[Congressional Record Volume 150, Number 52 (Wednesday, April 21, 2004)]
[Senate]
[Pages S4227-S4231]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself, Mrs. Feinstein, Mr. Hatch, Mr. Leahy, 
        Mr. Frist, Mr. Daschle, Mr. McConnell, Mr. Durbin, Mr. 
        Grassley, Mr. Kennedy, Mr. DeWine, Mr. Feingold, Mr. Craig, Mr. 
        Kerry, Mr. Graham of South Carolina, Mr. Schumer, Ms. Collins, 
        Mr. Bayh, Mr. Lieberman, Mrs. Clinton, Mr. Pryor, Ms. Stabenow, 
        and Mr. Nelson of Florida):
  S. 2329. A bill to protect crime victims' rights; ordered held at the 
desk.
  Mr. LEAHY. Mr. President, this past Sunday marked the start of 
National Crime Victims' Rights Week. We set this week aside each year 
to refocus attention on the needs and rights of crime victims.
  This year, the Senate had been scheduled to mark the occasion by 
taking up S.J. Res. 1, a proposed constitutional amendment. Once again, 
we were going to devote days or weeks debating that proposal, even 
though the Republican leadership knew it had no real chance of 
garnering the two-thirds super-majority needed to pass. We went through 
a similar process four years ago, in April 2000, when the Senate 
debated an earlier version of the amendment during the last 
presidential election year.
  I noted then, during that earlier debate, the fact that I have long 
worked to protect and advance crime victims' rights. As a prosecutor, I 
worked day to day and year to year alongside victims, seeking justice 
on their behalf. I have worked on and led many legislative efforts on 
behalf of victims throughout my service in the Senate. One of the most 
recent of those efforts was the creation of the September 11 Victim 
Compensation Fund, and I am grateful to have been able to take part in 
something that has brought some relief to so many victims.
  I will never forget the victims I worked with as a prosecutor or the 
needs of the new victims minted each day through the crimes committed 
against them. I believe that victims should be notified when the 
defendant is in court or when he is about to be released. I believe 
that victims should be heard at critical stages of the prosecution. I 
believe that victims are entitled to restitution from offenders. In 
recent years, the debate was never about whether victims should be 
protected--of course they should. Rather, the debate was about how they 
should be protected, and whether the proposed constitutional amendment 
was the best way to do that.
  I did not think the proposed amendment was the best way forward. The 
one thing about which every witness who testified on this issue agreed 
was that every right provided by the Victims Rights Amendment can be, 
or already is, protected by State or federal statutory law.
  We have long had it in our power to enhance victims' rights through 
regular legislation legislation that could pass with a simple majority 
and make an immediate difference in the lives of crime victims. 
Legislative enhancements are more easily enacted, more directly applied 
and implemented, and more able to provide specific, effective remedies. 
In addition, as Chief Justice Rehnquist and others have pointed out, 
statutes are more easily corrected if we find, in hindsight, that they 
need correction, clarification or improvement.
  I am delighted to be here today with the principal sponsors of S.J. 
Res. 1, the distinguished Senators from California and Arizona, and 
with others, both supporters and opponents of the constitutional 
amendment, to join together in our support of this crime victims' 
rights statute. I commend and admire Senator Feinstein and Senator Kyl 
for their dedication to this issue. They are deeply committed to the 
cause of victims' rights as are all of us who have joined together to 
offer this bill. It is my hope that this statute will establish more 
effective and enforceable rights for crime victims in the federal 
system, and that it can do so without delay, by a majority vote.
  First, unlike S.J. Res. 1, which is limited to victims of violent 
crime, our statute establishes enhanced rights and protections for all 
victims of crime. Therefore, the elderly woman who is defrauded out of 
her life savings will have the same rights of notice and participation 
as other crime victims.
  Second, our statute spells out how these rights are to be enforced, 
using language that Senator Kennedy and I developed in S. 805, the 
Crime Victims Assistance Act. In addition to providing victims with 
standing to assert their rights in mandamus actions, our statute would 
establish an administrative authority in the Department of Justice to 
receive and investigate victims' claims of unlawful or inappropriate 
action on the part of criminal justice and victims' service providers. 
Department of Justice employees who fail to comply with the law 
pertaining to the treatment of crime victims could face disciplinary 
sanctions, including suspension or termination of employment.
  Third, our statute incorporates additional proposals from S. 805 to 
help States implement and enforce their own victims' rights laws. In 
this way, instead of replacing programs that have already been 
implemented by a majority of States, our statute enables States to 
retain their full power to protect victims in the ways most appropriate 
to local concerns and local needs.
  Fourth, our statute calls for two annual reports, one by the 
Administrative Office of the Courts, and the other by the General 
Accounting Office. These reports will provide Congress with feedback on 
how the rights and procedures established by the statute are working in 
practice. Over time, we will be able to modify and fine-tune the 
statute so that it provides an appropriate degree of protection for the 
rights of crime victims.
  I emphasize that passage of this bill will necessitate careful 
oversight of its implementation by Congress. If, as I hope, Federal 
judges and prosecutors take victims' rights seriously, there should be 
little need for victims to bring mandamus actions to enforce their 
rights. But if, for whatever reason, victims feel that they are not 
being treated fairly, we may see a wave of new litigation in the 
Federal courts, with victims and their lawyers having to insert 
themselves into criminal cases. We will need to monitor the situation 
closely.
  I am committed to giving victims real and enforceable rights. But I 
am convinced that prosecutors should be capable of protecting those 
rights, once we make them clear. In my experience, prosecutors have 
victims' interests at heart.
  Senator Kennedy and I proposed in the Crime Victims Assistance Act a 
limited-standing provision, which applied with respect to the victim's 
right to attend and observe the trial, and under which a victim could 
assert her right if the prosecutor refused to do so. Passing such a 
provision would have allowed us to observe over a period of time 
whether direct participation of victims in criminal proceedings has any 
unanticipated consequences for the administration of justice.
  This Victims' Rights Act proposes a bolder experiment, entitling 
victims to assert a panoply of rights, regardless of whether the 
prosecution is already asserting the same rights on their behalf. For 
example, at the insistence of other sponsors, this bill will enable 
victims to bring mandamus actions alleging the denial of their 
statutory right ``to be treated with fairness and with respect for the 
victim's dignity and privacy,'' which may be difficult claims to 
adjudicate.

[[Page S4231]]

  I note with some regret that our statute picks up language from S.J. 
Res. 1 denying victims a civil cause of action for damages in the event 
that their rights are violated. Allowing victims to vindicate their 
rights through separate civil proceedings instead of through mandamus 
actions in the criminal case could well be a more efficient as well as 
a more effective way of ensuring that victims' rights are honored. 
Certainly the prospect of being sued would provide a powerful incentive 
to take victims' rights seriously. But the Republican sponsors of the 
bill did not want to provide for damages.
  Similarly, some Republican Senators did not want to allow courts to 
appoint attorneys to help crime victims. It is my hope and belief that 
victims will seldom need representation, since they already have 
powerful advocates in our public prosecutors. Still, it is possible 
that a judge would want to appoint an attorney for a victim in an 
extraordinary case, as for example if there is a material conflict 
between the victim's interests and the interests of the prosecution. By 
failing to provide for this possibility, our new bill may perpetuate a 
system of unequal justice for victims, where the wealthy have the 
benefit of counsel, and the poor do not.
  Finally, I want to comment on the unusual genesis of this bill, and 
the extraordinary procedure that I expect it will follow in the Senate. 
As I mentioned earlier, the Senate was scheduled to begin work this 
week on the proposed constitutional amendment, S.J. Res. 1. On 
Wednesday, the Republican leadership moved to invoke cloture on the 
motion to proceed. I would not have opposed this motion. I voted to 
proceed to an earlier iteration of this constitutional amendment 4 
years ago, and I would have been prepared to proceed to it again this 
week. Given the time this would take and the expected outcome, it could 
be argued that the Senate already has many pressing matters on its 
agenda, but I would not have opposed a debate on the constitutional 
amendment.
  Given the Republican leadership's insistence on proceeding to the 
constitutional amendment this week, there has not been as much time as 
I would have liked to craft the statutory alternative that we introduce 
today. And because this bill will come to a vote almost immediately, we 
will not get to hold hearings on it and polish the text in Committee. I 
would have liked to get the views of the Office for Victims of Crime. 
Many victims' groups and domestic violence organizations opposed the 
constitutional amendment, as did many law professors, judges, and 
prosecutors. I would have liked to hear their views on this statute. I 
am concerned that the statute may not adequately address the special 
problems raised in domestic violence and abuse situations. Fortunately, 
however, this is a statute, not a constitutional amendment, and it can 
be modified with relative ease if the need arises.
  I commend my good friend, Senator Feinstein, for mediating this 
consensus legislation. I know that she would have preferred to pass a 
constitutional amendment--she has made that clear. Nevertheless, she 
worked hard to produce a bill that we all can support, showing once 
again that she is first and foremost a legislator who wants to get 
things done. Due in large part to Senator Feinstein's efforts, we now 
have an opportunity to advance the cause of victims' rights with 
strong, practical, bipartisan legislation. I have never doubted Senator 
Feinstein or Senator Kyl's commitment to victims' rights. I am 
delighted that we have come together to advance that common cause.
  Over more than 20 years I have sponsored and championed legislation 
to help victims. I have mentioned the recent September 11 Victim 
Compensation Fund, and I am also proud of such other advancements on 
behalf of victims as a law to provide assistance to victims of 
international terrorism, and bills to raise the cap on victims' 
assistance and compensation programs and to protect the rights of the 
victims of the Oklahoma City bombing. The legislation that we introduce 
today should provide us the opportunity to make progress on yet another 
important measure to address the needs of victims, and I urge my 
colleagues to support it.
                                 ______