[Congressional Record Volume 148, Number 41 (Monday, April 15, 2002)]
[Senate]
[Pages S2679-S2682]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Kyl, Mr. Bayh, Mr. Lott, Mr. 
        Breaux, Mr. Allard, Mr. Cleland, Mr. Bunning, Ms. Landrieu, Mr. 
        Craig, Mrs. Lincoln, Mr. DeWine, Mr. Wyden, Mr. Frist, Mr. 
        Hagel, Mr. Helms, Mr. Hutchinson, Mrs. Hutchison, Mr. Inhofe, 
        Mr. McCain, Mr. Shelby, Mr. Smith of Oregon, and Mr. Warner):
  S.J. Res. 35. A joint resolution proposing an amendment to the 
Constitution of the United States to protect the rights of crime 
victims; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Madam President, National Crime Victims' Rights Week 
begins on Sunday.
  Next week, communities across the country will be holding 
observances, candlelight vigils, rallies, and other events to honor and 
support crime victims and their rights.
  Also, in just a few days--specifically, April 19--we will mark the 
7th anniversary of the bombing of the Alfred P. Murrah Federal Building 
in Oklahoma City.
  That attack resulted in the deaths of 168 people.
  And it was just over seven months ago that, over a period of two 
hours and three minutes, we suffered the deadliest act of domestic 
terrorism in our history.
  Over 3,000 people died in the attacks on that day--more than died at 
Pearl Harbor.
  Thus, it seems appropriate for all of us in this esteemed body to 
stop a minute and think about victims' rights.
  Last year, the Senate debated a proposed constitutional amendment 
drafted by Senator Kyl and me to protect the rights of victims of 
violent crime.
  The amendment had been reported out of the Senate Judiciary Committee 
on a strong bipartisan vote of 12 to 5.
  After 82 Senators voted to proceed to consideration of the amendment, 
there was a vigorous debate on the floor of the Senate.
  Some Senators raised concerns about the amendment, saying that it was 
too long or that it read too much like a statute.
  Ultimately, in the face of a threatened filibuster, Senator Kyl and I 
decided to withdraw the amendment.
  We then hunkered down with constitutional experts such as Professor 
Larry Tribe of Harvard Law School to

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see if we could revise the amendment to meet Senators' concerns. We 
also worked with constitutional experts at the Department of Justice 
and the White House.
  And we have come up with a new and improved draft of the amendment.
  This new amendment provides many of the same rights as the old 
amendment.
  Specifically, the amendment would give crime victims the rights to be 
notified, present, and heard at critical stages throughout their case.
  It would ensure that their views are considered and they are treated 
fairly.
  It would ensure that their interest in a speedy resolution of the 
case, safety, and claims for restitution are not ignored.
  And it would do so in a way that would not abridge the rights of 
defendants or offenders, or otherwise disrupt the delicate balance of 
our Constitution.
  There are many reasons why we need a constitutional amendment.
  First, a constitutional amendment will balance the scales of justice.
  Currently, while criminal defendants have almost two dozen separate 
constitutional rights--fifteen of them provided by amendments to the 
U.S. Constitution--there is not a single word in the Constitution about 
crime victims.
  These rights trump the statutory and state constitutional rights of 
crime victims because the U.S. Constitution is the supreme law of the 
land.
  To level the playing field, crime victims need rights in the U.S. 
Constitution.
  In the event of a conflict between a victim's and a defendant's 
rights, the court will be able to balance those rights and determine 
which party has the most compelling argument.
  Second, a constitutional amendment will fix the patchwork of victims' 
rights laws.
  Eighteen states lack state constitutional victims' rights amendments. 
And the 32 existing state victims' rights amendments differ from each 
other.
  Also, virtually every state has statutory protections for victims, 
but these vary considerably across the country.
  Only a federal constitutional amendment can ensure a uniform national 
floor for victims' rights.
  Third, a constitutional amendment will restore rights that existed 
when the Constitution was written.
  It is a little know fact that at the time the Constitution was 
drafted, it was standard practice for victims--not public prosecutors--
to prosecute criminal cases.
  Because victims were parties to most criminal cases, they enjoyed the 
basic rights to notice, to be present, and be heard.
  Hence, it is not surprising that the Constitution does not mention 
victims.
  Now, of course, it is extremely rare for a victim to undertake a 
criminal prosecution.
  Thus, victims have none of the basic procedural rights they used to 
enjoy.
  Victims should receive some of the modest notice and participation 
rights they enjoyed at the time that the Constitution was drafted.
  Fourth, a constitutional amendment is necessary because mere state 
law is insufficient.
  State victims' rights laws lacking the force of federal 
constitutional law are often given short shrift.
  A Justice Department-sponsored study and other studies have found 
that, even in states with strong legal protections for victims; rights, 
many victims are denied those rights. The studies have also found that 
statutes are insufficient to guarantee victims' rights.
  Only a federal constitutional amendment can ensure that crime victims 
receive the rights they are due.
  Fifth, a constitutional amendment is necessary because federal 
statutory law is insufficient.
  The leading statutory alternative to the Victims' Rights Amendment 
would only directly cover certain violent crimes prosecuted in Federal 
court. Thus, it would slight more than 99 percent of victims of violent 
crime.
  We should acknowledge that Federal statutes have been tried and found 
wanting. It is time for us to amend the U.S. Constitution.
  The Oklahoma City bombing case offers another reason why we need a 
constitutional amendment.
  This case shows how even the strongest Federal statute is too weak to 
protect victims in the face of a defendant's constitutional rights.
  In that case, two Federal victims' statutes were not enough to give 
victims of the bombing a clear right to watch the trial and still 
testify at the sentencing--even though one of the statutes was passed 
with the specific purpose of allowing the victims to do just that.
  Let me quote from the first of these statutes: the Victims of Crime 
Bill of Rights, passed in 1990. That Bill of rights provides in part 
that:
  A crime victim has the following rights: 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 trial.
  That statute further states that Federal Government officers and 
employees ``engaged in the detection, investigation, or prosecution of 
crime shall make their best efforts to see that victims of crime are 
accorded the[se] rights.''
  The law also provides that ``[t]his section does not create a cause 
of action or defense in favor of any person arising out of the failure 
to accord to a victim the[se] rights.''
  In spite of the law, the judge in the Oklahoma City bombing case 
ruled--without any request from Timothy McVeigh's attorneys--that no 
victim who saw any portion of the case could testify about the 
bombing's impact at a possible sentencing hearing:
  The Justice Department asked the judge to exempt victims who would 
not be ``factual witnesses at trial'' but who might testify at a 
sentencing hearing about the impact of the bombing on their lives.
  The judge denied the motion.
  The victims were then given until the lunchbreak to decide whether to 
watch the proceedings or remain eligible to testify at a sentencing 
hearing.
  In the hour that they had, some of the victims opted to watch the 
proceedings; others decided to leave to remain eligible to testify at 
the sentencing hearing.
  Subsequently, the Justice Department asked the court to reconsider 
its order in light of the 1990 Victims' Bill of Rights. Bombing victims 
then filed their own motion to raise their rights under the Victims' 
Bill of Rights.
  The court denied both motions. With regard to the victims' motion, 
the judge held that the victims lacked standing.
  The judge stated that the victims would not be able to separate the 
``experience of trial'' from the ``experience of loss from the conduct 
in question.'' The judge also alluded to concerns about the defendants' 
constitutional rights, the common law, and rules of evidence.
  The victims and DOJ separately appealed to the Court of Appeals for 
the Tenth Circuit.
  That court ruled that the victims lacked standing under Article III 
of the Constitution because they had no ``legally protected interest'' 
to be present at trial and thus had suffered no ``injury in fact'' from 
their exclusion.
  The victims and DOJ then asked the entire Tenth Circuit to review 
that decision.
  Forty-nine members of Congress, all six attorneys general in the 
Tenth Circuit, and many of the leading crime victims' organizations 
filed briefs in support of the victims. All to no avail.
  The Victims' Clarification Act of 1997 was then introduced in 
Congress.
  That act provided that watching a trial does not constitute grounds 
for denying victims the chance to provide an impact statement. This 
bill passed the House 414 to 13 and the Senate by unanimous consent.
  Two days later, President Clinton signed it into law, explaining that 
``when someone is a victim, he or she should be at the center of the 
criminal justice process, not on the outside looking in.''
  The victims then filed a motion asserting a right to attend the trial 
under the new law.
  However, the judge declined to apply the law as written.
  He concluded that ``any motions raising constitutional questions 
about this legislation would be premature and would present questions 
issues that are not now ripe for decision.''

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  Moreover, he held that it could address issues of possible 
prejudicial impact from attending the trial by interviewing the 
witnesses after the trial.
  The judge also refused to grant the victims a hearing on the 
application of the new law, concluding that his ruling rendered their 
request ``moot.''
  The victims then faced a painful decision: watch the trial or 
preserve their right to testify at the sentencing hearing.
  Many victims gave up their right to watch the trial as a result.
  A constitutional amendment would help ensure that victims of a 
domestic terrorist attack such as the Oklahoma City bombing have 
standing and that their arguments for a right to be present are not 
dismissed as ``unripe.''
  A constitutional amendment would give victims of violent crime an 
unambiguous right to watch a trial and still testify at sentencing.
  There is strong and wide support for a constitutional amendment.
  I am pleased that President Bush and Attorney General Ashcroft have 
endorsed the amendment. I greatly appreciate their support.
  And I am also pleased that both former President Clinton and former 
Vice President Gore have all expressed support for a constitutional 
amendment on victims' rights.
  Moreover, in the last Congress, the Victims' Rights Amendment was 
cosponsored by a bipartisan group of 41 Senators.
  I have spoken to many of my colleagues about the amendment we 
introduce today and I am hopeful that it will receive even more support 
in this Congress. In addition:
  Both the Democratic and Republican Party platforms call for a 
victims' rights amendment.
  Governors in 49 out of 50 states have called for an amendment.
  Four former U.S. Attorneys General, including Attorney General Reno, 
support an amendment. Attorney General Ashcroft supports an amendment.
  Forty state attorneys general support an amendment.
  Major national victims' rights groups--including Parents of Murdered 
Children, Mothers Against Drunk Driving, MADD, and the National 
Organization for Victim Assistance--support the amendment.
  Many law enforcement groups, including the Nation Troopers' 
Coalition, the International Union of Police Associations AFL-CIO, and 
the Federal Law Enforcement Officers Association, support an amendment.
  Constitutional scholars such as Harvard Law School Professor Larry 
Tribe support an amendment.
  The amendment has received strong support around the country. Thirty-
two states have passed similar measures--by an average popular vote of 
almost 80 percent.
  I am delighted to join my good friend Senator Jon Kyl in sponsoring 
the Victims' Rights Amendment, and I look forward to its adoption by 
this Congress.
  I think it is probably well known in this body that Senator Kyl and I 
have authored what is called the victim's rights constitutional 
amendment. One of the most perplexing things about the history of this 
amendment has been that everybody outside of this Chamber supports it. 
Governors support it. Attorneys general support it. Democratic 
candidates support it. Republican candidates support it. But when it 
came down to the fine discussion on this floor, we were told, well, it 
is too pedantic. Well, there are too many words--well, well.
  Senator Kyl and I have hunkered down. We have gone back to our 
constitutional experts on this side of the aisle: Professor Larry 
Tribe, who has been a very active participant in drafting this, and 
Steve Twist representing the victims, and many victims' organizations, 
as well as Paul Cassell, show has worked with us on this amendment.
  We have essentially redone the victims' rights constitutional 
amendment, really based on comments made on the floor. It is now 
succinct. It has a much more poetic flow to it. We believe it is an 
improved amendment. We are introducing it at this time because next 
week communities around the country will be holding observances, 
candlelight vigils, rallies, and other events to honor and support 
crime victims and their rights.
  In just a few days--specifically April 19--we will mark the seventh 
anniversary of the bombing of the Alfred P. Murrah Federal Building in 
Oklahoma City. That attack resulted in the deaths of some 168 people.
  I would like to very quickly read from a study that was conducted by 
the Department of Justice, the Office of Justice Programs, on this 
particular subject because I think their findings are significant.
  Let me read one of them. I quote:

       Nevertheless, serious deficiencies remain in the nation's 
     victims' rights laws as well as their implementation.

  The Presiding Officer will remember when we passed two statutes to 
clarify victims' rights as a product of the Oklahoma City bombing. The 
judge ignored them. Then we passed another one. It went to the 
appellate court, and the appellate court found that the victims were 
without standing in the Constitution. Of course, that is what we are 
trying to remedy here. Thirty-two States have passed victims' rights 
State amendments. They are all different. Sometimes they are observed 
and sometimes they are not.
  Their report goes on to say:

       The rights of crime victims vary significantly among States 
     and at the Federal level. Frequently, victims' rights are 
     ignored. Even in States that have enacted constitutional 
     rights for victims, implementation is often arbitrary and 
     based on the individual practices and preferences of criminal 
     justice officials. Moreover, many States do not provide 
     comprehensive rights for victims of juvenile offenders.

  Let me go on to the recommendation of the Department of Justice. I 
quote:

       A Federal constitutional amendment for victims' rights is 
     needed for many different reasons, including: One, to 
     establish a consistent floor of rights for crime victims in 
     every State and at the Federal level; two, to ensure the 
     courts engage in a careful and conscientious balancing of the 
     rights of victims and defendants; three, to guarantee crime 
     victims the opportunity to participate in proceedings related 
     to crimes against them; and, four, to enhance the 
     participation of victims in the criminal justice process.
       A victims' rights constitutional amendment is the only 
     legal measure strong enough to rectify the current 
     inconsistencies in victims' rights laws that vary 
     significantly from jurisdiction to jurisdiction on the State 
     and Federal level.

  I know Senator Kyl would like to address himself to this measure. His 
leadership has been unparalleled. It has been a great delight for me to 
work with him.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Madam President, I thank Senator Feinstein for her work on 
this amendment for several years now. She was tremendously helpful in 
working with the past administration. She and I have both worked with 
various victims groups. I think they rightly regard her as a champion 
of victims' rights in this country.
  She mentioned that next week is National Crime Victims' Rights Week. 
It begins Sunday. It is fitting that we could introduce this 
legislation today because tomorrow, at a ceremony at the Department of 
Justice, it is my understanding there will be a very important 
announcement by the President and the Attorney General with respect to 
this amendment.
  Just to be very brief about our support for this amendment at this 
time, I will simply address the differences between this year's 
amendment and last year's amendment.
  Even though last year's amendment to the Constitution had 40 
cosponsors and was bipartisan, and was considered--incidently, I 
appreciate the efforts of the distinguished Presiding Officer as 
chairman of the committee, the Judiciary Committee. We had a strong 
bipartisan vote of 12 to 5 for this amendment out of the Judiciary 
Committee last year. I appreciate the Presiding Officer's assistance in 
that, notwithstanding some differences of opinion with respect to the 
specifics of the amendment.
  We withdrew the bill from consideration on the floor when we knew it 
would be the subject of prolonged discussion--we shall put it that 
way--and agreed to consider the criticism of some of the opponents at 
that time that the phrasing of the language was not elegant enough and 
perhaps too wordy.
  Now, the constitutional amendment contains 12 key lines of text with 
respect to the rights of victims. There are another 10 lines of text 
that provide for exceptions or caveats to that grant of constitutional 
protection. I

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think the language much more closely approximates the other amendments 
to the U.S. Constitution.
  I thank Professor Laurence Tribe for his consideration, expertise, 
and assistance in developing the language toward that end. I am hopeful 
my colleagues will give a close look at this new protection. The rights 
protected are essentially the same, but I think the way in which it is 
done is more in line with other constitutional amendments. I am hopeful 
we will have an opportunity to make a substantive case for this 
amendment and to discuss in detail, with our colleagues, the reasons 
for our desire that we get a vote on it this year.
  I will just conclude by noting--especially because starting Sunday we 
will be celebrating National Crime Victims' Rights Week--the number of 
groups that are represented here in Washington to participate in 
various presentations and celebrations of National Crime Victims' 
Rights Week and who will also be participating in the meeting tomorrow 
at the Department of Justice.
  Supporters include the National Governors Association, which has 
voted in favor of an amendment. Both the Republican and Democratic 
Party platforms of the last Presidential election and their nominees 
supported such an amendment. It is supported by major national victims' 
rights groups, including Parents of Murdered Children, Mothers Against 
Drunk Driving, and the National Organization for Victim Assistance, in 
addition to the Stephanie Roper Foundation, the Arizona Voice for the 
Crime Victims, Crime Victims United, and Memory of Victims Everywhere.
  And especially, in addition to Senator Feinstein and the Attorney 
General of the United States, who has been very helpful in helping us 
formulate the specific wording of the amendment, I thank the National 
Organization for Victims Assistance, the National Constitutional 
Amendment Network, Mothers Against Drunk Driving, Parents of Murdered 
Children, Roberta Roper, and the Stephanie Roper Foundation, and Steve 
Twist, who has been enormously supportive in working the language and 
coordinating the efforts with these various victims' rights groups. 
Steve is a lawyer in Phoenix, AZ, and has been indispensable in my 
efforts.
  Finally, Mr. President, Senator Feinstein has asked that I have 
printed in the Record a letter dated April 15, 2002, from Laurence H. 
Tribe to Senator Feinstein and myself. I will just read two excerpts 
from it, conclude my remarks, and submit it for the Record.
  Professor Tribe says:

       Dear Senators Feinstein and Kyl:
       I think that you have done a splendid job at distilling the 
     prior versions of the Victims' Rights Amendment into a form 
     that would be worthy of a constitutional amendment--an 
     amendment to our most fundamental legal charter, which I 
     agree ought never be altered lightly. . . .
       How best to protect that right without compromising either 
     the fundamental rights of the accused or the important 
     prerogatives of the prosecution is not always a simple 
     matter, but I think your final working draft of April 13, 
     2002, resolves that problem in a thoughtful and sensitive 
     way, improving in a number of respects on the earlier drafts 
     that I have seen. Among other things, the greater brevity and 
     clarity of this version makes it more fitting for inclusion 
     in our basic law. That you achieved such conciseness while 
     fully protecting defendants' rights and accommodating the 
     legitimate concerns that have been voiced about prosecutorial 
     power and presidential authority is no mean feat. I happily 
     congratulate you both on attaining it.

  I would say, editorially, not without substantial help from Professor 
Tribe himself.
  Madam President, I ask unanimous consent that this letter be printed 
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 15, 2002.
     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
     Hon. Jon Kyl, U.S. Senate, Hart Senate Office Building, 
         Washington, DC.
       Dear Senators Feinstein and Kyl: I think that you have done 
     a splendid job at distilling the prior versions of the 
     Victims' Rights Amendment into a form that would be worthy of 
     a constitutional amendment--an amendment to our most 
     fundamental legal charter, which I agree ought never to be 
     altered lightly. I will not repeat here the many reasons I 
     have set forth in the past for believing that, despite the 
     skepticism I have detected in some quarters both on the left 
     and on the right, the time is past due for recognizing that 
     the victims of violent crime, as well as those closest to 
     victims who have succumbed to such violence, have a 
     fundamental right to be considered, and heard when 
     appropriate, in decisions and proceedings that profoundly 
     affect their lives.
       How best to protect that right without compromising either 
     the fundamental rights of the accused or the important 
     prerogatives of the prosecution is not always a simple 
     matter, but I think your final working draft of April 13, 
     2002, resolves that problem in a thoughtful and sensitive 
     way, improving in a number of respects on the earlier drafts 
     that I have seen. Among other things, the greater brevity and 
     clarity of this version makes it more fitting for inclusion 
     in our basic law. That you achieved such conciseness while 
     fully protecting defendants' rights and accommodating the 
     legitimate concerns that have been voiced about prosecutorial 
     power and presidential authority is no mean feat. I happily 
     congratulate you both on attaining it.
       A case argued two weeks ago in the Supreme Judicial Court 
     of Massachusetts, in which a woman was brutally raped a 
     decade and a half ago but in which the man who was convicted 
     and sentenced to a long prison term has yet to serve a single 
     day of that sentence, helps make the point that the legal 
     system does not do well by victims even in the many states 
     that, on paper, are committed to the protection of victims' 
     rights. Despite the Massachusetts Victims' Bill of Rights, 
     solemnly enacted by the legislature to include an explicit 
     right on the part of the victim to a ``prompt disposition'' 
     of the case in which he or she was victimized, the 
     Massachusetts Attorney General, to who has yet to take the 
     simple step of seeking the incarceration of the convicted 
     criminal pending his on-again, off-again motion for a new 
     trial--a motion that has not been ruled on during the 15 
     years that this convicted rapist has been on the streets--has 
     taken the position that the victim of the rape does not even 
     have legal standing to appear in the courts of this state, 
     through counsel, to challenge the state's astonishing failure 
     to put her rapist in prison to begin serving the term to 
     which he was sentenced so long ago.
       If this remarkable failure of justice represented a wild 
     aberration, perpetrated by a state that has not incorporated 
     the rights to victims into its laws, then it would prove 
     little, standing alone, about the need to write into the 
     United States Constitution a national commitment to the 
     rights of victims. Sadly, however, the failure of justice of 
     which I write here is far from aberrant. It represents but 
     the visible tip of an enormous iceberg of indifference toward 
     those whose rights ought finally to be given formal federal 
     recognition.
       I am grateful to you for fighting this fight. I only hope 
     that many others can soon be stirred to join you in a cause 
     that deserves the most widespread bipartisan support.
           Sincerely yours,
     Laurence H. Tribe.

                          ____________________