' Rights Amendment.''
       Mr. Welch is right. Giving the victims of crime the 
     constitutional right to influence bail decisions and plea 
     agreements would turn the principle of innocent until proven 
     guilty, the foundation of the American system of justice 
     embodied in our Bill of Rights, on its head. Other countries, 
     notably France, are still striving to incorporate this 
     principle into their legal codes. It would come as a shock to 
     see the United States move away from it, a move that would be 
     rightly perceived as a step backward into law's dark, 
     despotic past--the days of an eye for an eye and a tooth for 
     a tooth.
       If that seems a hard indictment of an amendment that sounds 
     so eminently reasonable and fair, consider the provision 
     granting victims the right to a trial ``free of unreasonable 
     delay.'' The very phrase should send chills down the spine. 
     One person's ``expedited'' trial is another's ``legal 
     lynching,'' to borrow Supreme Court Justice Clarence Thomas' 
     phrase. And, like most amendments to the Constitution, there 
     is no telling where this amendment would lead. Would an 
     assault against a Ku Klux Klan member marching with thousands 
     of co-bigots mean that the state has to notify and consult 
     with every racist marcher ``victim'' in prosecuting the 
     criminal?
       The United States is a country that abhors the miscarriage 
     of justice. It is, or should be, the key element of our 
     national character. No one would contend that it is good that 
     victims sometimes suffer further in the administration of 
     justice, and proponents of this amendment, such as Mothers 
     Against Drunk Driving, fight a noble cause in trying to 
     protect the rights of victims in the justice system. But 
     amendment the Constitution is not the way to do it. Victims' 
     rights laws are on the books in 35 states, including Rhode 
     Island. Strengthen and enforce these laws. That is the way to 
     ensure all Americans, victims and accused, have a fair trial.
                                  ____


           [From the Richmond Times-Dispatch, Apr. 16, 2000]

                          Differently Situated

       Complaints about partisan rancor in Congress are 
     commonplace. But sometimes it's even worse when Republicans 
     and Democrats agree.
       Take the resolution sponsored by Republican Senator John 
     Kyl and Democrat

[[Page S3252]]

     Dianne Feinstein. It proposes a victims' rights amendment to 
     the Constitution guaranteeing a right to be notified of, 
     attend, and testify at the defendant's trial. Thirty-three 
     states already codify such protections, and there is little 
     wrong with them. But an amendment would sully the 
     Constitution with (to borrow a turn of phrase) a new indoor 
     record for missing the point.
       At a recent news conference supporting the proposed 
     amendment, Mothers Against Drunk Driving president Millie 
     Webb said, ``Many Americans don't realize that victims have 
     no guaranteed rights under our current law,'' whereas ``the 
     system caters to the rights of defendants.'' Such 
     statements--with which many Americans, including 41 Senate 
     co-sponsors of the Kyl-Feinstein resolution, would agree--
     reflect a cavernous lack of understanding regarding the 
     machinery of justice in America.
       That machinery exists for the very purpose of defending 
     rights, such as the right to physical safety and the right to 
     property. Legislatures pass laws forbidding assault, murder, 
     theft, fraud, and a host of other crimes. Policemen patrol 
     the streets to prevent those crimes. When a crime is 
     committed and a victim created, police hunt down the 
     likeliest suspect and arrest him.
       Government attorneys then prosecute. The courts sit in 
     judgment, impose prison time, and order restitution where 
     appropriate. Corrections departments imprison--and sometimes 
     execute--offenders, not only to punish them for the misdeed 
     in question but also to prevent them from violating the 
     rights of additional victims. This vast legislative, 
     judicial, and executive machinery expends a great amount of 
     time and energy to guarantee the rights of innocent citizens.
       The procedural rights of defendants exist for a good 
     reason. The right to trial by jury, the right to an attorney, 
     the right to an appeal, the right not to have a confession 
     beaten out of you--all are in place because a defendant 
     stands in a markedly different position from a crime victim. 
     The state wields its immense coercive power on behalf of the 
     victim--and against the defendant.
       Some mechanism is necessary to ensure that powerful 
     machinery does not run out of control and crush someone it 
     should not. Though they sometimes are abused, the 
     constitutional protections guaranteed to a defendant are not 
     catering to the guilty, but to the innocent. They exist to 
     make sure the apparatus functioning on behalf of victims does 
     not create another one, or several other ones. If sloppy law 
     enforcement sends an innocent person to prison, then it 
     leaves the real perpetrator free--to strike again.
                                  ____


                 [From the Seattle Post-Intelligencer, 
                             Apr. 21, 2000]

                   Victim Amendment Undoes Prior Work

       With the drive to enshrine its tenets in the U.S. 
     Constitution, the victims' rights movement is in danger of 
     undoing much of the good it has done.
       Granted, the proposed amendment to the Constitution, which 
     is scheduled for a vote Tuesday in the U.S. Senate, is 
     emotionally appealing. If approved by Congress and ratified 
     by three-fourths of the state legislatures, the amendment 
     would, among other things, require that victims be notified 
     of any court proceedings involving their accused assailants 
     and be told of an offender's release or escape.
       These provisions are fairly innocuous; others in the far-
     reaching proposal are not.
       For example, the amendment would give victims the right to 
     attend all public proceedings stemming from the crime. But 
     there are compelling reasons for victim witnesses to be 
     excluded from the courtroom except when they are testifying. 
     Their presence could bias the testimony of other witnesses 
     sympathetic to what the victims have endured, and on hearing 
     other witnesses testify, victims might tailor their own 
     testimony to minimize any inconsistencies.
       Another new ``right'' would authorize victims to submit a 
     statement at all public proceedings held to accept a 
     negotiated plea. That risks the possibility of victims 
     becoming equal partners with prosecutors in deciding when to 
     plea-bargain cases. Therein lies the crux of our objections.
       The government prosecutes crimes on behalf of the 
     community, not just victims, even though victims routinely 
     suffer the greatest toll. It is the community's best 
     interests that should receive the highest consideration by 
     prosecutors.
       One surprising opponent of the amendment voiced his 
     concerns simply: ``I think crime victims are too emotionally 
     involved,'' said Bud Welch of Oklahoma City, whose daughter 
     died in the bombing of the federal courthouse there.
       Welch and his organization, Citizens for the Fair Treatment 
     of Victims, are joined in opposing the proposal by the 
     National Coalition Against Sexual Assault, the National 
     Network to End Domestic Violence and Murder Victims' Families 
     for Reconciliation.
       Already, 32 states have passed victims' rights statutes or 
     amendments to their state constitutions. This is how it 
     should be, as the vast majority of crimes are prosecuted on 
     the state level. It is far too radical a step to amend the 
     federal Constitution for what is essentially a state matter.
       All victims' rights run the risk of being diluted if this 
     proposal becomes the 28th amendment to the U.S. Constitution. 
     That should convince Washington's senators, Democrat Patty 
     Murray and Republican Slade Gorton, to vote no Tuesday.
                                  ____


              [From the South Bend Tribune, Apr. 27, 2000]

            Proposed Victims' Rights Amendment Is Misguided

       A proposed constitutional amendment to codify rights for 
     crime victims may be sincere in intent, but it is misguided 
     and should be defeated when the Senate votes today.
       The most sacred tenet of the United States' system of 
     justice says that all those accused are innocent until proven 
     guilty. The Victims' Rights Amendment could jeopardize that 
     constitutional protection by giving victims an active role in 
     virtually every stage of prosecution, from plea bargaining to 
     punishment and parole.
       Under terms of the amendment, victims would be allowed to 
     remain present in the courtroom throughout a trial, even if 
     they are witnesses for the prosecution.
       Crime victims deserve sympathy and support, but inserting 
     them into the criminal justice system as proposed in this 
     amendment is an invitation to substitute vengeance for 
     justice. If Congress wants to establish a fund to help 
     victims recover emotionally, physically and financially it 
     should do so. It should not, however, seek to alter core 
     principles of the law.
       Congress is developing an annoying tendency to legislate by 
     pandering to the public's feelings as a substitute for 
     thoughtful consideration. Amending the Constitution may 
     create many unintended consequences and should not be 
     undertaken when there are other ways to reach the goal 
     desired.
                                  ____


             [From the St. Petersburg Times, Apr. 25, 2000]

                         A Wrong Set of Rights

       The so-called Victims' Rights Amendment isn't all that it 
     seems. Politically motivated, it would tilt cases in favor of 
     prosecutors and strike a blow to constitutional guarantees of 
     due process and fairness for the accused.
       The Constitution was purposely made hard to amend to shield 
     it from political whims, but that hasn't stopped Congress 
     from trying to alter this great document. In this 106th 
     Congress, at least 53 constitutional amendments have been 
     introduced concerning every hot-button issue from flag 
     burning to school prayer. The latest assault on individual 
     rights is the so-called Victims' Rights Amendment, a 
     wrongheaded attempt to give crime victims rights in criminal 
     proceedings.
       The amendment is popular because any measure that appears 
     to favor victims over criminals is going to sail through 
     Congress. But the amendment has more to do with political 
     pandering than conscientious lawmaking. This helping hand for 
     crime victims is really about tilting the balance in favor of 
     prosecutors. It would substantially reduce the Constitution's 
     guarantees of due process and fairness for the criminally 
     accused.
       While victims often complain that they are ignored or 
     mistreated by the criminal justice system, there are fixes 
     short of amending the Constitution. Florida, for example, has 
     codified victims' rights in statute and made it part of the 
     state Constitution. A caveat, though, prevents the exercise 
     of victims' rights from interfering with the defendant's 
     constitutional rights. But if the federal Constitution were 
     amended, this key protection for defendants would be 
     nullified.
       Among the disturbing provisions, the Victims' Rights 
     Amendment would give crime victims the right to be present at 
     any public proceeding, to expect a trial free from 
     unreasonable delay and to have their safety considered 
     relative to a defendant's release from custody. While these 
     measures don't sound excessive on their face, they could 
     seriously handicap a defendant's right to a fair hearing.
       For example, a victim who demands to sit in on every day of 
     trial could also be a key witness to the crime. By listening 
     to all other testimony, he could tailor his comments to avoid 
     inconsistent statements--complicating the defense's job.
       Similar problems arise in interpreting the victim's right 
     to a quick resolution. A victim's demand for speed could 
     truncate the defense attorney's time to prepare for trial, 
     making it difficult to present a full defense. It is also 
     unclear how the victim's right to a speedy resolution would 
     impact the defendant's right of habeas corpus. Habeas claims 
     of wrongful imprisonment sometimes comes many years after 
     conviction.
       Multiple concerns also are raised by the provision 
     requiring that the safety of victims be considered before a 
     defendant is released. At minimum, the accused could be 
     denied reasonable bond, but the provision could also give the 
     state the power to hold prisoners indefinitely after their 
     prison terms based on some minimal showing of fear by the 
     victim.
       The amendment is scheduled to come up for action in the 
     Senate this week, and if it passes by the two-thirds majority 
     necessary, it's expected to fly through the House. The 
     amendment would then need to be passed by three-fourths of 
     state legislatures before becoming part of the Constitution. 
     Florida's Republican Sen. Connie Mack has already signed on 
     as a sponsor, but Democrat Bob Graham, as usual is waiting 
     until the last minute to reveal his position.
       What seems to elude amendment supporters is that the rights 
     of defendants are not enshrined in the Constitution to 
     protect criminals. They are there to ensure that those 
     falsely accused by government get a fair trail. So really the 
     Constitution already provides for victims' rights: victims of 
     overzealous government prosecution, that is.

[[Page S3253]]

     
                                  ____
                [From the Wichita Eagle, Apr. 27, 2000]

    Not Again--Victim's Rights Don't Merit Constitutional Amendment

       There's no question that victims of crimes too often feel 
     victimized a second time by the justice system. Look at the 
     parents of the students killed at Columbine High School: 
     Their frustration with the Jefferson County sheriff's 
     department over access to videotape and records has rightly 
     provoked multiple lawsuits--and compounded their grief.
       But the instances in which victims are wronged by 
     authorities hardly justify the ultimate legal remedy in 
     America--an amendment to the Constitution.
       That's the conclusion that once again should be reached by 
     both the U.S. Senate, which moved ahead this week with debate 
     on the proposed Victims' Rights Amendment, and the House, 
     which has a similar measure pending in committee.
       Supporters such as Sen. Dianne Feinstein, D-Calif., argue 
     that the Constitution currently guarantees 15 rights to 
     criminal defendants yet extends none to victims. They want to 
     equalize the importance of defendant and victim, guaranteeing 
     the latter the right to be present at court hearings, speak 
     at sentencing, have a say in plea agreements, see the cases 
     resolved quickly and seek restitution.
       But the proposed amendment is rife with problems:
       It would step on existing statutory and constitutional 
     safeguards in 32 states, including Kansas.
       It could end up conflicting with or compromising 
     defendants' rights.
       It lacks even the support of some advocacy groups such as 
     Victim Services, which is focusing its resources and energy 
     elsewhere.
       And, as Senate Minority Leader Tom Daschle, D-S.D., noted, 
     it ``is longer than the entire Bill of Rights.''
       Authorities obviously need to do a better job respecting 
     and enforcing existing state victims'-rights laws and taking 
     pains not to treat victims like afterthoughts. But there are 
     good reasons why the 11,000 attempts to amend the 
     Constitution over the defining document's 213-year history 
     have succeeded only 27 times. The plight of crime victims is 
     heartrending, but it should be dealt with by appropriate 
     laws, not by this kind of intensive meddling with the 
     Constitution.
                                  ____


            [From the Winston-Salem Journal, Apr. 27, 2000]

                            Victims' Rights

       The victims of violent crimes and their loved ones often 
     have reason to feel that they have fewer rights under the 
     justice system than does the criminal. Many victims say that 
     they feel victimized all over again by the time the court 
     proceedings are done. Clearly there is much that ought to be 
     done to ensure that courts and related offices treat victims 
     with respect, compassion and efficiency. But a victims' 
     rights amendment to the U.S. Constitution, under discussion 
     this week in the Senate, is the wrong way to make those 
     improvements.
       It's a bad idea to amend the Constitution for a problem 
     that could be handled by less sweeping and less permanent 
     legislation. The Constitution has remained strong for more 
     than 200 years precisely because the Founders did not address 
     the details of every issue that might arise. It is unwise to 
     amend it to deal with problems that can be addressed through 
     less drastic means.
       Even more important, the drive for a victims' rights 
     amendment is based on a misunderstanding of the role of the 
     criminal-justice system. The courts are set up to protect the 
     rule of law and the greater interests of society, not to 
     exact personal vengeance. When a criminal is sentenced to 
     imprisonment or some other punishment, he is paying his debt 
     to society, not to the victim. He is being punished for 
     violating the rule of law that we all agree to as citizens 
     for our mutual protection.
       Advocates of an amendment argue that the Constitution 
     establishes many rights of the accused, but none for victims. 
     But the Constitution is designed to provide the protection of 
     laws and fair and efficient justice for all. Crime victims 
     are suffering because a law has been broken, and the function 
     of the courts is to punish the lawbreaker. The rights of the 
     accused are spelled out because defendants are in danger of 
     having rights taken from them as punishment. Though the 
     victims of crimes deserve public sympathy and support, they 
     do not deserve special treatment by the legal system.
       The move for victims' rights has arisen out of frustrations 
     when the court system, far from giving victims special 
     treatment, seems to disregard them. Among the rights in the 
     proposed amendment would be notification of proceedings, 
     speedier proceedings and notification of release or escape of 
     an offender.
       Some of these rights exist but aren't honored because of 
     overcrowded courts and lack of staff. Those are problems that 
     Congress and state legislatures can address without an 
     amendment. They can also pass laws to make things more smooth 
     and comfortable for victims and to give victims a voice in 
     such proceedings as parole hearings. Some laws providing 
     restitution are appropriate.
       A constitutional amendment is not needed to achieve any of 
     these worthy goals. Senators should make it clear that they 
     support the goals but don't want to pursue them in the wrong 
     way.
                                  ____


                [From the Washington Times, May 2, 2000]

                      Constitutional Pandora's Box

                          (By Debra Saunders)

       Just when you thought that Congress was a totally craven 
     institution full of pandering pols who would sell out the 
     Constitution for a friendly story on Page 3 of the local 
     paper, the Senate up and takes a stand on principle. An 
     unpopular stand even.
       I refer to a proposed Crime Victims' Amendment to the 
     Constitution. Last week, Senate sponsors Dianne Feinstein, 
     California Democrat, and Jon Kyl, Arizona Republican, pulled 
     a vote on the measure because they didn't have the two-thirds 
     vote needed for passage. Finally, some good news.
       Of course, I support crime victims' rights, and the stated 
     goals of the measure. The amendment, among other things, 
     would give victims the right to be notified of legal 
     proceedings where they would have a right to be heard, to be 
     notified if a perp is released or escapes, and to weigh in on 
     plea bargains.
       As Mrs. Feinstein explained in a statement, ``The U.S. 
     Constitution guarantees 15 separate rights to criminal 
     defendants, and each of these rights was established by 
     amendment to the Constitution. But there is not one word 
     written in the U.S. Constitution on behalf of crime 
     victims.''
       I, for one, value that omission. The Founding Fathers wrote 
     the document when being a victim was not a badge of honor. If 
     it were written today in the decade of the victim, the 
     Constitution probably would read like a 12-step pamphlet.
       More importantly, while the Constitution does not pay 
     homage to victims' rights per se, the entire process of 
     prosecution, of using the government to exact punishment for 
     wrongdoing against individuals, recognizes the government's 
     responsibility to protect citizens from lawless individuals.
       Of course, there have been some victim horror stories that 
     give the measure legitimacy. One need look no further than 
     Littleton, Colo., where authorities have sold video-tapes of 
     the bloodstained high-school shooting crime scene for $25. 
     This is a true outrage, but it is best remedied by parents 
     suing the daylights out of these cruel civil servants.
       'Tis better to sue than to revamp the U.S. Constitution. 
     Law enforcement generally is a local matter. A constitutional 
     amendment then would give federal judges another excuse to 
     butt in and tell local lawmen and women what to do. No 
     thanks.
       I'll add that because a constitutional amendment has so 
     much force, and is so difficult to change, there must be a 
     compelling reason to pass it, and lawmakers should have a 
     clear idea of its effects.
       But it's not clear how judges would interpret it. The 
     American Civil Liberties Union's Jennifer Helburn argues that 
     some judges, for example, could interpret the right of 
     victims to ``be present, and to submit a statement' at all 
     public legal proceedings to mean indigent victims would have 
     a right to publicly funded legal representation.
       The ACLU also warns the provision could ``allow victims to 
     be present throughout an entire trial, even if they are going 
     to be witnesses.'' A Senate aide explained a judge would 
     determine whether victims could be present before testifying 
     or could testify first, and then attend the rest of the 
     trial. So, the provision could make life harder for 
     prosecutors. Not good.
       Legal writer Stuart Taylor Jr. of the National Journal 
     worries that mandating victim output--even if it is not 
     mandatory that prosecutors obey it--could scuttle plea 
     bargain arrangements that might be unpopular but result in a 
     better outcome than letting murderers walk free.
       Sen. Fred Thompson, Tennessee Republican, warned that the 
     measure is ``very, very disruptive in ways that there is no 
     way we can possibly determine. We are opening up a Pandora's 
     box.''
       Except, last week, the Senate didn't open up Pandora's box. 
     And in not opening the box, it nonetheless released one 
     precious item: hope.

                          ____________________