[Congressional Record (Bound Edition), Volume 146 (2000), Part 4]
[Senate]
[Pages 5868-5881]
[From the U.S. 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--Continued

  The PRESIDING OFFICER. The time until 12:30 p.m. shall be equally 
divided between the two leaders.
  The Senator from Arizona.
  Mr. KYL. Mr. President, this is a historic time because we are about 
to commence a debate on an amendment that has passed through the Senate 
Judiciary Committee but has not yet come to the floor of the Senate; 
that is, an amendment to the U.S. Constitution to protect the rights of 
victims of violent crime.
  I am very pleased this morning, along with Senator Dianne Feinstein 
of California, to be making the primary case in support of this 
amendment.
  I would like to make some opening remarks and then turn our opening 
time over to Senator Feinstein for a discussion of the history of this 
amendment and much of the articulation of the need for it. But let me 
make a few preliminary comments.
  First of all, we have heard a little bit about passion on a related 
matter. I can tell you there is nothing about which I am more 
passionate these days than supporting the rights of victims of violent 
crime.
  According to the Department of Justice, there are over 8 million 
victims of violent crime in our society every year. Not enough is being 
done to protect the rights of these victims. They have no 
constitutional rights, unlike the defendants. Those accused of crime 
have more than a dozen rights which have been largely secured by 
amendments to the U.S. Constitution.
  They, of course, trump any rights that States, either by statute or 
State constitutional provision, grant to the victims of crime.
  It is time to level the playing field, to balance the scales of 
justice, and provide some rights for victims of crime. These are very 
basic and simple rights, as Senator Feinstein will articulate in just a 
moment.
  To secure basic rights to be informed and to be present and to be 
heard at critical stages throughout the judicial process is the least 
that our society owes people it has failed to protect.
  Thirty-two State constitutional amendments have been passed by an 
average popular vote of nearly 80 percent. Clearly, the American people 
have developed a consensus that the rights of crime victims deserve 
protection.
  Unfortunately, these State provisions have not been applied with 
sufficient seriousness to ensure the protection of these victims of 
crime.
  Let me note some quotations, first from the Attorney General of the 
United States, and then from attorneys general--these are the law 
enforcement officials of our country--and the Governors, who, of 
course, are the chief executives of the various States.
  Attorney General Reno explained, in testimony before the Senate 
Judiciary Committee:

       Efforts to secure victims' rights through means other than 
     a constitutional amendment have proved less than fully 
     adequate. Victims' rights advocates have sought reforms at 
     the State level for the past 20 years. However, these efforts 
     have failed to fully safeguard victims' rights. These 
     significant State efforts simply are not sufficiently 
     consistent, comprehensive, or authoritative to safeguard 
     victims' rights.

  Legal commentators have reached the same conclusion.
  For example, Harvard law professor Laurence Tribe has explained that 
the existing statutes and State amendments ``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, or any mention of an accused's rights 
regardless of whether those rights are genuinely threatened.''
  According to a December 1998 report from the National Institute of 
Justice, the victims are denied their rights. The report concluded 
that:

       Enactment of state laws and state constitutional amendments 
     alone appear to be insufficient to guarantee the full 
     provision of victims' rights in practice.

  The report went on to note numerous examples of how victims were not 
given rights they were already supposed to be given under State 
provisions.
  For example, even in several States identified as giving strong 
protection to victims' rights, fewer than 60 percent of the victims 
were notified of the sentencing hearing, and fewer than 40 percent were 
notified of the pretrial release of the defendant. That can be a 
serious matter to a victim of crime. A followup analysis of the same 
data found that racial minorities are less likely to be afforded their 
rights under the patchwork of existing statutes.
  According to a letter, dated April 21 of this year, signed by 39 of 
the State attorneys general:

       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.

  A 400-page report by the Department of Justice on victims' rights and 
services concluded that:

       [t]he U.S. Constitution should be amended to guarantee 
     fundamental rights for victims of crime.

  The report continued:

       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 levels.


[[Page 5869]]


  For those who are concerned that somehow a Federal constitutional 
amendment would impinge upon States rights other than noticing, of 
course, that 75 percent of the States would have to approve such a 
constitutional amendment for it to go into effect, let me refer to a 
resolution of the National Governors' Association, which passed by a 
vote of 49-1, strongly supporting a constitutional amendment.
  It stated:

       Despite . . . widespread state initiatives, the rights of 
     victims do not receive the same consideration or protection 
     as the rights of the accused. These rights exist on different 
     judicial levels. Victims are relegated to a position of 
     secondary importance in the judicial process.

  The resolution also stated:

       The rights of victims have always received secondary 
     consideration within the U.S. Judicial process, even though 
     states and the American people by a wide plurality consider 
     victims' rights to be fundamental. Protection of these basic 
     rights is essential and can only come from a fundamental 
     change in our basic law: the U.S. Constitution.

  That is it. Despite the well-meaning intention of judges, 
prosecutors, and others who fundamentally agree that victims need these 
rights of basic fairness in our criminal justice system, as the 
evidence has overwhelmingly demonstrated, they are just not getting 
that kind of fair treatment, despite the best efforts of all these 
people. That is why, after 18 years, the conclusion has been reached by 
so many that the only way to guarantee these rights is by placing them 
in the U.S. Constitution where defendants' rights have also been 
amended into existence.
  We all know it shouldn't be easy to amend the Constitution, but we 
have been very careful to communicate with prosecutors and others who 
are familiar with the issues. After 63 drafts, we think we have it 
right. We think we have a very tightly drawn amendment, which Senator 
Feinstein will explain in just a moment, that protects these rights 
without denigrating whatsoever the rights of the defendants or those 
accused of crime.
  Our amendment has 42 cosponsors in this body, a bipartisan group of 
Democrats and Republicans. We have 39 State attorneys general who have 
signed a strong letter in support. Our Presidential candidates, both 
current and past, have strongly supported a crime victims' rights 
amendment, as have groups such as Parents of Murdered Children, Mothers 
Against Drunk Driving, the National Organization for Victim Assistance, 
and others.
  I thought it would be appropriate to recognize the President of the 
United States, who said in a very strong statement before a number of 
crime victims' rights groups:

       I strongly believe that victims should be central 
     participants in the criminal justice system, and that it will 
     take a constitutional amendment to give the rights of victims 
     the same status as the rights of the accused.

  He also said the following, which I think represents the views of all 
of us in this body:

       I do not support amending the Constitution lightly; it is 
     sacred. It should be changed only with great caution and 
     after much consideration. But I reject the idea that it 
     should never be changed. Change it lightly and you risk its 
     distinction. But never change it and you risk its vitality.
       But this is different. This is not an attempt to put 
     legislative responsibilities in the Constitution or to 
     guarantee a right that is already guaranteed. Amending the 
     Constitution here is simply the only way to guarantee the 
     victims' rights are weighed equally with defendants' rights 
     in every courtroom in America.

  Mr. President, that is all we ask.
  I ask unanimous consent to print in the Record three pages of groups 
that strongly support our amendment.
  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), 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

[[Page 5870]]

     Horticultural Therapy Association (AHTA), Valley Industry and 
     Commerce Association.

  Mr. KYL. In terms of specific letters of support and so on, we will 
hear about that at a later time.
  I conclude my statement by saying it has been a great pleasure for me 
to work on a bipartisan basis with Senator Dianne Feinstein who, as 
have I, has spent the better part of 4 years honing and crafting this 
amendment, working with victims' rights groups, visiting with fellow 
Senators, Members of the House of Representatives, representatives of 
the White House, the Department of Justice, and many others in an 
effort to ensure that the amendment we present to the Senate today is 
the very best possible product we could present.
  We are always open to more suggestions. We have never closed the door 
to additional suggestions by people who in good faith wish to make sure 
this amendment will do what we want it to do, without, of course, 
taking away the rights of defendants. We remain committed to that 
proposition.
  Over the next several days, obviously, we will hear from opponents. 
We are delighted to hear their comments and to visit with them about 
suggestions they may have. At the end of the day, as all of the 
statements I have read suggest, there is no alternative. There is only 
one way to protect the victims of violent crime; that is, through 
adoption of a Federal constitutional amendment.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, had the Senator from Arizona completed his 
remarks?
  Mr. KYL. I have completed my opening statement. I don't think there 
is a specific agreement. The time is divided equally.
  The PRESIDING OFFICER. The time is equally divided between Senator 
Kyl and Senator Leahy.
  Mr. LEAHY. Mr. President, normally I would speak at this point, under 
the usual procedure, following the majority floor leader. I know the 
distinguished Senator from California wishes to speak. I will not 
follow the normal procedure and speak but allow her to go forward. Then 
I will claim the floor after her speech.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank our ranking member for this 
opportunity. It gives an opportunity for the Senator from Arizona and 
me to explain the amendment. I very much appreciate that.
  Providing constitutional rights for victims of violent crime has been 
at the top of my list of priorities as a Senator from California. I 
will take a few moments to explain why.
  I thank our colleague, Senator Kyl, for his leadership in bringing 
this issue to the forefront and working so closely with me in a 
bipartisan way over the past 4 years through two Congresses. I believe 
this is what voters sent us here to do, to work together, Republicans 
and Democrats, House and Senate, to find solutions to the problems 
ordinary Americans face every day. Indeed, ordinary Americans do find 
problems in the criminal justice system.
  There were about 9 million victims of violent crimes in 1996, when we 
began this effort, and each of the 4 years since that time in the 
United States. Many of these victims were actually victimized a second 
time by the criminal justice system. They were kept in the dark about 
their case. They were excluded at the trial. They were unable to 
express their concerns for their safety when a decision was made to 
release their attacker. It is for these victims we are fighting for 
this amendment to the Constitution of the United States.
  There are those who say the Constitution is a static document; it is 
a perfect document; it should not be changed. There are those who say 
it should not be changed easily. There are those who say it should not 
be changed without need. We are in the latter two. We believe we have a 
serious amendment, and we believe we can demonstrate the need for this 
change.
  The amendment we propose today meets a situation, the situation that 
when the Constitution of the United States was written in 1789, there 
were but 4 million people in 13 colonies. Today we are over 250 million 
people, and victims of violent crimes alone amount to over 9 million a 
year.
  When the Constitution was written, it was a different day. In 1791, 
the Bill of Rights was written. Between the text of the Constitution 
and the text of the Bill of Rights, a number of rights were provided to 
the accused, rights to protect them against an overeager, overzealous, 
and overambitious Government. We all know what they are: The right to 
counsel, to due process, to a speedy trial, against double jeopardy, 
against self-incrimination, against unreasonable searches and seizures, 
the right to have warrants issued upon probable cause, the right to a 
jury of peers, the right to be informed, and so on.
  Victims were entirely left out, and when the Constitution and the 
Bill of Rights were written in 1789 and 1791, there were essentially no 
rights provided to victims in the United States. There was good reason 
for it. I want to say why that took place.
  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. 
As Juan Cardenas, writing in the Harvard journal of law and public 
policy, observed:

       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.

  Gradually, public prosecution replaced the system of private 
prosecution. With the explosive growth of crime in this country in 
recent years, it became easier and easier for the victim to be left 
aside in the process.
  As other scholars have noted:

       With the establishment of the prosecutor the conditions for 
     the general alienation of the victim from the legal process 
     further increased.

  Mr. President, this 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.

       The victim is deprived of his [or her] ability to determine 
     the course of a case and is deprived of the ability to gain 
     restitution from the proceedings. Under such conditions, the 
     incentives to report crime and to cooperate with the 
     prosecution also diminished. As the importance of the 
     prosecution increases, the role of victim is transformed [in 
     our country] from principal actor to a resource that may [or 
     may not] be used at the prosecutor's discretion.

  Those aren't my words; those are words of Fredric Dubow and Theodore 
Becker in ``Criminal Justice and the Victim.''
  So we see why the Constitution must be amended to guarantee these 
rights. There was no need to guarantee them in 1789 and 1791, when the 
Bill of Rights was added. We see that the criminal justice system has 
changed with the evolution of the concept of the public prosecutor, and 
we see that America has changed. The prevalence of crime has changed. 
The number of victims has changed. So creating the need and 
circumstance to respond to these developments and to restore balance in 
the criminal justice system by guaranteeing certain basic rights of 
violent crime victims in the United States is what we seek to do.
  Those rights would be as follows: The right to notice of proceedings; 
the right not to be excluded from proceedings; the right to be heard at 
proceedings, if present; the right to submit a statement; the right to 
notice of release or escape of an attacker. For me, that is a central 
point and how I got involved in this movement. Also, there is the right 
to consideration in ensuring a speedy trial; the right to an order of 
restitution ordered by a judge; the right to consideration of safety in 
determining any conditional release. Those are basic, core rights that 
we would give to a victim of violent crime to be balanced against the 
rights of the accused.
  Senator Kyl mentioned that among our supporters are Prof. Laurence

[[Page 5871]]

Tribe of the Harvard Law School. Professor Tribe is a noted 
constitutional expert. Let me quote portions of his testimony from the 
House hearing on the amendment:

       The rights in question--the rights of crime victims not to 
     be victimized yet again through the processes by which 
     government bodies and officials prosecute, punish, and 
     release the accused or convicted offender--are indisputably 
     basic human rights against government, rights that any 
     civilized system of justice would aspire to protect and 
     strive never to violate.
       Our Constitution's central concerns involve protecting the 
     rights of individuals to participate in all those government 
     processes that directly and immediately involve those 
     individuals and affect their lives in some focused and 
     particular way. . . . The parallel rights of victims to 
     participate in these proceedings are no less basic, even 
     though they find no parallel recognition in the explicit text 
     of the U.S. Constitution.
       The fact that the States and Congress, within their 
     respective jurisdictions, already have ample affirmative 
     authority to enact rules protecting these rights is. . .not a 
     reason for opposing an amendment altogether. . . . The 
     problem, rather, 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, or any mention of an 
     accused's rights regardless of whether those rights are 
     genuinely threatened.

  Now, some people would say, ``Let's pass another Federal statute.'' 
To them, I say: Been there, done that. We did that twice--in the case 
of the Oklahoma City bombing--and the judge ignored the Federal statute 
both times. According to the FBI, 98.4 percent of violent crimes are 
prosecuted in State courts. So why a Federal statute won't work is that 
even the broadest Federal statute would affect only 1 percent of the 
victims of violent crimes in this Nation. And then that statute could, 
in effect, be trumped at any time by the constitutional amendment 
provided to the accused.
  The attorneys general of 37 States, Puerto Rico, and the Virgin 
Islands have all signed a letter with this statement:

       We are convinced that statutory provisions are not enough. 
     Only a Federal constitutional amendment will be sufficient to 
     change the culture of our criminal justice system.

  Let me tell you, very personally, why I believe this to be very 
necessary. Let me take you back to my life in San Francisco in the 
1970s. In 1974, in my home city, a man by the name of Angelo Pavageau 
broke into the house of Frank and Annette Carlson in Portrero Hill. Mr. 
Pavageau tied Mr. Carlson to a chair, murdered him by beating him with 
a hammer, a chopping block, and a ceramic vase. He then repeatedly 
raped Annette Carlson, who was 24 years old, breaking several of her 
bones. He slit her wrists and tried to strangle her with a telephone 
cord before setting their home on fire and leaving them to go up in 
flames.
  But Mrs. Carlson survived the fire; she lived and she testified 
against her attacker. That testimony sent him to prison where he 
resides, I believe, to this day. But she has been forced to change her 
name. She lives anonymously and she continues to live in fear that one 
day her attacker may be released and come back after her.
  When I was mayor of San Francisco, she called me several times to 
notify me that she had found out that he was up for parole, and she 
begged me to do what I could to see that she would know if he was 
released so she could protect herself. Amazingly, it was up to her to 
find this information. The system did not provide it.
  I believe no American citizen should have to live out of fear that 
their attacker will be released from jail or from prison without their 
notice. That is a basic right provided by this measure.
  In 1979, a killing occurred which galvanized the victims' rights 
movement in California. A young woman named Catina Rosa Salerno was 
murdered on her first day of school at the University of the Pacific in 
Stockton. The killer was an 18-year-old, Steven Jones Burns, Catina's 
high school sweetheart and a trusted family friend. After shooting her, 
Burns went back to his dorm room to watch Monday night football. He 
could see her as she bled to death outside his window.
  During the trial, the family was not allowed in the courtroom and had 
to sit outside waiting for news. The murder of Catina had a profound 
and lasting effect on the family. Her mother, Harriet, and her father, 
Michael, cofounded Crime Victims United, one of California's more 
outspoken groups for victims' rights, and the family has since that day 
worked tirelessly to educate the public about the rights of crime 
victims.
  These cases helped California become the first State in the Nation to 
pass a crime victims' constitutional amendment, an amendment to the 
State Constitution of California, Proposition 8, in 1982. It gave 
victims the right to restitution, the right to testify at sentencing, 
probation, and parole hearings, established a right to safe and secure 
public school campuses, and made various changes in criminal law. It 
was a good start.
  Since that time, a total of 32 States have passed constitutional 
amendments to provide victims of crime with certain basic rights. All 
of them have passed by substantial margins--Alabama, 80 percent; 
Connecticut, 78 percent; Idaho, 79 percent; Illinois, 77 percent; 
Indiana, 89 percent; Kansas, 84 percent. Some States passed them by 
constitutional convention: South Carolina, Tennessee, Texas, Utah, 
Virginia, Washington, and Wisconsin.
  What is wrong with that? What is wrong is the paperwork quilt of 
different rights provided by different State Constitutions. The 
remaining States--18 of them--provide no basic rights for a victim of a 
violent crime. We provide a basic core of rights--of notice, of 
presence, to be heard, to be noticed of an attacker's release, to 
restitution if ordered by a judge--eight certain, basic, core rights 
that exist for every victim of a violent crime throughout the United 
States. For the first time in history, the Constitution would recognize 
a victim has core basic rights, that those rights are present in the 
Constitution, and that the victims are free to exercise those rights.
  In summary, I know this amendment is controversial. I know there are 
those who will say these State amendments are enough. I want to give a 
few examples of why the State amendments are not enough.
  Maryland has a State amendment. But when Cheryl Rae Enochs Resch was 
beaten to death with a ceramic beer mug by her husband, her mother was 
not notified of the killer's release 2\1/2\ years into the 10-year 
sentence. The mother was not given the opportunity to be heard about 
this release--in violation of the Maryland constitutional amendment.
  Arizona has a State constitutional amendment, but an independent 
audit of victim-witness programs in four Arizona counties, including 
Maricopa County, where Phoenix is located, found that victims were not 
consistently notified of hearings; they were not conferred with by 
prosecutors regarding plea bargains; they were not consistently 
provided with an opportunity to request postconviction notification.
  Ohio has a State amendment. But when the murderer of Maxine Johnson's 
husband changed his plea, Maxine was not notified of the public hearing 
and was not given the opportunity to testify at his sentencing as 
provided in Ohio law.
  A Justice Department-supported study of the implementation of State 
victims' rights amendments released earlier this year made similar 
findings:

       Even in States with strong legal protections for victims' 
     rights, the Victims' Rights study revealed many victims are 
     denied their rights. Statutes themselves appear to be 
     insufficient to guarantee the provision of victims' rights.

  The report goes on:

       Nearly two-thirds of crime victims, even in states with 
     strong victims' rights protection, were not notified that the 
     accused offender was out on bond.

  Therefore, the victim had no opportunity to protect himself or 
herself.

       Nearly one half of all victims, even in the strong 
     protection states, did not receive notice of the sentencing 
     hearing--notice that is essential if they are to exercise 
     their right to make a statement at sentencing.

  Finally:

       A substantial number of victims reported they were not 
     given an opportunity to make

[[Page 5872]]

     a victim impact statement at sentencing or parole.

  State amendments are not enough. The reason a Federal statute will 
not work is that it has not worked before and our area of coverage is 
too small. The best Federal statute we could pass would cover but 1 
percent of victims of violent crimes in this Nation.
  That leaves but one remedy. It is a difficult remedy. It takes time. 
It imposes an act of conscience on every Member of this body and the 
other body who believes the Constitution of the United States should 
not be amended: Is it worthy to make this amendment to afford the 
victim of a rape attack, the victim of an attempted murder attack, with 
the notice as to when that individual is going to be released from jail 
or prison? I think it is.
  Is this a worthy enough cause so that an individual can at least be 
noticed when a trial is going to take place, can at least be present, 
can at least make a statement, can at least have an order of 
restitution if ordered by a judge, and to at least have notice of these 
basic rights? I think so.
  I don't believe the Constitution of the United States was written 
purposefully to exclude victims. The victim was part of the trial. The 
victim brought the trial. The victim brought the investigation. The 
victim was present in court. And our country functioned that way until 
the mid-19th century and the evolution of the public prosecutor.
  The only way to remedy this significant omission, I contend, is to 
amend the Constitution of the United States and at long last show the 
Constitution is, in fact, a living document, that it does expand to 
take into consideration the evolution of circumstances within our 
country. This cannot be done, it cannot be achieved, without an 
amendment to the Constitution of the United States.
  I reserve the remainder of my time, and I yield the floor.
  Mr. HATCH. Mr. President, the people who have followed the victims' 
rights amendment closely know that I voted for this measure in the 
Judiciary Committee, and that I did so despite some reservations about 
its provisions and its language. No one has worked harder on this issue 
than the distinguished chairman of the Judiciary Committee's 
Subcommittee on Technology, Terrorism, and Government Information--
Senator Jon Kyl. He has been a tireless advocate for victims rights, 
and has done more than most will ever appreciate to make the Senate's 
consideration of this proposed resolution a reality. Both he, and his 
lead cosponsor and ranking member on the Subcommittee, Senator Dianne 
Feinstein, are to be commended. Frankly, they--and the committed 
network of victims' advocates--are why we are here today. It is because 
of their tireless commitment to this measure that I will vote to invoke 
cloture on the motion to proceed to consideration of S.J. Res. 3. I 
should be clear, however, that I do so with some reservations 
concerning the proposed text of the amendment. But I hope my concerns 
can be addressed during the floor debate on the resolution.
  Among my reservations are:
  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.
  Given my reservations, some of my colleagues have asked how I could 
nevertheless approve the Senate's consideration of S.J Res. 3. I'd like 
to explain, beginning with a little background on the origins of the 
criminal justice system.
  Our Constitution provides the backbone for what has unquestionably 
evolved into the best criminal justice system that has ever existed on 
Earth. Decent and thoughtful people have worked for over two hundred 
years writing and re-writing the statutes, case law, rules and 
procedures that guide the judges and lawyers who run the system. Those 
laws and rules have, by and large, kept the courts appropriately 
focused on the twin goals of seeking the truth and protecting the 
accused from arbitrary or unreasonable government actions.
  Although our criminal justice system is the best, it is not perfect. 
There are many ways in which it could improve. One of the most 
important areas needing improvement is the manner in which the criminal 
justice system treats victims of crime.
  The fact that the drafters of the Constitution did not include 
specific rights for victims of crime is not surprising. At that time, 
there was no need for such rights because victims were parties to the 
legal actions against their perpetrators. There was no such thing as a 
public prosecutor; victims brought cases against their attackers. When 
the Constitution was drafted, victims of crime were protected by the 
same rights given to any party to litigation.
  The rights of victims were dramatically altered--along with the rest 
of the criminal justice system--with the advent of government-paid 
public prosecutors in the mid-1800s. Since then, the government, not 
the victim, has been the party litigating against criminals in court. 
Obviously this has been a tremendously important effect on society by 
ensuring that criminals are punished even when their victims could not, 
or would not, prosecute them. Today we would not have even a semblance 
of crime control without public prosecutors.
  Unfortunately, however, one side-effect of replacing victims with 
public prosecutors was to force victims to the sidelines of the 
criminal justice system. No longer are victims parties to the case. No 
longer do individual victims have legal representation in court. No 
longer are the victims an integral part of the process. Instead, 
victims have become relegated to the role of one-call witnesses who can 
be summoned--or not--by either side.
  The distance between victims and the criminal process has grown 
greater over time. Prosecutors are overworked, courts face backlogs of 
cases, and prisons are overcrowded. These practical constraints, 
together with strategic legal considerations, has led to an 
increasingly institutional view of crime--a view that focuses on 
processing cases rather than involving victims.
  In conclusion, Mr. President, I believe the time has come for the 
Senate to consider the victims rights amendment. The issue for the 
Senate should not be whether we pass a victims' rights amendment--I 
believe we should do so. But I believe we must ensure that whatever 
form our final product takes, we have fully debated and considered the 
matter. In the end, deliberations and our final passage of a victims' 
rights amendment will have profound, reaching effects on the criminal 
justice system. We need to be sure the results are as we would wish 
them to be.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I listened to my two distinguished 
colleagues. Not only are all colleagues ``distinguished'' colleagues, 
but these two are also personal friends. One is a Republican, one a 
Democrat. Both are individuals I like very much, individuals with whom 
I enjoy working on the Senate Judiciary Committee.
  However, notwithstanding our friendship and our service on the same 
committee, I must disagree with them on this constitutional amendment.
  I do not disagree with them at all on the intent of the amendment to 
give victims rights; to make sure they can be heard in sentencing, to 
make sure their views are sought out in every area from plea bargains 
to compensation. I know in the 8 years I was a prosecutor I did that. 
It was the standard procedure in my office. I insisted that victims be 
heard in the pre-sentence report, victims be heard by the court, 
victims be heard by the prosecutor's office if a determination was made 
to either bring extra charges or to drop some charges--whatever the 
reason might be.
  I must admit, I would have been very concerned had there been a 
constitutional amendment of this nature because I can almost picture 
the number of appeals, the number of delays, and

[[Page 5873]]

the number of other issues that would come up. In many ways, it would 
create, in my view, just the opposite effect from that which the 
sponsors want; that is, so many appeals could come out of this that 
everybody would lose sight of who is being prosecuted and why.
  Last Wednesday, we observed the fifth anniversary of the killing of 
168 Americans in the horrific bombing of the Alfred P. Murrah Federal 
Building in Oklahoma City, and we opened the Oklahoma City National 
Memorial.
  Every American was shocked at the initial bombing. Every American 
must have been moved by the speeches and the observance at the 
memorial. I remember, after that terrible incident, the Senate 
proceeded to consider antiterrorism legislation. The incident was in 
the spring, and by June, we were considering antiterrorism legislation. 
In fact, at that time the Senate accepted my amendment to include 
victims legislation in the antiterrorism bill. I worked with Senator 
McCain to increase assessments against those convicted of crime, with 
the assessments to go to the Crime Victims Fund. When the matter was 
completed the following year, we preserved our legislative improvements 
to help victims of terrorism in the United States, in fact around the 
world, as the Justice for Victims of Terrorism Act of 1996. We moved 
very quickly to respond.
  Last Thursday, we also observed the anniversary of the tragic 
violence at Columbine High School. That was one in a series of deadly 
incidents of school violence over the last few years. Scores of our 
Nation's children have been killed or wounded over the last 3 years 
from school violence, and that violence has shaken families and 
communities across our Nation. In the wake of the Columbine violence, 
the Senate moved to the consideration of juvenile crime legislation. We 
had one of the few real Senate debates in the past few years. We had a 
2-week debate. During that 2-week debate, we greatly improved the bill 
with numerous amendments, including a number directed at commonsense, 
consensus gun safety laws.
  On May 20 last year, within a month of the Columbine tragedy, the 
Senate acted to pass the Hatch-Leahy juvenile crime bill. We did it by 
a 3-1 margin, but since last May when we passed it, the Congress has 
kept the country waiting for final action on the legislation. Since 
last May, the Congress and the Senate have kept the country waiting for 
sensible gun safety laws. It has been now more than a year since the 
tragic event at Columbine High School in Littleton, CO; more than a 
year since 14 students and a teacher lost their lives in that tragedy 
on April 20, 1999. Still, the American people are waiting for action by 
this Congress.
  It has been more than 11 months since the Senate passed the Hatch-
Leahy juvenile justice bill by a bipartisan vote of 73-25. It had 
modest, but I believe effective, gun safety provisions in it. It has 
been more than 8 months since the House and Senate juvenile justice 
conference met. That was only a ceremonial meeting. We did it for the 
first and the last and the only time. Throughout the entire school year 
that has ensued, the Republican Senate chairman of the House-Senate 
conference and the Republican leadership of the Congress, have refused 
to call this conference back to work. The Senate and House Democrats 
have been ready for months to reconvene the juvenile justice conference 
and work with Republicans to craft an effective juvenile justice 
conference report that includes reasonable gun safety provisions. But 
the majority has refused to act.
  I think the lack of attention, a lack of effective action is 
shameful, particularly in light of the fact that Congress has spent far 
more time in recess than in session since the first ceremonial meeting 
of the conference.
  I spoke on the floor several times over the last year--on September 
8, September 9, October 21, March 21, March 28, March 29, April 5, 
April 6, April 13, and today--urging the majority to reconvene the 
juvenile justice conference. I have joined with Senators, both in 
writing and on the floor, to request the Senate leadership let us 
complete our work on the conference and send a good bill to the 
President. We should not delay simply because some powerful gun lobbies 
do not want us to pass even the most modest gun safety legislation; 
even the modest provision that closes this huge loophole we now have 
for gun shows where somebody in a flea market can sell firearms to 
felons.
  On October 20, 1999, all the House and Senate Democratic conferees 
sent a letter to Senator Hatch and Congressman Hyde, calling for an 
open meeting of the conference. On March 3 of this year, after another 
shocking school shooting involving 6-year-old classmates in Michigan, 
Representative Conyers and I wrote again to Senator Hatch and 
Congressman Hyde requesting an immediate meeting of the conference. The 
response has been resounding silence.
  Even a bipartisan letter on April 11 from the Republican chairman of 
the House Judiciary Committee, Henry Hyde, and the Ranking Democrat, 
John Conyers, to the Republican Senate chairman of the conference, 
Senator Hatch, has not succeeded in getting the conference back to 
work. We have to find time, or at least the will, to pass balanced, 
comprehensive juvenile crime legislation. This is something that could 
be signed into law today, or within a day after being passed. This is 
legislation we passed by a 73-25 margin, and then we hold it in 
abeyance because the gun lobbyists said do not touch this.
  What have we done in the meantime? We keep having a number of 
proposed constitutional amendments. Last month, it was a proposed 
constitutional amendment regarding the flag. I spoke at the beginning 
and end of that debate to urge the Senate to turn to completing our 
work on the juvenile crime bill, health care reform legislation, on 
minimum wage legislation, on privacy legislation, on confirming the 
Federal judges needed in our courts around the country, and all the 
other matters that have been sidetracked this year. But rather than 
doing the legislative work that we should do first and foremost, we are 
now going to turn our attention to another constitutional amendment, 
this one with regard to crime victims' rights.
  I believe constitutional amendments, if they are brought up, should 
be approached seriously. The distinguished Senator from Arizona and the 
distinguished Senator from California have approached it seriously. But 
that means a real, serious debate. If we are going to amend the 
Constitution of the United States, we should do it seriously. Instead, 
late on Thursday, after we voted to adopt an adjournment resolution, 
and everybody had left for the airport, the majority leader came to the 
floor to move to proceed to this matter. I do not think constitutional 
amendments should be a time filler to be called upon when we do not 
want to proceed to legislative items. Nor is a constitutional amendment 
the type of item that should be rushed through Senate consideration. It 
should be explored and thoughtfully considered. If we are going to 
start having constitutional amendments rather than legislative matters, 
then let's set aside a good period of time--a few weeks--to talk about 
this one.
  Let's talk about the others that should come up. I can think of at 
least two. Let's have a constitutional amendment debate on abortion. 
For those who think Roe v. Wade should be the law of the land, let's 
write it into the Constitution. For those who think it should not be, 
this is the chance to overrule the Supreme Court. Let's settle once and 
for all this whole constitutional issue on abortion. Let's have a 
constitutional amendment on that. I am perfectly willing to move 
forward with that. Even though I have stated my strong positions on 
this issue, let's have a debate on it.
  There are those who are concerned about whether we have too many gun 
rights and those who think we do not have enough. Maybe we should have 
a gun amendment to clarify the second amendment. Maybe we should get 
these issues out of the way once and for all. We can spend a few weeks 
on each one of these. We can be done by late August, and the Senate 
will have spoken as to how they think it should be done.

[[Page 5874]]

  The last two times the Senate debated the so-called balanced budget 
amendment, those debates consumed a number of weeks, as they should. 
This was a palliative I happened to oppose. We were told that without a 
constitutional amendment to balance the budget, we could never balance 
the budget. Many of us said if we did our work and wrote the 
legislation the right way we could. Of course, that is exactly what 
happened. We did not need a constitutional amendment after all. We are 
now debating how to spend the budget surpluses because we balanced the 
budget without a constitutional amendment.
  This proposed amendment is of similar length and additional 
complexity and will require some time to debate, as we did with the 
balanced budget amendment.
  In addition, of course, this is the first time this amendment will be 
debated by the Senate. It has never been debated by the House. So there 
is a lot of new ground to cover. If we are to pass it, I know the House 
will want to look to our debate. I assume there will be weeks of debate 
on it, as there should be. It is a legitimate issue.
  I think it can be handled statutorily, but if we are going to do it 
in the Constitution, we should spend the weeks necessary to make sure 
we get it right.
  By way of illustration, the Judiciary Committee took more than 6 
months to file its report on the proposed amendment, even though a 
similar measure had been the subject of a report last Congress. I note 
that the majority views in the committee report run over 40 pages. The 
principal sponsors, Senators Kyl and Feinstein, added a statement of 
their own additional views on top of those. I urge all Senators to read 
them because they are worth reading. I note that the minority views, in 
which I join with Senators Kennedy, Kohl, and Feingold, extend over 35 
pages. I think they are well worth reading. There is a lot of 
discussion in them.
  We will vote today on the majority leader's motion to invoke cloture 
on the motion to proceed. I will not oppose invoking cloture on the 
motion to proceed. In fact, I urge Senators to vote for cloture on the 
motion to proceed. I hope it will be a 100-0 vote. But once we proceed 
to consideration of this measure, my colleagues should understand that 
it is an important matter that will require some extensive debate, and 
we will see serious and substantial amendments to this proposal. I have 
heard from both sides of the aisle. I told the distinguished Senator 
from California that I will offer a statutory alternative in the days 
ahead that can move the cause of crime victims' rights forward 
immediately by a simple majority vote, without the additional 
complications and delays the constitutional amendment ratification 
process might entail, and without the need to return to Congress to 
draft, introduce, and pass implementing legislation. There will be 
other amendments, as I have said.
  I know the distinguished sponsors of this amendment have been through 
more than 60 drafts to date. This is not an easy issue. It is hardly 
fixed in stone. It has not had Senate scrutiny. In fact, a number of 
Senators told me when they came back from the recess that they were 
surprised to know this was coming up because it was added to the agenda 
after we had voted to adjourn for the Easter recess. Many Senators are 
surprised it is before us. I have told them the proposed constitutional 
amendment is important. I think its meanings and mandates have to be 
explored.
  In my personal view--and I actually note this with some sadness--the 
focus on the constitutional amendment has actually had the unintended 
consequence of slowing the pace of victims' rights legislation over the 
past several years. I am reminded of the debate we had year after year 
of the need for a balanced budget amendment to the Constitution. 
President Reagan, who submitted budgets with the biggest deficits in 
the Nation's history, would always give great speeches about needing a 
constitutional amendment to balance the budget. Of course, I used to 
tell him: There you go again. All you had to do was introduce a 
balanced budget and let us vote on it. Instead, he introduced budgets, 
as was his right as President, with enormous deficits, and then a few 
days later gave a speech saying: I wish we had a constitutional 
amendment to balance the budget so we could balance this budget.
  A President came along who did balance the budget. It was a very 
tough vote. I remember that vote in 1993. By a 1-vote margin in the 
House--no Republicans voted to balance the budget, which means cutting 
a whole lot of programs--no Republicans voted for it. It passed by a 1-
vote margin in the House. It was a tie vote in the Senate. Vice 
President Gore had to preside and cast the deciding vote for a balanced 
budget.
  It was tough. A lot of special interest groups from the right to the 
left saw their programs nailed, but it was the only way to balance the 
budget, and we balanced it. The stock market and the various financial 
markets took note: This is serious; they really are serious. That vote 
began this huge economic surge in this country. I do recall some on the 
other side saying: Why, if we vote to balance the budget, we are going 
to have enormous layoffs, 20 percent unemployment, we are going to have 
a depression, we are going to have a recession--all these things. 
Instead, the economy has created the most jobs ever in the history of 
our Nation. We have had the greatest economic expansion in our Nation's 
history and an enormous budget surplus. That is what happened, but it 
took a tough vote, not a palliative of a constitutional amendment to 
balance the budget; a tough vote.
  A lot of Democrats who were courageous enough to actually vote to 
balance the budget were defeated the next year because they had to cast 
such unpopular votes to balance the budget. They did the right thing, 
and their children and grandchildren will bless them for it.
  I have argued that rather than look again, in this case victims' 
rights, to a constitutional amendment, we should be looking at a 
statutory way, the same way we did with the balanced budget. I wish the 
Senate was considering the Victims Assistance Act, S. 934, and its 
extensive provisions to improve crime victims' rights and protections 
now and do that during this debate. Instead of during the next several 
weeks debating the constitutional amendment, why don't we debate S. 
934?
  I wish we would consider our Seniors Safety Act, S. 751, that helps 
protect our seniors from nursing home fraud and abuse and creates 
protections for victims of telemarketing fraud. These senior citizens 
who are abused in nursing homes and who are ripped off from 
telemarketing frauds are victims also.
  I wish the Senate would consider a number of the scores of additional 
legislative proposals that would assist crime victims. Instead of the 
weeks we will spend on this constitutional amendment, why don't we 
debate the Violence Against Women Act II, S. 51, that my friend, 
Senator Biden, has championed? That bill will continue and improve 
important and effective programs for domestic violence victims and 
other victims of crime. The aid to those victims of crime would be 
immediate.
  Senator Wellstone has introduced the International Trafficking of 
Women and Children Victim Protection Act, S. 600. It has received 
little attention, but it should be debated. He also sponsored the 
Battered Women's Economic Security and Safety Act, S. 1069, and the 
Children Who Witness Domestic Violence Protection Act, S. 1321. These 
bills were introduced to improve the safety and security of these 
victims, but they are not being considered.
  It is said that we do not have time, but we are going to spend 
several weeks on a constitutional amendment that would still have to go 
through the other body, and would still have to go to the States for 
approval and ratification. During those several weeks, we could be 
debating those pieces of legislation for victims.
  Senators Snowe, Hutchison, Grams, Ashcroft, Smith, Abraham, Hatch, 
Edwards, Durbin, Torricelli, and others have sponsored legislation to 
help

[[Page 5875]]

crime victims, but I do not think we are going to consider them. We are 
going to debate a proposed constitutional amendment. We will spend 
several weeks on something that is not self-executing but would require 
additional follow-on legislation in any event, but we are told we do 
not have time to debate, again, legislation which could apply help to 
victims this summer.
  So as we turn to this constitutional debate, I observe it is not a 
matter on which the immediate filing of a cloture motion would be 
appropriate. I urge all Senators--Republicans and Democrats alike--to 
vote for cloture on the motion to proceed. But if we are serious about 
debating this measure, then we should debate it. The distinguished 
Senator from Arizona should have all the time he needs to talk about 
it. The distinguished Senator from California should have all the time 
she needs to talk about it. Other Senators who strongly support it 
should have all the time they need. But a number of Senators who 
disagree with them ought to have time to speak, too.
  If it means setting aside other legislative agenda, then let's do so. 
We have a short legislative calendar filled with recesses as it is. Do 
away with a couple of the recesses and devote a significant portion of 
that time to this. It is not my first choice. I would prefer to go to 
legislative matters on the calendar. But if we are going to bring up a 
constitutional amendment, let's do it right.
  I hope once we turn to the measure, the majority leader will 
recognize the inappropriateness of filing a cloture motion on this 
unexplored, proposed constitutional amendment. When that course was 
followed in 1995 in connection with the constitutional amendment to 
impose term limits on Congress, it short circuited the debate and 
prevented any serious consideration or amendment.
  But then I suspect in that case it was because a lot of the people 
who said they were for term limits never wanted to actually vote on 
term limits. We have had people in this body who have been for term 
limits before I was born, people who have come back here 20 and 30 and 
40 years to the Congress saying: We have to do something about term 
limits. They are so determined they will stay here if it takes them 100 
years. If they have to serve for 100 years to get term limits, they 
will do it. It is probably why we have never voted on term limits, 
because it is a lot easier to talk about it than to vote on it. It is 
like a balanced budget; it is a lot easier to talk about it than to 
vote on it.
  But we have a serious matter here. It has never been considered by 
the Senate, so we should talk about it. I think it could erect 
technical problems for important amendments such as proposals of 
statutory alternatives. But both the supporters and the opponents 
should know that we should have debate on it.
  We have had a number of people, conservative commentators such as 
George Will and Stewart Taylor, who have spoken out strongly against 
it. We have had liberal commentators who have spoken out against it.
  We have editorials from the New York Times, the Washington Post, and 
others who have opposed it--people ranging from Chief Justice William 
Rehnquist to Bud Welch, the father of one of the victims of the 
Oklahoma City bombing.
  I ask unanimous consent that a partial list of those opponents be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    List of Opponents of S.J. Res. 3

       Bill Murphy, Past-President of the National District 
     Attorney's Association, in his personal capacity;
       The Judicial Conference of the United States;
       The National Center for State Courts (State Chief Justices 
     Association);
       Cato Institute;
       Bruce Fein, former U.S. Deputy A.G. under President Reagan;
       Second Amendment Foundation;
       Chief Justice William Rehnquist';
       Chief Justice Robert Miller, South Dakota Supreme Court;
       David Nelson, State's Attorney and Beck Hess, Victim 
     Witness Assistant, Office of the Minnehaha County, South 
     Dakota, State's Attorney;
       County of Carbon Montana County Attorney;
       Victim Services, the largest victim assistance agency in 
     the country;
       The Judicial Conference of the United States;
       The National Center for State Courts (State Chief Justices 
     Association);
       Over 300 Law Professors;
       NOW Legal Defense Fund;
       National Association for the Advancement of Colored People;
       National Clearinghouse for the Defense of Battered Women;
       Murder Victim's Family Members for Reconciliation;
       Louisiana Foundation Against Sexual Assault (Louisiana);
       North Dakota Council on Abused Women's Services;
       Arizona Coalition Against Domestic Violence;
       Iowa Coalition Against Domestic Violence;
       North Dakota Council on Abused Women's Services;
       Hawaii State Coalition Against Domestic Violence;
       New Mexico Coalition Against Domestic Violence;
       Virginians Against Domestic Violence;
       West Virginia Coalition Against Domestic Violence;
       Pennsylvania Coalition Against Domestic Violence;
       Wisconsin Coalition Against Domestic Violence;
       Justice Policy Institute;
       Center on Juvenile and Criminal Justice;
       National Center on Institutions and Alternatives;
       American Friends Service Committee;
       Friends Committee on National Legislation;
       National Association of Criminal Defense Lawyers;
       American Civil Liberties Union;
       Federal Public Defender, Western District of Washington;
       Beth Wilkinson, Prosecutor Oklahoma City bombing;
       Bud Welch, Father of victim of Oklahoma City bombing;
       SAFES (Survivors Advocating for an Effective System).

  Mr. LEAHY. Mr. President, I yield the floor and reserve the remainder 
of my time.
  The PRESIDING OFFICER (Mr. Enzi). Who yields time?
  Mr. KYL. Mr. President, let me take a few minutes to respond to the 
distinguished ranking member of the Judiciary Committee, Senator Leahy.
  He is absolutely correct that constitutional amendments should not be 
rushed. We have taken a long time to get to this point--4 years. As a 
matter of fact, in the Judiciary Committee alone we have heard from 34 
witnesses and have had 802 pages of testimony and submissions. In the 
House, there have been hearings. They have had 32 witnesses and about 
575 pages of testimony and submissions. In other words, there have been 
about 66 witnesses and nearly 1,400 pages of testimony.
  I commend the report of the Judiciary Committee to anyone who would 
like a really good read on this entire subject and the reasons why we 
need a Federal constitutional amendment.
  The bill passed out of the Judiciary Committee 12-5. We took our time 
getting it to the Senate floor to make sure everybody had their say. 
The distinguished ranking minority member needed additional time to 
file his comments to the report. That was granted. He did so.
  We agree there should be adequate time for the debate of this 
constitutional amendment, but we disagree that there should be a 
filibuster to use unnecessary time of the Senate.
  Senator Leahy talked about a lot of things. He talked about abortion, 
gun control, a balanced budget amendment and Ronald Reagan, the 
juvenile crime bill, nursing home fraud, and term limits. I would 
suggest that we ought to stick to the subject.
  We all know one good way to defeat a good idea is to talk it to death 
and threaten to delay other business of the Senate.
  I would suggest we stick to the exact question before us, and that is 
whether there should be a constitutional amendment protecting victims 
of crime.
  Senator Feinstein and I have laid out the case for this.
  As I heard Senator Leahy, there was only one fleeting reference to an 
argument in opposition. That was that the Senate had acted with 
alacrity in dealing with the problems that the victims

[[Page 5876]]

of the Oklahoma City bombing case were suffering because the judge 
there did not permit the victims to attend the trial. Basically, he 
gave them a choice, over a lunch hour one day, saying: You can either 
attend the trial or be present at the time of sentencing and speak to 
that issue, but you cannot do both. Take your pick. What a Hobson's 
choice. The prosecutor really could not help advise the victims. Some 
of them chose not to attend the trial. Others chose to attend.
  Senator Leahy is correct about one thing. The Congress did act 
quickly to pass a law basically telling the Federal judge that they did 
have a right to attend the trial and the right to attend the sentencing 
and to speak at that time and that he should not deny them that right.
  We passed that. The day after the Senate passed it, the President 
signed it into law. We were so concerned that these victims of that 
horrible tragedy have their rights protected that we passed a Federal 
statute--exactly what Senator Leahy is suggesting as an alternative to 
the Federal constitutional amendment that Senator Feinstein and I have 
presented.
  What has happened? What has happened is that we are worse off than we 
were before we passed the statute. The judge did not apply the statute 
to protect the victims of crime. In effect, what happened was that the 
defendant's right to exclude them, based in the U.S. Constitution, 
trumped the Federal statute which, of course, is subservient to the 
Federal Constitution. If that was the basis on which the court ruled, 
it would have been a correct basis. If he really felt the defendant's 
rights required that the victims not be present in the courtroom, and 
that those rights are in the U.S. Constitution, then he would be 
correct that that would trump a Federal statute--the one that the 
Congress passed.
  Clearly, the Oklahoma City bombing litigation leaves no doubt about 
the difficulties that victims face with mere statutory protection of 
their rights. For a number of the victims, the rights afforded in the 
act Congress passed in 1997 and the earlier victims' rights bill were 
not protected. They did not observe the trial of the defendant in that 
case, Timothy McVeigh, because of lingering doubts about the 
constitutional status of the statutes.
  The interesting thing is that because that case was later taken up on 
appeal, the case of these victims, and the Tenth Circuit ruled in that 
case denying the victims the rights notwithstanding the Federal 
statute, you literally have a situation in which it would have been 
better if Congress had not acted by statute because there is now a 
precedent on the books. This was the first time victims sought Federal 
appellate review of their rights since the Victims Bill of Rights was 
passed in 1990, the underlying statute on which the 1997 statute was 
based.
  Quoting now from Professor Paul Cassell:

       The undeniable, and unfortunate, result of that litigation 
     has been to establish--as the only reported federal appellate 
     ruling--a precedent that will make effective enforcement of 
     the federal victims rights statutes quite difficult. It is 
     now the law of the 10th circuit that victims lack 
     ``standing'' to be heard on issues surrounding the Victims' 
     Bill of Rights and, for good measure, that the Department of 
     Justice may not take an appeal for the victims under either 
     of those statutes. For all practical purposes, the treatment 
     of crime victims' rights in federal court in Utah, Colorado, 
     Kansas, New Mexico, Oklahoma and Wyoming have been remitted 
     to the unreviewable discretion of individual federal district 
     court judges.

  Professor Paul Cassell of the University of Utah Law School 
concludes:

       The fate of the Oklahoma City victims does not inspire 
     confidence that all victims rights will be fully enforced in 
     the future.
       . . . the Oklahoma City case provides a compelling 
     illustration of why a constitutional amendment is necessary 
     to fully protect victims' rights in this country.

  The sad truth is that Congress's efforts to protect the rights in a 
very specific case by Federal statute not only didn't protect their 
rights but made matters worse. The statutory alternative Senators 
Kennedy and Leahy have proposed is not the answer. There has been no 
refutation of the point I tried to make in my original 10-minute 
statement that authority after authority after authority--the Attorney 
General, the Governors, the attorneys general--have all said that 
despite their best efforts, the statutory and State constitutional 
remedies simply have not worked to provide protections to victims of 
violent crime. After 18 years of experimenting, of trying, of doing 
their best, it is obviously now necessary to move forward with the next 
step, which is to elevate these rights to the same Constitution that 
protects the rights of the defendants. Nothing less is going to work.
  I submit the arguments that Senator Feinstein and I made have not 
been refuted. If the only response is that we are going to have to take 
a long time talking about extraneous matters, then my suggestion is 
that there is no real argument by those who oppose this amendment. 
There is no real substance to the notion that we shouldn't move 
forward.
  I reiterate, I am pleased that Senator Leahy will encourage all of 
his colleagues, as I certainly will encourage mine, on both sides of 
the aisle to support the motion to proceed. We do need to proceed. When 
we proceed, we can have that debate. Senator Feinstein and I will renew 
our offer to continue to meet with the Department of Justice to get 
more suggestions from them. We have, in fact, incorporated many of 
their suggestions into the current text of the amendment. But it is 
time to move on. We can't keep putting it off. That is why we filed the 
cloture motion. That is why we want to proceed.
  I appreciate what Senator Leahy said, but I suggest that we need to 
move on with the debate on this amendment. Senator Feinstein and I are 
prepared to do so.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, if I may, I would like to have an 
opportunity to ask the Senator from Arizona a couple of questions. I 
thought he pointed out very ably the problem of a statute filling the 
void, the first problem being that the rights of the accused will 
always trump the rights of the victim. He pointed out very well and 
very ably and very specifically the situation that took place with 
respect to Oklahoma City.
  Then we turned to the FBI to try to get the amount of coverage that 
could be achieved in the statute for victims across this great land. We 
were told that really the best we could do would be to protect by 
statute the 1 to 2 percent of victims who were victimized by violent 
crimes.
  I think it is important that we discuss a little bit more why the 
Constitution will always trump a State law. I ask the Senator to lay 
that out once again.
  Mr. KYL. I thank the Senator. I am pleased to do so.
  I think she makes three very important points. One very important 
point she made is that if you have a Federal statute, you are only 
dealing with 1 to 2 percent of the victims of violent crime--those 8 
million victims each year. Of course, that is the number of Federal 
crimes. There aren't very many serious Federal crimes that would carry 
the penalties necessary to invoke this constitutional provision. A 
Federal statute would be very small and of no comfort to the millions 
of victims of crime involved in State court proceedings.
  Secondly, there are occasions when, as in the Oklahoma City bombing 
case, a defendant's rights are asserted based on an amendment to the 
Constitution. Sometimes, for example, the judge will say: Well, I am 
going to exclude witnesses. I will exclude victims from the courtroom 
because the defendant thinks it will create undue emotion, that it will 
jeopardize his right to a fair trial if the jury sees the victim or the 
family of the victim. That was the case in the Oklahoma City bombing 
case and in scores of others Senator Feinstein has brought to the 
attention of the Senate.
  Of course, the defendant and his family are permitted to sit there 
all dressed up and supportive of the defendant at the time of 
sentencing and to stand up and say what a fine fellow

[[Page 5877]]

he is. The judge takes that into consideration. We are simply saying 
the victims ought to be able to stand before the judge and recount the 
horror, the tragedy, the weakness, the loss they have suffered for the 
judge to take into account as well at the time of sentencing. If the 
defendant's constitutional rights are deemed always to be superior 
because they are embodied in the U.S. Constitution and the victim's 
rights are always secondary, then the victim's rights will be honored 
in the breach rather than the observance, to quote one of the people I 
quoted earlier.
  That is why the third point is so important. Even when there isn't a 
direct conflict--and there will rarely be a direct conflict--the 
primary situation will be presence in the courtroom at the time of 
trial. But in most situations there won't be the direct conflict 
between the defendant's right and the victim's right. It simply is a 
matter of inertia.
  Perhaps Senator Feinstein can find the quotation she read before. I 
think it was Professor Tribe whom the Senator quoted, who talked about 
judicial indifference, inertia. Well-meaning judges and prosecutors 
don't mean to deny victims the notice of the proceedings and the right 
to be present, but it becomes a secondary matter. We give the Miranda 
warning to the defendant. We make sure the defendant has legal counsel 
that people hire on his behalf, and we make absolutely certain that 
none of the defendant's rights are intruded upon, because if they are, 
the case will be overturned on appeal. And that is as it should be. But 
because of that attention to the constitutional rights of the 
defendant, we forget the victim. It is in that sense that the victims' 
rights are simply not being honored, why 60 percent--even in the States 
with good provisions--of the victims do not even get notice. That is a 
horrible statistic. What if we said 60 percent of the defendants didn't 
get their court-appointed lawyer, that it was too inconvenient or too 
costly? Sixty percent is a pretty good percentage. Clearly, we would 
find that inadequate. Fundamental rights are fundamental rights and 
they need to be protected.
  So I think the Senator from California is correct that even though we 
don't mean to deny these rights, either because of the attention paid 
to the defendants or simply because of the fact there are other things 
more important to do than make sure victims have notice of these 
proceedings, they are denied their rights and the ability to 
participate.
  A final point. There has been the contention that somehow it is going 
to become very expensive if--as we do with defendants--society has to 
pay for their rights. We do that for defendants; we pay for their 
attorneys, for their transcripts, and everything they need for their 
appeals. What we did here was not guarantee that victims have the right 
to attend the trial. For example, as are most of the provisions of the 
Constitution, we have said that the Government may not deny them the 
right to participate. They have to get there. They have to get there on 
their own. It is just that the Government can't deny them the right to 
sit on the bench in the courtroom if they show up.
  Mrs. FEINSTEIN. Let me stop the Senator on that point because I think 
he has very well expressed what we are trying to do. We have discussed 
this before. I think the whole body should hear this. We know that 
those who are accused have basic rights. We know that the prosecution 
usually wants to try to get the victim in the courtroom. The defense 
attorney wants to keep the victim out of the courtroom. Supposing a 
situation arises where you have an emboldened or abusive victim, or one 
who is overly emotional, under our amendment, how would this work? What 
rights would the judge have in this situation?
  Mr. KYL. I thank the Senator for that question because people not 
familiar with the process inside a courtroom may wonder if this 
amendment would permit a victim to cause a big scene in court, thus 
disrupting the trial and working to the disadvantage of the defendant. 
Of course, as the Senator knows, a judge has total control of the 
courtroom and has the ability to set whatever rules are necessary to 
maintain decorum and dignity within the courtroom and certainly to 
ensure the protection of the fair trial rights of the defendant. That 
is why a judge can always say--and we have seen it on TV hundreds of 
times--``order in the court,'' in effect saying, if you can't sit there 
quietly and unemotionally watching what is occurring, then you have to 
leave. Because in the court we cannot have undue displays of emotion. 
So the judge has within his total authority the ability to control 
either the defendant from his or her outbursts or any emotional 
outbursts of anybody else in the courtroom, including victims.
  Mrs. FEINSTEIN. I thank the Senator. The Senator and I worked 
extensively with both Laurence Tribe, a professor of constitutional law 
at Harvard University, and Paul Cassell, a professor of law at the 
University of Utah College of Law. Both are very skilled and 
knowledgeable in this area. I happened to find an article that they 
wrote together in a newspaper. I thought it might be interesting to 
hear their view. I would like to read it to you and ask for your 
response:

       We take it to be common ground that the Constitution should 
     never be amended merely to achieve short-term, partisan, or 
     purely policy objectives. Apart from a needed change in 
     governmental structure, an amendment is appropriate only when 
     the goal involves a basic human right that by consensus 
     deserves permanent respect, is not and cannot adequately be 
     protected through State or Federal legislation--

  I think we have shown why that can't happen--

     would not distort basic principles of the separation of 
     powers among the Federal branches or the division of powers 
     between the national and state governments or the balance of 
     powers between government and private citizens with respect 
     to their basic rights.
       The proposed Victims Rights Amendment meets these demanding 
     criteria. It would protect basic rights of crime victims, 
     including their rights to be notified of and present at all 
     proceedings in their case and to be heard at appropriate 
     stages in the process. These are rights not to be victimized 
     again through the process by which government officials 
     prosecute, punish and release accused or convicted offenders.

  Then it goes on to say:

       These are the very kinds of rights with which our 
     Constitution is typically and particularly concerned--rights 
     of individuals to participate in all those government 
     processes that strongly affect their lives. ``Participation 
     in all forms of government is the essence of democracy,'' 
     President Clinton concluded in endorsing the amendment.

  Now, what we come down to, essentially, is how do you express these 
things in a way that gives victims these certain basic rights? I think 
we have tried to do that. We put it up on a schedule here of crime 
victims' rights. I wish to quickly go over this. The rights of the 
accused are on the left. The rights we would afford victims are on the 
right. In a sense, we achieve a kind of balance. Now, the question 
comes when and if these rights come into conflict. The fact is, I think 
we both believe it will be rare that these rights come into conflict. 
As was said, with an emotional victim, there is in the law already the 
opportunity for a judge to handle this situation.
  I have had a very hard time, because the Senator and I have had a 
number of critics on this; we have had a number of newspapers that have 
editorialized and said that what we are trying is trivial, not 
important. But let me tell you something. If you are a rape victim and 
you have reason to believe that individual may come back after you, it 
is not unimportant that you have notice when that individual is 
released from prison or from jail. It is not unimportant at all. I 
indicated earlier a case of an individual who has had to change her 
name and live in fear and anonymity because of this. The Constitution 
should protect that victim, and that is what we try to do. So I have 
had a very hard time seeing instances where there is actual conflict.
  My question of the Senator is, Can the Senator expand on this more 
and indicate where there is conflict? People have said, ``You diminish 
the rights of the accused.'' I don't see us diminishing the rights of 
the accused. Their

[[Page 5878]]

rights are very specific. We don't touch on these. There is the right 
to counsel, the right to due process, the right to a speedy trial. We 
want that, as well, because we know that the speed of the trial is an 
important deterrent to violence. We know that if a trial is not speedy, 
evidence grows cold, witnesses disappear. It is much more difficult to 
make a case if there is a long hiatus between arrest and trial. In 
fact, Federal law recognizes that by moving trials along in an 
expeditious way.
  Double jeopardy. We certainly don't interfere with that. We certainly 
don't interfere with the prohibition against self-incrimination or 
against unreasonable search and seizure, probable cause, a jury of 
peers, the right to be informed, the right to confront witnesses, to 
subpoena witnesses, a prohibition against excessive bail, the right to 
a grand jury. There are a few other rights written into the 
Constitution. But our rights are so basic for a victim, such as the 
right to have notice when a trial takes place, the right to be present 
in the courtroom, the right to make a statement at an appropriate place 
in the trial, the right to have notice if your assailant is released. 
These are certain basic, core rights that in no way, shape, or form, it 
seems to me, interfere with the constitutional rights granted to a 
defendant or to an accused to protect them from excessive government 
under the Constitution of the United States.
  So I have been very perplexed as to why we see bubbling out there 
this argument that we are setting up some collision of rights. We are 
simply trying to provide a victim with certain basic rights that are 
spelled out and are specific.
  Would the Senator care to elaborate on that?
  Mr. KYL. I agree it is perplexing how one could conclude a 
defendant's rights would be trampled on in any way by our proposal. It 
does not do that.
  The article in the Los Angeles Times, quoting Professors Tribe and 
Cassell, makes the point that ``a victims' rights amendment must, of 
course, be drafted so the rights of victims will not furnish excuses 
for roughshod treatment of the accused. The Senate Resolution is such a 
carefully crafted measure, adding victims' rights that can exist side 
by side with defendants'.''
  Precisely the point. There is only one conceivable circumstance I 
know of in which there could actually be an assertion of two 
constitutional rights, one by the defendant and one by the victim, 
which could theoretically come in conflict, and that is the right to be 
present at the trial. Courts deal with that today. They would balance 
the interests tomorrow. We have the same thing existing with respect to 
the press. We have the right of free press. Say victims want to attend 
the trial. Sometimes, as we know, judges don't permit that, but it is 
in the Constitution. That is right. But the defendant has a right to a 
fair trial as well.
  The courts will balance those two interests and generally come to an 
accommodation that enforces both rights.
  Mrs. FEINSTEIN. Would the Senator finish reading that? I think the 
next points are very important to our cause. They should be heard.
  Mr. KYL. I think the two distinguished law professors make a very 
important point. They point out the example of paralleling a 
defendant's constitutionally protected right to a speedy trial. Our 
amendment confers on victims the right to consideration of their 
interest in a trial, free from unreasonable delay.
  By definition, the professors note, these rights could not collide 
since they are both designed to bring matters to a close within a 
reasonable time. If any conflict were to emerge, courts retain ultimate 
responsibility for harmonizing the rights at stake.
  We have also gone one other step. That is, whereas the defendant had 
an absolute right to a speedy trial--and frequently, also, courts 
determine he has a right to delay things--we have provided for victims 
merely that the judge must ``consider'' their desire to bring the trial 
to a speedy conclusion.
  In this case, we have created a right of victims which, indeed, is 
subservient to the right of the defendants. Theirs is absolute. The 
victims have a right to have their views considered. We have been very 
careful to ensure we don't trample on defendants' rights.
  I make one more point because the Senator reminded me of something 
that is very important. In the statement by Professor Mosteller, he 
makes a relative point that relates to this. ``In theory, victims' 
rights could be safeguarded without a constitutional amendment. It 
would only be necessary for actors within the criminal justice system--
judges, prosecutors, defense attorneys, and others--to suddenly begin 
fully respecting victims' rights. The real world question, however, is 
how to actually trigger such a shift in the Zeitgeist. For nearly two 
decades, victims have obtained a variety of measures to protect their 
rights. Yet, the prevailing view from those who work in the field is 
that these efforts have `all too often been ineffective.' Rules to 
assist victims `frequently fail to provide meaningful protection 
whenever they come into conflict with'''--and here I break the 
quotation--not the defendant's rights. They are not conflicting with 
defendant's rights. That is not why they are denied, but rather 
``whenever they come into conflict with bureaucratic habit, traditional 
indifference, or sheer inertia.''
  That is what is preventing these rights from being fully affected--
not that they conflict with the defendant's rights.
  Here is the conclusion: The view that State victims provisions have 
been and will continue to often be disregarded is widely shared, as 
some of the strongest opponents of the amendment seem to concede the 
point. For example, Ellen Greenlee, president of the National Legal Aid 
and Defenders Association, bluntly and revealingly told Congress that 
the State victims amendments, ``so far have been treated as mere 
statements of principle that victims ought to be included and consulted 
more by prosecutors and courts. A State constitution is far . . . 
easier to ignore than the Federal one.''
  That is the bottom line point.
  State constitutions, even Federal statutes, as we found in the 
Oklahoma City bombing case, are far easier to ignore than the U.S. 
Constitution. That is something no judge and no prosecutor can ignore. 
That is why we want to elevate these rights--not because they conflict 
with the defendant's rights, not because they take anything away from 
any accused in the courtroom, but rather because these elemental rights 
of fairness are not currently being enforced by the judges and 
prosecutors because they just don't have the stature of the U.S. 
Constitution.
  Mrs. FEINSTEIN. I thank the Senator.
  If the Senator recalls, in our earlier discussions with the Justice 
Department, we were very concerned that the rights of the accused not 
be violated, not be diminished, and we quite consciously left out any 
specific remedy in this situation so that if someone doesn't exercise 
their right either to be present or to make a statement, in effect, 
they have no remedy, or after they make their statement, if the facts 
in the trial are such and the jury comes in with a decision, they have 
no right of a remedy.
  So the basic core rights we provide are, in a sense, certain 
procedural rights that give them a place in the process.
  Let me read what these two law professors have said on this point:

       The framers of the Constitution undoubtedly assumed the 
     rights of victims would receive decent protection, but 
     experience has not vindicated this assumption. It is now 
     necessary to add a corrective amendment. Doing so would 
     neither extend the Constitution to an issue of mere policy, 
     nor provide special benefits to a particular interest group, 
     nor use the heavy artillery of constitutional amendment where 
     a simpler solution is available, nor would it put the 
     Constitution to a purely symbolic use or enlist it for some 
     narrow partisan purpose. Rather, the proposed amendment would 
     help bridge a distinct and significant gap in our legal 
     system's existing arrangements for the protection of basic 
     human rights against an important category of government 
     abuse.

  This, I think, goes right to the question of remedy. We don't provide 
for a remedy, we simply say you have these basic rights to participate 
in this manner.

[[Page 5879]]


  Mr. KYL. If I could put an exclamation point on that.
  The point Senator Feinstein makes is this: During the pendency of the 
proceedings, the victim has the right to assert these rights. For 
example, if you have a week-long trial and the victim finds out about 
the trial after the second day, the victim can't go back and say you 
have to start the trial all over again. All the victim can do is say, 
hey, I have a right to be there for the rest of the trial.
  That is unlike the defendant's rights. Here is the exact language we 
included: ``Nothing in this article shall provide grounds to stay or 
continue any trial, reopen any proceeding, or invalidate any ruling''--
and there are only two exceptions--``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. Nothing in 
this article shall give rise to or authorize the creation of a claim 
for dam-
ages . . .''
  There are only two exceptions. One is prospective, so long as it does 
not continue or delay the proceedings. In other words, you have the 
right to say: Judge, this trial is starting, and I have a right to be 
there. And the other one is with respect to a conditional release.
  I close with this point: You need the right to enforce it with 
respect to a conditional release.
  Here is a true story. Here is how it would work. Patricia Pollard of 
Flagstaff, AZ, was picked up one night by a man and his wife, 
ironically, and the man brutally raped her, sliced her up with an open 
beer can, and left her to die. She lived. He was eventually prosecuted. 
After the Arizona legislature passed the provision which enabled 
victims to be notified, the parole board held a hearing on his 
conditional release. They decided to conditionally release her 
assailant from the Arizona State Penitentiary, but they did not give 
her notice.
  The Governor's office found out about this, located Patricia Pollard 
in California, brought her back, and arranged for another meeting of 
the parole board after they had already made their decision. They 
agreed to hear her. She spoke about what he had done to her and what 
she feared he would do to others. The parole board reversed its 
decision.
  I asked Patricia Pollard whether she did that because she feared for 
her life, that he would come after her again. She said: Well, he might 
have tried to track me down. But in truth, his crime against me was a 
random kind of crime. I was available for him to victimize. I simply 
could not have lived with myself if I had not gone there and told these 
people what he could do to someone else because I know that had he 
gotten out, he would have done it to somebody else.
  That is why we provide this limited exception, the only situation, 
really, where something can be done retroactively--where a person was 
not given notice to attend the parole or conditional release 
proceedings and the individual has not yet been released, you can go 
back in and tell your story and just maybe it will make a difference. 
That is what this amendment is all about, protecting the rights not 
only of the victims of crime but of the rest of society as well.
  Mrs. FEINSTEIN. I thank my colleague, yield the floor, and reserve 
the remainder of our time.
  The PRESIDING OFFICER. The Chair recognizes the Senator from North 
Dakota.
  Mr. DORGAN. Mr. President, I have listened to the presentations on 
the floor. Let me say the passion with which the Senator from 
California, Mrs. Feinstein, and the Senator from Arizona bring this 
issue to the floor is a passion I understand. I certainly respect their 
views.
  I have studied this issue at some length. I must say the Senator from 
California visited with me, I guess, half a dozen times about this 
issue over the past year or so. But I have reached a different 
conclusion. It is a difficult trail to get to this point, but my view 
is the issue is not whether victims in this country have rights in 
court proceedings, but how we achieve those rights.
  It is true that criminals are accorded a whole series of rights in 
this country. I do not quarrel with that. I do not want us to put 
innocent people behind bars. It is difficult to convict in this 
country, and our Constitution establishes certain rights. We try, as a 
country, to make certain we only put those guilty of crimes, behind 
bars.
  It is also true--and I say this to the Senator from California and 
the Senator from Arizona--it has been a longer process and a more 
difficult track, to make certain that victims and victims' families 
have their rights protected in our court system. I have offered 
legislation on this issue previously. In fact, I authored language 
included in the 1994 crime bill, which is now law, that gives crime 
victims the right to testify at federal sentencing hearings. My 
provision gives crime victims and their families the right in Federal 
court to present testimony about ``What this crime meant to me or to my 
family'' and ensures that judges and parole boards formally consider 
the impact of a crime on its victims when making sentencing and parole 
decisions.
  I sat in a court at the manslaughter trial of the man on trial for 
the death of my mother. I am very sensitive to this issue. I 
understand--being a family member, sitting in a court, watching the 
trial of the man who was responsible for the death of my mother--I 
understand the concern a family member has about the rights of the 
victim and the rights of the victim's family to be present in that 
court. I understand the desire to present testimony during the 
sentencing phase, to have an understanding about when someone is let 
out of prison. I understand all that, and I am very sensitive to it 
because I have been through it personally, as a result of the tragic 
death of my mother.
  I come to the floor of the Senate today saying I strongly support 
victims' rights. We are moving in this country in a variety of ways to 
achieve those rights. Thirty-three States have now amended their state 
constitutions to specifically describe the rights of victims and their 
families. Some say that approach does not work very well and is not 
universal; that sometimes it does not achieve our goal. I understand 
that argument. I understand the argument that the perpetrator of a 
heinous and violent crime is brought into the court, now some months 
later after the crime was committed, and his or her hair is combed, 
they are in a new suit, they look as if they just finished singing in a 
church choir, and all their acquaintances testify to what a remarkable 
person this is. It happens all the time in trials.
  This animal who committed the violent murder on a Saturday night, in 
court 1 month or 2 or 6, or a year later, looks completely different 
and has a whole set of rights. I understand all that.
  My concern is about the Constitution of the United States, and 
whether we should address this by changing the U.S. Constitution, or 
whether we should address it by continuing to make the changes, both 
with respect to Federal law and also mandating changes with respect to 
State law and State constitutional changes that accomplish the same 
result.
  I have in my hand three pages of constitutional amendments that have 
been introduced in this session of Congress. We have had several of 
them, frankly, on the floor of the Senate. These are very important 
issues. Amending or changing the Constitution of this country ought to 
be done rarely and then only in circumstances where it is the only 
opportunity to achieve the change we want as a society. These are three 
pages of constitutional amendments that are proposed by my colleagues 
now.
  We have had over 11,000 proposals to change the Constitution since it 
was written; 11,000 proposals. One of them, for example, said let's 
have a constitutional amendment that provides the Presidency of our 
country should be rotated. One term it shall be held by someone who is 
a southerner, from the southern States, and the next term followed by 
someone who comes from a northern State. That was a proposed 
constitutional amendment. I could describe more, of course. 11,000 
times, the

[[Page 5880]]

Members of Congress have felt the need to change the U.S. 
Constitution--this document which begins:

       We the People of the United States, in Order to form a more 
     perfect Union. . . .

  We all understand the words. It was written by 55 white men just over 
two centuries ago in a room called the Assembly Room in Constitution 
Hall. My colleagues have heard me talk about it before, but I will say 
it again. In that room, George Washington's chair is still sitting at 
the front of the room where he presided over the Constitutional 
Convention. Go there today in Philadelphia and look at his chair. Ben 
Franklin sat over there; there James Madison. Thomas Jefferson was in 
Europe at the time so he didn't participate except through his 
writings, which then became, as we know it, the Bill of Rights.
  But since those 55 men wrote the Constitution of the United States 
over two centuries ago, we have had so many proposals for change. I 
have mentioned to my colleagues on the 200th birthday of the writing of 
the Constitution, I was one of the 55 people who were authorized to go 
in for a ceremony, into this Assembly Room. This time, it was 55 men, 
women, minorities. I got chills sitting in this room because I had 
studied in a very small school the history about Ben Franklin, Madison, 
Mason, George Washington--the father of our country--and now I was 
sitting in the Assembly Room in Constitution Hall in Philadelphia where 
they wrote the Constitution of the United States.
  Since that experience, I have had difficulty coming to the conclusion 
that we can improve upon the basic framework of the Constitution of the 
United States. Other countries try to replicate this Constitution; we 
try to amend it. Some of my colleagues apparently think it is a rough 
draft available for amendment at the whim of someone's interest in the 
House or the Senate. It is much more important than that, and we ought 
to amend the Constitution, in my judgment, rarely, and then when it is 
the only solution.
  As I mentioned, 33 States have amended their Constitution to provide 
for victims' rights. We can provide for the Federal portion, and the 
Senators from Arizona and California are absolutely right, that is a 
very small portion of crime in the criminal justice system. We can also 
mandate--and I am perfectly prepared to do that--that the States must 
do the same in exchange for a certain number of incentives which we in 
the Congress provide. I am perfectly prepared to do that.
  I do want to clear up a couple of misconceptions that have been part 
of the discussion with respect to the victims' rights amendment. The 
proposal to change the Constitution, in some measure, rests on the 
discussion about, among other things, the folks who were convicted in 
the Oklahoma City bombing case.
  I want to describe what happened in that case because like many 
others, I saw the initial ruling and comments of the judge in the 
Federal court in Denver, and was appalled. He essentially said that 
those who were victims or family members of victims who wanted to 
witness the trial would not necessarily then be granted the opportunity 
to testify during the sentencing phase of the trial. I was concerned 
about that. I felt that was an abrogation of victims' rights.
  What happened as a result of that is Congress passed a piece of 
legislation called the Victim Rights Clarification Act of 1997. We did 
that almost immediately. It reversed a presumption against crime 
victims observing any part of the trial proceedings if they were likely 
to testify during the sentencing hearing.
  This piece of legislation that was passed almost immediately after 
the judge's ruling prohibited courts from excluding victims from the 
trial on the grounds they might be called to provide a victim's impact 
statement at sentencing. The result of the legislation was that the 
victims in the Oklahoma City bombing trial were allowed to observe both 
the trial of Timothy McVeigh and Terry Nichols and to provide impact 
statements through testimony.
  In this circumstance, the legislation we passed in Congress worked 
exactly as Congress intended it to work. The testimony by a former 
prosecutor at the Oklahoma City bombing trial, Ms. Wilkinson, is 
something I want to recount because it is important to understand what 
happened, inasmuch as this example has been used.
  It is important to look at how the Victim Rights Clarification Act 
was actually applied in the Oklahoma City case.
  On June 26, 1996, Judge Matsch held that potential witnesses at any 
penalty hearing were excluded from pretrial proceedings and the trial 
itself to avoid any influence from that experience on their testimony.
  That is what I described earlier, and I felt the same revulsion about 
that judge's decision as I think my colleagues did, and the result was 
that we passed the Victim Rights Clarification Act almost immediately. 
The President signed it into law on March 19, 1997. One week later, 
Judge Matsch reversed his exclusionary order and permitted observation 
at the trial proceedings by potential penalty-phase impact witnesses. 
In other words, the judge changed his mind immediately after the 
President signed the legislation.
  Beth Wilkinson, a member of the Government team that successfully 
prosecuted, said:

       What happened in [the McVeigh] case was once you all had 
     passed the statute, the judge said that the victims could sit 
     in, but they may have to undergo a voir dire process to 
     determine whether rule 402. . .would have been impacted and 
     could be more prejudicial.

  This is what the prosecutor said. It is important to say this:

       I am proud to report to you that every single one of those 
     witnesses who decided to sit through the trial survived the 
     voir dire, and not only survived, but I think changed the 
     judge's opinion on the idea that any victim impact testimony 
     would be changed by sitting through the trial. [T]he 
     witnesses underwent the voir dire and testified during the 
     penalty phase for Mr. McVeigh.
       It worked in that case, but it worked even better in the 
     next case. Just 3 months later when we tried the case against 
     Terry Nichols, every single victim who wanted to watch the 
     trial either in Denver or through closed-circuit television 
     proceedings that were provided also by statute by this 
     Congress, were permitted to sit and watch the trial and 
     testify against Mr. Nichols in the penalty phase--all without 
     having to undergo a voir dire process.

  The point is, when the judge in the Oklahoma City bombing trial, 
which was conducted in Denver, made his initial ruling, there was a 
great amount of press about it, and all of us, including myself, was 
aghast at this ruling. Congress passed a piece of legislation almost 
immediately, the President signed it, and the judge reversed his 
ruling, and every single one of the victims or victims' families who 
wished to testify during the penalty phase was allowed to testify. That 
is critically important to be on the record.
  The urge to amend the Constitution ought to be an urge based on all 
of the information available, and there is plenty of information 
available, it seems to me, based on this case and also based on the 
fact that 33 States have now changed their constitution and more will 
do so. In fact, all could do so if we decided to provide a mandate that 
would require them to do so. We are making significant progress in this 
area.
  I understand, as I said when I started, the passions of the Senator 
from Arizona and the Senator from California. I have those same 
passions, and I want victims to have the same rights. I believe, 
however, that amending the Constitution should always be a last resort, 
not a first resort. I do not believe, despite all that has been said, 
that it serves this document very well to bring a piece of legislation 
to the floor of the Senate on a Tuesday and have a cloture vote on the 
motion to proceed. Presumably, we will have a cloture vote on the bill 
itself and probably have 8 hours, maybe 10 hours, maybe 14 hours, which 
would be a lengthy period of time for discussion in this Senate, and an 
attempt, I am sure, to stifle amendments, and then we would say: All 
right, now the Senate has considered changing the U.S. Constitution.
  I do not think that is what Washington, Franklin, Madison, Mason, or 
others would have wanted us to do in

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consideration of changing this sacred document.
  My hope is we will have an interesting and significant discussion 
about this and we will, from this debate, not only turn back the 
constitutional amendment but probably stimulate a great deal more 
activity on the part of the States. As I said before, I am willing to 
either offer an amendment or join others in offering an amendment that 
will require the States to make these changes. That would accomplish 
exactly the same thing without amending the U.S. Constitution. We can, 
in any event, make certain all this applies with respect to the Federal 
statute and Federal crimes.
  My hope is, at the end of it, we will not only have denied the 
impulse to change the Constitution, but we will have created new energy 
and new incentives to make certain that victims' rights gain ground in 
State after State across this country. I will be happy to join others 
in the coming days, weeks, and months in an effort to accomplish that, 
because I have strong feelings about this issue. Mr. President, I yield 
the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Iowa.

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