[Congressional Record (Bound Edition), Volume 146 (2000), Part 5]
[Senate]
[Pages 6020-6067]
[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--Resumed

  Mr. KYL. Mr. President, we are in the process of attempting to work 
out an arrangement of time for the debate on the pending motion. I ask 
for all concerned if the Chair will describe the pending business of 
the Senate.
  The PRESIDING OFFICER. The question is on the motion to proceed to 
S.J. Res. 3.
  Mr. KYL. I thank the Chair.
  We are in the process of determining just how much time speakers are 
going to need in order to conclude debate on the motion to proceed. 
Senator Feinstein and I both have some preliminary remarks we would 
like to make in connection with that debate as the two chief proponents 
of the resolution. We understand Senator Leahy and Senator Byrd wish to 
take some time, and Senator Biden as well a little later on.
  As soon as we can confirm the amount of time people will need, we 
will probably propound a unanimous consent request in that regard.
  Mr. LEAHY. Will the Senator yield?
  Mr. KYL. I am happy to yield.
  Mr. LEAHY. Mr. President, I am perfectly willing, from this side, to 
work with the distinguished Senator from Arizona and the distinguished 
Senator from California on time. I do not expect an enormous amount of 
time to be consumed. It has not been announced, but there is a certain 
sense that there may not be any more rollcall votes this week so a lot 
of people are probably going to be leaving. I will definitely try to 
accommodate them.
  The distinguished Senator from West Virginia does have a statement he 
wishes to make. I have a statement I wish to make. I am simply trying 
to protect some others who may want to speak, as I am sure the Senator 
is on his side. But I will continue to work with the distinguished 
Senator to cut down this time any way we can.
  Mr. KYL. We will announce to all Members, if we can work that time 
arrangement out, just exactly how this will proceed.
  In the meantime, let me see if I can set the stage so everyone will 
know where we are in this debate. Then I would like to thank some 
people and then move on to a colloquy with Senator Feinstein, if I 
might.
  Because of the way the Senate works, we have moved back and forth in 
Senate business. But the pending business is the motion to proceed on 
S.J. Res. 3; that is, the crime victims' constitutional rights 
resolution sponsored by Senator Feinstein and myself.
  We gained cloture earlier this week so we could proceed, and the 
motion to proceed will certainly be agreed to, if we carry the debate 
that far. Senator Feinstein and I, however, are of the view that 
because of various things that have occurred, it is unlikely that a 
cloture motion, if filed, would be supported by the requisite number of 
Senators to succeed early next week.
  Therefore, what we are prepared to do is speak to the issue of the 
resolution, where we are with respect to the resolution, to thank the 
many groups and sponsors and other individuals who have been so 
supportive of this effort, and to seek permission of the Senate, when 
people have finished their comments, to withdraw the motion to proceed 
and to move to other business. That merely means a timeout in our 
efforts to secure passage of this constitutional amendment.
  We recognize at this point in time that proceeding will simply 
encourage more Senators to use a great deal of the Senate's time in 
unproductive speeches that really do not go to the heart of our 
constitutional amendment but take time away from the Senate's important 
business. We have no intention of doing that.
  So we will make some remarks that will set the stage for what we are 
about to do. But let me begin by noting the tremendous amount of 
support around the country that has accompanied our effort to bring 
this measure to the floor of the Senate. I have to begin by thanking 
two people in particular, Senator Dianne Feinstein and Majority Leader 
Trent Lott. We could not have brought this amendment, over the course 
of the last 4 years, to the bipartisan level of support it now enjoys 
without the ability to work on both sides of the aisle. No one could 
have carried this matter on the Democratic side more capably than 
Senator Dianne Feinstein. Before she came to the Senate, she was a 
passionate advocate for victims of crime. As mayor of San Francisco, 
she was a proponent of area residents who were victims of crime and 
carries that passion with her to this debate now.
  She and I have worked closely with victims' rights advocates to shape 
the legislation. I might say, while some of our colleagues have 
suggested there is something wrong with the fact that we have conducted 
dozens of meetings with the administration, Department of Justice, and 
many others, and honed this amendment in 63 different drafts, we are 
very proud that we have included anyone who wanted to talk about this 
in our circle of friends working to get an amendment that could pass 
the Senate and that we have carefully taken their suggestions into 
account, thus accounting for the many different drafts as the 4-year 
progress of this resolution has brought us to this point.
  The fact that we have taken their suggestions to heart and 
continually polished this amendment we think is a strong point. While 
we were criticized

[[Page 6021]]

yesterday on the floor for engaging in yet more negotiations that might 
result in a final, 64th draft, I must say that was largely at the 
instigation of Senator Feinstein, who said, given the fact the 
Department of Justice has four concerns still pending with regard to 
our specific proposal, let's meet with them and see if we can come to 
closure on those items.
  Because of her leadership, we were able to come to closure on three 
of them. We believe we made more than a good faith effort with respect 
to the fourth, which had to do with the protection of defendants' 
rights. We were willing to acknowledge that the rights enumerated in 
this proposal take nothing whatsoever away from defendants' rights. I 
do not know how more clearly we can say it. That was not acceptable to 
the Department of Justice.
  But it is not for want of trying, on the part of Senator Feinstein, 
that we have been unable to secure the support of the Department of 
Justice for this amendment. So my first sincere thanks go to the person 
without whom we would not be at this point, my colleague Senator 
Feinstein.
  I also thank Leader Lott. When I went to him with a request for floor 
time for this amendment, his first response was: You know all the 
business the Senate has to conduct. Are you sure you want to go forward 
with this? I said we are absolutely certain.
  Despite all the other pressing business, he was willing because he, 
too, believes strongly in this proposal, as a cosponsor, to give us the 
floor time to try to get this through. It is partially out of concern 
for his responsibilities as leader that we recognize that to proceed 
would result in a vote that would not be successful, and therefore, 
rather than use that precious time, we are prepared to visit privately 
with our colleagues to further provide education to them about the 
necessity of this amendment since, clearly, the methodology we have 
engaged in thus far was not working. We would make strong arguments, 
but I daresay it didn't appear that anyone was here on the floor 
listening because when various opponents would come to the floor, they 
would repeat the same mantra over and over again that we had already 
addressed.
  Part of that mantra was, Did you know this amendment is longer than 
the Bill of Rights? We would patiently restate that is not true, that 
all of the rights of the defendants in the Constitution are embodied in 
language of more words than this amendment that embodies the victims' 
rights and so on. Then that individual would leave the floor, and 
another individual would come to the floor and repeat the same 
erroneous information, and we would have to patiently respond to that.
  Rather than continue that process, we believe it is better that we 
visit with our colleagues when we are not using this time on the floor 
and explain all of this to them, with the hope they will then be better 
able to support us in the future.
  So I thank Senator Feinstein. We have gone through a lot together on 
this. There is nobody in this body for whom I have greater respect.
  Again, I thank Senator Lott, the majority leader, for his support for 
us as well.
  The National Victims' Constitutional Amendment Network is one of the 
really strong victims' rights groups that has backed us throughout this 
process. Roberta Roper has been involved in that. She was in my office 
this morning. She was with us yesterday. She has been with us 
throughout the process, helping us evaluate these various proposals and 
assisting us.
  The National Organization for Victim Assistance, known by the acronym 
NOVA, headed by Marlene Young and John Stein, and all the people on the 
NOVA board, we are enormously appreciative of their strong support and 
assistance throughout this effort. They are going to continue to fight 
for sure.
  Marsha Kight, whom Senator Feinstein and I have come to know and 
respect because of her advocacy as someone whose daughter was killed in 
the Oklahoma City bombing, brought the experience of that trial and the 
firsthand knowledge of how victims were denied their rights even to 
attend the trial. She has been an important witness for us before the 
Judiciary Committee and at various other forums.
  One of the groups in the country that is most strongly in support, 
and has provided a lot of grassroots support, is Mothers Against Drunk 
Driving, or MADD. Also, Students Against Drunk Driving, SADD, a group 
of younger people, has been helpful. Tom Howarth, Millie Webb, 
Katherine Prescott, and others have been very helpful to us in that 
regard.
  Parents of Murdered Children has been enormously helpful. Rita 
Goldsmith is from my State of Arizona, from Sedona.
  We have had tremendous help from legal scholars such as Professor 
Laurence Tribe, Professor Doug Beloof, and Professor Paul Cassell. I 
thank them for their enormous help in this effort, including their 
testimony before the Judiciary Committee.
  There are many prosecutors. I need to mention a couple from my own 
State. The two largest counties in Arizona are Maricopa and Pima 
Counties. Rick Romley, the Republican-elected attorney from Maricopa 
County, the sixth largest county by population in the country, and 
Barbara LaWall, a Democratic-elected attorney from Pima County, have 
been very strong supporters and helpful in our work.
  Law enforcement has been very well represented by organizations and 
individuals. From the Law Enforcement Alliance of America, Darlene 
Hutchinson and Laura Griffith have been helpful.
  Various attorneys general, such as Delaware Attorney General Jane 
Brady, Wisconsin Attorney General Jim Doyle, and Kansas Attorney 
General Carla Stovall. By the way, these are Democrats and Republicans 
alike. It is a totally bipartisan effort. As a matter of fact, the 
National Association of Attorneys General--we have a very good letter 
signed by the vast majority of attorneys general in support of our 
crime victims' constitutional rights amendment.
  We also have support from former U.S. Attorneys General: Ed Meese, 
Bill Barr, and Dick Thornburgh are strongly supportive of our proposal.
  From a show with which Americans are familiar, ``America's Most 
Wanted,'' John Walsh has been an early and strong supporter of our 
proposal.
  From the Stephanie Roper Foundation--I mentioned Roberta Roper--but 
Steve Kelly of the Stephanie Roper Foundation has been very helpful.
  Arizona Voice for Crime Victims; a person who helped Senator 
Feinstein in the early years, Neil Quinter, a superb former Senate 
staff member and with whom I visited just this morning, continues his 
support for this.
  Matt Lamberti and David Hantman of Senator Feinstein's office; Jason 
Alberts, Nick Dickinson, and Taylor Nguyen of my office; and, most 
important, Stephen Higgins of my staff and Steve Twist, an attorney 
from Arizona, whose support and competence in helping us through this 
process was, frankly, simply indispensable.
  Also, I will submit for the Record two things. One is a list of crime 
victims' rights amendment supporters. This list includes, in addition 
to those I mentioned, more than half a page of law enforcement 
organizations. I mention this because there has been some suggestion 
that law enforcement does not support us:
  The Federal Law Enforcement Officers Association, Law Enforcement 
Alliance of America, American Probation and Parole Association, 
American Correctional Association, the National Criminal Justice 
Association, the National Organization of Black Law Enforcement 
Executives, National Troopers Coalition, Concerns of Police Survivors, 
and on and on.
  This amendment is strongly supported by prosecutors, law enforcement, 
legal scholars, attorneys general, Governors, former U.S. Attorneys 
General, and many more. I ask unanimous consent to print this list of 
supporters in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               Crime Victims' Rights Amendment Supporters


                            public officials

       42 cosponsors in the U.S. Senate (29R; 13D).

[[Page 6022]]

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

  Mr. KYL. Mr. President, finally, I ask unanimous consent to print in 
the Record a series of a dozen or so statements and letters from 
supporters of the amendment. Included in those, incidentally, is a 
strong statement of support for our specific amendment by Governor 
George Bush of the State of Texas. I ask unanimous consent to print 
these in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Statement by Governor George W. Bush--April 7, 2000

       I strongly support passage of the Victims' Rights 
     Amendment. Two years ago, I joined my colleagues on the 
     National Governor's Association in calling for a national 
     Amendment, like the one we have in Texas and 30 other states. 
     For too long, courts and lawyers have focused only on the 
     rights of criminal defendants and not on the rights of 
     innocent victims. We need to make sure that crime victims are 
     not forgotten, that they are treated fairly and with respect 
     in our criminal process.
                                  ____

                                                   March 14, 2000.
       Dear Senators Kyl and Feinstein: During our years of 
     service as Attorneys General of the United States, we saw 
     first hand how the criminal justice system must command the 
     respect of all our citizens if it is to be effective. That 
     respect can only be eroded when the system unfairly treats 
     those it is supposed to serve.
       For victims, the system is neither fair nor just. Despite 
     federal statutes and states constitutional amendments passed 
     to ensure fair treatment of crime victims, in too many 
     courtrooms across the country, crime victims continue to be 
     excluded and silenced; they are neither informed of 
     proceedings nor given a right to be present or heard.
       We believe the only way to extend the fundamental fairness 
     demanded of our system for crime victims, is to secure their 
     rights in our fundamental law, the U.S. Constitution. That is 
     why we are writing now to express our strong and unqualified 
     support for the constitutional amendment you propose, the 
     Crime Victims' Rights Amendment (S.J. Res. 3). This 
     amendment, once ratified, will restore to our justice system 
     the basic fairness necessary to command the respect of all 
     our people. The rights spelled out in the amendment are 
     simple, yet profound. They are practical and attainable, and 
     they will transform our justice system so that it will truly

[[Page 6023]]

     protect the rights of the law abiding as well as the lawless.
           Sincerely,
     William Barr.
     Edwin Meese III.
     Richard Thornburgh.
                                  ____

                                                     Office of the


                                     Maricopa County Attorney,

                              Maricopa County, AZ, April 14, 2000.
     Hon. Jon Kyl,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kyl: As the chief prosecutor for the sixth 
     largest prosecutor's office in the nation, handling over 
     40,000 felony and delinquency prosecutions each year, I have 
     first hand knowledge of the ramifications of providing 
     constitutional rights for victims.
       I have been a strong proponent for victims' rights for many 
     years, having served on the Arizona Victim's Bill of Rights 
     Steering Committee that was responsible for the passage of 
     constitutional rights for victims in 1990. I also 
     participated in subsequent legislative ad hoc committees 
     charged with developing the enabling legislation. I strongly 
     support S.J. Res. 3 and your efforts to see constitutional 
     rights for victims become a reality in the United States 
     Constitution.
       I recently read the Minority views in the Judiciary 
     Committee's Report on S.J. Res. 3. The ``worst case'' 
     examples that were raised were for the most part extreme 
     predictions which we in Arizona have not experienced, 
     notwithstanding our long history with victims' rights. I 
     would like to take this opportunity to address several of the 
     Minority report concerns.
       Victims' Rights Do Not Result in Substantial Costs To The 
     System--
       Providng victims with constitutional rights has not 
     resulted in substantial costs to law enforcement, 
     prosecutors, the courts, corrections or probation 
     departments. My office provides victims' rights services to 
     over 30,000 victims each year and although the ``exact cost'' 
     is difficult to determine, our estimates are that it costs my 
     office approximately $15.00 per victim.
       While we have experienced an increase in trials, the 
     increase cannot be attributed to our constitution amendment 
     for victim rights. Any such increase has been in response to 
     our mushrooming population and the resulting increase in case 
     filings.
       The Arizona Court of Appeals and the Arizona Supreme Court 
     have not been besieged with appeals based on victim rights 
     arguments.
       Victim Rights Do Not Restrict The Discretion Of The 
     Prosecutor--
       A victim's right to be heard regarding a plea agreement 
     does not mean a crime victim can veto a judge's final 
     decision. Judges, of course, consider the victim's opinion 
     when determining whether or not to accept a plea agreement, 
     however that opinion is merely one factor among others which 
     contribute to the deliberative process. In Arizona, the 
     victim's right to allocution has not caused our judicial 
     officers to abrogate their responsibility to render a 
     decision free of bias. There is no reason to believe that 
     federal judicial officers will act otherwise when weighing 
     the appropriateness of accepting a negotiated plea.
       I have implemented a policy in which prosecutors solicit 
     the victim's opinion regarding the final outcome of the 
     prosecution and take the victim's opinion into consideration 
     when neogitating a plea agreement. In this way, the 
     prosecutor considers the victim's wishes, including the harm 
     caused by the crime, throughout the plea negotiation process 
     and pretrial phase of prosecution. Consideration of the 
     victim's views are again but one factor considered by the 
     prosecutor. Our experience has been that my deputies are not 
     inappropriately influenced by emotion. To presuppose 
     otherwise does a disservice to these dedicated public 
     servants who have sworn to strive for equal justice.
       Prosecutors are responsible for informing victims of the 
     plea agreement and the reasons for the negotiated settlement. 
     It has been our experience that very few victims object to a 
     plea agreement when fully informed of the reasons and 
     benefits of the plea. However, in some instances, after 
     considering the plea and victim's opinion, the judge will 
     reject the plea agreement holding that the interests of 
     justice are not served by the plea. When this happens, 
     although rare in our experience, the court has fulfilled its 
     function as an arbiter not an advocate.
       Victim Rights Do Not Under Cut The Rights Of The Accused--
       Victims desire to see justice, first and foremost. Their 
     natural desire to gain justice, is not something to fear. In 
     our experience it has helped our office achieve that goal.
       While victims have a right to be present throughout the 
     course of trial in Arizona, it has been our experience that 
     defendants and/or the friends and family of the defendants 
     are much more likely than victims to become disruptive during 
     trial. In the rare cases where a victim has been emotionally 
     overwhelmed in court, he or she has either voluntarily left 
     the courtroom to calm down, or is requested to do so upon 
     instruction by the court. In every courtroom in our land, the 
     judge has the responsibility of maintaining order and 
     ensuring that the jury is not influenced by factors other 
     than those presented from the witness box. To assume that the 
     presence of a victim in the courtroom will somehow so 
     prejudice a jury that they would disregard the evidence and 
     return a verdict of guilty predicated and influenced by an 
     individual sitting in the spectator section of the court, 
     presupposes that juries will ignore the instructions of the 
     court to be fair and impartial and to base their decision 
     exclusively on the evidence. To adopt this position, one must 
     conclude that juries will ignore the law. To do so, would be 
     to conclude that our jury system is incapable of justice.
       Defendants have a constitutional right to a speedy trial. 
     Oftentimes defendants waive this right for strategy 
     advantage--hoping for memories to fade, critical witnesses to 
     relocate, or victims to die. Victims have as much an interest 
     in the timely disposition of the criminal case as do the 
     defendants and need to have equal consideration when a judge 
     considers whether or not to delay the disposition of a case.
       Federal Constitutional Rights Do Not Infringe On State's 
     Rights--
       While those victimized by crime in Arizona are afforded 
     victim rights in state court, that same victim would not be 
     afforded constitutional rights if that offense occurred on 
     federal land, or if an Arizona resident were victimized in a 
     state that does not have constitutional rights. These rights 
     are too important to be left to a patchwork of rights from 
     state to state. Consistency in the application of our laws 
     are paramount if our citizens are to realize the benefit of a 
     judicial system that is balanced between the accused and the 
     interest of society at large. Inconsistency breeds contempt 
     and cynicism. Adoption of a federal constitutional amendment 
     will recognize that there is but one law for all.
       My office has nearly a decade of experience championing in 
     assisting victims in exercising their state constitutional 
     rights. It would be disingenuous if I were to say that there 
     had been no costs, yet the benefit to the victim, to the 
     citizens of Arizona and our system of justice far outweighs 
     those costs.
       Our state constitutional amendment has increased 
     cooperation of victims with police and prosecutors. Victims 
     feel more of a part of the criminal justice process. I 
     believe that this has enhanced the ability of law 
     enforcemenet to put criminals behind the bars, and thus has 
     been a factor in the decrease in crime that we have 
     experienced in recent years.
       The scales of justice must be balanced, providing victims 
     with equal access to the courts, information and a voice in 
     the criminal justice system. Our system of justice is 
     dependent upon the voluntary participation of those who have 
     been harmed by crime--without their participation, our 
     country would see an increase in lawlessness and vigilantism. 
     Balancing the scales of justice by providing for victim 
     rights restores faith in our system without detracting from 
     the rights of those accused.
           Sincerely,
                                                Richard M. Romley,
     Maricopa County Attorney.
                                  ____

                                           National Association of


                                            Attorneys General,

                                   Washington, DC, April 21, 2000.
     Hon. Jon Kyl,
     U.S. Senate,
     Washington, DC.

     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senators Kyl and Feinstein: We are writing to express 
     our strong and unequivocal support for your efforts to pass 
     S.J. Res. 3, the proposed Crime Victims' Rights Amendment, 
     and send it on to the States for ratification.
       As Attorneys General from diverse regions and populations 
     in our nation, we continue to see a common denominator in the 
     treatment of crime victims throughout the country. Despite 
     the best intentions of our laws, too often crime victims are 
     still denied basic rights to fair treatment and due process 
     that should be the birthright of every citizen who seeks 
     justice through our courts. We are convinced that statutory 
     protections are not enough; only a federal constitutional 
     amendment will be sufficient to change the culture of our 
     legal system.
       The rights you propose in S.J. Res. 3 are moderate, fair, 
     and yet profound. They will extend to crime victims a 
     meaningful opportunity to participate in each critical stage 
     of their cases. At the same time, they will not infringe on 
     the fundamental rights of those accused or convicted of 
     offenses. Neither will these rights interfere with the proper 
     functioning of law enforcement. Attorney General Reno spoke 
     for many of us in law enforcement when she noted,
       ``[T]he President and I have concluded that a victims' 
     rights amendment would benefit not only crime victims but 
     also law enforcement. To operate effectively, the criminal 
     justice system relies on victims to report crimes committed 
     against them, to cooperate with the law enforcement 
     authorities investigating those crimes, and to provide 
     evidence at trial. Victims will be that much more willing to 
     participate in this process if they perceive that we are 
     striving to treat them with respect and to recognize their 
     central place in any prosecution.''

[[Page 6024]]

       Some have argued that federal constitutional rights for 
     victims will infringe on important principles of federalism. 
     We disagree. Each of our state criminal justice systems 
     accommodates federal rights for defendants. To provide a 
     similar floor of rights for victims is a matter of basic 
     fairness.
       Please share this letter with your colleagues so that they 
     may know of our strong support for S.J. Res. 3.
     (Signed by 39 attorneys general.)
                                  ____


Statement of Marsha A. Kight, Director, Families and Survivors United, 
                   Oklahoma City, OK., March 24, 1999

       My daughter, Frankie Merrell, was murdered in the Oklahoma 
     City bombing, and in tribute to her and all the others, I 
     founded Families and Survivors United, which took a leading 
     role in advocating for the victims and survivors before and 
     during the trials which followed. This is now I first came to 
     meet Beth Wilkinson.
       Having attended every day of the McVeigh trial, I came to 
     regard Beth Wilkinson as the most effective advocate on the 
     prosecution team. More than that, I and others trusted her to 
     bring the victims' perspective into the courtroom, and she 
     lived up to that trust. So I believe that her statement 
     before the Judiciary Committee today is from the heart--that 
     she really believes that if our Victims Rights Amendment were 
     in place, it might have jeopardized a very basic right--the 
     ``right of just conviction of the guilty,'' as she puts it.
       But she is wrong. As she describes so well, the prosecution 
     team worked hard to earn our trust, and for the great 
     majority of the 2,000-plus of us who were designated victims 
     under the law, we gave them our trust. But on the one 
     tactical issue she says argues against the Amendment, the 
     prosecution team chose not to trust us for the reasons she 
     describes, and in the process, that team broke both our trust 
     and the law.
       She claims that, had the Amendment been in place, its right 
     for victims to be heard before a plea bargain is accepted 
     might have harmed the prosecution. Specifically the 
     suggestion that might have persuaded the judge to not accept 
     the guilty plea of Michael Fortier--and thus might have 
     jeopardized the eventual conviction of Timothy McVeigh and 
     Terry Nichols. There are three things wrong with this 
     conjecture.
       First, Michael Fortier's testimony was not critical to 
     either conviction, as several jurors later made clear to me.
       Second, had the Justice Department taken us into its trust 
     on the usefulness of the Fortier plea, the great majority of 
     us would have reciprocated that trust and encouraged the 
     judge to accept the plea. I think from everything else Beth 
     Wilkinson describes about the trust-building between the 
     prosecution and the victims confirms this belief. We were not 
     blind sheep, willing to accept everything the prosecutors 
     said was so--we were, most of the time, informed citizens who 
     were persuaded by the prosectuors' reasoning. Beth Wilkinson 
     as much as admits this when she notes that the victims 
     overwhelmingly asked for a provable and sustainable case 
     against the guilty.
       And third, the prosecution team's mistrust of us over the 
     Fortier plea agreement was so great that it chose not to 
     notify us over the hearing in which the plea was offered, and 
     it chose not to confer with any of us beforehand about the 
     plea--both of which were in violation of existing federal 
     law.
       So when Beth Wilkinson says that statutory reform will meet 
     our just demands, we must ask, what happened to the statutes 
     already on the books?
       I am increasingly persuaded that the most formidable enemy 
     of crime victims' aspirations for getting justice under our 
     Constitution are criminal justice officials--even well-
     meaning ones like Beth Wilkinson--who believe that only 
     government lawyers know best. Her testimony is in fact 
     Exhibit A in the case for the Amendment because it is the 
     voice of a superior government extending handouts as an act 
     of grace, not protecting legitimate rights of a free people. 
     She says that the ``concerns'' of the victims must be 
     balanced with the ``need for a just trial,'' as though these 
     important values were somehow in conflict, and that only the 
     government knows how to achieve this goal.
       I cannot tell you how these words hurt me; they confirm my 
     worst fears about the treatment of victims in our justice 
     system and how nothing will change without constitutional 
     rights.
       It is painfully obvious to me that she thinks of us as mere 
     meddlers who must be kept out of this important government 
     business for fear that we might break something. Beth 
     Wilkinson may believe that she ``grew to understand my grief 
     first hand,'' but clearly she does not. For me and so many of 
     our families our grief was profoundly extended when our 
     government minimized and discounted our interests by refusing 
     to consult with us about this important development early in 
     the case.
       For example, consider the point Beth Wilkinson makes about 
     grand jury secrecy. She says, ``Due to the secrecy rules of 
     the grand jury, we could not explain to the victims why 
     Fortier's plea and cooperation was important to the 
     prosecution of Timothy McVeigh and Terry Nichols.'' Under 
     existing federal law, however, courts are authorized to enter 
     appropriate orders allowing for the disclosure of grand jury 
     information in advance of a court proceeding. It apparently 
     did not even occur to her then, nor does it today, to have 
     sought such a court order for disclosure. Nor is it clear 
     that such an order would even have been necessary, as surely 
     there would have been ways to explain the circumstances to 
     the victims without going confidential grand jury matters.
       Perhaps most disturbing of all to me is Beth Wilkinson's 
     assertion that the Victims Rights Clarification Act of 1997 
     ``worked--no victims were precluded from testifying.'' In 
     fact, I was precluded from testifying in the sentencing phase 
     of the trial. As she is well aware, I very much wanted to be 
     a penalty phase witness. But because of my philosophical 
     beliefs in opposition to capital punishment, I was not 
     allowed by the government prosecutors to testify. Clearly the 
     statute did not work for me.
       In addition, a number of victims lost their right to attend 
     the trial of Timothy McVeigh because of legal uncertainties 
     about the status of victims' rights. As I testified before 
     the Senate Judiciary Committee in 1997, Judge Matsch rejected 
     a motion made by a number of us to issue a final ruling 
     upholding the new law as McVeigh's trial began. His 
     reluctance led the prosecution team (including Beth 
     Wilkinson) to tell us that, if we wanted to give an impact 
     statement at the penalty phase, we should seriously consider 
     not attending the trial. Some of the victims on the 
     prosecution's penalty phase list followed this pointed 
     suggestion and forfeited their supposedly protected right to 
     attend McVeigh's trial. Our lawyers also sought further 
     clarification from the judge (unsuccessfully), but had to do 
     so without further help from the prosecution team. The 
     prosecutors were apparently concerned about pressing this 
     point further because the judge might become irritated.
       Beth Wilkinson urges the Congress to ``consider statutory 
     alternatives to protect the rights of victims.'' While she 
     says that she opposes the Victim's Rights Amendment in its 
     ``current form,'' the context of this statement makes it 
     clear that she opposes any constitutional rights for crime 
     victims. She concludes with the following prescription: ``We 
     must educate prosecutors, law enforcement and judges about 
     the impact of crimes so that they better understand the 
     importance of addressing victims' rights from the outset.'' 
     But the truth is that there will be no real rights to 
     address, as my experience makes clear, unless those rights 
     are enshrined in the United States Constitution. Only then 
     will victim's rights be meaningful and enforceable.

  Mr. KYL. Mr. President, I am going to make some concluding remarks 
about why we believe so strongly in this amendment, how we intend to 
pursue the amendment, and why supporters of this amendment should take 
heart about how far we have come in this process and not at all be 
dispirited by the fact that there will not be a final vote on the 
amendment at this time. I will make those comments after Senator 
Feinstein has had an opportunity to make some comments that I know she 
strongly wishes to make.
  Mr. SCHUMER. Mr. President, will the Senator yield?
  Mr. KYL. Yes.
  Mr. SCHUMER. Mr. President, I asked the Senator to yield for two 
quick requests. I forgot to do this yesterday. I mentioned a letter 
from the Judicial Conference on this amendment. I ask unanimous consent 
to print this letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Committee on Criminal Law of the Judicial Conference of 
           the United States,
                                   Greenville, SC, April 17, 2000.
     Hon. Charles E. Schumer,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
     Re: S.J. Res. 3, the Victims' Rights Amendment
       Dear Senator Schumer: Thank you for your letter requesting 
     the views of the Judicial Conference of the United States 
     regarding S.J. Res. 3, the Victims' Rights Amendment to the 
     Constitution. On behalf of the Judicial Conference, I 
     appreciate the opportunity to have its viewpoint considered 
     as the Senate takes up this important legislation.
       In March of 1997, the Judicial Conference resolved to take 
     no position at that time on the enactment of a victims' 
     rights constitutional amendment. However, if the Congress 
     decides to affirmatively act in this area, the Judicial 
     Conference strongly prefers a statutory approach as opposed 
     to a constitutional amendment.
       A statutory approach would allow all participants in the 
     federal criminal justice system to gain experience with the 
     principles involved without taking the unusual step of 
     amending our nation's fundamental legal

[[Page 6025]]

     charter, with its concomitant application to the various 
     state systems. Many of the principles contemplated in S.J. 
     Res. 3 represent a significant change in our criminal justice 
     system, literally realigning the interests of defendants and 
     victims, as well as the process by which criminal cases are 
     adjudicated. The rights and protections heretofore afforded 
     to citizens under the Constitution were largely part of the 
     fabric of the law well-known and understood by the Founding 
     Fathers, while many of the concepts in the victims' rights 
     area are largely untested, at least in the federal system. It 
     could take years for a settled body of law and judicial 
     administration to evolve. A statutory approach would 
     accommodate this process.
       A statutory approach would also vitiate the potential 
     specter of significant federal court involvement in the 
     operations of the state criminal justice systems under a 
     victims' rights constitutional amendment. Finally, a 
     statutory approach is more certain and immediate, an 
     advantage to victims. Conversely, an amendment potentially 
     would not be effective for many years, awaiting the ponderous 
     and uncertain ratification process required under Article V.
       While S.J. Res. 3 appears to have less potential adverse 
     impact on the federal judiciary than some previous amendment 
     proposals, there remain a number of fundamental concerns:


    classes of crimes and victims to which the amendment will apply

       Under S.J. Res. 3, the proposed amendment will apply to any 
     person who is a ``victim of a crime of violence, as these 
     terms may be defined by law.'' It is not clear from the 
     proposed amendment whether these terms are to be defined by 
     Congress, the states or through case law. The term ``crime of 
     violence,'' which is commonly utilized in legal parlance, has 
     many meanings under state and federal law. Thus, it is 
     unclear as to which specific crimes this provision would 
     actually apply. This problem is magnified by the fact that 
     this provision applies to misdemeanor cases, the number of 
     which is particularly large in the state courts. Failure to 
     provide a clear and practical definition of this term may 
     well result in protracted and unnecessary litigation that 
     will likely take years and great expense to resolve.
       Closely associated with this issue is the question of what 
     classes of persons will qualify as a ``victim.'' We note that 
     the proposed amendment includes no definition of victim. This 
     leaves many fundamental questions unanswered, including:
       Must a person suffer direct physical harm to qualify as a 
     victim?
       Is it sufficient if the person has suffered pecuniary loss 
     alone?
       What if the person is alleging solely emotional harm? Is 
     that enough to qualify him or her as a victim?
       Are family members of a person injured by a crime also 
     victims?
       Suppose that a defendant is accused of committing a series 
     of ten violent armed robberies. Due to evidence strength and 
     efficiency considerations, the prosecutor sends only six of 
     those cases to the grand jury. Are the other four injured 
     persons victims under the proposed amendment?
       Suppose an agreement is reached whereby the defendant 
     agrees to plead guilty to just one of the cases. Are the 
     other nine injured persons victims under these circumstances? 
     Will the answer affect a prosecutor's ability to obtain plea 
     agreements from defendants?
       Extending the definition of victim to those who claim 
     emotional harm from criminal offenses dramatically 
     exacerbates the potential impact of this proposal. The number 
     of persons who could claim to be emotionally harmed by 
     significant, well-publicized crimes could be quite large. 
     Moreover, substantial litigation could result from the 
     requirement of restitution, especially in cases involving 
     non-economic injury. Finally, cases involving large numbers 
     of victims, particularly victims of terrorist acts, are 
     particularly troubling. Providing the rights enumerated in 
     the proposed amendment to large numbers of victims could 
     overwhelm the criminal justice system's ability to perform 
     its primary function of adjudicating guilt or innocence and 
     punishing the guilty.


                              enforcement

       The proposed amendment states that nothing ``in this 
     article shall provide grounds to stay or continue any trial, 
     reopen any proceeding or invalidate any ruling.'' Unlike some 
     previously introduced victims' rights constitutional 
     amendment proposals, S.J. Res. 3 does not stipulate that a 
     victim has no grounds to challenge a charging decision. This 
     addition would be a significant and valid limitation. 
     Allowing victims to challenge a prosecutor's charging 
     decision could result in significant operational problems. We 
     suggest that Congress also consider modifying the proposed 
     amendment to prohibit a victim from challenging a 
     ``negotiated plea.'' Permitting the challenge of a proposed 
     plea interferes with the prosecutor's ability to obtain 
     convictions of defendants whose successful prosecution may 
     rest on the cooperation of another defendant. Guilty pleas 
     are sometimes also negotiated because the prosecution 
     witnesses are, for various reasons, not as strong as they 
     appear to be on paper. Also, the sheer volume of cases would 
     generally overwhelm any prosecutor's office and the courts 
     unless the vast majority were settled. Permitting challenge 
     to a prosecutor's judgment regarding an accepted plea could 
     lead inadvertently to a failure to secure a conviction. The 
     significance of this issue should not be underestimated.


                               federalism

       The matter of victim enforcement raises significant 
     federalism concerns. While the proposed amendment includes 
     provisions that bar monetary damages as a remedy, it appears 
     that victims may be able to seek injunctive relief against 
     state officials for violation of their new constitutional 
     rights. Such claims, almost inevitably filed in federal 
     courts, could cause significant federal court supervision of 
     state criminal justice systems for the purpose of enforcing 
     the amendment. These conflicts between federal courts and 
     state governments would be avoided by a statutory approach to 
     victims' rights.


                  administration of justice exception

       S.J. Res. 3 permits Congress to create exceptions to the 
     proposed amendment ``when necessary to achieve a compelling 
     interest.'' While this is a very valid and useful provision, 
     Congress should carefully consider the need for a further 
     exception based on adverse impact on the administration of 
     justice. Inevitably, courts will handle cases where the 
     rights of victims collide with the functional administration 
     of justice. Such cases might fall into two general 
     categories. The first category relates to the very real 
     practicalities of the administration of justice. One example 
     would be an action involving exceptionally large numbers of 
     possible victims wishing to attend the proceedings and 
     overwhelming any available courtroom or other suitable 
     location. A similar problem would be encountered if large 
     numbers of victims wished to exercise their rights to 
     allocution at sentencing, unduly prolonging the proceedings 
     and pushing back other cases that need to be heard. The 
     second category of cases are those in which the rights of 
     victims, exercised under certain circumstances, may have a 
     substantive effect upon the rights of defendants or others, 
     impairing due process or the right to a fair trial. An 
     example of such a case would be if a victim wished to both 
     attend the trial and testify at the guilt phase, even though 
     the trial judge had ordered all witnesses sequestered. This 
     could impair the fundamental integrity of the trial.
       Congress should consider modifying the proposed amendment 
     to allow a judge, while recognizing the rights of the victims 
     to the extent practicable, to provide for exceptions in 
     individual cases when required for the orderly administration 
     of justice. Congress may also wish to consider modifying the 
     proposed amendment to additionally allow Congress to 
     statutorily enact exceptions in ``aid of the administration 
     of justice.'' At the very least, Congress should provide an 
     exception permitting the sequestration from trial proceedings 
     of a victim who will appear as a witness at the guilt phase 
     of the trial. This could be accomplished through a general 
     provision in the proposed amendment stating that the victim's 
     rights should not ``interfere with the constitutional rights, 
     including due process rights, of the person accused of 
     committing the crime.'' It could also be accomplished through 
     a more narrow provision, similar to that in the Wisconsin 
     Constitution, by the addition of a phrase allowing 
     sequestration when ``necessary to a fair trial for the 
     defendant.'' Another approach, similar to that taken under 
     the Constitution of Florida, would add a phrase allowing 
     sequestration ``to protect overriding interests that may be 
     prejudiced by the presence of the victim.''


                      speedy trial considerations

       The proposed amendment includes a victim's right to 
     ``consideration of the interest of the victim that any trial 
     be free from unreasonable delay.'' Determining the meaning of 
     this phrase and how it interacts with existing speedy trial 
     provisions should be a fertile source of diversionary 
     litigation.
       In federal court, the sixth amendment right to a speedy 
     trial and the Speedy Trial Act, see 18 U.S.C. Sec. Sec. 3161-
     3173, not only guarantee the defendant's right to a speedy 
     trial, but also recognize the public's, and therefore the 
     victim's, interest in swift justice. However, the Speedy 
     Trial Act also recognizes several legitimate bases to 
     postpone trial, including plea negotiations. See 18 U.S.C. 
     Sec. 3161. This mechanism is an integral part of the criminal 
     justice system, balancing the desirability of a speedy trial 
     with the realistic requirements of a fair proceeding.
       How is this right to consideration of the interest of the 
     victim that any trial be free from unreasonable delay to be 
     enforced? Will the victim have a right to seek relief from 
     unreasonable delay? A motion to move the case faster would 
     require a collateral hearing to determine the extent of the 
     delay and whether it is unreasonable. The victim would then 
     be in an adversarial position to the prosecutor and perhaps 
     to the presiding judge. Would another judge be required to 
     make the determination? Would a federal judge be asked to 
     pass judgment on the efficiency of a state court?
       With ever increasing criminal dockets and limited 
     prosecutorial and judicial resources, victims in several 
     cases on the same docket,

[[Page 6026]]

     insisting upon speedier proceedings, could potentially cause 
     severe internal conflicts within units of the same court.


                                 notice

       It is important that the responsibility for providing 
     notice of proceedings and of the release or escape of a 
     defendant be appropriately allocated to the prosecution, law 
     enforcement agencies, or corrections agencies as is the law 
     and practice in virtually all the states providing for 
     victims' rights. Many of the rights under the proposed 
     amendment must attach long before a defendant is formally 
     charged in court. The judiciary would not have access to much 
     of the information necessary to provide the required notice. 
     It has neither the personnel nor resources to provide such 
     notice to large numbers of victims or to provide the 
     specialized types of victim assistance that is available from 
     the first line of contact that victims have with the criminal 
     justice system. The situation is likely no better--and 
     possibly worse--in the state courts.
       Once again, I thank you for the opportunity to express the 
     views of the Judicial Conference on this important issue. If 
     you have any questions regarding the matters discussed 
     herein, please do not hesitate to contact me. I may be 
     reached at 864/233-7081. If you prefer, your staff may 
     contact Dan Cunningham, Legislative Counsel at the 
     Administrative Office of the U.S. Courts. He may be reached 
     at 202/502-1700.
           Sincerely yours,
                                           William W. Wilkins, Jr.

  Mr. SCHUMER. Mr. President, second, I thank both Senator Kyl and 
Senator Feinstein for the passion, the erudition, the conviction, and 
for the cause. It is, obviously, wise to delay this. I know we may be 
back for another day. Maybe we can all come together. I plead with them 
to consider a proposal of making this a Kyl-Feinstein statute, as 
opposed to a Kyl-Feinstein constitutional amendment, where I think it 
might get close to unanimous support on the floor.
  I thought the debate we were having and may well continue to have, at 
least to my young years in the Senate, was one of the best times of the 
Senate, where we each talked about the issue with our concerns, our 
intelligence, and our passions. We tried to meet the issue head on. I 
thank both the Senator from Arizona and the Senator from California for 
their good work on this and hope we can come together on some sort of 
compromise on an issue about which we all care so much.
  Mr. KYL. Mr. President, I reiterate what I said yesterday, and that 
is, the best part of the debate we had was the debate with Senator 
Schumer whose approach to this was serious and intelligent. He asked 
the best questions. I believe we answered them, but we did not come to 
agreement. Of course, we will be working with him in the future on this 
matter and, hopefully, persuade him that a constitutional amendment is 
the best way to go. The debate we had among Senator Feinstein, Senator 
Schumer, and myself I thought was the highlight of this debate. I 
appreciate his remarks.
  I yield to Senator Feinstein for comments I know she wants to make.
  Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from 
Arizona. I also thank the Senator from New York, and I thank you, Mr. 
President, for allowing me to proceed.
  I begin by thanking the Senator from Arizona. Mr. President, I say to 
Jon Kyl, working with him on this amendment has truly been one of the 
highlights of my 7 years in the Senate. He has worked with credibility 
and with integrity. He has been fulsome in his sharing of detail. We 
have gone shoulder to shoulder through virtually every rung of this, 
through 4 years of discussions, of conferences, of hearings, of 800 
pages of testimony, some 35 witnesses. I agree with everything he said 
about the inclusive nature of the process.
  I must tell Senator Kyl how much I admire him. We worked together on 
the Technology and Terrorism Subcommittee of the Judiciary Committee. I 
saw it there. I have never seen it with another Senator as pronounced 
as it was in these past 4 years in the work on this issue. I believe a 
friendship has developed in the process, one which means a great deal 
to me. His leadership has been superb, and there is certainly nothing 
either one of us has done for the misunderstanding out there still 
about what we are trying to do and the importance of it. We will come 
back another day; there is no question in my mind about that. I cannot 
thank him enough. From the bottom of my heart, I thank Senator Kyl for 
his credibility, his intelligence, his integrity. He did his party 
proud. I am very happy to be a colleague of his and a friend as well.
  Before I get into my remarks, I also echo the thanks Senator Kyl 
provided to a whole host of victims, literally tens of thousands of 
them, to 37 State attorneys general, to many Governors, to all those 
across both party lines who support this and understand it. I 
particularly thank three legal scholars who were with us every step of 
the way.
  I thank Larry Tribe, a professor of constitutional law at Harvard 
University, for his testimony, for the phone calls, for the advice he 
has provided and for the statements he has made.
  I also thank one of the primary legal scholars in this country who 
has been a victims' rights representative, legal counsel--just a 
wonderful human being I have also gotten to know--and that is Professor 
Paul Cassell, professor of law at the University of Utah.
  I would be remiss if I did not thank Steve Twist on behalf of both 
Senator Kyl and myself. There are few people who have been as ardent in 
the cause as Steve Twist has been, with his knowledge, with his 
expertise, with his representation of victims throughout this entire 
process.
  I know that none of the three above-mentioned individuals is going to 
go away. We have them as part of this enormous victims coalition. We 
will come back, and we will fight again another day.
  But today, Mr. President, I rise with a sad heart because we must 
postpone our battle for a crime victims' rights constitutional 
amendment.
  This is a fight that actually began 18 years ago when the President's 
Task Force on Victims of Crime recommended an amendment to the 
Constitution of the United States which would address victims' rights. 
This isn't a new idea. It has been around. There is a track record to 
show why it is necessary.
  As I said, Senator Kyl and I introduced that amendment 4 years ago. 
We have worked long and hard. I think enough has been said about that.
  What is unbelievable to me is that we have also been criticized for 
the hard work we have put into this amendment over the past 4 years.
  Senators have come to the floor and told us that the fact that we put 
our amendment through so many drafts and consulted so many interested 
parties shows that our amendment does not deserve to be in the 
Constitution of the United States. Yet, in fact, drafting an amendment 
to the Constitution of the United States requires an uncanny kind of 
precision. Because this isn't 1791 when the Bill of Rights was written, 
or 1789 when the Constitution was adopted, there has been a whole 
panoply of case law and interpretations that have come throughout the 
ages that makes the drafting of a constitutional amendment such as this 
one very difficult. However, I believe we have developed a document 
that will, in fact, stand the test of time.
  What we have tried to do, in essence, is very simple. I would like to 
show a chart, once again. We have tried to take the Constitution, which 
provides 15 specific rights to the accused, and no rights to victims of 
violent crimes--with a scale of justice which we believe is weighted in 
a certain way to exempt victims from the administration of criminal 
justice--and give victims some status and standing in the 
administration of criminal justice, so that the scale of justice would 
not be so badly tilted but would look something like this other chart 
where the accused would have certain basic rights, and victims would 
have certain basic, although limited, rights: The right to notice when 
a trial takes place; the right not to be excluded from a public 
proceeding; the right to be heard at that proceeding, if present; the 
right to submit a statement in writing; the right to notice of the 
release or the escape of an attacker; the right to consideration for 
the assurance of a speedy trial; the right to an order of restitution; 
and the right to consideration of their safety in determining any 
conditional release of an attacker--simple, basic rights of status and 
standing.

[[Page 6027]]

  We have heard much about the fact that this should not be in the 
Constitution. There has been much talk on the floor about James Madison 
and other framers. Senators have suggested that our forefathers would 
not support the amendment.
  I tried to point out why our forefathers did not have reason to 
consider the amendment because when both the Constitution and the Bill 
of Rights were written, victims had a role in the process. Up until 
1850, victims had a role in the process. But it was with the 
development of the public prosecutors, when victims were no longer in 
the courtroom, that they became summarily excluded from the process.
  I point out that if we look back in history, I find my views very 
commensurate with those of Thomas Jefferson. He was not among those who 
wrote the Constitution, but he thought deeply about the Constitution 
and how and when we should amend it. He was also the inspiration for 
our Bill of Rights, a document actually drafted by James Madison.
  In 1816, 25 years after the Bill of Rights became the law of the 
land, Thomas Jefferson wrote to Samuel Kercheval, stating his views on 
amending the Constitution. I think it is important that the Record 
reflect these views. He said:

       I am certainly not an advocate for frequent and untried 
     changes in laws and constitutions. I think moderate 
     imperfections had better be borne with; because, when once 
     known, we accommodate ourselves to them and find practical 
     means of correcting their ill effects. But I know also that 
     laws and institutions must go hand in hand with the progress 
     of the human mind. As that becomes more developed, more 
     enlightened, as new discoveries are made, new truths 
     disclosed and manners and opinions change with the change of 
     circumstances, institutions must advance also and keep pace 
     with the times.

  Similarly, 13 years earlier, he said in a letter to Wilson Nicholas:

       Let us go on perfecting the Constitution by adding by way 
     of amendment, those forms which time and trial show are still 
     wanting.

  I believe very deeply that time and trial show that our amendment is 
still wanting and should be adopted.
  I ask unanimous consent to have printed in the Record, in recognition 
of the widespread support we have received, letters from virtually 
every law enforcement agency and every crime victims group.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 County of Shasta,


                              Office of the District Attorney,

                                      Redding, CA, April 17, 2000.
     Re: Crime Victims' Rights Constitutional Amendment

     Hon. Dianne Feinstein,
     U.S. Senate, Senate HWA Office,
     Washington, DC.
       Dear Senator Feinstein: I write to offer my wholehearted 
     support for your efforts in sponsoring the Crime Victims' 
     Rights Constitutional Amendment. Your proposed amendment 
     would fill a gaping hole in the rights guaranteed to citizens 
     in our Constitution by providing basic, essential rights to 
     victims of crime in our nation. As a prosecuting attorney, I 
     have all too often seen the rights of perpetrators of 
     horrendous crimes protected at all costs while the basic 
     human rights of victims and families of victims of those 
     crimes are ignored and forgotten. It will be great day when 
     our Constitution and criminal justice system work as hard to 
     protect the rights of victims as they do the rights of 
     criminals. I commend you on your efforts to make that day a 
     reality. Do not hesitate to call upon me if there is anything 
     I can do to support you with this work.
       Thank you for your attention to this matter.
           Sincerely,
                                                McGregor W. Scott,
                                                District Attorney.
                                                   State of Nevada


                                            Executive Chamber,

                                    Carson City, NV, May 24, 1996.
     Hon. Dianne Feinstein,
     U.S. Senate, Senate Hart Office Building,
     Washington, DC.
       Dear Senator Feinstein: I am writing to lend my support to 
     your efforts to protect victims' rights. As one of the 
     original nine members of President Reagan's Task Force on 
     Victims of Crime, I have long supported a Constitutional 
     Amendment to protect the rights of victims of crime.
       As the vice-Chairman, and soon to be Chairman, of the 
     National Governor's Association, I would like to assist you 
     by raising this issue with our nation's governors.
       In Nevada, we've made great strides in protecting victims' 
     rights through legislative measure ranging from guarding 
     consumers against auto repair fraud to expanding our domestic 
     violence laws to cover people in dating or live-in 
     relationships. Despite these efforts, more changes need to be 
     made to ensure that victims are treated fairly. The criminal 
     justice system should not overlook the interest of victims in 
     light of protecting the rights of the criminals. I firmly 
     believe that a speedy trial and information about the 
     proceedings of the trial are minimal rights that the 
     constitution should grant to all victims.
       Please let me know what other ways I can help you with this 
     cause.
           Sincerely,
                                                       Bob Miller,
     Governor.
                                  ____



                                   Justice for Murder Victims,

                                San Francisco, CA, April 19, 2000.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington, DC.
     Regarding: Support of S.J. Res. 3, the Victims Rights 
         Constitutional Amendment
       Dear Senator Feinstein: On behalf of Justice for Murder 
     Victims, I would like to inform you of our strong support of 
     S.J. Res. 3, the ``Victims Rights Constitutional Amendment''
       Criminals' rights are inherently included in America's 
     criminal justice system, while crime victims, historically, 
     have not had a place and/or voice within the criminal justice 
     system. In fact, to add insults to injury, the majority of 
     victims are violated and betrayed a second time by the 
     system. S.J. Res, 3 will secure basic rights for countless 
     victims of crime throughout our nation as they struggle to 
     survive their victimization.
       Under this legislation, victims would have a right to 
     receive notice of public proceedings related to the crime 
     perpetrated against them, notice of the offender's escape or 
     release from custody, as well as notification of parole 
     hearings and to have a voice at these hearings. Without the 
     help and determination of so many crime victims, the system 
     cannot hold criminals accountable and stem the tide of future 
     crime.
       Victims of crime need to have the same rights across this 
     great nation. We ``THANK YOU'' for taking an active role in 
     this very important legislation and for the concern and 
     support that you continue to show victims of crime and their 
     survivors.
       Please feel free to call on us anytime we may be of help.
           Sincerely,
                                                  Harriet Salarno,
     President.
                                  ____

                                                     May 20, 1996.
     Senator Dianne Feinstein,
     U.S. Senate Hart Building, Washington, DC.
     Attention: Neil Quinter
       Dear Senator Feinstein: Thank you for meeting with me on 
     such short notice last week and sharing the Crime Victims' 
     Rights Amendment. As I am currently spending the majority of 
     my days in court attending the trial of my daughter's killer, 
     I know too well the inequities facing the families of 
     victims.
       For that reason I wish to offer my whole hearted 
     endorsement and approval of your attempt to guarantee rights 
     for the victims and families of victims of violent crime. If 
     there is anything that I can do to promote your efforts, 
     please feel free to call on me at any time.
           Sincerely,
     Marc Klaas.
                                  ____



                                     Victims & Friends United,

                                   Sacramento, CA, April 21, 2000.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington, DC.
     Re: Support of Crime Victims' Rights Amendment
       Victims and Friends United (VFU), a California grassroots 
     organization is the representative of nearly 20,000 members 
     which consists of crime victims, their families, and other 
     concerned citizens. We have been at the forefront of the 
     fight for the rights of crime victims for nearly 20 years. We 
     ensure that existing victims' rights laws are zealously 
     enforced, and encourage the drafting of new legislation to 
     further protect the rights of crime victims and improve 
     public safety.
       As President and Board member of VFU, I am writing to ask 
     you and your co-sponsored Senators to urge the full Senate to 
     pass the Crime Victims' Rights Amendment to the U.S. 
     Constitution. In supporting this amendment, the Senate has an 
     historic opportunity to take a stand for the millions of 
     Americans who are victimized each year in this country.
       For decades we have seen court decisions expanding the 
     ``rights'' of criminals. Finally, it is encouraging to see 
     legislators beginning to place equal emphasis on the rights 
     of crime victims. The rights to be present, heard and 
     informed throughout the criminal justice process are basic 
     tenets guaranteed by our U.S. Constitution to those accused 
     or convicted of crimes in our nation, yet the rights of their 
     innocent victims are not articulated in our U.S. 
     Constitution. The Crime Victims' Rights Constitutional 
     Amendment is necessary to ensure that victims' rights are 
     respected and enforced in our criminal justice process.
       Thank you for all that you do for Californians, keep up the 
     good work, and realize

[[Page 6028]]

     that you have our full support. If we can be of further 
     assistance or you need someone from our organization to 
     testify, please give us a call.
           Sincerely,
                                                  Patsy J. Gillis,
     President and Co-Founder.
                                  ____

                                               The Law Enforcement


                                          Alliance of America,

                                     Lynbrook, NY, April 12, 2000.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington, DC.
       Dear Senator Feinstein: On behalf of the Law Enforcement 
     Alliance of America, I would like to inform you of our strong 
     organizational support of S.J. Res. 3, the ``Victims Rights 
     Constitutional Amendment.'' LEAA is asking for your active 
     support of this important legislation that is expected to go 
     for a Senate floor vote in late April. Additionally, LEAA 
     asks that you oppose any attempts to dilute the intent of 
     this critical legislation.
       LEAA is the nation's largest coalition of law enforcement 
     professionals, crime victims, and concerned citizens 
     dedicated to finding solutions to the problems plaguing our 
     country's criminal justice system. Fighting for passage of 
     victims' rights legislation is of paramount importance in 
     realizing just one of LEAA's many goals.
       Paradoxically, criminals' rights are inherently included in 
     America's most supreme document while crime victims, 
     historically, have not had a place and/or a voice within the 
     criminal justice system. In fact, to add insult to injury, 
     the majority of victims are violated and betrayed a second 
     time by the system. S.J. Res. 3 will secure basic rights for 
     countless victims of crime throughout our nation as they 
     struggle to survive their victimization.
       Under this legislation, victims would have a right to 
     receive notice of public proceedings related to the crime 
     perpetrated against them, notice of the offender's escape or 
     release from custody, as well as notification of parole 
     hearings and a voice at these hearings. As the President's 
     Task Force on Victims reported in 1982, ``The criminal 
     justice system is absolutely dependent upon the cooperation 
     of crime victims to report and to testify. Without their 
     help, the system cannot hold criminals accountable and stem 
     the tide of future crime.''
       LEAA feels it is imperative to pass legislation to protect 
     the country's violent crime victims. The high number of 
     victims in this country (including the tens of thousands of 
     officers assaulted each year and dozens murdered) indicates 
     that we cannot afford to overlook this proposed amendment. 
     Another reason to endorse this amendment is that in the 18 
     years we've discussed this provision, 32.4 million Americans 
     have been victims of violent crime. And they simply deserve 
     better treatment in the criminal justice system.
       Once again, we urge you to take an active role in passing 
     this very important legislation. If there is any information 
     LEAA can provide on S.J. Res. 3, please don't hesitate to 
     call me or LEAA's Crime Victims Advocate Darlene Hutchinson 
     at (703) 847-2677.
           Sincerely,
                                                   James J. Fotis,
     Executive Director.
                                  ____



                                                        WEAVE,

                                   Sacramento, CA, April 21, 2000.
     Senator Dianne Feinstein,
     Senate Hart Office Building,
     Washington, DC.
       Dear Senator Feinstein: On behalf of Women Escaping a 
     Violent Environment, Inc. (WEAVE), I am happy to lend our 
     support of your Crime Victims Rights Constitutional Amendment 
     (Senate Joint Resolution 3). This amendment is supported 
     throughout our nation by 49 of 50 governors as well as 
     Mothers Against Drunk Driving, Parents of Murdered Children 
     and the National Organizational for Victim Assistance.
       While criminal defendants have almost two dozen separate 
     constitutional rights, fifteen of which specifically provided 
     as constitutional amendments, victims of crime have no 
     constitutional rights. The Crime Victims Rights Amendment 
     brings much needed balance to our justice system by granting 
     victims the right to be informed, present and heard at 
     critical stages throughout trials.
       We should not forget that justice is an attempt to give 
     back to victims the sense of closure and fairness taken by 
     their perpetrators. This amendment is a long overdue step 
     toward justice for victims.
       Please convey WEAVE's strong support to your colleagues in 
     the U.S. Senate. Thank you for your advocacy efforts on 
     behalf of victims and victim advocacy organizations.
           Sincerely,
                                                      Mary Struhs,
     Associate Director.
                                  ____

                                           Federal Law Enforcement


                                         Officers Association,

                               East Northport, NY, April 21, 2000.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington, DC.
       Dear Senator Feinstein: On behalf of the National Executive 
     Board of the Federal Law Enforcement Officers Association and 
     out more than 17,000 members across America, I want to 
     formally announce FLEOA's strong support for S.J. Res. 3, the 
     ``Crime Victims' Rights Constitutional Amendment.''
       FLEOA, the voice of America's federal criminal 
     investigators, agents, and officers, is the largest 
     professional association in the nation exclusively 
     representing the federal law enforcement community. FLEOA, a 
     non partisan, volunteer organization comprised of active and 
     retired federal law enforcement members from the agencies 
     listed on the left side of this document is dedicated to the 
     advancement of the federal law enforcement community.
       We are an organization comprised of individuals who have 
     dedicated their lives to protecting and serving the American 
     public. It is our belief that the time is right to amend the 
     Constitution to correct the injustice that that has developed 
     in this area. This amendment will ensure that those who have 
     been touched by crimes of violence are not further victimized 
     by laws that may prevent them from being notified, and 
     provided the opportunity to be present and heard at critical 
     stages of their cases. We believe that the Founders created 
     the Constitution to be a living document and this proposed 
     amendment is consistent with that principle.
       FLEOA looks forward to working with Congress and the States 
     in securing passage of the Crime Victims' Rights 
     Constitutional Amendment. Please do not hesitate to contact 
     me on this issue or on any other legislative matter impacting 
     federal law enforcement. I can be reached at (202) 258-7884.
           Respectfully,
                                           Brian M. Moskowitz,    


                      Legislative Director, National Executive

     Board Member.
                                  ____

                                               National Center for


                                 Missing & Exploited Children,

                                    Arlington, VA, April 25, 1996.
     Senator Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: I am writing on behalf of the 
     National Center for Missing and Exploited Children to 
     formally express our support and endorsement of the Victim's 
     Rights Amendment you have introduced with Senator Kyl and 
     Congressman Hyde. The passage of this resolution will go far 
     to helping victims nationwide begin and continue the 
     difficult healing process necessary after victimization.
       The National Center for Missing and Exploited Children 
     spearheads nationwide efforts to locate and recover missing 
     children, and raise public awareness about ways to prevent 
     child abduction, molestation and sexual exploitation. As you 
     continue your work in support of children and others 
     victimized by criminal offenders, please do not hesitate to 
     contact us if we can be of assistance in any way.
       Again, we strongly commend your efforts and thank you for 
     your dedication to the interests of America's millions of 
     criminal victims.
           Sincerely,
                                              Teresa Klingensmith,
     Manager, Legislative Affairs.
                                  ____

                                          California Police Chiefs


                                             Association, Inc.

                                   Sacramento, CA, April 18, 2000.
     Hon. Dianne Feinstein,
     Senate Hart Office Building,
     Washington, DC.
     Re: Crime Victims Rights Constitutional Amendment
       Dear Senator Feinstein: The California Police Chiefs 
     Association fully supports your Crime Victims Rights 
     Constitutional Amendment (Senate Joint Resolution 3). This 
     amendment is very much needed as demonstrated by the support 
     of Mothers Against Drunk Driving, Parents of Murdered 
     Children and the National Organization for Victim Assistance 
     as well as 49 of 50 Governors.
       Law Enforcement has long recognized that crime victims 
     deserve to have a rightful place in our justice system. While 
     criminal defendants have almost two dozen separate 
     constitutional rights, fifteen of them specifically provided 
     as constitutional amendments, victims of crime have zero 
     constitutional rights. The Crime Victims Rights Amendment 
     brings much needed balance to our justice system by granting 
     victims the right to be informed, present and heard at 
     critical stages throughout trials.
       While many could claim that this legislation places burdens 
     on the justice system, we should not forget that the spirit 
     of justice is to attempt to give back to victims the sense of 
     closure and fairness taken by their perpetrators. 
     Unfortunately, we as a nation have often forgotten the 
     victims of crime. With today's population increasingly living 
     longer, we are seeing more and more victimization of our 
     elderly. They, along with our children, are the least able to 
     fight back against the criminal element and therefore need 
     this amendment.

[[Page 6029]]

       The California Police Chiefs Association is very pleased to 
     stand with you on this amendment and fully supports your 
     efforts.
       Respectfully,
                                            Craig T. Steckler,    
                              Chief, Fremont Police Department and


                          President, California Police Chiefs'

     Association.
                                  ____

                                               California Narcotic


                                        Officers' Association,

                                Santa Clarita, CA, April 24, 2000.
     Hon. Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
     Re: Crime Victims Rights/Constitutional Amendment
       Dear Senator Feinstein: The membership of the California 
     Narcotic Officers' Association is in strong support of your 
     Crime Victims Rights Constitutional Amendment (Senate Joint 
     Resolution 3). As members of law enforcement community, we 
     recognize that crime victims must have voice in the criminal 
     justice system. Traditionally, they have been treated with 
     less respect than those accused of terrible crimes.
       The California Narcotic Officers' Association is very 
     pleased to stand with you on this very important amendment 
     and fully support your efforts.
           Sincerely,
                                                     Walter Allen,
     President.
                                  ____

                                      California Police Activities


                                                 League (PAL),

                                    Oakland, CA, February 8, 2000.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington DC.
       Dear Senator Feinstein: The California Police Activities 
     commends you on your efforts to protect the rights of crime 
     victims. The California Police Activities League supports 
     your Amendment to the Constitution of the United States. As 
     law enforcement personnel, we understand the importance of 
     this Constitutional Amendment to the many victims of crime 
     that we meet during a criminal investigation. In many cases, 
     it is youth, which are the victims. They should have the same 
     rights as every citizen of the United States of America. A 
     victim of a violent crime should have the following rights:
       To reasonable notice of public judicial proceedings
       To attend all public proceedings.
       To be heard at crucial stages in the judicial process.
       To receive reasonable notice of the offender's release or 
     escape.
       To consider in the interest of the crime victim that the 
     trial is free from unreasonable delay.
       To receive restitution from the convicted offender.
       To consider for the safety of the victim any conditional 
     release from custody.
       The California Police Activities is only asking that the 
     8.6 millions victims of violent crime in our country receive 
     fair treatment by the judicial system, which they deserve. 
     For those accused of crimes in our country, the Constitution 
     specifically protects them. However, nowhere in the text of 
     the United States Constitution does there appear any 
     guarantee of rights for crime victims.
       The time has come for a Victim Bill of Rights. The 
     California Police Activities in the name of its members 
     support your drive for the passage of this Constitutional 
     Amendment. Please call us if we can be of help in your effort 
     to protect the rights of crime victims. CAL PAL commends you 
     for taking up this cause in the name of 8.6 million 
     Americans.
           Sincerely,
                                                        Ron Exley,
     Government Relations Director.
                                  ____

         City and County of San Francisco, Office of the Sheriff,
                                San Francisco, CA, April 24, 2000.
     Hon. Dianne Feinstein,
     Senate Hart Office Building,
     Washington, DC.
       Dear Senator Feinstein: I write to lend my support to 
     Senate Joint Resolution 3, the proposed amendment to the 
     Constitution intended to protect the rights of crime victims.
       As Sheriff of San Francisco, I have witnessed the 
     empowerment experienced by victims of crime when given the 
     opportunity to speak about how their lives were impacted by 
     violence. I have also witnessed the effect on violent 
     offenders of hearing how their crimes harmed individuals and 
     the entire community. As part of our Resolve to Stop the 
     Violence Project, an in-custody treatment program for men 
     with violent criminal histories, victims come to the jail to 
     tell how the violence done to them changed their lives. For 
     the first time, many offenders realize that their actions 
     have serious and harmful consequences, and this is often the 
     catalyst for real change. Not only does the experience give 
     voice to crime victims, it gives both victim and offender the 
     opportunity to work toward the common goal of the eradication 
     of violence.
       Participation of victims in the criminal justice dialogue 
     is essential to their well being and that of the entire 
     community. I am proud to support the Crime Victims Rights 
     Constitutional Amendment.
           Sincerely,
                                                Michael Hennessey,
     Sheriff.
                                  ____

                                                  San Diego County


                                         Sheriff's Department,

                                    San Diego, CA, April 24, 2000.
     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Feinstein: It is with great pleasure that I 
     add my support to S.J. Res. 3, to provide constitutional 
     rights for crime victims. There are rights articulated in the 
     U.S. Constitution to provide rights for crime victims. 
     Criminal defendants have almost two dozen separate 
     constitutional rights, fifteen of them provided by amendments 
     to the U.S. Constitution.
       Your proposed Crime Victims' Rights Amendment will bring 
     balance to the justice system, by giving crime victims the 
     rights to be informed, present and heard at critical stages 
     throughout their case.
       The need for this measure is evidenced by the forty-two 
     bipartisan senators who have agreed to cosponsor this 
     amendment. I look forward to working with you on this and 
     other legislation that we mutually agree upon.
       If I might be of further assistance, please don't hesitate 
     to call me.
           Sincerely,
                                              William B. Kolender,
     Sheriff.
                                  ____

                                                 Sacramento County


                                         Sheriff's Department,

                                   Sacramento, CA, April 21, 2000.
     Hon. Dianne Feinstein,
     Senate Hart Office Building,
     Washington, DC.
       Dear Senator Feinstein: I am writing to offer my support 
     toward your efforts in sponsoring the Crime Victim's Rights 
     Constitutional Amendment. Your proposed amendment would fill 
     a void in the rights guaranteed to citizens in our 
     Constitution by providing basic, essential rights to victims 
     of crimes all across our nation.
       Law Enforcement has long recognized that crime victims 
     deserve a rightful place in the criminal justice system. 
     While criminal defendants have nearly two dozen separate 
     constitutional rights, fifteen of which are specifically 
     provided as constitutional amendments, crime victims have no 
     constitutional rights as it relates to being the victims of 
     crimes. The Crime Victims Rights Amendment will bring much 
     needed balance to our justice system by providing victims the 
     right to be informed, present and heard at all critical 
     stages throughout their respective trials.
       The opponents of this legislation claim that the amendment 
     would place burdens on the justice system, we cannot afford 
     to forget the intent of justice is to give back to victims, 
     the sense of security, closure and fairness, taken by the 
     perpetrators of their crimes.
       I applaud you for your efforts and I stand with you as you 
     pursue this important issue. Please do not hesitate to call 
     on me if I can provide any assistance. I can be reached at 
     (916) 874-7146.
           Sincerely yours,
                                                       Lou Blanas,
                                                          Sheriff.

  Mrs. FEINSTEIN. One of the unfortunate aspects of the debate in these 
hallowed Halls is the fact that many have chosen to ignore the fact 
that this amendment would actually help poor minority communities beset 
by crime. It would give victims in these communities rights our 
criminal justice system often deny them through bureaucratic neglect 
and casual racism.
  Among the many supporters of the amendment, for example, is a group 
called Racial Minorities for Victim Justice. This group includes Norm 
Early, the former district attorney of Denver, CO, and the founding 
president of the National Black Prosecutors' Association. It includes 
Joseph Myers, executive director of the National Indian Justice Center; 
David Osborne, an Asian American who is assistant secretary of the 
State in California; Azim Khamisa; Christine Lopez; Steven Njemanze. 
The group includes minority victims such as Teresa Baker, whose rights 
were denied after her son was coldbloodedly murdered in Maryland; 
Clementine Garfield, whose two teenage sons were shot in Detroit; Sarah 
Fletcher, whose husband Reginald, son Ricky, daughter Crystal, and 
unborn granddaughter were all murdered. They wrote me an eight-page 
letter laying out their thoughts about the amendment. I will read some 
of that letter.

       The undersigned are founding members of Racial Minorities 
     for Victim Justice which

[[Page 6030]]

     strongly support Senate Joint Resolution 3, the Crime 
     Victims' Rights Constitutional Amendment. We are aware that 
     some groups that seek conscientiously to speak for the 
     interests of racial minorities have expressed opposition to 
     your proposed amendment. We claim some understanding of the 
     fundamental concerns that guide their position--concerns we 
     share--but we also believe that they have reached the wrong 
     conclusion on this issue.
       To put it in the simplest terms, no one in our society 
     stands to benefit more from the adoption of the Victims' 
     Rights Amendment than people of color--for it is our people 
     that suffer the highest rates of victimization in the Nation.
       Let us start with some common ground on which the great 
     majority of racial minorities stand in this country. 
     Historically, we have had deep suspicions of the agencies of 
     criminal justice. Speaking specifically of the African 
     American experience, it was the agents of criminal justice 
     who were the enforcers of the Fugitive Slave Act and all the 
     Jim Crow laws--often with lawless brutality.
       While we are proud of recent progress to end this pattern 
     of bigotry in the administration of justice--proud because 
     African Americans and other minorities have led the way in 
     reforming these practices--we are not so naive as to believe 
     that our criminal justice system has grown altogether color-
     blind.
       More than most Americans, we believe criminal justice has 
     become too fearful of people of color, too punitive toward 
     minority offenders, with too few opportunities for their 
     treatment and rehabilitation.
       This is where we share common ground with most members of 
     the minority communities in America. What we cannot 
     understand, however, is why some in those communities have 
     concluded that one way to bring justice agencies into harmony 
     with our higher ideals is to deny the victims of crime any 
     effective and enforceable rights. To us, that makes no sense. 
     We do nothing to improve the fair treatment of minority 
     defendants by impeding the fair treatment of minority 
     victims.

  I couldn't agree with that more. They go on to say:

       Leaders of America's criminal defense bar have testified 
     frequently and heatedly against passage of the Crime Victims' 
     Rights Amendment, citing amorphous dangers to defendants' 
     rights and liberties. And how many cases did they cite where 
     their millions of clients had run afoul of some overzealous, 
     unfair and harmful interpretation of a crime victim's rights 
     already provided in State Constitutions? Two hundred? Twenty? 
     Two? Not even one!
       It is important to understand that victims' rights statutes 
     echoing those in the proposed Amendment are to be found on 
     the books of every state--buttressed by constitutional 
     amendments in 32 of them. While compliance with those laws is 
     woefully spotty (more on that below) it is fair to estimate 
     that in hundreds of thousands of cases, the victims rights 
     were fully implemented, giving rise to not one single appeal 
     as to the fairness of the application of those laws.
       In our opinion, people of color should be especially 
     outraged at these disproportionate deprivations of our legal 
     and human rights, for it is our minority communities who 
     disproportionately suffer the pain of criminal victimization.

  I agree with that very much. There is perhaps none but, at most, very 
few minority victims of violent crime who can afford the counsel to 
process their rights under State constitutions, under State laws, or 
under the patchwork of laws to protect victims across this Nation at 
this time. Every time, if they do, they will eventually lose because 
the rights of the defendants or the accused are deeply embedded in the 
heart of this great Constitution. They will find that, in effect, as 
they press a case in court, they have no standing under the 
Constitution of the United States. That is what this is all about, to 
give victims standing in the Constitution of the United States. No case 
demonstrated that more clearly than the Oklahoma City bombing case.
  As we sum up, I will quickly refresh why that is the case. We had 
passed two statutes--one in 1990--which allowed victims to watch the 
trial and testify at sentencing. The Victims of Crime Bill of Rights, a 
1990 law, passed by the House, passed by the Senate, and signed by the 
President, references the right to be present at all public court 
proceedings related to the offense, unless the court determines that 
testimony by the victim would be materially affected if the victim 
heard other testimony at the trial. In spite of that statute, the court 
denied the prosecutors' request. The victims made a similar request, 
and the court denied that request, holding that victims lacked standing 
to raise their rights under that statute.
  The prosecutors and the victims were not satisfied. They both had 
good attorneys, Washington attorneys, Paul Cassell, distinguished 
attorneys. They appealed that to the Court of Appeals of the Tenth 
Circuit. As Professor Cassell, one of the lawyers put it:

       Three months later, a panel of the Tenth Circuit rejected--
     without oral argument--both the victims' and the United 
     States' claims on jurisdictional grounds. With respect to the 
     victims' challenges, the court concluded that the victims 
     lacked ``standing'' under Article III of the Constitution 
     because they had no ``legally protected interest'' to be 
     present at the trial and consequently had suffered no 
     ``injury in fact'' from their exclusion. The Tenth Circuit 
     also found that victims had no right to attend the trial 
     under any First Amendment right of access. Finally, the Tenth 
     Circuit rejected, on jurisdictional grounds, the appeal and 
     mandamus petition filed by the United States. Efforts by both 
     the victims and the Department to obtain a rehearing were 
     unsuccessful, even with the support of separate briefs urging 
     rehearing from 49 members of Congress, all six Attorneys 
     General in the Tenth Circuit, and some of the leading victims 
     groups in the nation.

  We heard about that. We responded with alacrity. The House passed the 
Victims' Rights Clarification Act of 1997. That statute said, 
notwithstanding any statute, any rule or other provision of law, a U.S. 
district court shall not order any victim of an offense excluded from 
the trial of a defendant accused of that offense because such victim 
may, during the sentencing hearing, testify as the effect of the 
offense on the victim and the victim's family or as to any other factor 
for which notice is required. That is clear. We cleared it up. We gave 
them standing by law, passed by the House, passed by the Senate, signed 
by the President of the United States. But the district court then said 
that this statute might be unconstitutional and postponed a decision 
until after the trial. So the judge paid no attention to the House of 
Representatives, the Senate of the United States, or to the signature 
of the President of the United States.
  This is why we press this cause today. This is why we do not believe 
that a statute will ever be adequate to give victims basic rights. Push 
sort of comes to shove. There is an old expression called ``carrying 
water on both shoulders.'' It is sometimes a way that people feel, in 
our business--that they can appease a group by saying, oh, something 
else will do. This case, to me, is irrevocable evidence that the 
challenge of making a statute work is extraordinarily difficult to give 
any minority or impoverished victim any meaningful right in real life. 
So we intend to continue to press this case.
  I want to ask the distinguished Senator from Arizona now that he has 
heard the outline of what happened--some people have criticized me, I 
think, because I have used this case over and over again, but it is the 
only clearly definable case we have following the passage of two laws 
passed by our bodies to make a judgment--and, true, we are making that 
judgment just on the Tenth Circuit Court--nonetheless, does the Senator 
not believe it is an applicable judgment to add to this to confirm the 
fact that a statute probably won't work in this situation?
  Mr. KYL. Mr. President, Senator Feinstein is exactly correct. I think 
it illustrates the inconsistency of the opponents of the amendment. In 
the first place, they say we should try a statutory remedy. When we try 
the statutory remedy and the court says you lose, you still don't have 
the rights--and as Senator Schumer said, the court essentially ignored 
what Congress did, and that was offensive to him because he had been 
one of the authors of that legislation--we come back and say that 
illustrates the fact that you need a constitutional protection because 
until you have that, the courts can't continue to ignore these 
statutes. Then Senator Schumer said: But courts cannot ignore statutes; 
they are just like the Constitution. You have to apply statutes. The 
answer to that is, well, you should, but what is the remedy if you 
don't?
  As the Senator pointed out, until we provide standing in a 
constitutional amendment, if the courts don't abide by the statutes, 
there is no recourse.

[[Page 6031]]

That is the bottom line as to why a constitutional amendment is 
necessary in these kinds of cases.
  The other inconsistency is the other side says you don't have a lot 
of court decisions overturning statutes for State constitutional 
protection, so we don't need a constitutional amendment.
  That is an odd argument. Most of the constitutional protections are 
not the result of a Supreme Court decision to strike down a statute or 
a State provision. In fact, I don't know of any that are, frankly.
  Most of the constitutional protections for defendants and other 
citizens have come about because of the recognition that there are 
certain fundamental rights that need to be protected, and we ought not 
to wait for courts to strike something down in order to assume that it 
is time to propose a constitutional amendment. But if that were the 
proper standard, then we have a clear reason to do so because as the 
Senator from California pointed out, the Tenth Circuit Court of Appeals 
has now ruled that is the precedent, and for at least, I think, seven 
States in the Tenth Circuit, they have a very bad ruling on their 
hands; namely, victims have no standing to assert the rights we 
provided for in statute. So if that is to be the standard--that you 
have to have a court decision that proves the need for a constitutional 
protection--we have it. So whichever way you want to argue it, I think 
the point is made that we need a constitutional amendment to provide 
real protection for victims of crime.
  Mrs. FEINSTEIN. I thank the Senator for that comment. I would like to 
follow up with something. My staff has handed me a letter from 
Professor Tribe dated today. It is on this point. I think it adds some 
additional very distinguished credibility to what the Senator is 
saying. It says:

       I am writing to address one consideration in particular 
     that is highlighted by the proposed Crime Victims Assistance 
     Act, S. 934, whose sponsors--many of whom are my good 
     friends--evidently hope that by this Federal statute they 
     obviate the need for the proposed constitutional amendment. I 
     favor S. 934's enactment, at least in principle. I assume 
     that closer study of the detailed provision than I have been 
     able to undertake would disclose ways in which it might be 
     improved. But minor technical flaws, or even design defects 
     in the contemplated statute would be beside the point and are 
     not my focus. After all, detailed problems with the statute's 
     terms could be cured by redrafting and would not in 
     themselves explain why only an amendment to the Constitution 
     could meet the need for fuller national protection of 
     victims' rights.

  Then he goes on to say this--and I am skipping some:

       The mere brandishment of the banners of defendants' rights 
     or of prosecutorial needs too often suffices to push the 
     needs and interests of victims--to be notified, to observe, 
     to be heard, to have their views considered, to achieve 
     closure, and to be compensated if possible--into the 
     background. Rather than creatively and determinedly seeking 
     ways to protect victims' rights in ways that manage fully to 
     respect the genuine rights, privileges, and needs both of the 
     accuser and the accused, state and local officials are 
     understandably but unfortunately tempted to relegate victims 
     and their rights to second-class status or to shelf them 
     altogether, as merely hortatory and aspirational provisions 
     of law enacted with something much stronger and more 
     operational in mind.

  He essentially goes on to say again why a statute won't work. He 
says:

       The argument is flawed first, because it fails entirely to 
     come to terms with the basic reasons, set forth above, that 
     merely statutory measures would be unable to combat the 
     deeply rooted attitudinal problems confronting victims and 
     their claims of right; and second, because insofar as it 
     assumes broad congressional power to act under Section 5 of 
     the Fourteenth Amendment, it is simply ignorant of the series 
     of decisions in the 1990s and reaching into 2000, beginning 
     with the invalidation of the Religious Freedom Restoration 
     Act and continuing with the invalidation of provisions of the 
     Patent Reform Act and the Age Discrimination Employment Act, 
     in which the modern Supreme Court has dramatically curtailed 
     the legislative authority of Congress to use its Section 5 
     power to protect interests that Congress, but not yet the 
     Court, is prepared to recognize as constitutional rights, or 
     even to protect Court-recognized constitutional rights in 
     circumstances, or by means, not shown in the legislative 
     record to be ``necessary.''

  What Professor Tribe at this stage is adding to this is that any 
statute passed by us does not take into consideration the courts 
striking down of the Religion Freedom Restoration Act, the Patent 
Reform Act, the Age Discrimination and Employment Act. He is saying 
that the authority of Congress is now more limited to use its section 5 
power to protect interests that we think are valid.
  The striking down of these bills, in effect, makes the 
constitutionality of anything that we might pass by way of a Federal 
statute extraordinarily vulnerable. I think this is new information 
which we have not had a chance to analyze and consider which may enable 
us to come back and fight another day.
  Mr. KYL. Mr. President, another point Senator Feinstein made 
yesterday which people need to continue to focus on is that a Federal 
statute is going to apply to Federal crimes. A U.S. constitutional 
amendment applies to all cases in all courts in every State, whether at 
the trial court level in the county--we call it superior court in 
Arizona--all the way to any other court, including Federal courts. But 
a statute that we pass applies to Federal court trials for the most 
serious crimes. In Federal law, that accounts for about 1 percent of 
the victims of violent crime in the entire country.
  Almost always the local police catch the perpetrator, that 
perpetrator is tried by the local county prosecutor in the county 
courts, and the appeals go up through the State court process. 
Sometimes they can jump over to the Federal court because of a 
constitutional issue involved. But except on military reservations, 
Indian reservations, certain kinds of kidnapping cases, and things of 
that sort where it is not a Federal case, a Federal statute doesn't 
apply.
  Mrs. FEINSTEIN. Of course that is right. I think the Senator from 
Arizona said it very well.
  The PRESIDING OFFICER. The Chair notes that the time of the Senator 
from California has expired.
  Mrs. FEINSTEIN. I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, the Senator from California may have time 
yielded to her from someone else in her party to advance the rest of 
her argument. She might find out how much time there is.
  I inquire of the Chair. How much time do I have remaining?
  The PRESIDING OFFICER. The Senator from Arizona has 2 hours 13 
minutes.
  Mr. KYL. I shall not take nearly that much time. It is my 
understanding that I can't yield any of that time to Senator Feinstein.
  The PRESIDING OFFICER. The Senator has time under the cloture rule to 
yield time to other Senators.
  Mr. KYL. I ask unanimous consent to yield 1 hour of my time to 
Senator Feinstein.
  The PRESIDING OFFICER. The Senator has that right as manager of the 
bill.
  Mr. KYL. I appreciate it. I thank the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I thank the distinguished Senator from Arizona. I 
thank the Chair.
  Let me briefly summarize. I sincerely believe that the only way to 
afford victims of violent crime standing under the Constitution to be 
able to assert a right that is provided is by amendment to the 
Constitution. I don't use my judgment. This is the judgment of the most 
distinguished legal scholars.
  I know there are strong forces at work in this in front of the scenes 
and behind the scenes. I know there are some people who believe what we 
are trying to do is weaken defendants' rights. That is simply not 
correct. Defendants' rights, as I see them, are basically rights that 
do not come into collision with the rights we would afford the victims. 
They are totally different rights. If there is a collision, our view is 
that the judge then provides the balancing mechanism. This gives the 
victim a standing in law to assert the right that, in a sense, can't be 
trusted.
  This issue goes down--let me be very candid--on one phrase. That one 
phrase

[[Page 6032]]

is the addition of language that would say nothing in this Constitution 
would abridge the right of a defendant as provided by this 
Constitution.
  That is a paraphrase of what it is.
  The Department of Justice insists on that language. We will not get 
administration support, I believe, without that language. The victims 
movement believes they would not have sufficient standing in these 
rights to really assert them in a meaningful way unless they were able 
to be balanced against the rights of the defendant.
  The question I wanted to ask my friend and colleague, Senator Kyl, is 
I think our challenge in proceeding may be how we could reconcile this 
with the very real concern of victims that they once and for all--
albeit for a limited right but nonetheless real rights--have standing 
for those rights in a court of law.
  Mr. KYL. Mr. President, Senator Feinstein has touched on a central 
point because none of the advocates for victims have ever sought to 
deny one single right to the defendant. In point of fact, the victims' 
rights that we protect do not deny or abridge the defendants' rights 
under the Constitution. It is not our intention, and it doesn't happen. 
We have been willing to acknowledge that in a variety of ways and in a 
variety of words in the Constitution.
  We are not willing to say if there is ever a case in which the 
defendant asserts a right under the Constitution then that right 
automatically wins over any of these victims' rights. What we said, and 
what people in the Department of Justice and the President and others 
have agreed with, is there should be a balancing just as there is a 
balancing of two constitutional rights, defendants' rights to a speedy 
and public trial, a fair trial, and the right of free press.
  When the press wants to get into the courtroom, sometimes, as we all 
know, the judges say: No. We are only going to allow a limited number 
of certain kinds of media in the courtroom. We don't want a media 
circus in the courtroom. That wouldn't be fair to the defendant.
  The media says: Wait a minute. We have a first amendment right.
  The defendant says: I have a constitutional right, too, which amounts 
to a right for a fair trial.
  The judge says: You are both right, and you are both going to get 
your rights vindicated, but neither of you have an absolute right that 
excludes any other consideration. The judge says to the defendant: I am 
not going to allow your case to be prejudiced by a media circus. Media, 
you are going to have to restrain yourselves to the following 
conditions. Judges say that every day.
  The defendant has a right to sit at his trial. But he can't sit there 
if he is going to be yelling, screaming, and jumping up and down and 
threatening people. The judge has a way to control his courtroom, and 
so on.
  We are perfectly willing to make it crystal clear in our language 
that the enumeration of these rights for victims does not abridge any 
rights guaranteed in the Constitution for defendants or those accused 
of crime. We are unwilling to say, if there has to be any balancing, 
the defendant always wins. That would deny exactly what we are trying 
to achieve for the victims, which is some equal consideration under the 
Constitution for their fairness given all of the things we have rightly 
done for defendants.
  Mrs. FEINSTEIN. I thank the Senator. I think the analogy is actually 
a very good one. I know defendants' rights are extraordinarily 
privileged, and well they should be. Senator Kyl and I have discussed 
this. We believe that our amendment does not collide, and we understand 
how victims feel.
  I think one of the points is that throughout all of this we have 
communicated with victims groups. We have been their advocates. We have 
tried to march to the sound of their drum.
  The tragedy for me, today, is that we are so close that, if we could 
bridge that one gap, getting the support of the Justice Department, the 
President's support, the Vice President's support, perhaps we might, on 
our side, pick up some votes. That one inability to reach this kind of 
consensus within the timeframe we have, in view of the feelings of our 
colleagues, is really the necessity of what we are doing here this 
afternoon. But I think at this stage there is an impasse. Does my 
colleague agree?
  Mr. KYL. I do. If I may read one paragraph from a piece written by 
Professor Paul Cassell, I think it helps to elucidate what we are 
talking about, if the Senator would not mind.
  We are talking about potentially conflicting rights under the 
Constitution. Senator Biden has made this point. Hopefully, he will be 
here a little bit later to speak to this, but he made the point he 
can't see there ever being an irreconcilable conflict between the 
defendant's rights and the victim's rights, and in one sense I think he 
is absolutely correct because you can vindicate two conflicting rights 
through a balancing test. But the fact is, there is only one situation 
I can think of in which you even have that conflict, and that is the 
right to attend a trial, where the defendant would say, it is not fair 
to me if the victim or the victim's family attends the trial, and the 
victim's family or the victim says, wait a minute, that's one of my 
most fundamental rights, and the Senator guaranteed that in this 
provision.
  There are ways to accommodate both the defendant's and victim's 
rights, of course. At least the Senator and I understand that, but 
there are some who find that very difficult and troubling. But here is 
the analogous situation which I think makes our case. This is what 
Professor Paul Cassell says:

       Confirmation of the constitutional worthiness of victims' 
     rights comes from the judicial treatment of an analogous 
     right: the claim of the media to a constitutionally protected 
     interest in attending trials. In Richmond Newspapers v. 
     Virginia, the Court agreed that the First Amendment 
     guaranteed the right of the public and the press to attend 
     criminal trials. Since that decision, few have argued that 
     the media's right to attend trials is somehow unworthy of 
     constitutional protection, suggesting a national consensus 
     that attendance rights to criminal trials are properly the 
     subject of constitutional law. Yet the current doctrine 
     produces what must be regarded as a stunning disparity in the 
     way courts handle claims of access to court proceedings. 
     Consider, for example, two issues actually litigated in the 
     Oklahoma City bombing case. The first was the request of an 
     Oklahoma City television station for access to subpoenas for 
     documents issued through the court. The second was a request 
     for various family members of the murdered victims to attend 
     the trial, discussed previously. My sense is that the 
     victims' request should be entitled to at least as much 
     respect as the media request. Yet under the law that exists 
     today, the television station has a First Amendment interest 
     in access to the documents while the victims' families have 
     no First Amendment interest in challenging their exclusion 
     from the trial. The point here is not to argue that victims 
     deserve greater constitutional protection than the press, but 
     simply that if press interests can be read into the 
     Constitution without somehow violating the ``sacredness of 
     the covenant,'' the same can be done for victims.

  That is the end of Professor Cassell's quotation, the point being--to 
those who say the Constitution is sacred; we cannot change it--it 
includes rights of the media to attend trials, but somehow it would be 
wrong to grant those same rights to victims. That, indeed, is a 
disparity. To the extent a defendant might say, ``but I don't want the 
victim or the victim's family in the courtroom,'' just as the 
Constitution says, but there is a right that we have to balance with 
your concerns--and that is the media's right--we would be saying here: 
The victim also has some consideration here, and the court needs to 
take that into account in deciding the circumstances under which 
victims and victims' families would be present.
  If we were to somehow insert language that made it possible for 
courts to rule that the defendant would always win in the case of such 
an assertion, then we would have, I think, perpetrated a cruel hoax on 
victims who would think they had something that in fact they would not 
have. It would be similar to what victims experienced when they proudly 
went into court with their new statute that the Congress had passed, 
saying: ``Now, judge, we have a right to attend the trial,'' and he 
ignored it. If we put it in the Constitution, the judges can't ignore 
it.

[[Page 6033]]

  But if we said in the Constitution: However, the defendant is always 
going to prevail in the case of a conflict, then that would be a cruel 
hoax. I think we have gone so far as to suggest we are willing to 
acknowledge that the rights enumerated for victims do not abridge 
rights guaranteed in the Constitution to defendants. I do not know how 
much more clearly we can say that. It leads us, and those who are 
supportive, to conclude, if that is not good enough, that perhaps there 
really is not a desire on the part of those on the other side to come 
to an agreement here in a way that could permit us to have a chance of 
succeeding in this debate this week or next.
  That is the unfortunate state of play. Senator Feinstein is 
absolutely correct. Perhaps in the ensuing weeks we will have an 
opportunity to explore other ways of expressing this that make it clear 
we are not taking anything away from defendants. But by the same token, 
we have to give meaningful rights to victims.
  Mrs. FEINSTEIN. If I may, I think the Senator has summarized it very 
well. I retain the remainder of my time and yield the floor. I know 
there are some other distinguished Senators who wish to come to the 
floor and speak.
  Mr. KYL. Mr. President, until those in opposition wish to be here, 
then, I will speak to close out, really, what I have to say about this. 
I would like to do two things: Just to reiterate a couple of 
circumstances why this is necessary, and, second, to respond to some of 
the arguments that have been adduced against what we propose.
  Why do we need these rights? Suppose your daughter was raped and 
murdered and you wanted to attend the trial and you were told that, 
under the law, you were going to have to sit outside the courtroom 
every day. The defendant, the defendant's family and friends, they can 
be in the courtroom, they can watch the trial, but you are going to 
have to sit outside on the bench in the hallway. That is not fair. It 
tears at the gut of those who have been victimized already by the 
commission of the crime that hurt or killed their loved one.
  Suppose you pick up the newspaper someday and read that the person 
who raped you, or assaulted you, is out on the street. He had been 
incarcerated. Your testimony helped put him there. You have no idea he 
is running free. His may be the knock on your door or the person at the 
other end of the telephone which rings. You did not get notice of his 
parole hearing. You could not even go down and tell the parole board 
how vicious a person this was and why they ought to think twice before 
releasing him on parole. You did not even have a chance to go down and 
say, ``Will you please consider my safety in establishing conditions 
for his release, that he has to stay away from me,'' for example.
  We are talking about things that are serious, not frivolous. These 
are real cases. Both of the examples I cited are real cases--multiple 
cases, I might add. What are the arguments against it? One argument is 
it is too long and specific. Right after that, we heard it is too 
general. Senator Schumer said we should just have a general statement 
about the fairness that victims are entitled to and leave it at that. 
Others say that would be far too general. How would we ever define 
``unreasonable,'' which is one of the words in our amendment here? Of 
course, one could have argued that same thing about some of the 
protections for defendants in the Bill of Rights. How will we define 
``unreasonable search and seizure,'' it could have been argued. We have 
done all right on that.
  We were fairly specific about the enumerations of these rights 
because we didn't want to take anything away from defendants. We wanted 
it to be crystal clear exactly what the rights were so nobody could 
contend they went further than they go, so that nobody could argue we 
might be stepping on the toes of a defendant. We didn't want to step on 
the defendant's toes.
  We wanted to make sure the government wouldn't deny victims access to 
certain points in the criminal justice process. We were very careful to 
define this. Indeed, the Department of Justice met with us on numerous 
occasions and said we would have to be more precise in our description 
because they could envision possible problems if we do not nail it 
down. We nailed it down. That took a few words.
  Then we were criticized for having too long an amendment; it is 
longer than the Bill of Rights. We pointed out, it is not longer than 
the Bill of Rights. Indeed, our amendment is shorter than all of the 
rights guaranteed to defendants in the Constitution. The defendants' 
rights consume 348 words; the victims' rights consume 179 words. There 
are 307 words in our amendment, excluding the purely technical 
provision.
  Isn't it amazing we have gotten down to a word count, if that is one 
of the big objections of opponents? ``It is a little too long.'' It is 
not too long. If it were shorter, their argument would be it is not 
specific enough, we need to be more specific--and that takes more 
words.
  Perhaps the least argument--and there will be others propounding this 
argument--is that because the Constitution is sacred, it should not be 
amended. Maybe it is appropriate to read something in the sacred 
document, article V: Whenever two-thirds of both Houses shall deem it 
necessary, shall propose amendments to this Constitution . . . when 
ratified by the legislatures of three-fourths of the several States, it 
becomes effective as part of this Constitution.
  Thomas Jefferson said: I am not an advocate for frequent changes in 
laws in the Constitution, but laws and institutions must go hand in 
hand with the progress of the human mind. As that becomes more 
developed, more enlightened, as new discoveries are made, new truths 
discovered and manners and opinions change, with the change of 
circumstances, institutions must advance to keep pace with the times.
  Indeed, Thomas Jefferson also said: Happily for us, when we find our 
Constitution is defective and insufficient to secure the happiness of 
our people, we can assemble with all the coldness of philosophers and 
set them to rights, while every other nation on Earth must have 
recourse to arms to amend or restore their constitutions.
  It is certainly a reflection of our wonderful United States of 
America and our Constitution that from time to time we have found it 
necessary to grant rights in this sacred document: the right to vote, 
the right to vote when you are 18, the right to vote and not to be 
defined by one's sex, the right to a speedy trial. These are rights 
that were granted by amendment to citizens after this sacred document 
was written. We all agree with the proposition that it is a wonderful 
document, a sacred document, a document that ought not lightly be added 
to, which has a wonderful and glorious history. Indeed, I submit that 
some of the most profound and glorious aspects of the history of this 
Constitution are found in its amendments.
  To suggest that somehow those who propose an amendment to the 
Constitution are doing a great disservice and are assaulting the 
Constitution is itself a great disservice to the process set forth in 
the Constitution.
  It is said that the Constitution ordinarily precluded the government 
from affecting the rights of citizens, whereas we are granting rights 
to people. I talked about three or four amendments that granted rights 
to people: the right to vote if you are 18, the right to vote if you 
are a woman, the right to a speedy trial. Those were rights granted to 
citizens. Other rights are expressed in terms of preventing the 
government from intruding on your rights. For example, the government 
will not preclude you from having a speedy trial. They will not deny 
you the right to a speedy trial. They won't deny you the right to 
counsel.
  You can express it either way--as a grant of a right or the 
government not denying you the ability to do these things. We say the 
government cannot exclude you from the courtroom. They can't exclude 
you from the trial. We are not really saying you have a right to attend 
the trial; we are saying you have a right not to be excluded from the 
trial. There is a difference. The former could lead to assertions that 
the government should pay for your getting to the trial, that your 
employer should have to let you off work

[[Page 6034]]

or pay. We don't address that. We only say if you show up, you get to 
attend; the government cannot exclude you.
  Some of the other rights are expressed in terms of direct rights. 
However, they all infer that the government can't exclude you from 
these proceedings. We are doing exactly what other amendments to the 
Constitution have done. They are similar rights. The right of the press 
to be able to cover a trial, it seems to me, should be no greater than 
the right of a victim to be present at the trial. What is the 
difference? I conclude by challenging anybody to tell me what the 
difference is between granting the media the right to attend a trial 
and granting the victim in the case the right to attend the trial.
  I don't understand why there is such a visceral negative reaction to 
what we are trying to do. If you have ever been a victim or been part 
of a tragedy that has affected others, you know how much they want to 
bring closure to the event, why they want to witness the criminal 
justice process that brings the matter to a close, why they want to 
participate at a couple of the stages, particularly at the time of 
sentencing and also at the time of a conditional release so that their 
safety can be considered, as well as the safety of others.
  No one opposing our amendment has suggested that those are unworthy 
of protection. Rather, they have said we can do it by statute. But what 
did we find yesterday when we looked at the data according to the 
National Institute of Justice? After 18 years of Federal and State 
statutes and State constitutional provisions, looking at the statistics 
from the States that do it the best, that have the most stringent 
requirement for notice, fewer than 60 percent of victims were notified 
of the sentencing hearing and fewer than 40 percent were notified of 
the pretrial release of the defendant.
  As I said yesterday, would we consider those adequate percentages for 
defendants being given their Miranda warnings, something which isn't 
even in the Constitution? No. But somehow we think it is OK that 
statutes provide notice to only 40 percent of the people who want to be 
present at the parole board, or at least have the opportunity to be 
present, to say, please, don't let my assailant go; he will hurt 
someone. We are no longer talking about somebody accused of a crime; we 
are talking about somebody who has been convicted and who has been 
serving time for the commission of that crime.
  I mentioned the case of Patricia Pollard--because it is a case from 
Arizona--who was brutally raped and left to die. She wasn't told that 
the parole board was meeting to consider and then eventually decided to 
let her assailant out of prison on a home arrest kind of program. By 
accident, she was made aware of it. When she went back to the parole 
board and asked them to reconsider their decision, after hearing her 
story, they kept him in prison.
  When I asked her if she thought her life was in danger had he gotten 
out, she said: Maybe he would have tracked me down, but, frankly, I was 
a random opportunity for him. I came along at just the time he wanted 
to do this to somebody, and he did it to me. Mostly I was concerned 
what would happen to somebody else because if he got out he would be 
sure to do this to somebody else.
  This is what we are talking about. This is not frivolous. This is not 
trivial. This is people's lives we are talking about. When opponents 
say, we can protect it by statute, we say, the State of Arizona had a 
very good statute. In fact, it was better than a statute; it was a 
constitutional provision in the State. She still didn't get notice. In 
fact, 60 percent of people don't get notice under these constitutional 
provisions and State statutes.
  Opponents say: That is good enough; maybe we can pass a Federal 
statute.
  We say a Federal statute can only affect 1 percent of all of these 
cases, and there is little reason to believe a Federal statute would be 
observed any better than State constitutional provisions are, as the 
Oklahoma City bombing case reveals.
  I am at a loss. I agree with Senator Feinstein. We are moved by these 
cases. We are moved by the people. We want to help. Everybody wants to 
help. Even opponents, I am convinced, want to help. So let's do 
something about it. It is not doing something effective about it to 
fall back on the notion: Well, we will just rely on another statute; 
let's pass another law. That is not the answer.
  We are at this point now because we have not done enough to educate 
our colleagues, and I will accept part of the blame for that. I should 
have spent a lot more time--although I must confess my colleagues got 
tired of me coming around saying: Are you sure you wouldn't like to 
hear a little bit more about this? Maybe we should have tried a little 
harder to say: Will you please listen one more time to our plea?
  What has happened is a very superficial mantra of inaccuracies and 
falsehoods have persuaded colleagues to oppose this to the extent they 
would not be willing to allow it to come to a vote. In other words, 
when we would seek to bring this to a final vote, we would not be able 
to stop the talking, to stop the filibuster, in effect, to get 60 of 
our colleagues to agree to bring the matter to a vote or to prevent 
nongermane amendments. There had been a suggestion by some that if we 
proceed, then we can expect a whole flurry of amendments that have 
nothing to do with what we are talking about.
  Obviously, we do not want to tie up our colleagues' time with that, 
so we come to the unhappy conclusion that we have more work to do.
  The good news is that we prevailed with 80-some votes--perhaps the 
Senator can recall exactly how many votes we got on the cloture motion 
to proceed. But it was over 80, as I recall. We have 41 cosponsors of 
our amendment now, which is real progress. We got a good bipartisan 
vote out of the Judiciary Committee.
  This is the first time this Federal constitutional amendment has been 
brought to the floor of either House. We have reached a real milestone. 
We have done well. Most constitutional amendments never pass. All of 
them take a long time. I do not know of any, at least in modern 
history, that passed the first time they were presented on the floor of 
the Senate.
  The fact we have been thwarted part way down the road temporarily, 
while a setback of sorts, should not dissuade those advocates or crime 
victims in their efforts. As Senator Feinstein said, we will be back, 
and hopefully next time when we are back, more of our colleagues will 
have had an opportunity to study this carefully, more victims and 
victims' rights organizations will have had an opportunity to visit 
with Senators and Representatives, and we will have been able to 
persuade a sufficient number of them to allow us to proceed to a final 
vote.
  While there is some sorrow in our inability to bring this to 
conclusion today, I am buoyed by the prospect and the fact we have at 
least gotten to this point.
  Mrs. FEINSTEIN. Mr. President, will the Senator yield for a moment?
  Mr. KYL. I yield.
  Mrs. FEINSTEIN. Mr. President, I also am buoyed by the prospects. As 
we go through this more and more, I understand more and more what is 
happening behind the scenes. I do want to enter into the record this 
latest letter from Professor Larry Tribe. Senator Kyl will be 
interested in one quote. He says deep into his letter:

       I can count on the fingers of one hand the number of 
     ostensibly ``liberal'' lawyers and scholars who do not look 
     askance when they learn of my support for this amendment. 
     Friends who otherwise respect me and admire my work have a 
     difficult time, it seems, assimilating the notion that a 
     liberal champion of defendants' rights--something I think I 
     have been all my life--should take seriously the idea that 
     the victims of violent crime actually have ``rights'' that 
     the Constitution should compel government to take seriously 
     and to treat with respect, rather than merely being the 
     unfortunate--well, victims--of criminal predations that the 
     state is charged with combating, in a system where the only 
     ``rights'' worth naming and treating as such of course belong 
     to those unfortunate enough to find themselves on the wrong 
     end of the machinery of criminal justice. With all respect, I 
     do not share that perspective. Rather, I regard its deeply 
     ingrained nature as the principal argument for the conclusion 
     that statutory measures will never fully suffice.


[[Page 6035]]


  Mr. President, I ask unanimous consent to print Professor Tribe's 
letter in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                Harvard University


                                                   Law School,

                                    Cambridge, MA, April 27, 2000.
     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Feinstein: I have previously set forth my 
     reasons for supporting S.J. Res. 3, the proposed Victims' 
     Rights Amendment now under consideration in the Senate, and 
     little purpose would be served by my repeating those reasons 
     here. I understand the objections some have raised to the 
     proposed amendment and have enormous respect for many who 
     oppose the measure, but on balance I am persuaded that the 
     considerations favoring the amendment outweigh those against 
     it, even placing an appropriately skeptical thumb on the 
     scale's negative side.
       I am writing to address one consideration in particular 
     that is highlighted by the proposed Crime Victims' Assistance 
     Act, S. 934, whose sponsors, many of whom are my good 
     friends, evidently hope by this federal statute to obviate 
     the need for the proposed constitutional amendment. I favor 
     S. 934's enactment, at least in principle. I assume that 
     closer study of its detailed provisions that I have been able 
     to undertake would disclose ways in which it might be 
     improved, but minor technical flaws or even design defects in 
     the contemplated statute would be beside the point and are 
     not my focus here. After all, detailed problems with the 
     statute's terms could be cured by redrafting and would not in 
     themselves explain why only an amendment to the Constitution 
     could meet the need for fuller national protection of 
     victims' rights.
       My concerns are different ones. First, I am concerned that, 
     as the authors of S. 934 doubtless realized given how they 
     wrote their bill, it does nothing directly for the vast 
     majority of crime victims--those victimized by violations of 
     state or local rather than federal law. To be sure, S. 934 
     would offer the states money for pilot projects and the like, 
     and money of course helps, but the basic reasons for the 
     dramatic underprotection of state crime victims are more 
     attitudinal than fiscal: Even when states enact victims' 
     rights measures of their own in response to pressures from 
     constituents, there is a tendency to ignore or underenforce 
     such rights whenever they appear to rub up against either the 
     rights of the criminally accused or the needs or wishes of 
     the prosecution. And I do mean to say ``appear to rub up 
     against,'' for the problem I have in mind arises in those 
     situations where a careful analysis would reveal that the 
     seeming conflict between victims' rights and the rights of 
     the accused or the interests of the state is a false or a 
     readily avoidable one. The mere brandishment of the banners 
     of defendants' rights or of prosecutorial needs too often 
     suffices to push the needs and interests of victims--to be 
     notified, to observe, to be heard, to have their views 
     considered, to achieve closure, to be compensated if 
     possible--into the background. Rather than creatively and 
     determinedly seeking ways to protect victims' rights in ways 
     that manage fully to respect the genuine rights, privileges, 
     and needs both of the accuser and of the accused, state and 
     local officials are understandably but unfortunately tempted 
     to relegate victims and their rights to second-class status 
     or to shelve them altogether, treating as merely hortatory 
     and aspirational provisions of law enacted with something 
     much stronger and more operational in mind.
       State statutory and constitutional provisions cannot 
     overcome this phenomenon so long as the only parties whose 
     rights receive federal constitutional recognition, 
     recognition that reinforces and amplifies traditional habits 
     of mind at the state and local levels, are the defendants in 
     criminal prosecutions. And S. 934, which obviously could not 
     touch the actual conduct of state and local criminal 
     investigations, prosecutions, and adjudications, is 
     manifestly incapable of affecting this pervasive tendency.
       Indeed--and this is my second major concern--even in the 
     federal criminal context within which S. 934 would operate, 
     the proposed statute would take effect against the background 
     of a legal culture in which the very notion of ``victims' 
     rights'' has traditionally been dismissed either as a vague 
     metaphor or as an atavistic throwback to a primitive era of 
     private justice. In a federal universe within which victims 
     are pervasively perceived as mere passive beneficiaries of 
     government protection--as bystanders to the majesty of the 
     criminal process rather than as entitled participants in that 
     process--a merely statutory codification of certain 
     ``rights,'' removable by the grace of the same Congress that 
     bestowed them, is most unlikely to effect the pervasive 
     attitudinal change that is so badly needed. When push comes 
     to shove, even where adequately protecting victims does not 
     in truth entail any abridgment of the federal constitutional 
     rights of criminal defendants or of the needs of government 
     prosecutors to protect the public and vindicate the law, any 
     superficially plausible protest from either the prosecution's 
     table or the defense bar is likely to shove victims and their 
     S. 934 rights back into the shadows, from which a federal 
     judiciary steeped in precisely the same legal culture is 
     unlikely to rescue them.
       Evidence of the depth and pervasiveness of this basic 
     attitude, and of the view that to defend the rights of 
     victims is to engage in a primitive exercise in emotionalism, 
     incompatible with the structure of our adversary system of 
     justice and with the rational character of the modern 
     bureaucratic state, is the ferocity and generality of the 
     opposition to a constitutional amendment to protect victims' 
     rights, at least among the elite and especially in the 
     supposedly enlightened circles with which I like to think I 
     associate. I can count on the fingers of one hand the number 
     of ostensibly ``liberal'' lawyers and scholars who do not 
     look askance when they learn of my support for this 
     amendment. Friends who otherwise respect me and admire my 
     work have a difficult time, it seems, assimilating the notion 
     that a liberal champion of defendants' rights--something I 
     think I have been all my life--should take seriously the idea 
     that the victims of violent crime actually have ``rights'' 
     that the Constitution should compel government to take 
     seriously and to treat with respect, rather than merely being 
     the unfortunate--well, victims--of criminal predations that 
     the state is charged with combating, in a system where the 
     only ``rights'' worth naming and treating as such of course 
     belong to those unfortunate enough to find themselves on the 
     wrong end of the machinery of criminal justice. With all 
     respect, I do not share that perspective. Rather, I regard 
     its deeply ingrained nature as the principal argument for the 
     conclusion that statutory measures will never fully suffice.
       Permit me to add one point before closing: I want to 
     address the argument that S. 934 should not be faulted for 
     failing to reach state proceedings because, after all, it is 
     designed only to operate at the federal level, and because 
     either state statutes or state constitutional provisions or 
     perhaps federal civil rights-like legislation enacted under 
     Section 5 of the Fourteenth Amendment could fill the state 
     and local gap that S. 934 necessarily leaves unfilled. That 
     argument is flawed first, because it fails entirely to come 
     to terms with the basic reasons, set forth above, that merely 
     statutory measures would be unable to combat the deeply 
     rooted attitudinal problems confronting victims and their 
     claims of right; and second, because, insofar as it assumes 
     broad congressional power to act under Section 5 of the 
     Fourteenth Amendment, it is simply ignorant of the series of 
     decisions in the 1990s and reaching into 2000, beginning with 
     the invalidation of the Religious Freedom Restoration Act and 
     continuing with the invalidation of provisions of the Patent 
     Reform Act and the Age Discrimination in Employment Act, in 
     which the modern Supreme Court has dramatically curtailed the 
     legislative authority of Congress to use its Section 5 power 
     to protect interests that Congress, but not yet the Court, is 
     prepared to recognize as constitutional rights, or even to 
     protect Court-recognized constitutional rights in 
     circumstances, or by means, not shown in the legislative 
     record to be ``necessary.''
       In sum, although S. 934 represents an intelligent step in 
     the much-needed strategy of operationalizing and 
     institutionalizing the rights of victims, neither by itself 
     nor as part of a series of measures, both federal and state, 
     can it hope to provide a satisfactory substitute for the more 
     fundamental constitutional step represented by S.J. Res. 3, a 
     step that I consider not only wise but necessary despite--and 
     (paradoxically) in part because of--its current lack of 
     appeal for ``the usual suspects'' on the criminal justice 
     scene, both in the defense and civil liberties bars and among 
     prosecutors and their champions.
       I hope you find these observations to be of some use, and I 
     apologize for my inability to get them to you sooner. I wish 
     you well in the difficult effort to obtain passage of this 
     amendment by the requisite two-thirds vote and, should you 
     succeed in that respect, in the onerous effort to win its 
     ratification by the requisite three-fourths of the state 
     legislatures.
           Sincerely yours,
                                                Laurence H. Tribe.

  Mrs. FEINSTEIN. Mr. President, I extend my deepest thanks to 
Professor Tribe for his letter and for his support. We will certainly 
be consulting both he and Professor Cassell again and come back to 
fight again another day.
  I want to say something to the victims who have been so heartrending 
in this process. Those of us who are political come to grips with the 
sophisticated lobbying around this place. One of the things I have seen 
in the people whom we represent is they are real people. They have been 
maimed, they have been harmed, they have been hurt, and with this--I 
have seen this in the past when I was active in the criminal justice 
system--victims almost become catatonic. They almost

[[Page 6036]]

become unable to go out and do the lobbying that is necessary to move 
something such as this.
  I want them to know how much we identify with their cause, how much 
we intend to continue to pursue this cause. It is a just cause. It is a 
cause that deserves remedy and recognition in the Constitution of the 
United States. It is a cause where, once victims have these rights, 
they lost them.
  This Congress--the other body and our body--should provide these 
rights again. I am hopeful that in the coming years, we will be able to 
continue our work on this. Perhaps we will be able to solve this one 
dilemma of the balancing. It is interesting; anytime one reads a 
statement by the President or by the Attorney General, it mentions the 
balancing of these rights. Yet when we write something in the 
Constitution which, in effect, would provide for this, it brings out 
the criminal defense bar; it brings out the liberal scholars; it brings 
out people who say: You can't do this. You can't give victims these 
rights.
  The cause is just that they have these rights. A statute, we believe, 
will be unable to provide them, but as to their standing in the 
Constitution, there is a time and there is a place, I predict, when 
that standing will happen and take place.
  Mr. KYL. Mr. President, I want to add something to a point Senator 
Feinstein just made. I do not think she would take offense at my 
mentioning what occurred in my office about 4 hours ago.
  We were summarizing the events and what led to the inability to get 
this across the goal line this week. I said it is partially my fault 
for not bringing more victims to the Senate to talk directly with 
Senators and share their personal stories.
  I told that to Roberta Roper, who heads up the Stephanie Roper 
Foundation. Stephanie Roper was brutally murdered, and Roberta, her 
mother, has carried this cause in Stephanie's name. They do a lot of 
good in terms of victim support, in addition to victim advocacy.
  She said: You have to understand, though, we are conditioned not to 
present these stories in an emotional, personal way. We have been told 
over and over again in the court that ``there can be no display of 
emotion.'' Those are the words the judges used. I have been told that a 
display of emotion would be wrong.
  Now, think about that. Part of what makes us great as a people is the 
willingness to act out of our heart as well as our mind. We should 
never do incorrect things or unintelligent things, acting purely on the 
basis of emotion, but nor should we deny that emotion can be a potent 
force in developing public policy.
  I tried to tell Roberta that I think it was a mistake, on my part, 
not to appreciate what she was telling me, not to understand it in 
advance, and not to counsel her to go ahead in this environment and 
express it in emotional terms. This is not a court of law. This is 
where the people's business is done.
  I believe that until one fully appreciates what a victim goes 
through, it is hard to appreciate the necessity for what we are doing 
here.
  Perhaps I could conclude by reading a paragraph again from the 
remarks of Professor Paul Cassell before the Judiciary Committee.
  He said:

       The available social science research suggests that the 
     primary barrier to successful implementation of victims' 
     rights is ``the socialization of [lawyers] in a legal culture 
     and structure that do not recognize the victim as a 
     legitimate party in criminal proceedings.''

  He is talking about a professor, a colleague of his, who disagrees 
with our position, Professor Mosteller.
  He says:

       Professor Mosteller seems to agree generally with this 
     view, explaining that ``officials fail to honor victims' 
     rights largely as a result of inertia and past learning, 
     insensitivity to the unfamiliar needs of victims, lack of 
     training, and inadequate or misdirected institutional 
     incentives.'' A constitutional amendment, reflecting the 
     instructions of the nation to its criminal justice system, is 
     perfectly designed to attack these problems and develop a new 
     legal culture supportive of victims. To be sure, one can 
     paint the prospect of such a change in culture as ``entirely 
     speculative.'' Yet this means nothing more than that, until 
     the Amendment passes, we will not have an opportunity to 
     precisely assay its positive effects. Constitutional 
     amendments have changed our legal culture in other areas, and 
     clearly the logical prediction is that a victims' amendment 
     would go a long way towards curing official indifference. 
     This hypothesis is also consistent with the findings of the 
     National Institute of Justice study on state implementation 
     of victims' rights. The study concluded that ``[w]here legal 
     protection is strong, victims are more likely to be aware of 
     their rights, to participate in the criminal justice system, 
     to view criminal justice system officials favorably, and to 
     express more overall satisfaction with the system. It is hard 
     to imagine any stronger protection of victims' rights than a 
     federal constitutional amendment. Moreover, we can 
     confidently expect that those who will most often benefit 
     from the enhanced consistency in protecting victims' rights 
     will be members of racial minorities, the poor, and other 
     disempowered groups. Such victims are the first to suffer 
     under the current, ``lottery'' implementation of victims' 
     rights.

  I think that expresses well the reason for the frustration we have 
shared, the reason so many of our colleagues have come here repeating 
the mantra of the legal profession that it has never been this way 
before. Maybe it is time to change the way things have been. That is 
why we have been so strongly in support of this amendment.
  I see one of the opponents of the amendment is here. I know he wishes 
to speak. Therefore, let me conclude my remarks by again thanking 
Senator Feinstein for her stalwart, effective support and her desire to 
continue this battle on behalf of the victims of crime.
  I assure you, Mr. President, that even though we will be withdrawing 
our motion to proceed on S.J. Res. 3, we will continue to meet with, 
and work with, anyone who wishes to work with us on this--opponents and 
proponents--to try to get it into the condition that will finally be 
approved by two-thirds of this body and two-thirds of the other body. 
That is our challenge. That is our commitment. It is our promise that 
we will continue in this effort.
  Mr. LEAHY. Mr. President, I am pleased that the sponsors of S.J. Res. 
3 have decided to withdraw their proposal to amend the Constitution. 
One of the reasons they gave for their decision is that the many 
Senators who came to the floor to oppose their amendment have not, in 
their view, engaged on the merits of their specific language. Because 
of this, and because they have vowed to continue in their efforts to 
amend the Constitution to address victims' rights, I feel obliged to 
say a few words about some of the most glaring defects of S.J. Res. 3.
  One of the most fundamental responsibilities of United States 
Senators is to make sure that we understand what we are enacting into 
law. That duty is heightened when we are considering a constitutional 
amendment. Justice John Marshall said that the Supreme Court ``must 
never forget, that it is a constitution we are expounding.''
  We, too, must never forget that it is a constitution--the 
Constitution of the United States of America--that we are being urged 
to amend.
  I could speak for hours about the defects of this proposed amendment, 
but I trust that Senators have had an opportunity to consider the 
minority views in the Committee report that I submitted, along with 
Senators Kennedy, Kohl, and Feingold.
  The minority views run about 40 pages, and identify several specific 
problems with the drafting of this amendment.
  I would also direct Senators to the additional views to the 
Committee's 1998 report, submitted by our distinguished Chairman. 
Senator Hatch's views subject this amendment to penetrating criticism. 
He reiterated such concerns just yesterday in his statement to the 
Senate in which he indicated the following reservations about the 
proposed constitutional amendment:

       Its scope: the amendment's protections apply only to 
     violent crimes;
       Its vagueness: some of its definitions are unclear and will 
     be subject to too much judicial discretion; and
       Its effects on principles of federalism: the proposed 
     amendment could pave the way for more federal control over 
     state legal proceedings.

  For the moment, I will just focus on a few fundamental flaws.

[[Page 6037]]

  Let us start with the first, and most important, seven words of the 
amendment. The amendment gives rights to ``a victim of a crime of 
violence.'' Supporters of this amendment have often compared it to the 
fifth and sixth amendments, which give rights to those accused of 
crimes. So let us compare them.
  The most basic point about any constitutional right is, whose right 
is it? The fifth and sixth amendments are clear on that point: They 
give rights to people who have been charged with committing crimes, and 
we know who those people are. Of course, the other amendments to our 
present Constitution are no less clear, since they apply without 
exception to ``the people,'' or to ``citizens of the United States,'' 
or, in the case of the fourteenth amendment, to ``all persons born or 
naturalized in the United States and subject to the jurisdiction 
thereof.'' But do we know who would have rights under the proposed 
victims' rights amendment?
  The answer in the text of the amendment is ``a victim of a crime of 
violence.'' Who is that? Let us make it easy by taking the most obvious 
crime of violence--murder. Who is the victim of a murder? The last time 
I prosecuted a murder case, the victim was the dead person. But that 
answer, what Justice Scalia might call the plain language approach to 
interpretation, will not do here, unless the purpose of the amendment 
is to enable the corpse to attend the trial.
  So who, if anyone, gets the benefit of the proposed constitutional 
rights in a murder case? Maybe nobody. Or maybe the reference in 
section 2 to ``the victim's lawful representative'' refers to the 
trustee of the victim's estate in a murder case, although I do not see 
what the trustee of a murder victim's estate would have to contribute 
to a bail or parole hearing. Or maybe the amendment's supporters are 
banking on what I believe are called ``activist judges'' to add words 
to the amendment that are not there and extend rights to a murder 
victim's family.
  This would raise other questions, like what happens when members of 
the victim's family hold different views about parole, or each wants a 
share of the mandatory restitution order? Would unmarried couples, be 
they heterosexual or homosexual, count as families? Would the six-year-
old son of a victim be entitled to make arguments in connection with a 
negotiated guilty plea?
  Okay, you may say, so murder is a problem. What about other crimes of 
violence? Let us take robbery. Let us say there is an armed robbery of 
a bank. A gun is pointed at a lot of people, tellers and customers. A 
security guard is shot and injured. The bank loses a lot of money. A 
pretty simple factual story, and one that I know, from my time as a 
prosecutor, happens all too often.
  Pretend I am the prosecutor in this bank robbery. Tell me who are the 
victims I have to notify. The security guard? The 20 customers who were 
uninjured but had a gun pointed at them? The 10 bank tellers? The CEO 
of the bank? And while you are at it, tell me who gets the mandatory 
restitution--the bank that lost the money, the security guard who was 
injured, or the customers and tellers who were scared, or the teams of 
plaintiffs'--or, I guess, victims'--lawyers who are fighting out these 
questions.
  And who gets to reopen the restitution hearings? Or the bail 
hearings? Feel free to assume that I am a competent prosecutor who can 
figure out some administrative details. But, if you are going to pass 
this amendment, do not pass the buck to me to decide who has 
constitutional rights and who does not. That is your job if you want to 
be a Framer of the Constitution; it is not the job of individual courts 
and prosecutors.
  I have talked about two of the most infamous crimes of violence, 
murder and robbery. Other crimes, such as compound crimes under the 
federal RICO statute that can include lots of different criminal acts, 
some violent and some non-violent, over an extended period of years, 
will involve even harder problems when we try to identify who is and 
who is not a ``victim of a crime of violence.'' But we should also 
consider the most common form of violence that afflicts our society, 
domestic violence.
  Here is a typical scenario. The police get a call from neighbors who 
hear shouting and screaming and pots and pans being thrown. They reach 
the house and find the husband and wife hysterically angry at one 
another and a young child cowering in the corner. It is not entirely 
clear who attacked whom, but the husband is injured and the police 
arrest the wife and charge her with assault. The wife's bail hearing 
comes up, or maybe there are plea negotiations. The wife claims it was 
self-defense; the husband claims she attacked him without provocation.
  The wife claims she is a victim of a crime of domestic violence; so 
does the husband. Maybe the child is too. The proposed amendment leaves 
us with no clue whether a witness to violence who is psychologically 
but not physically injured by the violence has the new constitutional 
status of ``victim''.
  Under current law, it is up to the jury to determine who is the 
victim and who is the criminal in this sad domestic scenario, and the 
jury makes that determination after hearing all the evidence from both 
sides at trial. Under the proposed amendment, that determination must 
be made before the wife's bail hearing or plea negotiation. If the 
husband can persuade the prosecutor that he is the victim, and not the 
instigator of the violence, he gets the special new constitutional 
rights of a crime victim at the bail and plea bargaining stage, before 
the wife has even had a chance to present her evidence to the jury that 
the husband is really the guilty party.
  Or maybe the wife can insist on extra-judicial proceedings to contest 
the husband's status as a victim--although I do not know how you would 
squeeze in extra proceedings before bail or indictment hearings.
  Assuming that the husband is the ``victim'' for purposes of our new 
constitutional amendment, what does that get him? Maybe he will push 
for bail or for a plea with a minimum sentence conditioned on his 
getting custody of the child, perhaps accompanied by a new kind of 
child support called ``restitution.''
  Or maybe the husband will be satisfied with his new constitutional 
right to notice of his wife's release from custody, which will help him 
track her down and exact revenge.
  In some cases, the right end result may be reached. But the process 
that the proposed amendment seem to involve bypassing a trial on the 
merits and potentially bypassing family court. By creating pre-trial 
rights for an undefined category of victims, it requires someone--I 
guess the prosecutor--to decide who is the victim of a given crime, and 
who gets special constitutional rights before there has been a trial or 
even an indictment.
  Deciding who has constitutional rights and who does not before there 
has been even an ex parte judicial proceeding is un-American. Doing so 
in a case, like a domestic violence case, where there are likely to be 
self-defense issues, risks giving special constitutional rights to the 
criminal instead of the victim.
  One more comment on this half-baked, undefined term ``victim of a 
crime of violence.'' Thus far, I have discussed the easy cases in terms 
of what constitutes a ``crime of violence''--murder, robbery, and 
assault. But there are a lot of hard cases, too.
  Is drunk driving a crime of violence if the driver physically injures 
a pedestrian? What if the driver runs over the pedestrian's dog, or 
crashes into a parked car? Can the same offense be a crime of violence 
if someone is physically injured, but not otherwise?
  What about elder abuse or child abuse? We have all heard heart-
breaking stories of seniors and disabled people who have suffered 
horrible abuse and neglect at the hands of their so-called care-givers, 
and of children locked up in squalid conditions and subjected to 
appalling psychological abuse by their parents.
  Neglect of the weak and vulnerable in our society by those who have 
taken the responsibility of being their care-givers can cause as much 
harm as almost any violence, without a hand ever

[[Page 6038]]

being lifted against them. But are neglect and non-physical abuse 
``violence''? What about the horrifying slavery case involving more 
than 50 Mexican immigrants in New York a few years ago? Is enslavement 
a crime of violence? And what about kidnapping? If a parent who has 
been denied legal custody of a child kidnaps the child, is that a crime 
of violence, and if so, who is the victim, the child, the custodial 
parent or both?
  The words of the proposed amendment do not answer these questions. 
The majority report suggests answers, some of which seem to stretch the 
concept of a ``crime of violence'' to the breaking point. It suggests, 
for example, as possible crimes of violence burglary, driving while 
intoxicated, espionage, stalking, and the unlawful displaying of a 
firearm--very serious crimes, but crimes that usually do not involve 
``violence'' in the normal sense of the word.
  Last year, Senator Hatch criticized the proposed amendment's reliance 
on the term ``crime of violence'' as ``arbitrary.'' I can do no better 
than to quote his language:

       I believe we must tread carefully when assigning 
     constitutional rights on the arbitrary basis of whether the 
     legislature has classified a particular crime as ``violent'' 
     or ``non-violent.'' Consider, for example, the relative 
     losses of two victims. First, consider the plight of an 
     elderly woman who is victimized by a fraudulent investment 
     scheme and loses her life's savings. Second, think of a 
     college student who happens to take a punch during a bar 
     fight which leaves him with a black eye for a couple of days. 
     I do not believe it to be clear that one of these victims is 
     more deserving of constitutional protection than the other. 
     While such distinctions are commonly made in criminal 
     statutes, the implications for placing such a disparity into 
     the text of the Constitution are far greater.

  It is interesting to note that in their additional views in this 
year's Committee report, Senators Kyl and Feinstein do not in any way 
disagree that the scope of their proposed amendment is arbitrary. 
Instead, they explain it as a political compromise.
  I do not recall Madison and Jefferson saying at the constitutional 
convention that the provisions they drafted were not great, but 
politics are politics and you should not expect too much. I believe 
that we owe the American people something more than arbitrary political 
compromises when we amend their Constitution.
  For anyone who shares Senator Hatch's and my concerns about the 
arbitrariness of focusing on ``crimes of violence,'' there is, by the 
way, a solution at hand. Vote against the proposed constitutional 
amendment and, instead, pass the Crime Victims Assistance Act, which 
provides strong and effective rights for all crime victims.
  I have said a lot about the first, and most important, seven words of 
the proposed amendment; and I could identify many more problems. But 
let us sum up where we are so far. We are not sure whether the 
amendment applies at all to the most obvious ``crime of violence,'' 
murder, and we have no idea who gets the new constitutional rights for 
``victims'' in a murder case if it does. In other fairly common crimes 
of violence such as robbery, the amendment appears to apply, but even 
assuming clear and simple facts, we are not sure which type of person 
affected by the crime gets to exercise the ``victim's'' rights, and the 
answer may well be a large number of people affected in vastly 
different ways--some physically, some emotionally, and some 
financially--who have vastly different views and interests. In what is 
probably the most common violent crime scenario, domestic violence, the 
amendment appears to require the prosecutor to decide who is the 
criminal and who is the victim as a constitutional matter, without the 
benefit of evidence at trial and without participation of judge or 
jury. And then we have what perhaps we should call ``borderline 
crimes,'' a wide range of crimes that may or may not be classified as 
crimes of violence.
  On the ``of violence'' issue, Senator Hatch has raised troubling 
concerns that it is arbitrary as a matter of principle. I agree, and 
add the further concern that it is yet another huge point of 
uncertainty as to the meaning of this amendment. On this and other 
points, the answer of the amendment's supporters appears to be ``don't 
worry, someone else will figure this out later.''
  ``Don't worry, someone else will figure this out later.'' I think we 
can all agree that is not a principle that Congress should ever follow, 
especially not in the context of a constitutional amendment. Supporters 
of the amendment will no doubt contend that it is an unfair 
characterization of their position. Well, let us see what their 
amendment says.
  The amendment seems quite candid in admitting that its central terms 
are yet to be defined. Section 1 says that the new constitutional 
rights created by the amendment go to ``A victim of a crime of 
violence, as these terms may be defined by law.'' I take it that 
``these terms'' mean the two terms that we have identified as 
hopelessly vague: (1) ``victim'' and (2) ``crime of violence.''
  The phrase ``as these terms may be defined by law'' is a new one for 
the United States Constitution. There is a reason for this. Our 
Constitution was conceived as, and is, ``the supreme Law of the Land.''
  As Chief Justice John Marshall explained in Marbury versus Madison in 
1803, our Constitution, as interpreted by the U.S. Supreme Court, is 
the law by which our other laws, State and Federal, are to be judged; 
it is not whatever our other laws, enacted by shifting political 
majorities from time to time, say it is.
  Take, for example, the fourteenth amendment guarantee of equal 
protection of the laws. That does not mean equal protection ``as 
defined by law.'' If it did, the legislature and Governor of Arkansas 
might have been entitled to do what they did in 1957, when they 
``defined'' the equal protection rights of public school students to be 
rights to a ``separate but equal,'' racially segregated education. But 
our Constitution has never worked that way, and in 1958, in Cooper 
versus Aaron, the Supreme Court rightly ruled that Arkansas' attempt to 
redefine the fourteenth amendment was unconstitutional, and 
desegregated Arkansas' schools.
  Our Constitution has a provision, and a process, for defining new 
constitutional rights or for redefining existing constitutional rights. 
That provision, the amendment provision, is in Article V. Article V 
provides for two-thirds of the members of both Houses of Congress, plus 
three-fourths of the State legislatures, to amend the Constitution when 
``necessary''. It does not provide for us to pass the buck to bare 
majorities in State legislatures or in a future Congress to define or 
redefine constitutional rights as we go along.
  As a matter of principle, therefore, I believe that an ``as may be 
defined by law'' provision is an abdication of our duty, sitting as we 
do today as constitutional Framers, to provide clear constitutional 
standards against which other laws may be judged. In a constitutional 
democracy, the rule of law means that constitutional rights are to be 
found in the Constitution, not in ordinary statutes passed from time to 
time.
  If we are going to pass the buck, we should at least be clear about 
who we are passing it to. Who gets to write the ``law'' that 
``define[s]'' the critical terms of this constitutional amendment? This 
is yet another basic question that the amendment itself does not 
answer. So I have studied the Committee report for an answer.
  In a statement that must be profoundly troubling to those Senators 
who complain regularly about ``activist judges'' making law, the report 
first says that ``[t]he `law' which will define a `victim' (as well as 
`crime of violence') will come from the courts interpreting the 
elements of criminal statutes until definitional statutes are passed 
explicating the term.'' This, I suppose, is the ``don't worry, the 
courts will figure it out'' theory. Anyone who subscribes to this 
theory should be prepared to confirm the most activist judges this 
country has ever seen, because that is certainly the vaguest, blankest 
check that has ever been written to the judiciary.
  The Committee report ``anticipates'' that judicial law-making under 
this constitutional amendment may be

[[Page 6039]]

short-lived--that Congress and the State legislatures would quickly 
step in and enact ``definitional laws'' for purposes of their own 
criminal systems.
  It is worth pausing for a moment to consider what this means. One of 
the main arguments that we have heard in support of this amendment is 
that we need to eliminate the current ``patchwork'' of victims' rights.
  We are told we need this amendment because even though all 50 States 
provide rights for victims, the rights vary from State to State. A 
constitutional amendment that may be defined differently from State to 
State would not correct this situation --it would simply replace one 
patchwork with another. The superficially simple concept of basic 
baseline rights for victims will fracture into more than 50 different 
schemes of rights. I do not think that there is anything wrong with 
such diversity; indeed, I believe that the present system of defining 
crimes and the rights of crime victims and enforcing criminal justice 
primarily at the State level has served this country well throughout 
our history. But I do object to a shell game that dresses up rights 
defined by State law as Federal constitutional rights, thus 
trivializing the United States Constitution and casting doubt on the 
rights that it currently protects.
  Finally, I should note that the ``as these terms may be defined by 
law'' provision is not the only delegation in this proposed amendment. 
Section 3 provides that ``The Congress shall have the power to enforce 
this article by appropriate legislation.'' In their additional views, 
Senators Kyl and Feinstein note that they originally proposed to give 
enforcement power to the States as well as to Congress, but then 
reached another of this amendment's political compromises.
  I am, however, mystified as to what function the section 3 
enforcement power could possibly serve. Similar provisions are 
contained in the fourteenth amendment and in the various amendments 
that protect voting rights. In the fourteenth and voting rights 
amendments, the Federal enforcement power against the States was 
justified by the long history of resistance of certain States to the 
Federal constitutional mandates for equal protection of law and equal 
voting rights. But there is no such history of State abuses with 
respect to victims' rights. In fact, many States provide more 
protections for crime victims than Federal law provides.
  The majority report alleges no conflict between States and the 
Federal Government that would necessitate a Federal enforcement power. 
Rather, the reason given by the amendment's principal sponsors for 
putting victims' right in the Federal Constitution at all is that the 
States supposedly need Federal help to protect them effectively. They 
claim that:

       States have had difficulty extending rights to victims of 
     crime through State statutes and constitutional amendments 
     precisely because courts are used to considering, first and 
     foremost, Federal constitutional rights. By extending Federal 
     rights to victims throughout the States, it will then become 
     easier for State criminal justice systems to protect the 
     rights of victims.

  I frankly do not understand this explanation. If you want to empower 
State courts to take State statutes and constitutional amendments 
seriously, the last thing you do, I would think, is impose a complex 
new Federal mandate on them. If you want to help willing States protect 
victims, the last thing you do, I would think, is to place their 
criminal justice systems under congressional supervision and subject 
them to Federal enforcement through the Federal courts.
  We are left, therefore, with an enforcement provision that mimics 
other amendments, but without any suggestion of the need to coerce 
recalcitrant States that justified such provisions elsewhere. Coercing 
the States here because we have done it before in other contexts is 
harmful to State sovereignty. And empowering Congress to enforce 
against the States constitutional rights which it is up to the States 
to define is likely to be futile. If the goal is, as asserted, to help 
the States protect victims' rights, we should not be piling new 
constitutional duties on the States; we should be providing assistance. 
Instead of threatening them with the stick of federal enforcement, I 
believe that we should offer the States the carrot of funding for the 
protection of victims' rights. If you agree with me, you should reject 
this amendment and, instead, support the Crime Victims Assistance Act.
  Senators Kyl and Feinstein urge us not to make perfect the enemy of 
the good. If this amendment responded to an urgent need that could not 
be met by statute, and if it were well-drafted but imperfect, I would 
give that argument serious consideration. I have explained before why I 
believe the goals of this amendment are not merely adequately served, 
but better served, by statute. But I want to highlight briefly the 
other problem with this amendment. Not only is it not perfect; it is 
not well-drafted. In fact, it is remarkably sloppy.
  I have just discussed the two major problems with the text of the 
amendment. Section 1 creates a complex scheme of new federal 
constitutional rights without saying with any clarity who is entitled 
to those rights, then says ``don't worry; someone, somewhere, in a 
court or in Congress or in the States, will make a law that will 
identify who gets these rights.'' Section 3 then empowers Congress to 
enforce those rights on behalf of these yet-to-be-identified people 
against the States, not because the States are unwilling to recognize 
those rights, but because Congress has been empowered to enforce other 
constitutional rights in the past, so ``why not here.''
  I do not want to skip section 2. Let me read you a sentence:

       Nothing in this article shall provide grounds to stay or 
     continue any trial, reopen any proceeding or invalidate any 
     ruling, except with respect to conditional release or 
     restitution or to provide rights guaranteed by this article 
     in future proceedings, without staying or continuing a trial.

  Let us call that ``the tax lawyer's provision,'' since it is so 
obscure that I think only someone who has spent half their life 
plumbing the depths of the tax code could understand it. It would 
certainly be the first triple negative in the United States 
Constitution. I think that ``Nothing in this article shall provide 
grounds to stay or continue any trial'' should be a sentence on its 
own, since I do not think that this rule ends up being subject to the 
exception, in light of the exception to the exception, but frankly I am 
not sure.
  I am also puzzled by the exception that appears to allow victims to 
reopen proceedings or invalidate rulings ``to provide rights guaranteed 
by this article in future proceedings.'' If the concern is with future 
proceedings, I see no need for the exception to allow the reopening of 
present proceedings. But maybe I missed a turn somewhere in the 
drafters' maze.
  Regardless of how it is ultimately interpreted, this intricate web of 
exceptions is not the stuff of a Constitution. One of the great virtues 
of our Constitution is that it speaks with a clear voice, articulating 
principles of justice that ordinary Americans can understand. The 
proposed amendment fails to meet that standard.
  Finally, let me say a few words about section 5, which states that 
the new constitutional rights for victims shall apply ``in Federal and 
State proceedings, including military proceedings to the extent that 
the Congress may provide by law, juvenile justice proceedings, and 
proceedings in the District of Columbia and any commonwealth, 
territory, or possession of the United States.'' This section is truly 
an enigma. No provision of the current Federal Constitution goes into 
detail about its geographic scope. There is a reason for that.
  The purpose of the Bill of Rights, as envisioned by the Framers, was 
to provide a fundamental uniform platform of rights enjoyed by all 
people throughout the United States. Of course every provision of the 
Constitution applies throughout the United States. The fact that the 
drafters of this amendment felt the need to state that here suggests a 
fundamental confusion about the nature of the Federal Constitution, 
which is, by definition, the supreme law of the land. It was, perhaps, 
that

[[Page 6040]]

same confusion that led them to provide for the key phrase of this 
federal constitutional amendment, ``a victim of a crime of violence,'' 
to be defined by a patchwork of State and Federal statutes.
  A degree of uncertainty at the margins on questions of law and fact 
may be inevitable in legislation. But, despite the fact that it would 
be one of the longest-ever amendment to the Constitution, the half-
baked proposal before the Senate is hopelessly vague on the basics. I 
do not know from looking at this amendment and listening to its 
supporters when it applies and who it applies to, or how that will be 
figured out.
  Senator Hatch has made many of the same points about this proposed 
constitutional amendment. At our last Committee markup in September 
1999, however, the distinguished Senator from Utah said that he 
intended to vote for this amendment, even though he has ``real 
questions'' about it, ``because of the hard work that has been put into 
it.'' I cannot go along with that reasoning. I commend the efforts of 
those who have worked on this amendment, as I commend the efforts of 
Federal and State legislators across the country who have worked to 
provide rights for victims of crime.
  But ``A'' for effort is not good enough if it means subjecting the 
American people to a ``C''-grade Constitution.
  As a Senator, I believe I have a constitutional duty not to inflict 
on the American people and our busy courts a new constitutional 
provision when I and they have no idea what it means in the most 
obvious type of case to which it theoretically might apply. And I have 
a constitutional duty as a Senator not to pass the buck to the courts 
by saying, ``Here's a new constitutional provision that no one 
understands. Go make something up.''
  When Madison, Jefferson and their compatriots wrote the original 
Constitution, they did not settle for ``don't worry, someone else will 
figure this out later.'' Nor should we.
  I ask unanimous consent to include in the Record, a letter to me from 
the NAACP dated April 10, 2000, opposing the proposed constitutional 
amendment, and a letter to Senators Lott and Daschle dated April 19, 
2000, from over 300 law professors opposing the proposed amendment as 
unnecessary and dangerous.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Washington Bureau--National Association for the 
           Advancement of Colored People,
                                   Washington, DC, April 10, 2000.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: Since this nation was first founded, 
     Americans of color have been the victims of all types of 
     crimes--both violent and non-violent--in disproportionately 
     high numbers. It is for this reason that the National 
     Association for the Advancement of Colored People (NAACP) has 
     always had a keen interest in seeing that crime victims are 
     treated honorably, fairly and compassionately by the American 
     judicial system, and that in the end they feel that justice 
     has been served.
       Yet people of color have also historically been wrongly 
     accused in this nation of crimes varying from the very minor 
     to the most heinous. It is for this reason that the NAACP has 
     also been a strong and steadfast supporter of the 
     Constitution, the Bill of Rights, and the concept of due 
     process in the American judicial system. It is our deeply 
     held belief in the need to protect the innocent and allow 
     every American the right to a fair trial that leads us to 
     oppose S.J. Res. 3, the proposed constitutional amendment to 
     protect the rights of victims of crimes.
       While we are very sympathetic to the rights and the needs 
     of crime victims throughout this nation, and while we agree 
     that victims are often not treated as compassionately as they 
     should be by the judicial system, the NAACP does not believe 
     that S.J. Res. 3 is the answer. Rather than expend the time 
     and energy necessary for the enactment of an amendment to the 
     Constitution, the NAACP urges you to work together and with 
     state legislatures to develop comprehensive packages of laws 
     that address the specific and diverse needs of crime victims. 
     The statutory route is preferable as it is easier to update 
     laws and to fit them to the changing yet very specific needs 
     of victims, and laws, as opposed to a broadly worded 
     constitutional amendment which is less likely to have long-
     lasting negative repercussions on the rights of the accused.
       The NAACP appreciates and commends the attempts of the 
     members of the Senate to improve the way in which the 
     American judicial system treats crime victims, and we agree 
     that we can and should do more to see that victims feel safe 
     and have closure after their ordeal. We support efforts to 
     pass laws that help victims of crimes, and we would like to 
     work with you to develop a more narrowly tailored and 
     effective package. Yet we cannot support S.J. Res. 3 for, as 
     well meaning as it is, we have grave concerns that the 
     negative effects this amendment would have on the rights of 
     the accused seeking a fair and impartial trial would outweigh 
     the benefits it bestows upon victims.
       Thank you in advance for your attention to the concerns of 
     the NAACP. If you have any questions or comments, I hope that 
     you will feel free to contact me at (202) 638-2269. I look 
     forward to working with you on this serious and important 
     issue.
           Sincerely,
                                                Hilary O. Shelton,
     Director.
                                  ____

                                                   April 19, 2000.
     Hon. Trent Lott,
     Senate Majority Leader, Russell Senate Office Building, 
         Washington, DC

     Hon. Tom Daschle,
     Senate Minority Leader, Hart Senate Office Building, 
         Washington, DC.
       Dear Senators Lott and Daschle: We are law professors and 
     practitioners who oppose adding a ``Victims' Rights 
     Amendment'' to the Constitution (S.J. Res. 3). Although we 
     commend and share the desire to help crime victims, amending 
     the Constitution to do so is both unnecessary and dangerous. 
     Indeed, ultimately the amendment is likely to be counter-
     productive in that it could hinder effective prosecution and 
     put an enormous burden on state and federal law enforcement 
     agencies.
       The Constitution has been amended only 17 times since 
     ratification of the Bill of Rights in 1791. Amendments should 
     be added to our basic charter of government only when there 
     is a pressing need that cannot be addressed in any other way. 
     No such necessity exists in order to protect the rights of 
     crime victims. Virtually every right contained in the 
     proposed Victims' Rights Amendment can be safeguarded by 
     statute.
       Thirty-three states have passed constitutional amendments 
     and every state has either a state constitutional amendment 
     or statute that protects victims' rights. Many of the rights 
     offered by the VRA are already protected by these laws. For 
     example, restitution for crime victims is required in federal 
     court by the Antiterrorism and Effective Death Penalty Act of 
     1996 and in every state by statute or constitutional 
     amendment. Similarly, the right of victims to attend 
     proceedings can be protected by statute as shown by laws that 
     exist in many states and by the recent federal legislation 
     that mandates that victims be allowed to attend even if they 
     will be testifying during the sentencing phase of the 
     proceedings. Victim impact statements are now a routine part 
     of sentencing proceedings at both the federal and state 
     levels. There is every reason to believe that the legislative 
     process will continue to be responsive to protecting crime 
     victims so that there is simply no need to amend the 
     Constitution to accomplish this.
       Not only is the VRA unnecessary, there are grave dangers in 
     amending the Constitution. The framers were aware of the 
     enormous power of the government to deprive a person of life, 
     liberty and property in criminal prosecutions. The 
     constitutional protections accorded criminal defendants are 
     among the most precious and essential liberties provided in 
     the Constitution. The VRA will undermine these basic 
     safeguards. For example, the proposed Amendment would give a 
     crime victim the right ``[t]o a final disposition of the 
     proceedings relating to the crime free from unreasonable 
     delay.'' Any victim of a violent crime has standing under the 
     Amendment to intervene and assert a constitutional right for 
     a faster disposition of the matter. This could be used to 
     deny defendants needed time to gather and present evidence 
     essential to prepare their defense, resulting in innocent 
     people being convicted. It could also be used to force 
     prosecutors to trial before they are ready, leading to guilty 
     people going free.
       Section three of the proposed Amendment authorizes Congress 
     to enact legislation to enforce the Amendment. This authority 
     could be used to negate the rights of criminal defendants in 
     an effort to protect crime victims. Courts would then face 
     the enormously difficult task of determining the extent to 
     which legislation to implement the new Amendment can 
     undermine the rights of those accused of crimes.
       Moreover, the Amendment is likely to be counter-productive 
     because it could hamper effective prosecutions and cripple 
     law enforcement by placing enormous new burdens on state and 
     federal law enforcement agencies. Prosecutions could be 
     hindered by the creation of an absolute right for crime 
     victims to attend and participate in criminal proceedings. In 
     many instances, the testimony of a prosecutorial witness will 
     be compromised if the person has heard the testimony of other 
     witnesses. Yet, the proposed Amendment creates a 
     constitutional right

[[Page 6041]]

     for a victim to be present at criminal proceedings even over 
     defense or prosecution objections.
       Prosecutorial efforts could also be hampered by the ability 
     of crime victims to ``submit a written statement . . . to 
     determine . . . an acceptance of a negotiated plea or 
     sentence.'' It is unclear how much weight judges will be 
     required to give to a crime victim's objection to a plea 
     bargain. Over 90 percent of all criminal cases do not go to 
     trial but are resolved through negotiation. Even a small 
     increase in the number of cases going to trial would unduly 
     burden prosecutors' offices. There are many reasons why 
     prosecutors enter into plea agreements such as allocating 
     scarce prosecutorial resources, concerns about weaknesses in 
     the evidence, or strategic choices to gain the cooperation of 
     one defendant to enhance the likelihood of convicting others. 
     Prosecutorial discretion would be seriously compromised if 
     crime victims could effectively obstruct plea agreements or 
     require prosecutors to disclose weaknesses in their case in 
     order to persuade a court to accept a plea.
       The Amendment would impose tremendous financial costs on 
     state and federal law enforcement agencies. These departments 
     would be constitutionally required to make reasonable efforts 
     to find and notify crime victims every time a case went to 
     trial, every time a criminal case was resolved, and every 
     time a prisoner was released from custody. Additionally, the 
     Amendment can be interpreted as creating a duty for the 
     government to provide attorneys for crime victims. The term 
     ``victim's representative'' in section two might well be seen 
     as creating a right to counsel in order to adequately protect 
     these newly created rights. Criminal defendants do not 
     receive adequate counsel in many cases. Adding the financial 
     burden of providing counsel to victims will likely further 
     limit defendants' access to counsel.
       Protecting crime victims by federal and state statutes 
     provides flexibility that is absent in a federal 
     constitutional amendment. Moreover, amending the Constitution 
     in this way changes basic principles that have been followed 
     throughout American history. Principles of federalism always 
     have allowed states to decide the nature of the protection of 
     victims in state courts. The ability of states to decide for 
     themselves is denied by this Amendment. Also, no longer would 
     protecting the rights of a person accused of crime be a 
     preeminent focus of a criminal trial.
       Crime victims deserve protection, but that must not be 
     accomplished at the expense of the rights of the accused. As 
     law professors and practitioners we urge the rejection of the 
     proposed Victim's Rights Amendment as unnecessary and 
     dangerous.
           Sincerely,
         Prof. Richard Abel, University of California, Los Angeles 
           School of Law; Prof. David Abraham, University of Miami 
           School of Law; Prof. Catherine Adcock Admay, Duke 
           University School of Law; Prof. Albert W. Alschuler, 
           University of Chicago Law School; Prof. Scott Altman, 
           University of Southern California Law School; Prof. 
           Anthony G. Amsterdam, New York University School of 
           Law; Prof. Roger Andersen, University of Toledo College 
           of Law; Prof. Ellen April, Loyola Law School, Los 
           Angeles, CA.
         Asst. Prof. John A. Barrett, Jr., University of Toledo 
           College of Law; Prof. Elizabeth Bartholet, Harvard 
           University Law School; Prof. Katharine T. Bartlett, 
           Duke University Law School; Prof. Robert Batey, Stetson 
           University College of Law; Prof. Christopher L. 
           Blakesley, Louisiana State University Law Center; Prof. 
           Jack Charles Boger, University of North Carolina School 
           of Law; Prof. Jean Boylan, Loyola Law School, Los 
           Angeles, CA; Prof. Ralph Brill, Chicago-Kent College of 
           Law.
         Prof. Peter Arenella, University of California, Los 
           Angeles School of Law; Prof. David Baldus, University 
           of Iowa College of Law; Prof. Fletcher N. Baldwin, Jr., 
           University of Florida College of Law; Prof Susan 
           Bandes, DePaul University College of Law; Prof. Stephen 
           F. Barnett, University of California, Berkeley School 
           of Law; Prof. Donald F. Clifford, University of North 
           Carolina School of Law; Prof. Donna Coker, University 
           of Miami School of Law; Prof. David Cole, Georgetown 
           University Law Center; Prof. John O. Cole, Mercer 
           University Law School; Prof. Doriane L. Coleman, Duke 
           University School of Law; Prof. George Copacino, 
           Georgetown University Law Center; Prof. James D. Cox, 
           Duke University School of Law; Prof. Jerome McCristal 
           Culp, Duke University School of Law.
         Prof. Mark Brown, Stetson University College of Law; 
           Prof. John Burkoff, University of Pittsburgh School of 
           Law; Prof. Paul D. Carrington, Duke University School 
           of Law; Prof. George C. Christie, Duke University 
           School of Law; Prof. C. Antoinette Clarke, University 
           of Arkansas at Little Rock School of Law; Prof. 
           Christine Desan, Harvard University Law School; Prof. 
           Norman Dorsen, New York University School of Law; Prof. 
           Donald W. Dowd, Villanova University School of Law; 
           Prof. Joshua Dressler, McGeorge School of Law, 
           University of the Pacific; Prof. Robert F. Drinan, 
           Georgetown University Law Center; Assoc. Prof. James 
           Joseph Duane, Regent University School of Law; Prof. 
           Melvyn R. Durchslag, Case Western Reserve University 
           Law School; Prof. Fernand N. Dutile, Notre Dame Law 
           School.
         Prof. Harlon L. Dalton, Yale Law School; Prof. Wes 
           Daniels, University of Miami School of Law; Prof. 
           Richard A. Danner, Duke University School of Law; Prof. 
           George C. Christie, Duke University School of Law; 
           Prof. Derryl D. Dantzler, Mercer University Law School; 
           Prof. James J. Fishman, Pace University School of Law; 
           Prof. Catherine Fisk, Loyola Law School, Los Angeles, 
           CA; Prof. Alyson Floumoy, University of Florida College 
           of Law; Prof. Judy Fonda, Loyola Law School, Los 
           Angeles, CA; Prof. Eric M. Freedman, Hofstra University 
           School of Law; Prof. Monroe H. Freedman, Hofstra 
           University School of Law; Prof. Richard D. Friedman, 
           University of Michigan Law School; Prof. Edward McGuinn 
           Gaffney, Jr., Valparaiso University School of Law.
         Prof. Phoebe Ellsworth, University of Michigan; Prof. 
           Anne S. Emanuel, Georgia State University College of 
           Law; Prof. Deborah Epstein, Georgetown University Law 
           Center; Assoc. Prof. Bryan K. Fair, University of 
           Alabama School of Law; Prof. Roger Findley, Loyola Law 
           School, Los Angeles, CA; Prof. Richard K. Greenstein, 
           Temple University School of Law; Prof. Ariela Gross, 
           University of Southern California Law School; Prof. 
           Phoebe A. Haddon, Temple University School of Law; 
           Prof. Eva Hanks, Yeshiva University, Benj. Cardozo 
           School of Law; Dean Joseph D. Harbaugh, Nova 
           Southeastern University, Shepard Broad Law Center; 
           Prof. David Harris, University of Toledo College of 
           Law; Prof. Lynne Henderson, Stanford Law School; Prof. 
           Susan N. Herman, Brooklyn Law School.
         Prof. William S. Geimer, Washington and Lee University 
           School of Law; Prof. Bennett L. Gershman, Pace 
           University School of Law; Prof. Daniel J. Goldberger, 
           Ohio State University College of Law; Prof. Phyllis 
           Goldfarb, Boston College Law School; Prof. Robert D. 
           Goldstein, University of California, Los Angeles School 
           of Law; Prof. Ken Graham, University of California, Los 
           Angeles School of Law; Prof. Samuel Gross, University 
           of Michigan Law School; Prof. Martin Guggenhein, New 
           York University School of Law; Prof. Paul M. Kurtz, 
           University of Georgia School of Law; Prof. David L. 
           Lange, Duke University School of Law; Prof. Richard 
           Lempert, University of Michigan Law School; Prof. David 
           Leonard, Loyola Law School, Los Angeles, CA.
         Prof. Randy Hertz, New York University School of Law; 
           Lecturer Kenneth E. Houp, Jr., University of Texas 
           School of Law; Prof. Alan Hyde, Rutgers University 
           School of Law; Prof. Stewart Jay, University of 
           Washington School of Law; Prof. Paul R. Joseph, Nova 
           Southeastern University Law Center; Prof. Yale Kamisar, 
           University of Michigan Law School; Prof. Mark Kelman, 
           Stanford Law School; Prof. Bailey Kuklin, Brooklyn Law 
           School; Prof. Brenda Jones Quick, Detroit College of 
           Law at Michigan State; Assoc. Prof. Kathleen Ridofi, 
           Santa Clara University School of Law; Prof. Dean H. 
           Rivkin, University of Tennessee College of Law; Prof. 
           Robert Rosen, University of Miami School of Law.
         Prof. Christine A. Littleton, University of California, 
           Los Angeles School of Law; Prof. Holly Maguigan, New 
           York University School of Law; Prof. Mari Matsuda, 
           Georgetown University Law Center; Prof. Christopher 
           May, Loyola Law School, Los Angeles, CA; Prof. Carolyn 
           McAllaster, Duke University School of Law; Prof. Andrew 
           McClurg, University of Arkansas, Little Rock School of 
           Law; Prof. Joel S. Newman, Wake Forest University 
           School of Law; Prof. James O'Fallon, University of 
           Oregon School of Law; Prof. Robert Popper, University 
           of Missouri-Kansas City School of Law; Assoc. Prof. 
           Grayfred B. Gray, University of Tennessee College of 
           Law; Prof. Clyde Spillenger, University of California, 
           Los Angeles School of Law; Prof. Joan Steinman, 
           Chicago-Kent College of Law.
         Prof. Thomas D. Rowe, Jr., Duke University School of Law; 
           Prof. Susan Rutberg, Golden Gate University School of 
           Law; Assoc. Dean Rob Saltzman, University of Southern 
           California Law School; Prof. Michael Meltsner 
           Northeastern University School of Law; Prof. Wallace J. 
           Mlyniec, Georgetown University Law Center; Prof. Andre 
           Moenssens, University of Missouri-Kansas City School of

[[Page 6042]]

           Law; Prof. Emeritus Melvin G. Shimm, Duke University 
           School of Law; Prof. Kenneth W. Simons, Boston 
           University School of Law; Prof. J. Clay Smith, Jr., 
           Howard University School of Law; Prof. Girardeau A. 
           Spann, Georgetown University Law Center; Prof. H. 
           Richard Uviller, Columbia University School of Law; 
           Prof. William W. Van Alstyne, University of California, 
           Los Angeles School of Law.
         Prof. Margaret Stewart, Chicago-Kent College of Law; 
           Prof. Allen Sultan, University of Dayton School of Law; 
           Prof. Nkechi Taifa, Howard University School of Law; 
           Prof. J. Alexander Tanford, Indiana University School 
           of Law--Bloomington; Prof. Andrew E. Taslitz, Howard 
           University School of Law; Prof. David C. Thomas, 
           Chicago-Kent College of Law; Prof. Jack L. Sammons, 
           Mercer University Law School; Prof. Jane Schacter, 
           University of Wisconsin Law School; Prof. Stephen 
           Schnably, University of Miami School of Law; Prof. 
           Peter Tillers, Yeshiva University, Benj. N. Cardozo 
           School of Law; Prof. Laura Underkuffler, Duke 
           University School of Law; Prof. Charles Ogletree, 
           Harvard Law School.
         Prof. Michael Vitiello, McGeorge School of Law, 
           University of the Pacific; Prof. Welsch S. White, 
           University of Pittsburgh School of Law; Prof. Donald E. 
           Wilkes, Jr., University of Georgia School of Law; Prof. 
           Gary Williams, Loyola Law School, Los Angeles, CA; 
           Prof. Bernard Wolfman, Harvard University Law School; 
           Prof. Larry W. Yackle, Boston University School of Law; 
           Prof. George C. Thomas III, Rutgers, S.I. Newhouse 
           Center for Law and Justice; Prof. Larry Alexander, 
           University of San Diego; Assoc. Dean Fred G. Slabach, 
           Whittier Law School; Prof. William Wesley Patton, 
           Whittier Law School; Assoc. Prof. Rachel Vorspan, 
           Fordham University School of Law; Prof. Alyson Cole, 
           University of Michigan.
         Prof. Angela Jordan Davis, Washington College of Law 
           America University; John Payton, Wilma, Cutler & 
           Pickering Washington, DC; Assoc. Prof. Paulette J. 
           Williams, University of Tennessee College of Law; Prof. 
           Susan Looper-Friedman Capital University Law School; 
           Asst. Prof. Mellissa Cole, St. Louis University School 
           of Law; Prof. Beatrice Moulton, University of 
           California Hastings College of the Law; Prof. Victor 
           Romero, Pennsylvania State University, Dickinson School 
           of Law; Prof. Peter Edelman, Georgetown University Law 
           Center; Prof. Richard B. Bilder, University of 
           Wisconsin Law School; Prof. Robert P. Schuwert, 
           University of Houston Law Center; Prof. Ellen Suni, 
           University of Missouri-Kansas City School of Law; Prof. 
           Nancy Levit, University of Missouri School of Law.
         Prof. James G. Wilson, Cleveland State University Law 
           School; Lecturing Fellow Brenda Berlin, Duke University 
           Law School; Prof. Gilbert Paul Carrasco, University of 
           Oregon Knight Law Center; Prof. Douglas J. Whaley, Ohio 
           State University College of Law; Dean McClindon, Howard 
           University; Dean Michael Newsom, Howard University; 
           Prof. Morell E. Mullins, University of Arkansas-Little 
           Rock Law School; Prof. Joseph F. Smith, Jr., Nova 
           Southeastern University Law Center; Prof. Dan Simon, 
           University of Southern California Law School; Assoc. 
           Prof. Gary L. Anderson, University of Tennessee College 
           of Law; Prof. Derrick Bell, New York University Law 
           School; Prof. Leroy D. Clark, Catholic University Law 
           School.
         Prof. Sarah Welling, University of Kentucky College of 
           Law, Prof. Sally Frank, Drake University Law School; 
           Prof. Kevin W. Saunders, University of Oklahoma; Prof. 
           Elizabeth Samuels, University of Baltimore School of 
           Law; Prof. Anne Schroth, University of Michigan Law 
           School; Prof. David M. Skover, Seattle University of 
           Law School; Prof. Paul H. Brietzke, Valparaiso 
           University School of Law; Prof. Christopher D. Stone, 
           University of Southern California Law School; Prof. 
           Theodore J. St. Antoine, University of Michigan Law 
           School; Prof. Paul Finkelman, University of Tulsa 
           College of Law; Prof. Robert A. Sedler, Wayne State 
           University, Detroit Michigan; Prof. Joseph Dodge, 
           University of Texas Law School; Prof. David E. 
           Vandercoy, Valparaiso University School of Law.
         Prof. Glenn Harlan Reynolds, University of Tennessee 
           College of Law; Prof. Peter Linzer, University of 
           Houston Law Center; Prof. Robert A. Burt, Yale Law 
           School; Prof. Jerome H. Skolnick, New York University 
           Law School; Prof. Jordan Paust, University of Houston 
           Law Center; Prof. Speedy Rice, Gonzaga University 
           School of Law; Prof. Larry Yackle, Boston University; 
           Prof. Stanley Fisher, Boston University; Prof. Thomas 
           Baker, Drake University Law School; Prof. Lee 
           Pizzimenti, University of Toledo College of Law; Prof. 
           Howard M. Friedman, University of Toledo College of 
           Law; Prof. Daniel J. Steinbock, University of Toledo 
           College of Law; Prof. Alexander M. Capron, University 
           of Southern California Law Center.
         Prof. Gary S. Gilden, Pennsylvania State University; 
           Prof. Gary Blasi, University of California, Los Angeles 
           Law School; Prof. Stephen C. Yeazell, University of 
           California, Los Angeles Law School; Prof. Kenneth 
           Brown, University of North Carolina Law School; Prof. 
           John Copacino, Georgetown University Law Center; Prof. 
           James Klein, University of Toledo College of Law; Prof. 
           Jane R. Wettach, Duke University Law School; Prof. 
           Naomi Mezey, Georgetown University Law Center; Brian 
           Wolfman, Public Citizen Litigation Group, Washington, 
           DC; Prof. Kimberley Hall Barlow, University of 
           California at Los Angeles Law School; Prof. Diane 
           Dimond, Duke University Law School.
         Prof. Eugene Volokh, University of California, Los 
           Angeles Law School; Prof. James G. Pope, Rutgers State 
           University S.I. Newhouse Center for Law and Justice; 
           Prof. Mary Ellen Gale, Whittier Law School; Prof. Susan 
           H. Herman, Brooklyn Law School; Prof. Nadine Strossen, 
           New York Law School; Prof. Richard Klein, Touro College 
           Jacob D. Fuchsburg Law Center; Prof. Lori Andrews, 
           Chicago-Kent College of Law; Prof. Craig Bradley, 
           Indiana University--Bloomington School Law; Prof. 
           Christine Goodman, University of California, Los 
           Angeles School of Law; Prof. Peter Lushing, Yeshiva 
           University, Benj. N. Cardozo School of Law; Prof. John 
           Scanlan; Indiana University--Bloomington, School of 
           Law.
         Prof. David L. Chambers, University of Michigan Law 
           School; Prof. Stewart J. Schwab, Cornell University Law 
           School; Prof. Bridget McCormack, University of Michigan 
           Law School; Prof. Natsu Taylor Saito, Georgia State 
           University Law School; Prof. Patricia Bryan, University 
           of North Carolina Law School; Prof. Harlon L. Dalton, 
           Yale Law School; Prof. Diane Geraghty, Loyola 
           University--Chicago; Prof. Susan Herman, Brooklyn Law 
           School; Prof. Marina Hsieh, University of Maryland; 
           Prof. Martha Moran, University of Alabama; Prof. Susan 
           Poser, University of Nebraska; Prof. David Rudovsky, 
           University of Pennsylvania; Prof. Stanley Fisher, 
           Boston University; Prof. Sarah Burns, New York 
           University School of law.
         Prof. Roger Goldman, Saint Louis University; Prof. Frank 
           Askin, Rutgers School of Law--Newark; Prof. Vivian 
           Berger, Columbia Law School; Prof. Louis D. Bilionis, 
           University of North Carolina School of Law; Prof. 
           Ronald Chen, Rutgers School of Law--Newark; Prof. 
           Margaret Russell, Santa Clara University; Prof. 
           Phillipa Strum, Wayne State University Law School,; 
           Prof. Leland Ware, Saint Louis University; Prof. Gary 
           Williams, Loyola University--Los Angeles; Prof. 
           Emeritus Eugene Feingold, University of Michigan; Prof. 
           Frances Ansley, University of Tennessee College of Law; 
           Prof. Gerald E. Uelmen, Santa Clara University; Prof. 
           Elizabeth M. Schneider, Brooklyn Law School; Prof. 
           David R. Dow, University of Houston Law Center.
         Prof. Michael Kent Curtis, Wake Forest University School 
           of Law; Assoc. Prof. Morris Bernstein, University of 
           Tulsa College of Law; Prof. John M. Levy, William and 
           Mary Law School; Prof. Denise Morgan, New York 
           University Law School; Assoc. Prof. Stephen C. Thaman, 
           Saint Louis University; Prof. Lefty Becker, University 
           of Connecticut School of Law; Prof. Ira C. Lupu, George 
           Washington University Law School; Assoc. Dean Ralph G. 
           Steinhardt, George Washington University Law School; 
           Prof. Judith T. Younger, University of Minnesota; Prof. 
           Ruti Teitel, New York Law School; Assoc. Prof. Sibyl 
           Marshall, University of Tennessee Law School; Prof. 
           Janet Cooper Alexander, Stanford Law School; Prof. 
           Arnold H. Loewy, University of North Carolina School of 
           Law; Mr. Norman Dorsen, New York University Law School.
         Prof. Joel M. Gora, Brooklyn Law School; Prof. David 
           Weissbrodt, University of Minnesota; Prof. David 
           Kairys, Temple University School of Law; Prof. Don 
           Doernburg, Pace University School of Law; Prof. Lois 
           Cox, University of Iowa College of Law; Prof. Emeritus 
           Samuel Mermin, University of Wisconsin; Prof. Steven G. 
           Gey, Florida State University College of Law; Prof. 
           Aviam Soifer, Boston College Law School; Prof. Arthur 
           S. Leonard, New York Law School; Prof. Emeritus Ted 
           Finman, University of Wisconsin--Madison; Prof. 
           Lawrence M. Grosberg, New York Law School; Prof.

[[Page 6043]]

           Eric Janus, William Mitchell College of Law; Assoc. 
           Prof. Michael J. Gilbert, University of Texas--San 
           Antonio; Prof. Jordan J. Paust, University of Houston 
           Law Center.
         Prof. Carlin Meyer, New York Law School; Prof. Lawrence 
           O. Gostin, Georgetown University; Prof. Mark Strasser, 
           Capital University Law School; Prof. Bruce J. Winick, 
           University of Miami School of Law; Prof. Brian Bix, 
           Quinnipiac Law School; Prof. Ronald D. Rotunda, 
           University of Illinois College of Law; Assoc. Prof. 
           Kathleen Wait, University of Tulsa College of Law; 
           Prof. Donald N. Bersoff, Villanova Law School; Prof. 
           Emeritus Donald P. Rothschild, George Washington 
           University Law School; Mr. Paul Lawrence, Preston Gates 
           & Ellis, Seattle, WA; Ms. Wendy C. Nakamura, San Diego, 
           CA; Luz Buitrago, Berkeley, CA; Ms. Marjorie Esman, 
           Adjunct, Tulane Law School.
         Prof. Kenneth Lasson, University of Baltimore; Prof. 
           Jayne W. Barnard, William and Mary Law School; Prof. 
           Colin S. Diver, University of Pennsylvania; Asst. Prof. 
           Judge Steve Russell, University of Texas-San Antonio; 
           Prof. A. Michael Froomkin, University of Miami School 
           of Law; Ms. Alice Bendheim, Phoenix, AZ; Mr. Roland 
           O'Hare, Detroit, MI; Mr. William Hinkle, Hinkle & 
           Smith, P.C., Tulsa, OK; Mr. John Burnett, Little Rock, 
           AR; Ms. Sandra Michaels, Atlanta, GA; Mr. Jeremiah 
           Gutman, New York, NY; Mr. Paul Grant, Juneau, AK; Prof. 
           David Rudovsky, University of Pennsylvania Law School.
         Ms. Gwen Thomas, Aurora, CO; Ms. Allison Steiner, 
           Hattiesburg, MS; Ms. Candace M. Carroll, Sullivan, 
           Hill, Lewin, Rez & Engel, San Diego, CA; Prof. Donald 
           N. Bersoff, Villanova Law School; Ms. Jeanne Baker, 
           Miami, FL; Ms. Denise LeBoeuf, Adjunct Prof, Loyola Law 
           School, New Orleans; Prof. Rodney Uphoff, University of 
           Oklahoma Law Center; Prof. Paul Bergman, University of 
           California, Los Angeles School of Law.

  The PRESIDING OFFICER (Mr. L. Chafee). The Senator from West 
Virginia.
  Mr. BYRD. Mr. President, I have been asked by the two distinguished 
principal proponents, as I understand it, to allow the motion to 
proceed to be withdrawn by unanimous consent, after which I and others 
who are opposed to the constitutional amendment could proceed to make 
our speeches.
  I am opposed to that procedure. I think that if we are going to call 
up constitutional amendments around here--and certainly Senators have a 
right to offer constitutional amendments--but if they are going to be 
called up, I think we ought to take the full time and discuss them, the 
full time allowed to us under the rules and discuss those amendments--
pro and con--and not allow them to be withdrawn and then, afterwards 
make our speeches.
  That does not make sense to this Senator. They have a perfect right--
the proponents--to seek consent to have the amendments withdrawn. But I 
say, let's have a full discussion of them and then give consent to 
their being withdrawn.
  I honor those proponents who have worked hard, especially the two 
principal ones, Mr. Kyl of Arizona and Mrs. Feinstein of California. 
They are very dedicated, very worthy, very formidable protagonists. I 
respect them and respect their viewpoints. They have as much right to 
disagree with me as I have with them. They certainly have the right to 
their viewpoints. I do not quarrel with that right at all.
  Let me also say to the victims of crime, wherever they may be, if 
they be watching, listening or reading the congressional record of 
these statements, I certainly am not against victims' rights. I am sure 
I speak for all of those in this body who oppose this constitutional 
amendment. We are not against victims' rights. I am for victims' 
legitimate rights. As one who has been about as firm as any other 
Senator could be when it comes to dealing with criminals, as one who 
believes in capital punishment, as one who believes in the death 
penalty, as one who has seen a public execution, as one who believes in 
making the criminals pay, I certainly do not take a back seat to anyone 
when it comes to supporting legitimate victims' rights. I am for that. 
But I am not for this amendment to the Constitution of the United 
States.
  I think victims' rights can be secured, are being secured, and will 
continue to have my support, when statutes are devised to protect those 
rights. But when it comes to amending the Federal Constitution, that is 
something else. That is entirely another matter. We don't need to amend 
the Federal Constitution to secure victims rights.

     I saw them tearing a building down,
     A group of men in a busy town;
     With a ``Ho, heave, ho'' and a lusty yell,
     They swung a beam and the sidewall fell.

     I said to the foreman, ``Are these men skilled
     The type you'd hire if you had to build?''
     He laughed, and then he said, ``No, indeed,
     Just common labor is all I need;
     I can easily wreck in a day or two,
     That which takes builders years to do.''

     I said to myself as I walked away,
     ``Which of these roles am I trying to play?
     Am I a builder who works with care,
     Building my life by the rule and square?
     Am I shaping my deeds by a well-laid plan,
     Patiently building the best I can?
     Or am I a wrecker who walks the town,
     Content with the labor of tearing down?''

  That is the picture we have before us. We are talking about the 
higher law of our land, the Constitution of the United States of 
America. It was centuries in the making, but it can be trivialized in a 
day.
  We are talking about the Federal Constitution, the Constitution of 
the United States of America, the Constitution that was signed by 39 
delegates on September 17, 1787.
  Listen to them: New Hampshire, Nicholas Gilman and John Langdon; 
Massachusetts, Nathaniel Gorham and Rufus King; Connecticut, Roger 
Sherman and William Samuel Johnson; New York, Alexander Hamilton; New 
Jersey, William Paterson, David Brearley, William Livingston, Jonathan 
Dayton; Pennsylvania, Benjamin Franklin, Thomas Mifflin, Robert Morris, 
George Clymer, Jared Ingersoll, Thomas FitzSimons, Gouverneur Morris--
the tall man with the peg leg--and James Wilson; Delaware, George Read, 
John Dickinson, Jacob Broom, Richard Bassett; Maryland, Daniel of St. 
Thomas Jenifer, Daniel Carroll, James McHenry; Virginia, George 
Washington, John Blair, James Madison; North Carolina, William Blount, 
Richard Dobbs Spaight, Hugh Williamson; South Carolina, Charles 
Pinckney, Charles Cotesworth Pinckney, John Rutledge, Pierce Butler; 
Georgia, William Few and Abraham Baldwin.
  What would they think? What would they think of this amendment? Not 
what professor so-and-so of such-and-such university may think, but 
what would those framers of the Constitution say if they were here?
  Most Americans can recall seeing the statue of ``Blind Justice'' 
holding aloft a balance scale in a courthouse or as a logo for a 
favorite TV crime show. It is an impressive and powerful representation 
with roots in Greek and Roman mythology.
  The scale symbolizes the impartial weighing of evidence, while the 
blindfolded figure, the goddess Themis, symbolizes equal justice under 
the law for the accused.
  But in a larger sense, the scale symbolizes something even more 
significant. It symbolizes competing interests--universal tensions, if 
you will--such as innocence versus guilt, truth versus falsehood, 
personal privacy versus the public welfare, the power of the State 
versus the rights of the individual. When those scales are put into 
equilibrium, they are said to be in balance, the right side weighed to 
be exactly at level with the left.
  When it comes to human affairs, balance is a very difficult state to 
achieve. But once achieved, the sweet harmony of balance--one tension 
offset by just the right measure of the competing tension--allows for 
the calmest, most rational functioning of man's institutions of order.
  Nowhere is the example of beautiful and near-perfect balance, despite 
competing and conflicting ambitions, goals, and passions more 
profoundly demonstrated than in that venerable charter, the U.S. 
Constitution, which I hold here in my right hand.
  Our Constitution embodies the accommodation of such difficult-to-
rectify aspirations as the National Government's need for supremacy and 
the individual State's need for autonomy. Our Constitution satisfies 
the States' desire to maintain order without trampling on the 
individual's right to enjoy

[[Page 6044]]

liberty. Liberty. That is the key word. Liberty. Our Constitution 
bestows power on the institutions and offices of Government in such a 
way as to allow them to adequately carry out their duties and yet be 
curbed and checked by the duties and responsibilities of other 
officials and institutions. Such is the brilliance and the genius of 
our national charter that it has been amended only 27 times in our more 
than 200-year history. Ten of those 27 amendments, of course, comprise 
the Bill of Rights, leaving only 17 amendments in these 212 years. 
Seventeen amendments.
  One of those--the prohibition amendment of 1919--was repealed, wiped 
out--that was the 18th amendment; it was wiped out by the 21st 
amendment. So take one away--the 18th amendment--and that leaves only 
16 amendments.
  One might say: How about the 21st amendment, which wiped it out? 
Don't subtract that one because there is a portion of that amendment 
that is still in the Constitution, and it will remain there until such 
time as it may be repealed. But you might say there are 16 amendments. 
Over 11,000 amendments to the Constitution have been introduced in both 
Houses.
  The men who created this amazing--and it is amazing. One may read 
Shakespeare and one may read the Bible time and time and time again, 
and each time one reads that Holy Writ, he or she will find something 
new--every time. But think of this truly amazing, durable Constitution. 
It is a durable crucible for liberty. The men who created this durable, 
amazing, wonderful crucible for liberty were students of history and 
students of various methods of governing going back, back, back, back, 
back into the misty centuries of antiquity, long before 1787. They were 
students of the philosophies of the various methods of government. 
These men who wrote the Constitution came fresh from the mistakes of 
the experience of the Articles of Confederation, the first Constitution 
of the United States. They lived under the Articles of Confederation; 
they knew what the flaws of the Articles were. They knew where they 
fell short. They knew where those provisions were lacking. The memory 
of the Revolutionary War and the bloodshed in that struggle for freedom 
were at the forefront of their minds. They--the framers--God bless 
their names--bequeathed to me, to us, something very profound--
something strong, yet something also quite delicate. Over the years, I 
have come to believe that we should tinker with their magnificent work 
only very, very rarely.
  Each Member of this body takes an oath when he or she becomes a U.S. 
Senator, and there have only been 1852 men and women who have taken 
that oath to be Members of this great body. Think--just think--for a 
moment about that oath. Think about the words: ``Support and defend the 
Constitution of the United States against all enemies, foreign and 
domestic.'' Then think, if you will, about the extreme difficulty of 
the procedure laid out in that same Constitution for changing that 
Constitution in any way. I do believe that the framers were quite wary 
of injudicious disruptions to, and even the meddling, piddling, 
tinkering, and tampering with the careful balance that they had so 
laboriously achieved. As in most things, they were only too right.
  In the 106th Congress, as of April 17 of this year, there had been 63 
constitutional amendments proposed--63 constitutional amounts proposed. 
The Senate has only been in session 43 or 45 days this year. In the 
105th Congress, there were 107 constitutional amendments proposed. I 
think that it is clear the framers' fears were quite well founded. 
These amendments are proliferating at an unalarming level.
  That is why I have taken the floor on yesterday, that is why I have 
taken it today, and that is why I shall take it, the Lord willing, time 
and time again in the days to come.
  These amendments are proliferating at an alarming level. It seems 
that we are almost intent on disrupting what has served us and 
continues to serve us so well--the elegant wisdom and the very careful 
balance inherent in the Constitution. For the second time within 30 
days, the U.S. Senate--that remarkable body which Gladstone, who had 
been Prime Minister of Britain four times, remarked about--``that 
remarkable body,'' the U.S. Senate, ``the most remarkable of all of the 
inventions of modern politics,'' the U.S. Senate is being called upon 
to adopt an amendment to the U.S. Constitution.
  It would be laughable if it weren't so serious.
  Who are we to conjure up all of these myriad amendments to that great 
document?
  So I say the Senate perhaps had better adopt a resolution designating 
April as ``Amend the Constitution Month.''
  Let's have at it. Let's have a resolution calling April, the fourth 
month of this year of our Lord, the year 2000, the last year in the 
20th century, the last year in the second millennium.
  Fie on the media, and fie on politicians who try to hand the American 
people all of this flimflam about this year's being the first year of 
the 21st century--this year's being the first year of a new century. 
Take the old math, take the new math, whatever math you want to take. 
It all comes out the same.
  There are 100 years in every century, and 1,000 years in every 
millennium. We are today in the last year of the 20th century.
  I was invited down to the White House a few days before the beginning 
of the new year. I don't go down very often. I don't get invited down 
as much as I used to, but it doesn't bother me. I went down when I was 
majority leader, when I was minority leader, and when I was majority 
leader again, and when I was President pro tempore of the Senate--all 
too much. I got tired of going down there.
  I must say they were very kind to invite me down to what I think they 
called the New Millennium party.
  I said to my fine staff person, you tell that nice lady that the new 
millennium hasn't begun yet, and it won't begin until the year 2001, 
January.
  Now we have the latest constitutional amendment--something called the 
crime victims' rights constitutional amendment, with the Senate poised 
to consider it following, you guessed it, ``National Crime Victims' 
Rights Week,'' a week during which the Senate was in recess.
  Does this suggest something to us? To me, it suggests a less than 
serious, dare I say somewhat frivolous, view of the gravity and far-
reaching nature of constitutional amendments in general, and of this 
constitutional amendment in particular.
  To those victims out there who are watching over that electronic eye, 
let me assure you again that I am for your legitimate rights. But I am 
not for adding an amendment to the Constitution. It isn't necessary.
  The amendment which is being proposed is intended to restore and 
preserve--although I understand there were some negotiations going on 
with respect to this amendment as to how it might be changed and 
altered from what it is in the printed amendment upon the desks of 
Senators, negotiations going on with the White House, I understand. Why 
the White House? What do they have to do with it? The President of the 
United States doesn't sign a joint resolution that carries a 
constitutional amendment. That is a joint resolution that doesn't go to 
the President's desk. He can't veto it. He can't sign it. Why negotiate 
with him?
  The amendment which is being proposed is intended to restore and 
preserve, ``as a matter of right for the victims of violent crimes, the 
practice of victim participation in the administration of criminal 
justice that was the birthright of every American at the founding of 
our Nation.''
  This is a very impressive goal for the amendment, and, if the matter 
only stopped there, undoubtedly it would enjoy the sympathy and the 
support of every Member of this body because who is there who would be 
opposed to the legitimate rights of victims of violent crime? The title 
and the substance of the measure are certainly worthy of consideration.
  The Committee on the Judiciary recommended that victims' rights under 
nine general headings be protected in

[[Page 6045]]

the amendment to the Federal Constitution. These nine rights are set 
forth as follows: (1) a right of victims to receive notice of criminal 
justice proceedings; (2) a right of victims to attend criminal justice 
proceedings related to crimes perpetrated against them; (3) a right of 
victims to be heard at five points in the criminal justice process, 
namely, plea bargains, bail or release hearings, sentencing, parole 
hearings, and pardon or commutation decisions; (4) a right of victims 
to notice of, and an opportunity to submit a statement concerning, a 
proposed pardon or commutation of sentence; (5) a right of victims to 
notice of release or escape of the accused; (6) a right to 
consideration of the victims' interest in a trial free from 
unreasonable delay; (7) a right of victims to an order of restitution; 
(8) a right of victims to have their own safety considered whenever an 
accused or convicted offender is released from custody.
  These sound like good things, good amendments. They are good.
  No. 9, notice to the victims of these rights inasmuch as such rights 
are of little use if the victims remain unaware of them.
  What is wrong with that? Nothing is wrong with that. We can all be 
for that.
  These participatory rights of victims are laudable and are worthy of 
consideration, certainly in the instance of legislation, but not when 
it comes to amending the Federal Constitution.
  Such rights can already be assured--here is the problem--such rights, 
as those we are talking about, can already be assured to victims by 
Federal or State legislation.
  The majority states in the committee report that the first Federal 
constitutional amendment to protect the rights of crime victims was 
introduced with hearings thereon in 1996 and that additional hearings 
were conducted in 1997, 1998, and 1999. The report also indicates that 
over these years, many changes were made to the original draft, several 
of which responded to concerns expressed in the hearings.
  The fact that so many changes were made over the years indicates to 
me that the subject matter could be better dealt with by legislation 
than by a Federal constitutional amendment. If it needs changing, if it 
needs modifying, if it needs altering, it can be done by legislation. 
And if we find that something is wrong and it isn't working right, we 
can change that law again the next session. We can even change it 
during this session. Congress can change, can alter, can modify, can 
amend the law almost overnight, if necessary, but not a constitutional 
amendment. That would take years to do. Statutes can be modified and 
refined by subsequent legislation during a single session of the 
legislative branch. But once a constitutional amendment is set into 
place, the only way to refine or amend that constitutional amendment is 
to further amend the Constitution of the United States, a procedure 
which necessarily requires years to do. The Prohibition amendment was 
on the books from January 1919 to December 1933. It took years.
  What are we talking about? This Constitution may not be perfect, but 
this amendment wasn't perfect. It was changed, and then it was changed, 
and then it was changed again, and now it is being pulled back because 
there need to be further changes. What does that tell us? What if it 
had been welded into the Constitution of the United States and then 
they would have found, lo and behold, this ought to be changed, this 
isn't right, this is wrong, we need to change it. That is a long 
process.
  I was interested, as I scanned the committee report, to note that the 
two legal experts who testified in support of the amendment in the 
first hearing in 1996 testified again and again and again in the 
subsequent three hearings. Professor Paul Cassell--I have never had the 
pleasure of meeting that gentleman--Professor Paul Cassell of the 
University of Utah College of Law and Steve Twist, former chief 
assistant attorney general of Arizona, were the chief legal experts. 
They may have been the best in the Nation; I don't know. Professor 
Cassell appears at all four hearings in support of the amendment. It 
seemed to me there was a paucity of expert academic witnesses who 
appeared in furtherance of the amendment.
  This duo--and I say it with great respect for them; they may be the 
best two in America--the same duo were heard over and over again. 
Wouldn't it have been well to have a few more? Wouldn't it have been 
well to add to the list of experts?
  It should not go unnoticed that the committee report states that the 
U.S. Judicial Conference favors a statutory approach because it ``would 
have the virtue of making any provisions in the bill which appeared 
mistaken by hindsight''--that is 20/20, you know--``to be amended by a 
simple act of Congress.''
  The report also says that the State courts favor a statutory approach 
to the protection of victims' rights, citing the fact that the 
Conference of Chief Justices--we only have one Chief Justice of the 
United States, but there are many chief justices of the 50 States--
citing the fact that the Conference of Chief Justices has underscored 
``the inherent prudence of a statutory approach'' which could be 
refined as appropriate.
  Other major organizations, including several victims' groups, opposed 
the amendment, as is stated in the Committee report. For example, the 
National Clearinghouse for the Defense of Battered Women takes the 
position that statutory alternatives are ``more suitable'' than an 
amendment to the Federal Constitution. Victim Services, the nation's 
largest victim assistance agency, also opposes S.J. Res. 3, arguing 
that the proposed amendment ``may be well intentioned, but good 
intentions do not guarantee just results''. The National Network to End 
Domestic Violence, as well as the National Organization for Women Legal 
Defense and Education Fund, and Murder Victim's Families for 
Reconciliation, a national organization of family members of murder 
victims, are united in opposing the joint resolution. Moreover, 
prosecutors and other law enforcement authorities all across the 
country ``have cautioned that creating special Constitutional rights 
for crime victims would have the perverse effect of impeding the 
effective prosecution of crime.''
  It seems to me that one of the foremost rights of a victim of crime 
would be to see the perpetrator of that crime brought to justice, 
tried, convicted, and punished. That is the first and foremost right of 
the victim.
  The National District Attorneys Association has cautioned that the 
proposed amendment would ``afford victims the ability to place 
unknowing, and unacceptable, restrictions on prosecutors while 
strategic and tactical decisions are being made about how to proceed 
with the case.''
  Prosecutorial discretion over plea bargaining ``is particularly at 
risk'' if S.J. Res. 3 were to be adopted. While I personally believe, 
and have long believed, that there is entirely too much plea 
bargaining--I believed that for a long time--the committee points out 
that a prosecutor may need to obtain the cooperation of a defendant who 
can bring down an entire organized crime ring, or may need to protect 
the identity of an informant-witness, or may think that the evidence 
against the defendant will not convince a jury beyond a reasonable 
doubt, in which case the accused killer, or whatever he might be, would 
go scot-free. Will the victim's rights have been upheld? Will the 
victim's rights have been secured if the killer goes free? If the 
robber goes free? If the burglar goes free?
  In any event, I support the main objectives in the measure for the 
protection of victims' rights, but such protection can be afforded by 
legislation at the Federal and State levels, and there is absolutely no 
need for a Federal constitutional amendment to meet the needs set forth 
in the resolution.
  The chief justices of the States have expressed grave concerns that 
the proposed constitutional amendment would lead to ``extensive lower 
federal court surveillance of the day to day operations of state law 
enforcement operations.''
  Now, get that. How many times have we heard it said, ``Get the 
Government

[[Page 6046]]

off our backs! Get the Government off our backs!'' Wasn't that one of 
the complaints in the great, so-called--what was it called?--contract, 
the great contract they talked about some few years ago, the Contract 
With America. Why, of course, that was one of the great things they 
talked about--Get the Government off our backs; Contract With America. 
Whoopee. Well, I will tell you, I have my Contract With America right 
here in my pocket. I know this Senator here, from Vermont, he had two 
men from Vermont who signed this Constitution, John Langdon and 
Nicholas Gilman. He has his Contract With America in his pocket--I 
have. It is called the Constitution of the United States.
  Here we have grave concerns expressed by the chief justices of the 
States, grave concerns that the proposed constitutional amendment would 
lead to ``extensive lower federal court surveillance of the day to day 
operations of state law enforcement operations.'' Get the Government 
off our back, they say on one hand. Then they say, Oh, let's adopt this 
constitutional amendment.
  The minority view on the Senate Judiciary Committee shares these 
concerns, but states that the laudable goal of making State and law 
enforcement personnel more responsive to victims should not be achieved 
by establishing Federal court oversight of the criminal justice and 
correctional systems of the 50 States. They do not want the Government 
on their backs, so they do not support this proposed constitutional 
amendment.
  The minority on the committee states that there is no pressing reason 
to displace State laws in an area of traditional State concern, and 
that there is no compelling evidence pointing to the need for another 
unfunded mandate.
  They passed a bill here a few years back dealing with unfunded 
mandates. That was one of the first great so-called great plaints in 
the Contract--what was it? The Contract With America?
  Mr. LEAHY. Mr. President, if the Senator will yield, I called it the 
Contract On America. They called it the Contract With America. I think 
it was a Contract On America.
  Mr. BYRD. The Contract On America. All right. Call it a Contract On 
America.
  The minority also states that there is no need for more Federal court 
supervision and micromanagement of State and local affairs, when every 
State is already working hard to address the issues in ways that are 
best suited to its own citizens and its own criminal justice system.
  There have been some 63 drafts of the proposed amendment, and it 
remains both excessively detailed and decidedly vague. The level of 
detail provided in this amendment is inconsistent with the structure 
and the style of our country's great governing document, and, indeed, 
the resolution reads like a statute, which suggests that that is, in 
fact, how the problem of protecting the rights of crime victims should 
be addressed.
  The majority report cites examples of overwhelming popular support 
and demonstrates that change toward better implementation of victims' 
rights is occurring now, already, in the States. The majority admits 
that ``there is a trend''--the majority in this subcommittee report 
issued by the Judiciary Committee of the U.S. Senate--admits that 
``there is a trend toward greater public involvement in the process, 
with the federal system and a number of states now providing notice to 
victims.'' Hence, it is my belief that we, here at the Federal 
legislative level, should avoid the adoption of a Federal 
constitutional amendment and that we should allow the States to 
continue to come up with innovations of their own without undue Federal 
intervention in a matter which, basically, is in the purview of the 
States.
  Our illustrious friends who are the chief cosponsors of the 
amendment, very honorable Members of this body, one from the Democratic 
side and one from the Republican side, have told us that they will be 
back. ``We'll be back,'' they say.
  In the meantime, I hope we can educate ourselves a little better with 
respect to the constitutional principles that we are here to defend and 
to protect. I hope that during this interim, while they are preparing 
to come back, that we will be educating ourselves a bit further and 
helping to educate others as to the history of American 
constitutionalism so that Senators, in the future, may be a little 
better prepared to take on this new amendment when it is brought back 
before the Senate, as we are assured that it will be.
  I have heard, during this debate, that you can include these victims' 
rights in statutes, but they won't be enforced. Some of them are 
already in statutes, but they are not being enforced. That is what we 
heard the proponents say. They are not being enforced. They won't be 
enforced. They are in the laws of various States, but they are not 
being enforced so what we need is a constitutional amendment. How about 
that? How can we be assured that a constitutional amendment will be 
enforced?
  Let's return to the Book our fathers read:

       19 There was a certain rich man, which was clothed in 
     purple and fine linen, and fared sumptuously every day:
       20 And there was a certain beggar named Lazarus, which was 
     laid at his gate, full of sores.
       21 And desiring to be fed with the crumbs which fell from 
     the rich man's table: moreover the dogs came and licked his 
     sores.
       22 And it came to pass, that the beggar died, and was 
     carried by the angels into Abraham's bosom: the rich man also 
     died, and was buried;
       23 And in hell he lift up his eyes, being in torments, and 
     seeth Abraham afar off, and Lazarus in his bosom.
       24 And he cried and said, Father Abraham, have mercy on me, 
     and send Lazarus, that he may dip the tip of his finger in 
     water, and cool my tongue; for I am tormented in this flame.
       25 But Abraham said, Son, remember that thou in thy 
     lifetime receivedst thy good things, and likewise Lazarus 
     evil things: but now he is comforted, and thou art tormented.
       26 And beside all this, between us and you there is a great 
     gulf fixed: so that they which would pass from hence to you 
     cannot; neither can they pass to us, that would come from 
     thence.
       27 Then he said, I pray thee therefore, father, that thou 
     wouldest send him to my father's house:
       28 For I have five brethren; that he may testify unto them, 
     lest they also come into this place of torment.
       29 Abraham saith unto him, They have Moses and the 
     prophets; let them hear them.
       30 And he said, Nay, father Abraham: but if one went unto 
     them from the dead, they will repent.
       31 And he said unto him, If they hear not Moses and the 
     prophets, neither will they be persuaded, though one rose 
     from the dead.

  That is the lesson. If the people in the States will not be persuaded 
by the statutes of the States that are already on the books, if they 
cannot be enforced, then will they listen to Moses and the prophets 
even if they rose from the dead? Will they hear even if it is a Federal 
constitutional amendment?
  Why should we think they will hear better, that they will see better, 
that they will honor more, that they will abide more by words that are 
written into the Federal Constitution than they will those words that 
are already written in the statute books of the States and the Federal 
statutes as well? If they will not hear them, they will not hear Moses 
and the prophets, even though they were brought from the dead.
  If they will not abide by the statutes, if they will not enforce 
them, what is there to ensure us that they would enforce the strictures 
of a new constitutional amendment? And if they did not, what would we 
be doing to the Federal Constitution? We would trivialize it; we would 
minimize it; we would lower it in the estimation of the people.
  When it comes to amending the highest law in our constitutional 
system, it behooves us to step back and behold the forest, not just the 
trees.
  Once before in our history we amended the Constitution without 
carefully thinking through the consequences. That was when the 18th 
amendment, dealing with prohibition, was ratified on January 16, 1919.
  I can remember as a boy seeing those revenue officers come around to 
the coal company houses. I can see them climbing the hills of the coal 
mining

[[Page 6047]]

community going to various houses, going into the woods, looking for 
the moonshine stills. Those were the revenuers, as they used to say--
the revenuers. That was under prohibition. That amendment opened a 
Pandora's box, or as Senator Jeff Bingaman says, a box of Pandoras. 
That amendment opened a Pandora's box of unintended and unforeseen 
consequences, and it was not until almost 15 years later that the 21st 
amendment repealing the 18th amendment was ratified on December 5, 
1933. It took a long time to get the genie back into the bottle, and we 
should have learned a lesson from that experience.
  As a principle of simple prudence, we should be ever cautious about 
amending the organic law of our Nation. Justice Cardozo was explicit in 
his warning, uttered in the case of Browne v. City of New York, and we 
should heed that warning. Here it is:

       The integrity of the basic law is to be preserved against 
     hasty or ill-considered changes, the fruit of ignorance or 
     passion.

  Mr. President, the Constitution itself in article V, the article that 
provides for amendments to the Constitution, carries such an 
implication. Here is what it says--listen carefully--as an implication 
against hasty or ill-considered changes:

       The Congress, whenever two-thirds of both Houses shall deem 
     it necessary, shall propose amendments to this Constitution, 
     . . .

  There is the warning, ``whenever two-thirds of both Houses shall deem 
it necessary.'' The word ``necessary'' is not just a throwaway word 
that was just inserted to fill up space in article V of the U.S. 
Constitution. We can be sure that the constitutional framers chose the 
word carefully, as they did all other words in that unique document.
  It was the word chosen by Governor Edmund Randolph when he presented 
the Virginia Plan to the Constitution on May 29, 1787. That is my 
wedding anniversary date. My wife and I were married on May 29. It will 
be 63 years ago on May 29. I will never forget it. And that is the date 
in 1787 that Edmund Randolph rose at that Constitutional Convention and 
laid down his plan containing 15 resolves, 15 resolutions. The 13th of 
the 15 resolutions, according to Madison's notes, read as follows:

       Resolved that provision ought to be made for the amendment 
     of the Articles of Union whensoever it shall seem necessary, 
     . . .

  William Paterson of New Jersey laid the New Jersey Plan before the 
Convention on June 15, and with respect to amending the Constitution, 
he used the words that the Congress be authorized ``to alter & amend in 
such manner as they shall think proper''--``in such manner as they 
shall think proper.''
  When one compares the pertinent language in the two plans, it is 
readily apparent that Randolph's language in the Virginia plan was the 
stronger and more exacting upon those who would undertake to amend the 
Constitution. Paterson's proposal provided for constitutional 
amendments in such manner ``as they (the Congress) shall think 
proper.'' In other words, there is no requirement of necessity. The 
standard, ``as they shall think proper,'' can vary with whim or caprice 
or political motivation. Thus, without any firm anchor, what may be 
thought ``proper'' one day, might very well not be thought ``proper'' 
on the next. But on the contrary, Randolph's language, ``whenever two-
thirds of both Houses shall deem it necessary,''--``whenever two-thirds 
of both Houses shall deem it necessary''-- provides a surer anchor and 
firmer foundation, and like the warning sign at a railroad crossing, 
``stop, look, and listen'', commands not only the rapt attention, but 
also the considered judgment and focus of those who would alter, 
modify, add to, or repeal the fundamental law of the Nation.
  Needless to say, Randolph's language weathered the scrutiny of the 
Committee of Style and Arrangement; the Committee of Detail; the 
Committee of the Whole; and survived the storms and changing 
vicissitudes of the Convention itself.
  The word ``necessary'' made it through all the committees, all the 
disputations, all the disquisitions, all the arguments, and came out at 
the end in that almost immortal document, the Constitution of the 
United States.
  That word ``necessary'' is not just an empty word. It is not just a 
place holder. It is not just a word to be thrown in to fill out the 
whole. It meant something. It required something. The word was 
``necessary.'' ``Whenever two-thirds of the States shall deem it 
necessary to amend.''
  Supreme Court Justice Campbell, in Marshall versus Baltimore & 
O.R.R., offered these words which we might do well to ponder in this 
instance. Here is what he said: ``The introduction of new subjects of 
doubt, contests and contradiction, is the fruit of abandoning the 
Constitutional landmarks.''
  We would profit greatly by reviewing the constitutional landmarks as 
we are confronted today with this proposed constitutional amendment.
  Madison, in The Federalist No. 43, alluded to ``that extreme facility 
which would render the Constitution too mutable''; and he proceeded to 
implore against appeals to the people that were too frequent.
  This was Madison talking. In The Federalist No. 43, he alluded to 
``that extreme facility which would render the Constitution too 
mutable'' and proceeded to implore against appeals to the people that 
were too frequent.
  Here we have 11,000 of these proposed amendments to the Constitution 
that have been floating around in one or both Houses throughout the 
years--11,000.
  In the Federalist No. 49 Madison warned: ``. . . As every appeal to 
the people would carry an implication of some defect in the government, 
frequent appeals would in great measure deprive the government of that 
veneration which time bestows on everything, and without which perhaps 
the wisest and freest governments would not possess the requisite 
stability.''
  That was James Madison. He was only 36 years old, less than half my 
age. Listen to him. Let me say it again. He warned: . . . ``As every 
appeal to the people''--as we are being asked to appeal to the people 
here with S.J. Res. 3--``. . . As every appeal to the people would 
carry an implication of some defect in the government, frequent appeals 
would in great measure deprive the government of that veneration which 
time bestows on everything, and without which perhaps the wisest and 
freest governments would not possess the requisite stability.''
  In this same Federalist paper, Madison went on to say: ``The danger 
of disturbing the public tranquility by interesting too strongly the 
public passions, is a still more serious objection against a frequent 
reference of Constitutional questions to the decision of the whole 
society.''
  Ah, what if Madison were here today to speak. The galleries would be 
filled. The media galleries would be crowded. There would not be a seat 
vacant. They would be all ears, all eyes, because this would be 
Madison, 36 years of age, purported to be the father of the 
Constitution, speaking.
  Listen to him.
  ``But the greatest objection of all is, that the decisions which 
would probably result from such appeals, would not answer the purpose 
of maintaining the Constitutional equilibrium of the government.''
  Finally, Madison clinched his point, when he said: ``It appears in 
this, that occasional appeals to the people would be neither a proper 
nor an effectual provision, . . .''
  Mr. President, an overriding question, therefore, as we examine the 
proposed Constitutional amendment, is simply this: ``Is it necessary?''
  ``Is it necessary?'' That is the standard that is set forth in the 
verbiage of the Constitution: ``Is it necessary?''
  Penetrating light has been shed upon this question by the minority 
views of Senators Leahy, Kennedy, Kohl, and Feingold, who, in the 
committee report, beginning on page 57, set forth a litany of major 
laws recently enacted by Congress to grant broader protections and 
provide more extensive services for victims of crime. Among these laws 
are the Victim and Witness Protection Act of 1982; the Victims of Crime 
Act of 1984; the Victims' Rights and Restitution Act of 1990; the 
Violence Against Women Act of 1994; the Mandatory Victims Restitution 
Act of

[[Page 6048]]

1996; the Victim Rights Clarification Act of 1997; the Crime Victims 
with Disabilities Awareness Act of 1998; the Identity Theft and 
Assumption Deterrence Act of 1998, as well as the Torture Victims 
Relief Act; and the Child Abuse Prevention and Enforcement Act, of 
March 10, 2000.
  These are public laws. They have already been passed by both Houses. 
They have been signed into law.
  Obviously, as the minority on the Senate Judiciary Committee point 
out, there is nothing in the U.S. Constitution that currently 
constitutes a barrier, that currently inhibits the enactment of State 
or Federal laws that protect crime victims.
  With 33 States having adopted state constitutional amendments dealing 
with victims' rights, and while every State and the District of 
Columbia already have some type of statutory provision providing for 
increased victims' rights, including some or all of the rights 
enumerated in S.J. Res 3, what is needed is better enforcement of State 
laws and increased funding, not a Federal constitutional amendment.
  This should be ``as clear,'' as our former illustrious and dear 
colleague, the late Sam Ervin, used to say, ``as the noonday sun in a 
cloudless sky.''
  Chief Justice Oliver Wendell Holmes once stated: ``In my opinion, the 
Legislature has the whole lawmaking power except so far as the words of 
the Constitution expressly or impliedly withhold it.'' There is no 
indication whatsoever that the Federal Constitution of today provides 
any barrier--either expressly or impliedly--to the lawmaking power in 
the subject area of victims' rights. It would, therefore, be far better 
for lawmakers at the Federal and State levels to exert their talents 
toward enactment of any further legislation that may be needed--I will 
be there to join them--rather than pursuing a course of amending the 
U.S. Constitution.
  Hamilton, in the Federalist No. 85--this is the final Federalist 
paper--states: ``It appears to me susceptible of absolute 
demonstration, that it would be far more easy to obtain subsequent than 
previous amendments to the Constitution.'' How right he was. In the 
light of Hamilton's wise words, members of the Senate should proceed 
with the utmost caution in proposing and supporting Constitutional 
amendments.
  It is more than noteworthy to again reflect upon the fact that during 
the 212 years of the American Republic, its organic law has been 
amended only 27 times--including the first time in which all ten 
amendments were ratified in one fell swoop. Those ten amendments 
constituted the Bill of Rights. During this period of over two 
centuries, more than 11,000 constitutional amendments have been 
proposed in Congress, but Congress has withstood the pressure behind 
this flood. Pheobe Cary's I long ago read poem about the lad who put 
his finger in the hole in the dyke: he ``held back the sea by the 
strength of his single arm''. The Senate must once again act to prevent 
a hole in the dyke which, if exploited here, might, in time, become a 
virtual flood.
  Hamilton, in the Federalist Essay No. 85, states: ``For my own part, 
I acknowledge a thorough conviction that any amendments which may, upon 
mature consideration, be thought useful, will be applicable to the 
organization of the government, not to the mass of its powers; . . .'' 
It should be preeminently clear to all observers that the amendment we 
are considering at this time, would not, as Hamilton had noted, ``be 
applicable to the organization of the government,'' but, instead, 
pertains ``to the mass of its powers.''
  The Founders departed from practically all historical precedents by 
producing the system known as American federalism, and they did this 
with great care and skill, for the issue of the States' sovereignty was 
a flashpoint upon which the endeavor at Philadelphia could very quickly 
have disintegrated.
  The Constitution really consists of two types of provisions. One set 
of provisions is concerned with structure--the separation of functions 
and powers, the departments of administration, the House of 
Representatives, the Senate, the President, the Judiciary, and their 
relations to one another. The other set of provisions is concerned with 
the relation of the States to the general government. The powers of the 
general government are limited and the powers of the States are also 
under certain restrictions.
  This federalism was entirely new. There was nothing like it in the 
colonial charters or in the state Constitutions of 1776 and 1777. The 
development of federalism went through similar stages and took almost 
as long in its processes as the development of the structural parts of 
the Constitution. It had been an important and a much debated question 
for more than a 100 years before 1776, and more than 20 plans of power-
sharing had been suggested and discussed.
  As the Articles of Confederation clearly demonstrated, the protection 
of the States' prerogatives continued to be held very dear, even in the 
face of the exigencies of newly claimed independence and armed conflict 
with Britain. What the Framers successfully crafted in 1787 was a 
system which retained enough sovereignty for the States to keep them 
from rejecting the new Constitution, while at the same time providing 
sufficient power to the national government so that it could be 
effective at home, and establish a credible presence in international 
affairs--quite an achievement!
  The minority on the Judiciary Committee--headed by my illustrious 
friend, the very able Senator from Vermont the 14th State--indubitably 
are of the view that the amendment before us constitutes a significant 
intrusion of Federal authority into a province traditionally left to 
State and local authorities. The minority viewpoint States a truism: 
``Under our federal system the administration of criminal justice rests 
with the states except as Congress, acting within the scope of those 
delegated powers, has created offenses against the United States.'' 
Screws vs. United States
  Mr. President, let us view, therefore, with a jaundiced eye, this 
proposal to amend the Constitution. As I have already indicated, there 
is nothing in the Constitution which currently inhibits the National 
and State legislatures from enacting legislation and providing the 
necessary funds to deal with the many problems surrounding victims' 
rights.
  Let me say again, for the benefit of those victims who may not be 
sitting nearby but who may be out there on the plains, in the 
Alleghenies, in the forests, on the lakes of this great country, let me 
say to them: There is nothing, absolutely nothing, in this Constitution 
which currently inhibits the National and State legislatures from 
enacting legislation and providing the necessary funds to deal with the 
many problems surrounding your rights, victims' rights--nothing!
  All needful legislation at the national and local levels should be 
considered and should be exhausted before we embark upon a course that 
leads to a further amendment of the Constitution. That is what we are 
saying. Let's try all the others, and let's enforce the laws if they 
are not being enforced. Once we go down that road of amending the 
Constitution, one amendment leads to another amendment, and then to 
another amendment, and as Hamilton predicted in Federalist No. 85, ``it 
would be far more easy to obtain subsequent than previous amendments to 
the Constitution.'' Willy-nilly amendments to the Constitution can only 
serve to trivialize it.
  As Hippocrates admonished physicians everywhere, ``Do no harm,'' we 
Senators who have taken an oath to support and defend the Constitution 
of the United States should measure our actions likewise: Let us do no 
harm to the Constitution. When amendments to the Constitution become a 
political way of life, when they dovetail with hortatory national weeks 
for this or for that, then we have transcended mere bumper sticker 
politics and entered the very shaky world of bumper sticker amendments 
to the U.S. Constitution. As a result, the public respect for that 
venerable document will certainly diminish. Just amend it enough and 
the public veneration for

[[Page 6049]]

that unique document, the Constitution of the United States, will 
certainly diminish.
  This particular amendment appears to contemplate rewriting the 
criminal justice code and placing that rewrite into the Constitution. 
If we wish to rewrite the criminal justice code, that is one thing. Let 
us have at it, let us be about it, and while we are about it, scan this 
proposed amendment for its best provisions to incorporate. Certainly, 
victims' rights, or rather protections, as I prefer to call them, are a 
cause that I can enthusiastically support. I can embrace them and hold 
them close to my heart. But why, oh why, do we need to take the step of 
pinning such a measure to the Constitution itself, rather like some 
sort of artificial tail? It would be quite funny if it weren't so 
serious.
  The material which has been circulated in support of the need for 
this constitutional amendment seems to cite two primary reasons as its 
justification--the first being that the criminal justice system does 
not give adequate protection to the interests of victims of crimes, and 
the second being that existing statutory and State provisions are not 
uniform. While both may be true, neither is a reason for a 
constitutional amendment.
  In the first instance, these concerns can be addressed through 
statutory means. In the second instance, the concern can also be 
addressed through statutory means, and to achieve it via the route of 
amending the Constitution could be deleterious to a very important 
bedrock principle in the Constitution. That principle is one of the 
main thrusts and achievements of the framers coming out of the 
experience of the Articles of Confederation, and one which is a central 
pillar of our Republic. What is that? Federalism!
  Each of the States in its wisdom, through its legislature and its 
electorate, has the power and the right to protect and accommodate the 
interests of victims within its own criminal justice system. All of 
these decisions--those that have been made, and those that will be made 
in all 50 States--would become subservient to a constitutional standard 
if we were to adopt this amendment, which in all likelihood no one 
State would have chosen for its own particular citizens.
  Obviously, the proposed amendment mandates a significant intrusion of 
the Federal Government into an area traditionally left to State and 
local authorities. Nearly 95 percent of all the crimes are prosecuted 
by the States. The Federal Government does not have general police 
power. As the Supreme Court reminded us in United States v. Lopez:

       Under our Federal system, the states possess primary 
     authority for defining and enforcing the criminal law.

  This proposed amendment could drastically shift the responsibility by 
forcing States to put consideration of these new victims' rights and 
protections on an equal footing with the rights of the accused. 
Furthermore, in the majority report accompanying this amendment, 
concerns about disruptions to federalism are deflected by the 
incredible assertion that States will have ``plenary authority'' to 
tailor the amendment to fit the needs of their various criminal 
systems--that they may flush out such definitions as ``victims of 
crime'' and ``crimes of violence.'' So much for uniformity. They talk 
about uniformity. Well, so much for uniformity.
  The result of such a reading of this amendment is, again, the very 
patchwork of laws that the proponents say they are trying to avoid. 
Moreover, for the first time, we will have turned the concept of 
federalism on its head by saying that States and various State laws may 
be allowed to implement the intent of a constitutional amendment. This 
is pure folly. What we will achieve if this poorly conceived amendment 
manages to end up as part of our Constitution is a serious aberration 
regarding the crowning achievement of the framers--federalism--and a 
recipe for a very nasty little stew of conflicting interpretations of 
what is and what is not a victim's right. I shudder to think of where 
that can lead us.
  The term ``victim'' is undefined and could be interpreted to mean any 
number of individuals--some quite removed from the usual understanding. 
In the case of a murder, couldn't an entire family be considered 
``victims''? Take the tragedy at Columbine High School; could not the 
entire town of Littleton be considered ``victims''? If a battered 
spouse, finally driven to retaliate to repeated violence, strikes back, 
is the abuser then also a ``victim'' and therefore entitled to a 
victim's protections?
  An ``exceptions'' clause is included in this constitutional 
amendment. Consider that. Unlike any other part of the Constitution, we 
are inviting exceptions without stating who can make the exceptions. 
Are we suggesting that Federal constitutional rights can mean different 
things from State to State?
  Please let us come to our collective senses. Let us come back down to 
earth again. Let us not shred the concept of federalism with one ill-
considered vote in the frenzy of an election year.
  Let us pay attention to what we are about to do, remembering John 
Marshall's words:

       We must never forget that it is a Constitution we are 
     expounding.

  This resolution, S.J. Res. 3, consists of 403 words. I counted them. 
I learned to count by the old math. Yes, I memorized my multiplication 
tables back in that little two-room schoolhouse in southern West 
Virginia more than 75 years ago. But it is still the same 
multiplication tables; it hasn't changed, and it won't change. This 
resolution consists of 403 words. I am including, of course, the 
headings. In itself, it exceeds the number of words in 9--not the first 
9, but 9 of the 10 amendments comprising the Bill of Rights. Now, many 
of us have participated in that little game of counting the words. I 
did so, also. Why not? Why should I not?
  According to the committee report accompanying this constitutional 
amendment, over 450 law professors expressed opposition to this 
amendment to the Constitution. Why weren't they invited to the 
hearings? In addition, the Cato Institute, the National Sheriffs' 
Association, the National Association of Criminal Defense Attorneys, 
the National Legal Aid and Defenders Association, the NAACP, the ACLU, 
the Justice Policy Institute, the Center on Juvenile and Criminal 
Justice, the Youth Law Center, the National Center on Institutions and 
Alternatives, the American Friends Service Committee, and the Friends 
Committee on National Legislation--among others--have expressed 
opposition to such an amendment. They take the position that statutes 
work, statutes are more flexible and are more easily enacted and more 
easily corrected and are more able to provide specific, effective 
remedies on behalf of victims of crimes.
  The majority report cites President Clinton as having endorsed the 
constitutional amendment. Well, so what! President Clinton also 
supported the line-item veto, but the U.S. Supreme Court knocked it 
down. Presidents can be wrong and so can majorities.
  The majority also cites the National Governors' Association as having 
passed a resolution in 1997 supporting a Federal constitutional 
amendment on victims' rights. So what?
  As I recall, the National Governors' Association not too long ago 
also supported a constitutional amendment to balance the budget. Yes--a 
constitutional amendment to balance the Federal budget. The National 
Governors' Association supported that. The Federal Government has since 
balanced the budget, at least on paper, without resorting to a 
constitutional amendment.
  We didn't need it. We didn't need it all along. But what if we had 
written it into the Constitution?
  I submit that the rights of victims of crimes can be clarified and 
enhanced by legislation at the Federal and State levels without 
resorting to an amendment to the Federal Constitution.
  For, as Madison cogently stated in the Federal No. 49, ``A 
Constitutional road to the decision of the people, ought to be marked 
out, and kept open for certain great and extraordinary occasions.'' The 
occasion for this amendment falls far short of being either ``great'' 
or ``extraordinary,'' and does not measure up to Madison's 
prescription. Congress can immediately pass a statute and provide the 
financial resources necessary to assist the states

[[Page 6050]]

in giving force to their own locally-tailored statutes and 
Constitutional provisions, thus avoid tampering with our national 
charter.
  Jesus said it well, when he sat at meat in the house of Levi: ``No 
man also seweth a piece of new cloth on an old garment: else the new 
piece that filled it up taketh away from the old, and the rent is made 
worse.'' Let us not add this piece of clashing new cloth to the 
venerable and beautiful garment of the Constitution, lest the new piece 
trivialize the old and a rent is made in the carefully coordinated 
system of federal and state relations.
  The Constitution of the United States was not meant to be a 
politician's plaything. It is not mine to play with. It is not yours to 
play with. It is not ours to play with. It is a sad commentary that we 
find ourselves having to prepare in haste, without adequate notice and 
under the strictures of possible cloture, to fend off this proposed 
change in our Federal Constitution. Think of it!
  I do not question the sincerity of the proponents of the measure, but 
I do question the necessity for a constitutional amendment to achieve 
their goals and our goals. I also question the necessity, which is 
being forced upon us, to make such a basic decision under the Damocles' 
sword of limited debate. That is not what our forefathers had in mind 
for this great Senate.
  Surely no Senator needs to reread history in order to remember how 
much blood and treasure it has cost throughout the long centuries, 
dating back to the Magna Carta and beyond, to establish the greatest 
document of its kind that was ever written--the Constitution of the 
United States, a Constitution which, in the words of Chief Justice 
Story, is ``not intended to provide merely for the exigencies of a few 
years'' but ``to endure through a long lapse of ages, the events of 
which were locked up in the inscrutable purposes of Providence.''
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I wish to do what I have done several times 
on the floor this week, and that is to thank my good friend and 
colleague, the distinguished senior Senator from West Virginia. He is 
to all our colleagues not only a dear friend but a great mentor. As I 
have said--and I realize I repeat myself--I have learned so much 
history not only this week but in the 25 years I have served with him.
  Senator Byrd was one of the very first Senators I met after I was 
elected to the Senate. We chatted at a dinner, in Boston, which he will 
recall, at the residence of the then-mayor of Boston--he and I and a 
classmate of mine from law school, John Durkin. John and I had both 
graduated from law school 10 years before, and probably of hubris, 
chutzpah, or foolishness, we were both running for the Senate--10 years 
later, in 1974. We met with Senator Byrd at that time.
  I began my practice of keeping a journal. I recently went back to 
read it. The Senator from West Virginia told of his childhood--not 
being one born with a silver spoon in his mouth. There probably wasn't 
a silver spoon in the house. He told me what he had done--self-taught, 
went on to school, learned more, and learned history as few men in this 
country ever have. But then he had the opportunity not only to learn 
history but to live history, as he has done day after day after day for 
over 40 years in the Congress of the United States, in both bodies.
  I wrote down some of the things he said that night. I even wrote down 
the music we heard that evening.
  When I came to the Senate as a 34-year-old--I was going to say 
``former prosecutor'' but the first time I met him was before I was 
sworn in. I was still a prosecutor. I recall meeting with him during 
the lame duck session. I don't want to embarrass my good friend from 
West Virginia, because he met so many young Senators. But I remember so 
well that it was a lame duck session. I sat in the reception room and 
Senator Byrd came out. I started to reintroduce myself--after all, he 
meets so many--and he immediately referred to having met me and 
Senator-elect Durkin. He had absolute, total recall of that time.
  I think about this because recently in an unpleasant and unfortunate 
constitutionally necessary event in this body a year ago when all 100 
Members of the Senate sat at the impeachment trial. I recall a member 
of the other body made disparaging remarks about the Senate and that 
the House Managers would have to simplify things so we Senators could 
understand it. He came over to introduce himself to the distinguished 
Senator from West Virginia. I was sitting here.
  He said: Senator Byrd, I may have somewhat overstated that.
  Senator Byrd looked at him and said: I want you to understand two 
things: I pay close attention and I have a long memory.
  I repeated that to my oldest son and he said: Dad, Senator Byrd's 
right on both accounts.
  I know that long memory and we benefit by it.
  I was thinking today when I came to work how fortunate I am. I have 
said many times on the floor of the Senate, we serve at the wishes of 
our State, but service is a privilege. Every time I come to the Capitol 
I feel privileged. I have felt no more privileged in my 25 years than 
in the past few days in this debate on the constitutional amendment. We 
can not debate anything more significant on this floor, anything that 
will affect history, long after we have gone. Some day, all 100 
Senators who now serve will be gone and others will take our place. I 
hope they revere the Constitution, too.
  I have not enjoyed any debate more than I have the past few days, 
partly because of my friend from West Virginia. We stood on many 
battles together on constitutional amendments. The Senator mentioned 
the balanced budget. I am sure we could go to West Virginia, Vermont, 
or anywhere else and take a poll on whether voters want a balanced 
budget amendment to balance the budget and, resoundingly, yes would be 
the answer. Senator Byrd, myself, and others had to go back and explain 
to the people of our States: You have trusted us with this vote. If we 
pander to you on this, we misplace your trust. We have to do it the 
right way.
  We have a dear friend, a former colleague, a man for whom we both 
have respect and great affection, the distinguished former Senator from 
Oregon, Mark Hatfield. He and the Senator from West Virginia have 
served alternately as chairman and ranking member and then as ranking 
member and chairman of the Senate Appropriations Committee. I have 
quoted Senator Hatfield on this floor, and I believe my friend from 
West Virginia remembers very well that balanced budget vote under 
enormous pressure on the Senator from Oregon, especially when he knew 
it would be a 1-vote margin. He said he would vote to protect the 
Constitution and do what was right. Both the Senator from West Virginia 
and I complimented him afterwards. I remember the steadfastness of 
Senator Hatfield.
  That is what we have to do on this floor. We have stood together on 
very difficult treaty matters. We have stood side by side casting votes 
that at the time were unpopular. History has proven us right.
  The Senator from West Virginia has cast well over 15,000 votes; I 
became the 21st person to cast 10,000 votes, so I have a long way to 
catch up. We can all go back and find votes we might do differently 
today. But if it is a statute, if it is an amendment, if it is a 
procedural motion we usually get a chance to vote on it again.
  If it is a budget matter, whatever the issue might be, it is going to 
come up again and again. Use your experience to make sure you do it 
right--maybe modify it, maybe change it, maybe repeal it, maybe add to 
it. There is one exception--a constitutional amendment. Write a 
constitutional amendment. If that is then ratified, if that goes into 
effect, we do not come back and change it.
  Look at the example the distinguished Senator from West Virginia 
mentioned about prohibition, a bad mistake in the Constitution. A lot 
happened. Finally it was changed, but only after a great battle.

[[Page 6051]]

  That is why we should always hesitate. That is why the dean of our 
party, the No. 1 in seniority in our party, has opposed this proposed 
constitutional amendment. From one who is No. 6 in seniority to the 
Senator who is No. 1, I applaud what the Senator has done.
  This is not a party issue. The Senator from West Virginia knows we 
have had Senators from both sides of the aisle, even some who were 
cosponsors, say, ``You are right, let's back up.'' This proposed 
amendment will be withdrawn some time today. I hope the United States 
has learned the Constitution is not something to treat in a cavalier 
fashion.
  I thank my friend from West Virginia.
  Mr. BYRD. Mr. President, I thank the able senior Senator from Vermont 
for his overly charitable words concerning me. I thank him for his 
steadfast support on the Constitution. I thank him for the positions he 
has taken on many occasions during the years we have served together--
positions that were in the best interest of the Constitution, best 
interest of this institution, and in the best interest of our country.
  I join with the Senator in recalling the new profile in courage that 
was established by our former colleague, Senator Hatfield. He stood as 
a rock under the pressures of colleagues. Those were difficult 
pressures, in the party conference. He was threatened with his position 
as chairman of the Appropriations Committee. That took courage. And he 
had it. He had the real stuff. I hope he is listening today. We don't 
forget men such as Mr. Hatfield.
  Again, I thank my friend; he is my friend, and I think of him as my 
friend. He is a very generous person, a person whom I would think of as 
a Good Samaritan in this journey of life.
  I thank him for his work here. He will be here, he will be, long 
after the good Lord has taken me away. But he will be there holding the 
torch, holding the Constitution, holding up this institution. And there 
will by others, and I hope there will be more, day by day.
  I thank the Senator, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, in my capacity as ranking member of the 
Senate Judiciary Committee, I also think it is necessary, as we wind 
down this debate, that I take care of a couple of misconceptions that 
occurred during the debate.
  My late father, a man who had so much to do with shaping my views, a 
man who was a self-taught historian--a very good one, I might say--
always told me if somebody misstates history, it is wise that someone 
else stands up and states it correctly so the mistake does not go down 
to the next generation.
  There was a popular misconception behind the proposed constitutional 
amendment. The distinguished Senator from California, Mrs. Feinstein, 
touched on this on the first day of the debate, and actually again 
today, when she discussed her theory as to why victims are not 
specifically mentioned in either the original Constitution or the Bill 
of Rights.
  According to Senator Feinstein, when the Constitution and the Bill of 
Rights were written in the late 18th century, public prosecutors did 
not exist. I should quote exactly what the distinguished Senator, my 
good friend, told us on this point. She said:

       When the Constitution was written, in America in the late 
     18th century and well into the 19th century, public 
     prosecutors did not exist. Victims could, and did, commence 
     criminal trials themselves by hiring a sheriff to arrest the 
     defendant, initiating a private prosecution. The core rights 
     of our amendment to notice, to attend, to be heard were 
     inherently made available to a victim of a violent crime.

  She then quotes the following passage from an article by Juan 
Cardenas, in the ``Harvard Journal of Law and Public Policy'':

       At trial, generally, there were no lawyers for either the 
     prosecution or the defense. Victims of crime simply acted as 
     their own counsel, although wealthier crime victims often 
     hired a prosecutor.

  She then continued:

       Gradually, public prosecution replaced the system of 
     private prosecution. . . . [T]his began to happen in the mid 
     19th century, around 1850, when the concept of the public 
     prosecutor was developed in this country for the first time.

  She then argued the Constitution must now be amended to rebalance the 
criminal justice system and ``restore'' rights to crime victims.
  The distinguished chairman of the Judiciary Committee, also my 
friend, Senator Hatch, told us on Tuesday that he draws the same 
conclusion from history. He said that when the Constitution was 
drafted:

       There was no such thing as a public prosecutor; victims 
     brought cases against their attackers.

  He then said:

       When the Constitution was drafted, victims of crime were 
     protected by the same rights given to any party to 
     litigation.

  Not surprisingly, the majority views in the report of the Senate 
Judiciary Committee are likewise predicated on the notion of 
``restoring''--``restoring'' rights to crime victims that they enjoyed 
at the time the Constitution and Bill of Rights were being ratified. 
The majority views said the following:

       The Crime Victims' Rights Constitutional Amendment is 
     intended to restore and preserve, as a matter of right for 
     the victims of violent crimes, the practice of victim 
     participation in the administration of criminal justice that 
     was the birthright of every American at the founding of our 
     Nation.
       At the birth of this Republic, victims could participate in 
     the criminal justice process by initiating their own private 
     prosecutions. It was decades after the ratification of the 
     Constitution and the Bill of Rights that the offices of the 
     public police and the public prosecutor would be instituted. 
     . . .''

  When I heard my distinguished colleague say there was no such thing 
as a public prosecutor in this country when the Constitution was 
drafted, I was surprised. I had been a public prosecutor. I was the 
vice president of the National District Attorneys Association at the 
time I was elected to the Senate. The fact is that, had I not opted for 
the anonymity of the Senate, I was next in line to become president of 
that association, one of my few regrets in having to leave to come 
here, but the Senate would not wait. And, frankly, I did not want to 
wait.
  But as a former public prosecutor and one who studied a great deal of 
history of prosecution, I was quizzical. So I did a little research.
  I might say, when I state that, you understand, of course, we 
Senators are often times but constitutional impediments to our staff. 
But, by the same token they deserve a lot of credit, Julie Katzman, in 
my office, an able lawyer, did a lot of research as did Bruce Cohen 
from the Judiciary Committee. They found this article by Mr. Cardenas 
that Senator Feinstein quoted, which does appear in volume 9 in the 
``Harvard Journal of Law and Public Policy.'' In fact, if you take the 
passage the distinguished Senator from California quoted and relied 
upon, from page 367, about how victims of crime used to act as their 
own counsel, it is describing the general practice in this country in 
the 17th century, not in the late 18th century when the Constitution 
was written.
  Mr. Cardenas discusses what happened at the time of the American 
Revolution on page 371, a few pages after the passage quoted by the 
sponsor of this proposed constitutional amendment. He writes:

       Whatever its derivation, the American system of public 
     prosecution was fairly well established at the time of the 
     American Revolution.

  Mr. Cardenas notes that Connecticut was the first colony to establish 
a system of public prosecutors, in 1704, over 80 years before the 
Constitution was written.
  In Vermont, the Office of the State's Attorney is established in 
chapter II, section 50 of the State constitution of 1793. Even before 
Vermont joined the Union as the 14th State, it had a system of public 
prosecutions run by the State's Attorneys. Samuel Hitchcock was State's 
Attorney for Chittenden County, VT, from 1787 to 1790, during the time 
that the Federal Constitution and the Bill of Rights were being 
written. Samuel Hitchcock was State's Attorney in Chittenden County, 
from 1787 to 1790, some time before I became State's Attorney, in the 
last century--

[[Page 6052]]

or, this century, depending upon how we do this. In May of 1966, until 
11:59 in the morning on January 3 of 1975, I served as State's 
Attorney, also, of Chittenden County. At 12 noon, January 3, I took a 
different job. I have held it ever since.
  Now, private prosecutions may not have been eliminated in all the 
colonies by the time the Constitution was written. They were, however, 
eliminated in Virginia, home of some of the foremost architects of the 
Constitution. Mr. Cardenas writes:

       [B]y 1711, the attorney general [of Virginia] appointed 
     deputies to each county in the state, and these deputies 
     began exercising their authority to prosecute not only in 
     important cases, but in routine ones as well. . . . By 1789, 
     the deputy attorney general had complete control over all 
     prosecutions within his county.

  There was a place that had the sort of criminal justice system that 
the distinguished chairman of the Senate Judiciary Committee and others 
attributed to the time the U.S. Constitution was written, but that 
place was not the United States. Mr. Cardenas describes it on page 360 
of his article:

       The right of any crime victim to initiate and conduct 
     criminal proceedings with the paradigm of prosecution in 
     England all the way up to the middle of the 19th century.

  It was England that had a system of private prosecution in the 18th 
and 19th centuries, not the United States, not even New England in the 
United States.
  To make sure I had my facts straight, I had to look through some 
other historical source material. I looked at an essay in volume 3 of 
the ``Encyclopedia of Crime and Justice'' by Professor Abraham S. 
Goldstein on the history of the public prosecutor in America. Professor 
Goldstein tells us essentially the same thing as Mr. Cardenas.
  Most American colonies followed the English model of private 
prosecutions in the 17th century, but as Professor Goldstein tells us, 
that system ``proved even more poorly suited to the needs of the new 
society than to the older one.'' For one thing, victims abused the 
system by initiating prosecutions to exert pressure for financial 
reparation. These colonies shifted to a system of public prosecutions 
because they viewed the system of private prosecutions as 
``inefficient, elitist, and sometimes vindictive.''
  According to Professor Goldstein, some of the colonies have no 
history at all in private prosecutions. In the areas settled by the 
Dutch in the 17th century, consisting of parts of what are now 
Connecticut, New York, New Jersey, Pennsylvania, and Delaware, the 
Dutch brought public prosecutions with them.
  In any event, Professor Goldstein comes to the same conclusions as 
Mr. Cardenas. On page 1287, he writes:

       [B]y the time of the American Revolution, each colony had 
     established some form of public prosecution and had organized 
     it on a local basis. In many instances, a dual pattern was 
     established within the same geographical area, by county 
     attorneys for violations of state law and by town prosecutors 
     for ordinance violations. This pattern was carried over into 
     the states as they became part of the new nation.

  Actually, for almost 200 years that was the system in my own State of 
Vermont. Now prosecutions are done by the State's Attorneys of the 14 
counties and, in some instances, by the Attorney General.
  Professor Goldstein goes on to discuss the fact that the Federal 
system of prosecution was always a system of public prosecution. Under 
the Judiciary Act of 1789, enacted the same year the Constitution was 
ratified, the U.S. Attorney General was ``to prosecute and conduct all 
suits within the Supreme Court of the United States in which the United 
States might be concerned.'' The general authority to ``prosecute in 
each district'' for Federal crimes was vested in local U.S. district 
attorneys appointed by the President.
  Professor Goldstein is a highly respected scholar. He is the Sterling 
Professor of Law at Yale Law School. In fact, at one time he was the 
dean of that prestigious institution. He is widely regarded as an 
authority on criminal law and criminal procedure. When Professor 
Goldstein says every American colony had established some form of 
public prosecution by the time of the Revolution, I think we Senators 
can probably take that to the bank.
  To be on the safe side, since we heard Senators say otherwise about 
this, I thought we should check further. We checked another source, a 
1995 article by Professor Randolph Jonakait of the New York Law School. 
It appears in volume 27 of the Rutgers Law Journal beginning on page 
77. Not surprisingly, it says much of the same thing about the history 
of public prosecutions as I had already learned from Mr. Cardenas and 
Professor Goldstein.

  I quote from page 99:

       Although the American colonies initially followed the 
     English prosecutorial pattern, a different process began to 
     emerge around 1700. Public officials took responsibility for 
     the prosecution of crimes generally or just for the limited 
     set of offenses that directly affected the sovereign. As 
     public prosecutors emerged, private prosecutions in the 
     colonies disappeared. This evolution of the American criminal 
     justice system was quick and thorough. By the time of the 
     Revolution, public prosecution in America was standard, and 
     private prosecution, in effect, was gone. Indeed, it was so 
     established and taken for granted at the inception of the new 
     Federal Republic that public prosecutors, although not 
     mentioned in the Constitution, were, without debate, granted 
     exclusive control over prosecutions in Federal courts.

  Mr. Cardenas, Professor Goldstein, and Professor Jonakait are all 
quite clear that the concept of government-paid public prosecutors did 
not develop in this country for the first time ``around 1850,'' as the 
Senate was mistakenly told on Tuesday. All these authorities agree that 
public prosecutors have been around in this country for much longer--
about 150 years longer--and that they were the rule, not the exception, 
by the time Mr. Madison and Mr. Hamilton and all the other framers of 
our Constitution got together in Philadelphia in 1787 to draft our 
Nation's founding charter.
  If the Bill of Rights, which was written a few years later, makes no 
specific mention of crime victims, it is not because the framers 
thought victims were protected by a system of private prosecutions.
  My point, of course, is the proposed constitutional amendment on 
victims' rights cannot be justified as ``restoring'' victims' rights 
enjoyed at the time the Constitution and the Bill of Rights were 
drafted. Rather, if we are to draw any lesson from history, it is that 
the framers believed victims were best protected by the system of 
public prosecutions that was then, and remains, the American standard 
for achieving justice.
  Mr. President, I ask unanimous consent to print in the Record a 
letter dated April 25 from Assistant Attorney General Robert Raben 
opposing the proposed constitutional amendment.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                   Washington, DC, April 25, 2000.
     Hon. Trent Lott,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Mr. Majority Leader: I write to convey the views of 
     the Department of Justice on S.J. Res. 3, a resolution 
     setting forth the text of a proposed Victims' Rights 
     Amendment (VRA) to the Constitution, which was voted out of 
     the Committee on the Judiciary on September 30, 1999, and 
     sent to the full Senate. The Department continues to have 
     significant concerns with four aspects of S.J. Res. 3. 
     Although we continue strongly to support a victims' rights 
     amendment to the Constitution, and would support S.J. Res. 3 
     if the concerns detailed in this letter were addressed, we 
     oppose the amendment in its current form. In the interim, we 
     hope you will continue to help crime victims through the 
     enactment of appropriate legislation.
       As you know, the President and the Attorney General both 
     strongly support a victims' rights amendment that will ensure 
     that victims have a voice in the criminal justice system. See 
     Pres. Proc. No. 7290, 65 FR 19823 (Apr. 10, 2000); Speech of 
     Attorney General Janet Reno to the National Organization for 
     Victim Assistance (Apr. 7, 2000). At the same time, this 
     Administration believes that our constitutional system, which 
     the Framers established after much deliberation and debate, 
     has served our nation well for more than 200 years and should 
     not be altered without the most cautious deliberation. See 
     Statement of President Clinton in Support of Victims' Rights 
     Constitutional Amendment (June 25, 1996). Our support for the 
     VRA has rested on the premise that the Amendment

[[Page 6053]]

     would not undermine existing constitutional provisions' thus, 
     our first concern has been that the resolution lacks an 
     express provision preserving the rights of the accused. In 
     light of our role as the chief federal law enforcement 
     agency, our support has also depended on the Amendment not 
     hampering effective law enforcement; accordingly, our second 
     concern has been the unduly stringent standard for creating 
     exceptions to the Amendment's applicability where necessary 
     to promote the interests of law enforcement. We are committed 
     to an amendment that gives real rights to victims while 
     satisfying these basic criteria. This letter augments our 
     previous letter of June 17, 1998 (enclosed), regarding the 
     then-current S.J. Res. 44, in which we noted the above-
     mentioned concerns. This letter also reflects further 
     concerns we have about the Amendment's application to the 
     pardon power and the reopening of restitution that we 
     discussed with committee staff before markup in September.


                  preserving the existing constitution

       As we stated in our previous letter, we believe that, to 
     ensure the protection of existing constitutional guarantees, 
     the VRA should contain language that expressly preserves the 
     rights of the accused. To that end, we urged that the 
     following language be added: ``Nothing in this article shall 
     be construed to deny or diminish the rights of the accused as 
     guaranteed by the Constitution.''
       Moreoever, we are concerned that new language that has been 
     added to the proposed VRA would further alter our existing 
     constitutional framework. Section 1 of S.J. Res. 3 has been 
     amended to grant victims the right ``to reasonable notice of 
     and an opportunity to submit a statement concerning any 
     proposed pardon or commutation of a sentence.'' This 
     provision would create an unprecedented incursion on the 
     President's exclusive power to grant pardons, commute 
     sentences and remit restitution. See U.S. Const. art. 2, 
     Sec. 2, cl. 1 (pardon power); Schick v. Reed, 419 U.S. 256, 
     263-64 (1974) (commutation power falls within the pardon 
     power); see also Knote v. United States, 95 U.S. 149, 153-155 
     (1877) (pardon power includes authority to remit unpaid 
     financial obligations imposed as part of a sentence). The 
     Supreme Court has observed that ``the draftsmen of [the 
     pardon clause] spoke in terms of a `prerogative' of the 
     President, which ought not be `fettered or embarrassed.' '' 
     Schick, 419 U.S. at 263. The Court has also observed that 
     ``whoever is to make [the pardon power] useful must have full 
     discretion to exercise it.'' Ex parte Grossman, 267 U.S. 87, 
     121 (1925). In addition, we note that this provision could 
     encroach upon the clemency powers of governors in states 
     where their authority is also plenary.
       S.J. Res. 3 does more than simply diminish the control over 
     pardons that the Framers vested in the President; it does so 
     in particularly significant ways. The proposed language would 
     require the President to give victims notice and an 
     opportunity to submit a statement (Section 1), and would 
     arguably permit a court to reopen a pardon, commutation, or 
     remission of restitution (Section 2). It also seemingly would 
     authorize Congress to regulate the pardon power in some 
     respects by granting Congress ``the power to enforce [the 
     VRA] by appropriate legislation,'' rather than reserving 
     enforcement authority to the President (Section 3). By 
     contrast, under our existing constitutional framework, the 
     President has both the responsibility and authority to 
     determine the procedures for his Administration's handling of 
     executive clemency requests so that he may receive the 
     information he deems necessary, including input from victims 
     and others. The current procedures are set out at 28 C.F.R. 
     Sec. Sec. 1.1-1.10. The Department is presently exploring 
     how, and under what circumstances, additional victim 
     interests can be best integrated into the Department's 
     advisory role in counseling the President as he makes 
     decisions about clemency.
       Furthermore, the pardon provision differs from the rest of 
     the VRA, which focuses on criminal proceedings. Although 
     other provisions of the VRA would give victims rights in 
     proceedings in which defendants have rights, the pardon 
     provision would grant victims rights in a setting in which no 
     one--including defendants--has ever possessed rights, and 
     that has always been controlled entirely by the President. 
     The Framers assigned this power wholly to the President, and 
     we oppose any amendment that would encroach upon it.


                        law enforcement concerns

       As we have noted previously, we are concerned that the very 
     high standard for exceptions to the Amendment's victims' 
     rights guarantees in Section 3 of S.J. Res. 3 would render 
     the government unable to remedy the practical law enforcement 
     problems that may arise under the Amendment. We believe that 
     the authority to create exceptions should exist where 
     necessary to promote a ``significant'' government interest, 
     rather than the ``compelling'' interest required by the 
     current draft. It is important that the VRA be flexible 
     enough to permit effective and appropriate responses to the 
     variety of difficult circumstances that arise in the course 
     of implementing the Amendment. This concern is explained in 
     more detail in our letter of June 17, 1998.
       Our last issue concerns the addition of restitution to the 
     list of proceedings and rulings subject to retrospective 
     relief. We believe that any remedies provision should strive 
     to make rights of victims real and enforceable, while 
     ensuring that society's and victims' interests in finality 
     and effective law enforcement are not undermined. Measured 
     against these objectives, we believe Section 2 of S.J. Res. 3 
     is overly broad and would unduly disrupt the finality of 
     sentences. The current language would appear to permit a 
     victim to reopen the restitution portion of a sentence for 
     any reason at all, at any time, even after a sentence has 
     been served in full. The problems for law enforcement that 
     could be caused by this provision include, for example, the 
     possibility that because of the limited economic means of 
     many defendants, restitution awarded to some victims at 
     sentencing might have to be decreased to accommodate 
     subsequent claims by victims who come forward after 
     sentencing; the potential that defendants will litigate the 
     reopening of a restitution order without the reopening of 
     other parts of the sentence; and the difficulty in reaching 
     and defending plea agreements in light of possible reopenings 
     of and changes in the terms of restitution. In our view, 
     these issues constitute serious obstacles to including 
     restitution among the matters subject to retrospective 
     relief.
       Further, we believe the inclusion of restitution in Section 
     2 is not necessary in light of existing legislation providing 
     relief for victims who are denied restitution or whose 
     restitution is inadequate. If a federal court fails to impose 
     restitution in accord with controlling statutes, the 
     government can appeal the unlawful sentence without impairing 
     the defendant's Double Jeopardy rights. See 18 U.S.C. 
     Sec. 3742(b); United States v. DiFrancesco, 449 U.S. 117, 137 
     (1980). Likewise, the States can legislatively protect 
     victims in this regard by authorizing state prosecutors to 
     appeal criminal sentences that do not satisfy state 
     restitution statutes. Congress and the States can also enact 
     legislation to address perceived gaps in current laws without 
     going so far as to amend the Federal Constitution.


          doing more for victims while improving the amendment

       This Administration, with Congress, as kept its commitment 
     to victims of crime, even as it has pushed aggressively for a 
     victims' rights amendment. We have witnessed historic 
     reductions in violent crime over the past seven years, and 
     through our efforts, criminal victimization is at its lowest 
     point in twenty-five years.
       Even with the significant drop in violent crime, we have 
     not become complacent. In 1994 the President signed into law 
     the Violent Crime Control and Law Enforcement Act, which 
     gives victims of violent crime and sexual abuse the right to 
     speak out in court before sentencing, providing them the 
     opportunity to describe the impact such victimization has had 
     on their lives.
       The Department, working with Congress, has also provided 
     unprecedented levels of funding for victims' services. Since 
     1993, we have received over $2.2 billion in the Crime 
     Victims' Fund, over 90 percent of which has been distributed 
     to the states and victims' compensation and assistance funds. 
     The Violence Against Women Act has also infused new dollars 
     into victim services: under that act, the Department has 
     funded nearly $1 billion in new domestic violence programs 
     for states, communities, and tribes since 1995.
       In addition to funding, the Department has taken other 
     steps to improve the way it provides services to victims. We 
     are auditing every component that has any responsibility for 
     our contact with victims to assure appropriate staffing, 
     improve practices and address problems. We have also revised 
     and updated the Attorney General's guidelines for victim 
     assistance.
       There is more yet that can be done while we continue to 
     strive for an appropriate constitutional amendment. For 
     example, as then Associate Attorney General Raymond Fischer 
     testified before the Senate Judiciary Committee in 1998, we 
     can enact federal legislation that will improve victims' 
     rights and services in the federal system while at the same 
     time providing funds and other incentives to states to 
     improve their own victims' rights laws and policies.\1\ By 
     passing such legislation, we can build a crucial bridge to 
     the victims' rights amendment.
---------------------------------------------------------------------------
     \1\ In this regard, it is worth noting that, thanks to the 
     concerted efforts of crime victims' advocates and 
     governmental bodies at all levels, all fifty States have now 
     enacted laws safeguarding crime victims' rights in the 
     criminal justice process, and 32 States have amended their 
     constitutions accordingly.
---------------------------------------------------------------------------
       We appreciate the Judiciary Committee's willingness to work 
     with the Department on issues relating to the Victims' Rights 
     Amendment over the last four years. Although we continue 
     strongly to support a victims' rights amendment to the 
     Constitution, and would support S.J. Res. 3 if the concerns 
     detailed in this letter were addressed, we oppose the 
     amendment in its current form because it fails to do so. We 
     urge the Senate to continue to work with the Department in 
     improving the constitutional amendment, while in the interim, 
     continuing

[[Page 6054]]

     to assist crime victims through the enactment of appropriate 
     legislation. Should you have any questions, please do not 
     hesitate to contact me.
           Sincerely,
                                                     Robert Raben,
                                       Assistant Attorney General.

  Mr. LEAHY. Mr. President, I have said over and over that no one in 
the Senate is against crime victims. I care deeply about the rights of 
crime victims, just as I care about the rights of all Americans.
  I established one of the first formal systems in my State to make 
sure crime victims are heard. It is something that is done all the time 
now. In fact, one of the distinguished family court judges, Judge Amy 
Davenport, was in town yesterday and listened to part of this debate. 
She said: There is nothing you talked about here that we just don't do 
automatically. In Vermont, we do not need a constitutional amendment to 
do it.
  We all care about the rights of crime victims. This is not a case of 
for or against amending the Constitution. We establish whether we care 
about crime victims. We all do. I care about their rights. I also care 
about the rights of mothers and expectant mothers, the rights of 
immigrants, the rights of workers, the rights of farmers, the rights of 
hospital patients, the rights of the young, the rights of the old, the 
rights of people seeking housing, the rights of students, the rights of 
artists, journalists, and scientists, the rights of those people who 
care about the environment, and the rights of families.
  I do not know anybody in this body, Democrat or Republican, who does 
not care about the rights of all these people.
  We all care about the rights of all law-abiding Americans. We could 
easily pass unanimous resolutions to that effect. But Americans want 
practical solutions to practical problems from their Government, not 
just expressions of concern. They certainly do not want us to try to 
define every one of these rights in a separate constitutional 
amendment.
  So the issue is not whether we care about the rights of crime 
victims. I point out that a couple weeks ago my dear friend Senator 
Feingold voted against a constitutional amendment to limit campaign 
contributions. Anyone who would infer from that vote that Senator 
Feingold is not passionate about campaign finance reform knows nothing 
about Senator Feingold and his attitude about campaign finance reform. 
In all the years I have been here, I have never seen anybody as 
passionate about it as he.
  Recently we voted on a constitutional amendment to criminalize 
physical destruction of the American flag. Senators Bob Kerrey, Robert 
Byrd, Mitch McConnell, Bob Bennett, Daniel Inouye, Daniel Patrick 
Moynihan, and many others voted against that constitutional amendment. 
Many of them are decorated war veterans. Bob Kerrey, for example, is 
the only Member of this body to hold the Congressional Medal of Honor. 
The vote did not mean they do not respect the flag.
  When Gen. Colin Powell and Senator John Glenn opposed the flag 
amendment, it was not because they lack devotion to this country. 
Anybody would be hard pressed to find two people more patriotic than 
they. Far from it, they are American heroes who showed their patriotism 
by standing up for the Bill of Rights. Frankly, that is ultimate 
patriotism.
  There have been studies over time in which people are asked about 
different parts of our Bill of Rights that we all rely upon, and the 
study would say: Would you vote for the right of free speech today, the 
right of assembly, or some of these others? People say: Yes, all except 
this or all except that. Thank goodness people had the courage to write 
and vote for it earlier. Our country has it. And then others made sure 
we did not go back and change it because we might have some problems.
  In my years in public life, I cannot think of more times that 
devotion to the first amendment has been tested or that any area in the 
Constitution has been tested more than the first amendment. We do not 
need the first amendment to protect popular speech; we need it to 
protect unpopular speech. That really is the crux of why we should care 
about amending our Constitution and carving exceptions or making 
changes in our Constitution.
  We had a Member of Congress in Vermont who was prosecuted under the 
Alien and Sedition Act in a way that we all know would be highly 
unconstitutional. Why? Because he criticized the Federal Government. 
They locked him up. You know what? This is why I love my native State 
of Vermont: We do not let other people tell us what to think. While he 
was locked up, what did we do? We reelected him and sent him right back 
down to Congress. And the shame was on those who supported the Alien 
and Sedition Act, they were soon gone.
  It was a Vermonter, I think the most outstanding Vermont U.S. Senator 
of the 20th century, who stood on the floor of this body--a 
quintessential conservative--Republican Ralph Flanders of Vermont, who 
introduced a motion of censure against Joseph McCarthy, the late 
Senator from Wisconsin. Joseph McCarthy ran roughshod for too long over 
the first amendment of the United States, and lives and careers were 
ruined because of his accusations. Ralph Flanders stood up and called a 
halt to that. Then other Senators came forward and joined with him. 
That reign was over.
  I would say to anyone who visits the United States, from whatever 
country, if you want to guarantee a democracy, guarantee two things: 
Guarantee the freedom of speech, including the freedom to say things 
that might be unpopular at the moment because you may find within a few 
years they will be the popular ones; and, secondly, guarantee the right 
to practice any religion you want, or none, if you want. Because if you 
protect those two rights, you protect diversity. If you protect 
diversity in your country, you protect democracy.
  I say that those who have opposed this constitutional amendment are 
not doing it because they lack concern for victims' rights. Decent and 
sincere people in both parties who serve in this Chamber respect 
victims' rights, but many of us oppose this amendment. I support crime 
victims' rights. I do not support a victims' rights constitutional 
amendment.
  The issue before the Senate is whether to amend the U.S. 
Constitution--and almost double the length of the entire Bill of 
Rights--by adding a complex listing of constitutional victims' rights 
and limitations that may diminish the Constitution and do little to 
protect victims. It is not like passing a commemorative resolution.
  Do we have to pass constitutional amendments to prove we care about 
people? We care about victims, but we also care about mothers, 
immigrants, workers, farmers, hospital patients, the young, the old, 
artists, journalists, scientists, nature lovers, and families.
  We have heard complaints in this Chamber more than a few times about 
``group entitlements.'' We are not going to have a constitutional 
amendment for every group.
  Stuart Taylor recently wrote in the National Journal about this 
amendment. He wrote:

       Most of us agree, of course, that prosecutors and judges 
     should be nice to crime victims (as they usually are). Most 
     of us also agree that parents should be nice to their 
     children. But would we adopt a constitutional amendment 
     declaring, ``Parents shall be nice to their children''? Or 
     ``Parents shall give their children reasonable notice and an 
     opportunity to be heard before deciding whether and how to 
     punish older children who have pushed them around''? Would we 
     leave it to the courts to define the meaning of terms like 
     ``reasonable'' and ``nice''?
       A ban on spanking, perhaps? A minimum of one candy bar per 
     day? Would we let the courts override all state and federal 
     laws that conflict with their interpretations?
       We don't need constitutional amendments to embody our broad 
     agreement on such general principles. And we should leave it 
     to the states (and Congress) to detail rules for applying 
     such principles to the messy realities of life.

  There is no precedent in a national constitution for a victims' 
rights amendment. But there is precedent for treating constitutional 
provisions as group entitlements. For most of the 20th century, there 
was a nation that rejoiced in criticizing America for not caring about 
the rights of various

[[Page 6055]]

groups of law-abiding people because we did not have such provisions in 
our Constitution. That nation had special constitutional provisions for 
mothers, immigrants, workers, farmers, hospital patients, the young, 
the old, artists, journalists, scientists, nature lovers, and families.
  I would have brought a copy of its 1977 constitution along with me 
today if I could carry it. But some of our visitors today know that 
country is no longer here, the former Union of Soviet Socialist 
Republics. Back then, I felt confident that Mr. Madison and his 
compatriots had done a better job of drafting a Constitution than Mr. 
Lenin, Mr. Stalin, or Mr. Brezhnev, and I am no less proud to be an 
American today. Madison, Jefferson, Washington, and the other founders 
understood three key lessons other countries are only learning now, 200 
years later.
  First, in a democracy, it is better to have a short constitution 
everyone can read and understand rather than a long one full of 
symbolic declarations, legalese, and procedural details. I hold the 
Constitution, including the Bill of Rights and the Declaration of 
Independence in this little booklet.
  The distinguished senior Senator from New York mentioned a country we 
all respect, a democracy, France, which amended its Constitution so 
many times to fit in every single little thing they could possibly 
think of so that, as the story goes, in the libraries they do not file 
it under ``constitution,'' they file it under ``periodicals.'' Well, I 
do not want that to be the U.S. Constitution.
  Secondly, in a free society, the purpose of a constitution is to 
constrain the government, to establish a government of limited powers, 
with the rest of the powers to the people, not a government of 
expanding responsibilities. Jefferson and Madison trusted to the States 
and the American people to care for the rights of victims of crime and 
of other misfortunes by means of the democratic process and by using 
the tool at hand to solve problems as they arose. They did not mandate 
a set of procedures for relief of every problem by calling them rights 
and then tacking them on to the Constitution. Instead, they reserved 
the Constitution for the protection of the people from the government 
itself.
  Thirdly, in a nation of ordinary practical people, what is needed are 
practical responses to practical problems, not symbols of concern that 
at the end of the day are empty. Madison and Jefferson designed the 
original Bill of Rights to respond to actual government abuses such as 
suppression of unpopular speech or unpopular religion or unpopular 
newspapers, that the States and the Federal Government could not be 
otherwise trusted to remedy in the normal course of events.
  Likewise, the Reconstruction Amendments did not enact a long litany 
of procedural rights without substance. Instead, they responded to a 
real, practical history of abuse by State governments of the rights of 
African-Americans. Even then our Nation was shamefully slow in 
implementing the anti-slavery amendments.
  The proposed amendment under consideration is fundamentally 
misconceived. It would be the most procedurally complex provision of 
the entire Constitution, within just a few words of doubling the length 
of the entire Bill of Rights. Every school child, every senior citizen, 
every American can pick up this Constitution and read it and understand 
it. That is the beauty of it. That is the strength of it. That is why a 
quarter of a billion people live in such freedom.
  We have referred to the last American precedent for a constitutional 
amendment to increase the power of government over law-abiding 
citizens. That was prohibition. It was well intentioned but, my word, 
what a disaster. It ended up staining the reputation of Senator 
Volstead and others who championed its cause. It was so ill suited to 
the framework of our Constitution that it bears the distinction of 
being the only constitutional amendment that had to be repealed.
  I still remember the stories I was told as a child, many in Vermont, 
of good, upright citizens who prospered greatly during prohibition, 
perhaps because of the fortuitous aspect of our geographical location 
bordering on Canada.
  If I could digress for a moment, we have a large lake in the northern 
part of Vermont, Lake Memphremagog. My wife was born on the shores of 
Lake Memphremagog, as she quickly points out, on the Vermont side. Her 
parents, of French Canadian descent moved there to take up life as new 
American citizens. She became a first-generation American.
  Lake Memphremagog is a magnificent lake that is half in Vermont and 
half in Canada. During prohibition time, some of the farmers who had 
little farms, one or two cows and a falling down barn along the lake, 
had very expensive Chris-Craft speedboats. I mention this because the 
local Customs official had a slower boat with an outboard motor. Every 
evening about dusk, these farmers would go out with their high-powered 
speed boats and they would have their fishing rod and a couple worms 
and they would head out across the lake toward Canada to go fishing, 
their speedboats riding high.
  About 2 o'clock in the morning, you would hear this awful roar across 
the lake as several of these came back, obviously the ``fishing'' 
having been very successful because the boats are now riding much, much 
lower. You can imagine the chagrin of the poor Customs agent who had to 
try to fulfill the prohibition provision of the Constitution, as he 
wondered which one of these fishing boats he should try to intercept, 
knowing he could not intercept any of them because he could not catch 
them.
  Whether it was because of the ``fishing'' or not, for at least a 
generation thereafter, the two most popular brands of alcohol in 
Vermont were the two that are also the most popular in the Province of 
Quebec, right across the lake.
  As I said, I digress. But prohibition caused such a disrespect for 
the law. It really made us look foolish, but it took forever to change 
it because it was in the Constitution. If we made the mistake of doing 
it as a statute, we could have amended it. We could have changed it 
within a year. Everybody knew it was not working. Everybody knew it was 
increasing the power of organized crime. Everybody knew it was bringing 
about corruption and bribery and everything else. But worse than that, 
a democracy can enforce its laws only if people respect the laws. A 
democracy can work only if we know that these laws are fair and these 
laws are just.
  We do not have a police officer in everybody's house. We do not have 
a police officer on every corner. We expect people to obey the laws. 
But if they have no respect for them, then they do not. In all the 
years it took to repeal this, for over a decade, the laws in this 
country and the people's respect for the laws of this country 
diminished every single year. Nobody could do anything about it because 
it takes so long to repeal a constitutional amendment.
  So let us look at statutes when we can. Let us think of article V of 
the Constitution, which says you amend only when necessary.
  Last, but by no means least, the proposed amendment is not a 
practical response to a practical problem. Many States are ahead of the 
Federal Government in protecting victims' rights. Recent years have 
seen huge advances in protection of victims' rights in State 
constitutions and State legislation, in the provision of restitution or 
other compensation where practical, and in improvement of law 
enforcement resources and techniques to ensure proper regard for 
victims.
  While Congress has been focusing its attention on more than 60 drafts 
of a constitutional amendment on victims' rights, it has actually 
slowed us down from doing real improvement to the way crime victims are 
treated in Federal courts and by Federal prosecutors. Our legislative 
achievements of the period from 1994 through 1997 have not been matched 
in the last several years. I fear this debate on the proposed 
constitutional amendment will be in lieu of consideration of scores of 
significant legislative proposals introduced by Senators on both sides 
of the aisle to help victims.

[[Page 6056]]

  Violent crime is a serious practical problem in our society--far more 
than it was even when I was a prosecutor. As a parent, as a 
grandparent, that troubles me greatly. But there is not a fundamental 
problem--certainly not one requiring a rigid, one-size-fits-all set of 
constitutionally mandated procedures--in how the States treat victims 
of violent crimes today.
  We have visitors in the gallery today from Russia, the successor to 
the former Soviet Union. The old Soviet Constitution demanded the 
obedience of Russians. It really was not very subtle about it. Article 
59 declared that every citizen was ``obliged to observe the 
Constitution and comply with the standards of socialist conduct.''
  Well, the U.S. Constitution does not command; instead, it counsels 
humility. It is humbling to consider the great minds that drafted it, 
its clarity and simplicity in laying down a framework to protect law-
abiding people by ensuring limited, democratic government. It is also 
humbling to think how it has stood the test of time. It remains 
extraordinary what was achieved in 4 short months in Philadelphia in 
1787, when communication meant walking from one building to another to 
talk to somebody, or sending a letter by horseback. In 4 short months, 
look at what they wrote.
  By contrast, we have been waiting twice that long for the House-
Senate conference on the juvenile crime legislation to meet and 
complete its work--something that could really help victims of crime in 
this country, something that could be done now and something that could 
be sent down to the President and signed into law and it would be the 
law of the land immediately. But we do not meet because the gun lobby 
said do not meet.
  We ought to be very slow in this Chamber to presume that we know 
better than the founders how to balance the power of government and the 
rights of the accused. We should be reluctant to presume that we can 
draft a one-size-fits-all set of detailed procedural rules that will 
work to protect different people who are victims of different crimes in 
cases in different States--the kind of constitutional micromanagement 
of the judicial process the framers were too wise to attempt. These 
400-odd words of the 63rd draft of this proposed amendment do not fit 
with the size and style, the limited Government vision, or the 
practical approach of the U.S. Constitution and the Bill of Rights.
  I hope when we finish this debate all Senators will join in efforts 
to improve victims' rights through the States and through Federal 
legislation.
  I see the distinguished Senator from Delaware on the floor. As 
chairman and as the ranking member of the Senate Judiciary Committee, 
Senator Biden has worked very hard on legislation to help victims of 
all kinds of crime. The distinguished Senator from Delaware has helped 
write laws that can take effect and have money and teeth in them to 
help victims. I have done some, as have others. Usually, we join in 
bipartisan efforts to do it. But they have been pieces of legislation 
that, once signed into law, we could watch. We could see if they were 
working, and if they did, fine, we could expand them and give them more 
money. If they did not work, we could change them. We cannot do that 
with a constitutional amendment.
  I ask those who are for victims' rights to support congressional 
action on S. 934, the Crime Victims Assistance Act.
  Mr. President, we have editorials in opposition to this 
constitutional amendment from the Asheville Citizen-Times, the 
Baltimore Sun, the Chicago Tribune, the Herald, the Philadelphia 
Inquirer, the Richmond Times-Dispatch, the San Francisco Chronicle, the 
San Francisco Examiner, the San Jose Mercury News, the Seattle Post-
Intelligencer, the St. Petersburg Times, the Washington Times, the 
Collegiate Times, the Pittsburgh Post-Gazette; and the South Bend 
Tribune.
  I ask unanimous consent that several of these articles be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Feb. 15, 2000]

                      An Uncluttered Constitution

                            (By Bruce Fein)

       What keeps our Constitution sacred and accessible to the 
     ordinary citizen is majestic brevity and a confinement to 
     essentials.
       Amendments should thus be limited to issues of great and 
     enduring moment that cannot be safely entrusted to popular 
     majorities. The pending Victims' Rights Amendment, under 
     active consideration by the House and Senate and lukewarmly 
     supported by the Clinton administration, falls short of that 
     historically exacting standard.
       The amendment, House Joint Resolution 64, would dictate an 
     array of victims' rights in federal or state criminal or 
     auxiliary proceedings. The motivation is irreproachable: to 
     guarantee crime victims a minimum opportunity to be heard or 
     to be otherwise involved when the disposition of their 
     predators in question. But good motivation, without more, 
     does not justify a constitutional coronation. If it did, the 
     1964 Civil Rights Act, the 1965 Voting Rights Act, the 1968 
     Fair Housing Act, Title IX of the Higher Education Act, the 
     American With Disabilities Act, and an endless list of 
     companion federal laws would be elevated to constitutional 
     status and the document would smack more of Edward Gibbon's 
     ``Decline and Fall of the Roman Empire'' than of Lincoln's 
     Gettysburg Address.
       VRA crusaders have cobbled together an assortment of 
     unpersuasive reasons for their constitutional cause, as 
     though adding zero to zero repetitively may eventually equal 
     something. It is said criminal defendants and prisoners enjoy 
     constitutional rights that trump victims' rights enumerated 
     in scores of statutes and state constitutions. But nothing in 
     the constitutional text or United States Supreme Court 
     precedents even hints at a conflict with victims' rights that 
     command lower statutory status: the right to notice and to 
     have views considered in prosecutorial, sentencing, parade, 
     or commutation decisions and to attend criminal trials. 
     Amendment proponents have searched in vain for a single court 
     decision that supports their fretting.
       Crime victims have demonstrated stunning success in 
     majoritarian politics who need no constitutional protection 
     from potentially hostile legislation. As a chief sponsor of 
     the Amendment, Rep. Steve Chabot, Ohio Republican, testified 
     last Thursday before the House Judiciary Subcommittee on the 
     Constitution, ``In 1982, California became the first state to 
     pass a Victims' Rights Amendment to its constitution. Since 
     that time, 32 states, including my home state of Ohio, have 
     passed similar amendments . . . ratified [by an average of] 
     79 percent of the vote in state-wide referendums.''
       That is no surprise. Crime victims evoke almost universal 
     sympathy, and no one campaigns boasting, ``I will vote 
     against victims' rights.''
       Amendment apostles also urge that state laws are 
     disrespected by state judges or prosecutors. But that is 
     unvariably true of new laws during their childhoods. Legal 
     training and habits are customarily backward-looking, and 
     legal bureaucracies lie midpoint between sclerosis and rigor 
     mortis. But troglodyte judges, prosecutors, and clerks will 
     die or retire; their replacements will be victims' rights 
     enthusiasts indoctrinated in the new gospel. The problem of 
     inattention to state or victims' rights laws will solve 
     itself, in the same way that unionization rights flowered in 
     the legal system in the 1930s after decades of crabbed 
     interpretations and applications of statutes.
       Amendment champions retort that victims' rights would 
     command more prosecutorial and judicial respect if enshrined 
     in the Constitution. But prosecutors and judges take oaths to 
     defend state laws every bit as much as they vow to enforce 
     the Constitution. If they would honor the first more in the 
     breach than in the observance, the second would fare no 
     better. History also speaks volumes. The 1866 Civil Rights 
     Act protecting freedom leaped into the Constitution with the 
     1868 14th Amendment, but the civil rights of blacks were 
     routinely ignored by courts, including the United States 
     Supreme Court, for almost a century during the ugly era of 
     Jim Crow. Similarly, did the Roman Catholic creed induce 
     greater compliance with the proclamation of Papal 
     infallibility in 1870?
       Victims' rights paladins wrongly equate their cause with 
     the constitutional protections of persons accused of crime. 
     But criminal defendants, unlike crime victims, are generally 
     pariahs who need safeguards against an infuriated public 
     clamoring for instant justice. Further, what is at stake for 
     the accused is his life or liberty, the most precious of our 
     natural rights.

                           *   *   *   *   *

       Every constitutional amendment dents our system of 
     federalism. It removes an issue from the agendas of state 
     governments that can more closely tailor solutions that 
     satisfy constituents and serve as laboratories for sister 
     states and the federal government without risk to the entire 
     nation. Errors can be corrected by simple legislation, which 
     is nimble compared to overcoming a constitutional misstep, 
     like the Prohibition Amendment. Deference to stale choice 
     additionally

[[Page 6057]]

     offers citizens greater opportunities to participate directly 
     in the responsibilities of self-government, indispensable to 
     sustaining a robust democratic culture.
       In sum, the Victims' Rights Amendment has nothing to 
     commend and much to deplore.
                                  ____


           [From the San Francisco Chronicle, April 25, 2000]

             A Victims' Rights Plan That Goes Much Too Far

       Victims of crime deserve consideration and compassion, but 
     a constitutional amendment giving them a new category of 
     ``rights'' goes too far.
       The U.S. Senate will attempt this week to alter the 
     Constitution again, this time with a Victims' Rights 
     Amendment drafted on the premise that victims should have 
     more say about the trials and dispositions of defendants.
       Specifically, it would give victims the right to attend all 
     proceedings, to make their views known about sentencing and 
     plea arrangements, to be notified whenever an offender is 
     released from custody, to demand a speedy trial and to get 
     restitution from the offending party.
       Considering the often deep pain they suffer, victims 
     deserve to be heard and protected by the criminal justice 
     system, but tinkering with the Constitution is no way to do 
     it. Many of these concerns can and have been addressed 
     through legislation, which can be amended as problems and 
     unintended consequences are identified.
       One of the problems with this amendment is that its 
     definition of ``victim'' is too vague, creating a financially 
     onerous and otherwise impossible mandate. For example, in the 
     Oklahoma City bombing, who would the victims be? The office 
     workers who survived the bombing, the family members and 
     friends of the hundreds killed or maimed, or anybody in town 
     still suffering the horrifying aftermath?
       As such, all would have to be notified about trial 
     proceedings, have the right to speak and to push for specific 
     prosecution. And if they didn't agree on sentencing or the 
     way the case was adjudicated, what would the court do then?
       Meanwhile, advocates for battered women dread what would 
     happen if a women is arrested for responding to domestic 
     abuse--namely that the abuser could become the victim with 
     rights to oppose her bail and seek restitution. Perhaps 
     that's why a slew of victims' rights groups is among those 
     most opposed to the amendment.
       Although a grand gesture, this proposed constitutional 
     change is clumsy and cumbersome, destroying the very core of 
     our justice system--the right to a speedy trial and the 
     presumption of innocence. Both Congress and state 
     legislatures have the ability to strengthen victims' rights 
     without trying to alter the principles of justice set forth 
     in the U.S. Constitution.
                                  ____


           [From the San Francisco Examiner, April 14, 2000]

                     No Victims in the Constitution

       Dianne Feinstein is wrong on this one. The usually astute 
     Democratic U.S. senator from California is leading a campaign 
     to get a victims' rights amendment added to the federal 
     Constitution.
       Along with Sen. John Kyl, R-Ariz., and 40 other senators, 
     she is sponsoring legislation that would allow the states to 
     vote on ratification of the 28th amendment. The votes of 67 
     senators are needed for passage. Three-quarters of the states 
     must ratify the amendment before it goes into effect.
       Victims' rights is an idea that's seductive by its very 
     simplicity. Of course victims should have rights. Who can 
     deny that? But enshrining them in the Constitution is a feel-
     good exercise of dubious value that carries potential harm.
       ``The Constitution,'' argues Feinstein, ``gives 15 specific 
     rights to the accused, but victims have no basic rights under 
     the Constitution.''
       That misses the point of what the Constitution and the Bill 
     of Rights are about. The rights enumerated are protections 
     for individuals against the awesome power of the government. 
     They are not intended to referee fights between citizens or 
     redress the grievances of victims of private action, no 
     matter how terrible the consequences.
       Littering the Constitution with other matters cheapens it 
     and opens the door to inclusion of the flotsam and jetsam of 
     some citizens' oddball desires. If you think this overstates 
     the case, just look at the junk foisted on the California 
     Constitution by an overactive initiative process.
       This is not to say there shouldn't be a law. In fact, 
     legislation is exactly where victims' rights belongs.
       As a bill in Congress, the planks of victims' rights would 
     be unobjectionable. Consider the constituent parts of the 
     amendment. Among other features, it would give some 9 million 
     victims of violent crimes and their families the right to 
     notice of criminal proceedings in their cases and the right 
     to attend them; the right to testify or submit statements at 
     trials, parole hearings and other proceedings; the right of 
     notice if the felon escapes or is released, and the right of 
     restitution from the perpetrator of the crime.
       So far, 32 states have passed legislation or constitutional 
     amendments specifying victims' rights. But Feinstein 
     complains that until the U.S. Constitution is changed, a 
     defendant's rights trump a victim's rights when there's a 
     conflict between the two.
       We're glad she's not also proposing to change the standard 
     of criminal guilt from ``beyond a reasonable doubt'' to a 
     ``preponderance of the evidence.'' Presumably that would also 
     make trials more fair for victims. But the American system of 
     criminal justice is built on the sane principle that letting 
     a possibly guilty defendant go free is a thousand times 
     preferable to convicting an innocent person.
       The 13 men released from death row in Illinois after new 
     exonerating evidence was uncovered would be glad to tell Sen. 
     Feinstein why legal protections for the accused are splendid 
     ideas. Anyway, the guts of a sensible victims' rights program 
     wouldn't conflict with legal protections for defendants.
       Victims and their families sometimes do get poor treatment 
     from prosecutors and courts. Trying to remedy that by 
     amending the Constitution is a grandstand play that generates 
     a lot of publicity. But it is unnecessary and wrong. It would 
     dilute the time- tested and trusted document that defines 
     relations in this nation between citizens and their 
     government.
       Don't make us all victims of an ill-considered crusade.
                                  ____


            [From the San Jose Mercury News, April 20, 2000]

     Victims of Crime Don't Need Congress' Constitutional Meddling

                           (By Joanne Jacobs)

       You have the right to remain silent, when accused of a 
     crime.
       You have the right to speak up, when victimized by a 
     criminal. California and 31 other states have passed victims' 
     rights amendments to their constitutions; all the rest have 
     statutes.
       So why do we need to amend the Constitution of the United 
     States of America to include a Crime Victims' Rights 
     Amendment?
       Because it's an election year.
       Next week, on April 25, the Senate will debate the victims' 
     amendment, sponsored by California Senator Dianne Feinstein, 
     a Democrat, and Arizona Senator John Kyl, a Republican. The 
     vote may be April 27 or 28.
       Some 46 senators have signed on to the bill, but it will 
     take a two-thirds majority (67) and two-thirds of the House 
     (291) for passage, plus three-fourths of state legislatures 
     to ratify.
       The Constitution shields Americans--especially the 
     unpopular--from governmental power.
       The amendment grants rights to a politically popular and 
     sympathetic group, victims. But no legislation can guarantee 
     sensitivity by prosecutors and judges or competence by clerks 
     assigned to notify victims about changing court dates. No 
     amendment or law can give Americans what we really want: 
     freedom from killers, rapists and robbers.
       Instead, the amendment would federalize rights already 
     offered by the states: Victims must be notified about bail, 
     plea bargains, trials, sentencing and parole hearings, and 
     about a prisoners' release or escape. They're entitled to a 
     restitution order, which is usually uncollectible.
       Feinstein-Kyl also includes ``consideration of the interest 
     of the victim that any trial be free from unreasonable 
     delay,'' which means the victim could ask for a speedy trial 
     but the judge wouldn't have to grant it.
       Victims would have a right to attend the entire trial, even 
     if they're going to be called as witnesses and might tailor 
     their testimony to fit an earlier witness's statement.
       However, the judge could decide the defendant's 
     constitutional right to a fair trial outweighs the victim's 
     constitutional right to attend.
       Other than adding a symbolic statement--``Pols (hurt) 
     Victims''--to the U.S. Constitution, this wouldn't change 
     much. Except to provide more ways to file lawsuits, which 
     isn't going to make justice any swifter.
       Both presidential candidates are pro-victim.
       ``I will lead the fight to pass a Victims' Rights Amendment 
     to the United States Constitution--so our justice system puts 
     victims and their families first again,'' Al Gore said in a 
     Boston speech last July.
       Apparently, he hasn't started yet. Gore's ``Fighting 
     Crime'' agenda on his www.gore2000.org site doesn't mention 
     victims rights, and the vice president hasn't endorsed the 
     Feinstein-Kyl amendment.
       The Clinton administration is wavering on the amendment, 
     worried about interfering with prosecutors, denying 
     defendants' rights and impinging on the president's power to 
     grant executive clemency. (If President Gore wanted to pardon 
     ex-President Clinton's perjury, who'd be the victim: Paula 
     Jones? Ken Starr? 275 million Americans?)
       George W. Bush ``strongly supports'' the Feinstein-Kyl 
     amendment. It's not on his Website, www.georgewbush.com 
     however; there's no issue statement on crime.
       Most victim's groups are for it, but not all.
       Bud Welch, whose daughter was killed in the 1995 Oklahoma 
     City bombing, chairs Citizens for the Fair Treatment of 
     Victims,

[[Page 6058]]

     which opposes the amendment. Emotional relatives might hamper 
     prosecutors, Welch argues. Many relatives of victims objected 
     to a plea bargain made to secure testimony of an accomplice 
     of Timothy McVeigh and Terry Nichols, Welch Writes. ``Had 
     this amendment been in place, the judge may have refused the 
     plea agreement, making it significantly more difficult for 
     the government to convict McVeigh and Nichols.''
       Furthermore, consulting all the family members of all the 
     victims--168 were killed and many more injured--would have 
     created chaos, delaying the trial.
       Feinstein cites the Oklahoma City bombing as proving the 
     need for the amendment. The judge told victims' families they 
     couldn't sit through the trial if they wanted to testify at 
     the sentencing hearing. When Congress passed a law allowing 
     it, the judge said the Constitution, guaranteeing a fair 
     trial to the defendants, trumped the law.
       This is Feinstein's only example of a conflict that would 
     require a constitutional amendment.
       The amendment also gives victims rights before a court has 
     determined they're really victims, noted Robert P. Mosteller, 
     a Duke law professor, in testimony before the House Judiciary 
     Committee.
       Imagine the Rodney King case, with no videotape, Mosteller 
     said. The police officers charge King attacked them. As 
     victims, the officers could ``sit in the courtroom during the 
     testimony of all other witnesses as a matter of federal 
     constitutional right. This provision would permit the true 
     perpetrators of the crime to coordinate their false version 
     of the facts'' and convict the real victim.
       A judge could weigh witness-victims' right to attend and 
     the defendant's right to a fair trial, Feinstein argues. The 
     defendant might win.
       Or be convicted by tainted testimony, leading to more 
     appeals.
       It's not worth it.
       My bottom line is simple: Don't mess with the U.S. 
     Constitution. Since the Bill of Rights was added 209 years 
     ago, only 17 amendments have been added to the Constitution. 
     It should not be changed unless absolutely necessary. It's 
     not necessary in this case, not even close. Leave the 
     Constitution alone.
                                  ____


               [From the Chicago Tribune, April 25, 2000]

                    The Wrong Way on Victims' Rights

       Some national issues of grave importance can be dealt with 
     adequately only by amending the United States Constitution. 
     That was true of slavery, women's suffrage, and the income 
     tax. But the same can't be said about the treatment of crime 
     victims.
       Their needs are real and worthy of concern. The Victims' 
     Rights Amendment due for a Senate vote this week, however, is 
     overdoing a good thing.
       Every state has a law or constitutional provision assuring 
     that crime victims may attend judicial proceedings that 
     concern them, be notified of the impending release of their 
     attackers, sue the offender for restitution, and the like. 
     Many of these measures are relatively young and, according to 
     victims' rights advocates, have not fulfilled the hopes 
     lodged in them.
       That's an argument for better funding and more meticulous 
     implementation. It's grounds for electing prosecutors and 
     judges who will take them seriously. It's also grounds for 
     realistic expectations: Some goals are not likely to be 
     realized no matter what. Restitution, for example, is largely 
     a vain hope simply because most criminals are poor and thus 
     lack the money to pay it.
       The proposed constitutional amendment, however, threatens 
     to do more harm than good. Its guarantees could sometimes 
     conflict with the rights of defendants, as when it gives 
     victims the right to demand a speedy trial. In such 
     instances, the suspect's right to defend himself could be 
     compromised, increasing the risk that innocent people will go 
     to jail. Or the defendant's right could trump--in which case 
     the new amendment would amount to little more than empty 
     symbolism.
       In either case, the decision will be made by judges, not 
     legislators or voters. The advantage of protecting victims' 
     rights by law is that different states can experiment with 
     different approaches to see which are most effective and 
     affordable. Once this amendment is entrenched in the federal 
     Constitution, though, the entire nation will have to live 
     with a ``one size fits all'' approach--and we may find that 
     one size fits none.
       Someone once said that a vice is often just a virtue taken 
     too far. The Senate shouldn't make that mistake on victims' 
     rights.

  Mr. LEAHY. Mr. President, I have so much respect and affection for 
two key sponsors, Senator Kyl of Arizona and Senator Feinstein of 
California. They, as the other 98 Senators of both parties, care deeply 
about the rights of victims. Anybody who has seen some of the violent 
crimes in this country could not feel otherwise. A great, powerful, 
wealthy nation ought to care about the victims of child abuse, or 
fraud, and victims of all crime. That is not the issue. The issue, I 
say to my friends, is the legacy we leave to the next generation. So 
much of that legacy as Senators is what is in the Constitution.
  We will not vote on anything more important than constitutional 
amendments, unless it is a declaration of war. There have been 
thousands of votes I have cast, and many that I can remember were 
inconsequential. Virtually all of them were on issues on which, if we 
did not like the results we could come back and revisit it the next 
Congress and change it. You cannot do that with a constitutional 
amendment. You do it with practical, pragmatic legislation that 
actually helps people--legislation that the Senator from Delaware has 
passed, legislation that I have passed, legislation that Senators on 
both sides of the aisle have passed, including Senators Nickles, 
DeWine, and others. I do not mean to exclude other people who have 
joined in on real legislation that really works for victims.
  Mr. President, how much time is still available to the Senator from 
Vermont?
  The PRESIDING OFFICER (Mr. Helms). There are 48 minutes remaining.
  Mr. LEAHY. I yield the floor to the Senator from Delaware.
  Mr. BIDEN. Mr. President, is the Senator from Delaware under a time 
constraint?
  The PRESIDING OFFICER. Under the cloture situation, the Senator has 
up to 1 hour.
  Mr. BIDEN. I thank the Chair. Mr. President, I thank my friend from 
Vermont for his kind comments. It is rare on matters of constitutional 
law and matters of civil rights and civil liberties that the 
distinguished Senator from Vermont and I end up on opposite sides of 
the issue. We are on opposite sides of this issue. I, as the Senator 
from Vermont, have been very reluctant over my 28 years in the Senate 
to support constitutional amendments. I think they are a matter of 
significant concern and should not be undertaken without significant 
need and only after it is concluded that the same result could not be 
accomplished statutorily. So it is after some considerable thought--
and, I might add, a considerable amount of work with the two primary 
sponsors of this amendment--that I have arrived at the point where I 
support this amendment.
  Before I begin to discuss the details of the amendment, let me 
suggest to the Senator from Vermont that I came in at the tail end of 
his initial comments regarding public prosecution as opposed to 
privately going out and hiring a prosecutor to redress a criminal wrong 
that had been done to you, and his discussion about whether or not it 
was an established principle that the founders thought public 
prosecution was appropriate at the time of the Constitution. He is dead 
right on the facts. But I suggest to him, and others, that I suspect 
the points being made--and I have been in Colombia spending a good deal 
of time with President Pastrana on the drug and narcotrafficking 
problem he faces, so I missed a day of debate on this. So I may be 
mistaken in what I am about to say. But I expect that those who talked 
about public prosecution versus private prosecution were trying to make 
the generic point--I hope they were--that at one point in our English 
jurisprudential history, and for a number of centuries early on, the 
issue of moving forward to prosecute a wrong against you was totally in 
the hands of the victim. The victim made that judgment.
  Early on, to overstate it, in the 14th, the 15th, the 16th and 17th 
century, if I were mugged in the stable, it would be Biden v. Jones. It 
would not be the Crown v. Jones. I was not represented by anyone but 
myself. This process evolved. The only good part of that process was 
that the victim controlled his or her own fate to a significant degree.
  All of the years and years that I was chairman of the Judiciary 
Committee and the ranking member, we held hearing after hearing about 
how victims feel disenfranchised. One of the things that victims of 
violent crime need to be able to come to closure with is the dilemma 
and the horrible position in which they were placed. They have to see 
it come to fruition. They have to be able to know that they had some 
hand in the idea that the person who did bad things to them was 
pursued, and they

[[Page 6059]]

got their day in court--``they,'' the victim.
  Also, there is an overwhelming amount of evidence that began to pile 
up in the 1960s, 1970s, and then in the 1980s it reached a high pitch. 
In the 1990s it pertained as well. That is where people lost respect 
for the government and lost respect for the law because they believed 
they were not treated with respect--where victims found themselves, in 
their view, victimized not only by the criminal but victimized by the 
system.
  That is why, I note parenthetically, when I wrote the Violence 
Against Women Act I provided for a means by which a woman who was a 
victim of violent crime could, if the prosecutor chose not to go after 
her assailant, after the person who did those bad things to her, she 
could at least go into the civil court and sue that individual.
  Again, there was overwhelming testimony from psychiatrists and 
psychologists that there is a need for healing. Part of the catharsis 
in healing is to be able to go through the process and believe you are 
getting fair and decent treatment.
  There are two things at stake when this cause of victims' rights 
begins to arise.
  The public prosecutors, not because they were no longer caring, but 
because of the overwhelming burden, found themselves becoming 
increasingly callous about the plight of the victims.
  I used to be a public defender. When I was a young lawyer, I would be 
assigned three or four or five cases to be tried in 1 day. The 
prosecutor would be assigned five, six, seven, or eight cases to be 
tried in 1 day. Everyone knew that plea bargaining process was 
necessary.
  Often, looking back on it, the victim, or the alleged victim of the 
crime, found himself or herself showing up for court and learning from 
some prosecutor that they had dismissed the case. We didn't think there 
was sufficient evidence, or we decided to allow them to plead to petty 
larceny rather than robbery or burglar, or we decided so on and so on.
  The impact upon victims and their faith in the system and their 
notion of whether or not government worked was always damning--always 
impacting upon them in a negative way.
  To make a long story not quite so long, the Senator from Vermont is 
correct. Public prosecution did take place when our Republic became a 
republic. There were not, for example, in the city of Philadelphia, 
25,000 felonies tried a year in one little city. There were not 68,000 
habeas corpus out there. There was not the need for a prosecutor to 
find himself or herself in the position where they dismissed a large 
number of cases just because they didn't have time to get to them. 
There were not circumstances where the victims of crime who were so 
callously treated that they weren't even informed, and the person 
against whom they had sworn out the warrant they found sitting in the 
trolley car with them on the way home. They were not in that position.
  What are constitutional amendments about?
  Constitutional amendments are about dealing with serious concerns of 
the public that come about as a consequence of changed circumstances. 
One of the circumstances changed--and I suspect what previous speakers 
have been speaking to when they talked about how the system used to 
work--is that there is a feeling on the part of the vast majority of 
the victims of crimes that they have no control over the situation. 
They have no control. Not only were they victimized by the criminal, 
but they go in and either find themselves in the circumstance where 
there has been a deal made which they were no part of, or there was a 
sentencing that took place and they didn't get a chance to tell the 
judge how badly this guy beat them up, or that money that was stolen 
from them was the last money they had in the whole world, and they lost 
their home. Just the need to cry out and say: Listen to me, listen to 
me. Just listen to me. That is all I am asking you to do.
  It is not that the prosecutors are bad guys or bad women. They are 
incredibly overloaded.
  As the Presiding Officer knows, we have an incredible amount of time, 
notwithstanding the fact it has dropped the last 7 years in a row.
  This is about going back to a time when public prosecutors had the 
time and exercised judgment to make a decision relative to moving 
forward against a defendant in conjunction with the concerns of the 
needs of and the desires of the victims.
  That is what is missing.
  We are here today to discuss two matters that I have cared about for 
many years. The first is crime--more specifically, the victims of 
violent crime. The second is the Constitution of the United States of 
America.
  As the Presiding Officer knows, we came at the same time, and both of 
us dedicated a significant portion of our life in the Senate to various 
issues. We developed different interests, expertise, and/or 
assignments. In my case, it has been both the plight of crime victims 
and the preservation of our constitutional liberties. That is why I 
have thought long and hard about amending the Constitution to guarantee 
the victims of crime the elemental rights that they deserve, but too 
often are denied.
  Time and again, I wrote and supported many statutory protections for 
victims. To cite just a few examples:
  The 1990 Victims Bill of Rights gave victims a number of important 
procedural rights, including the right to notice of court proceedings, 
the right to confer with the prosecutor, and the right to information 
about the conviction, sentencing, imprisonment, and release of the 
offender.
  The 1994 Biden crime law:
  Gave federal victims of sexual and child abuse the right to mandatory 
restitution;
  Gave victims of violent crimes and sexual abuse the right to be heard 
at the sentencing of their assailants;
  Provided special court-appointed advocates for child victims of 
crime;
  And it also included the piece of legislation closest to my heart: 
the Violence Against Women Act, which provided ground-breaking and 
sweeping assistance to victims of family violence and sexual assault--
and which, I might add, needs to be re-authorized this year through my 
Violence Against Women Act II bill, which has 46 cosponsors.
  The 1996 Anti-Terrorism Act included Hatch-Biden provisions 
guaranteeing mandatory restitution to all victims of violent federal 
crimes;
  And, now, I am pleased to support--and urge all of you to support--a 
constitutional amendment to protect victims' rights.
  I am proud of my track record on victims' rights. But I am convinced 
that federal statutory guarantees are not enough. Judges are simply too 
quick to conclude, almost reflexively, that the defendant's 
constitutional rights trump the victim's mere statutory rights, even 
when conflict is illusory or could readily be resolved. You heard about 
the difficulties we had after the Oklahoma City bombing with a federal 
statutory approach to help the victims and their families. Senator 
Feinstein outlined in detail the chronology of events there, and so I 
will not repeat them.
  But equally important, because more than 95 percent of all crimes are 
handled at the state level, our federal statutory rights simply do not 
reach the great majority of crime victims.
  Regrettably, the hodge-podge of protections for victims in place at 
the state level is spotty and inadequate. There is no common 
denominator of rights that victims are guaranteed in every state of the 
union. As a December 1998 report by the National Institute of Justice 
found:

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

  This report found numerous instances in which victims were not 
afforded the rights to which they were entitled.
  For example, even in states identified as providing ``strong 
protection'' to victims' rights, more than 40 percent of victims were 
not notified in advance of the defendant's sentencing

[[Page 6060]]

hearing. And more than 60 percent of victims in these strong-protection 
states did not receive notice of a defendant's pre-trial release.
  And so, I have come to the conclusion that it is time to write a 
basic charter of victims' rights into our Constitution setting a 
national, uniform baseline of rights for all victims of violent crimes.
  Now, one of reasons there were more than 60 drafts of this 
constitutional amendment is because I insisted on a number of basic 
changes before I would agree to support it. And with the help of 
Professor Larry Tribe, I proposed these changes, and the sponsors 
accepted them.
  My three key specific ``principles'' for drafting the language of the 
amendment were as follows:
  Principle No. 1: The amendment must set out the specific rights to be 
accorded constitutional status--the core of which should be rights of 
participation. Victims should be entitled to the following rights of 
participation:
  The right to be informed about, and not excluded from, any public 
proceedings involving the crime;
  The right to make a statement to the court about bail, the acceptance 
of a plea, and sentencing;
  The right to be informed about, and to participate in, parole 
proceedings to the same extent as the convicted offender; and
  The right to be informed of an escape or release from custody.
  Principle No. 2: The amendment must not unintentionally hamstring 
criminal prosecutions. We cannot forget: the best thing for victims is 
to catch and convict the bad guys; we have to make sure that nothing in 
the amendment would make that job more difficult.
  Principle No. 3: The amendment must not abridge the rights of the 
accused. The protections in our Constitution for the accused--such as 
the right to counsel, the right to a jury of one's peers, and the right 
against self-incrimination--are there, above all, so that our system 
does not convict an innocent person. Locking up an innocent person 
benefits no one--except the guilty.
  Let me describe for you a few of the changes on which I insisted, and 
which I believe makes this an amendment everyone can and should 
support:
  Originally, the constitutional amendment would have covered the 
victims of all crimes. But prosecutors worried that the extension of 
rights to non-violent crimes--particularly those crimes affecting 
massive numbers of victims, such as may be the case with mail fraud or 
environmental crimes--would backfire, making it too difficult, too 
burdensome, to bring these cases. I insisted that the amendment be 
limited to the victims of violent crimes, and that change was made.
  Earlier drafts of the amendment gave victims the right to ``a final 
disposition of the trial proceedings free from unreasonable delay.'' 
Prosecutors believed that this could allow victims to force them to 
proceed to trial before they are prepared.
  Defense lawyers believed that the language created the risk that the 
defendant might be forced to proceed to trial without sufficient time 
to prepare a defense. In other words, this language would have made it 
both more difficult for prosecutors to get convictions and easier for 
those defendants who are convicted to overturn their convictions on 
appeal.
  We want to make sure--above all--that we get the right criminal, and 
that we don't convict an innocent person. And we also want to make sure 
that the great police power of the government is not exercised in 
heavy-handed, over-reaching ways that threaten the constitutional 
liberties of all of us.
  And so I insisted on modifying that language so that victims have the 
right ``to consideration of the interest of the victim that any trial 
be free from unreasonable delay.''
  This is an important change. This means--in plain English--that 
before granting a third, fourth, or fifth continuance, judges in every 
state--from Delaware to Utah to California--must take into account the 
inconvenience and hardship to a victim and must proceed with the trial 
unless there is a good reason to wait.
  What this does not mean is that judges must push lawyers to try cases 
before they're ready.
  Next change: prosecutors and others worried that with the old drafts, 
a defendant could withdraw his plea or a judge could be forced to throw 
out a sentence after it had been accepted, jeopardizing the 
government's ability to get a conviction of guilty defendants.
  I insisted on new language that makes it clear that nothing in the 
amendment provides grounds to overturn a sentence or negotiated plea.
  Finally, I was concerned with earlier drafts that the amendment could 
be perceived as giving a victim's rights a higher constitutional 
standing than those of the criminal defendant--in other words, that 
victims' rights would be perceived as trumping defendants' rights. 
Section 2 of an earlier draft stated that nothing in the amendment 
would ``provide grounds for the accused or convicted offender to obtain 
any form of relief.''
  I insisted that we change that language, and with the help of 
Professor Tribe, we redrafted Section 2 and removed that restriction on 
the rights of the defendant.
  While the language is clear that nothing in the amendment itself 
gives rise to a claim of damages against the United States, a State, a 
political subdivision, or a public officer or employee, at the same 
time, it does nothing to bar defendants from obtaining relief for 
violations of their own constitutional rights.
  And let me comment further about the rights of the accused--an issue 
that I know gives some of you pause about this amendment. I have spent 
my entire career in the U.S. Senate looking out for the rights of the 
criminal defendant. There is an obvious and natural tension in the 
system between protecting the rights of the criminal defendant and 
ensuring that law enforcement is effective, and I have always worked to 
achieve a balance between these competing interests.
  I say to you that this constitutional amendment, with the changes 
upon which I have insisted, strikes that balance. Judges will have the 
power under this amendment to strike a balance.
  I keep hearing critics of the amendment say that defendants' rights 
will not be adequately protected if this amendment becomes part of the 
fabric of our Constitution.
  For example, we heard testimony before the Judiciary Committee and 
statements on the Senate floor giving examples of how judges 
routinely--almost reflexively--exclude victims from the courtroom when 
they are potential witnesses in the case. Critics of the amendment 
contend that maybe that is how it should be, and they complain that the 
amendment would change that presumption of exclusion.
  These critics argue that the presence of victim-witnesses at trial 
will undermine the defendant's right to a fair trial by giving the 
victims the opportunity to observe the other witnesses testify and 
tailor their testimony accordingly.
  I submit to you that that is not as it should be. That is not how it 
needs to be. The witness sequestration rule is a prophylactic measure 
rather than a constitutional imperative. The purpose of the rule can be 
accomplished through defense cross-examination of fact witnesses, 
defense argument about the opportunity to tailor, and jury 
instructions, without categorically excluding victims from the trial.
  There is nothing that remarkable about the scenario of one witness 
having the opportunity to listen to the testimony of others: the 
defendant who is a witness has that opportunity. And the defendant who 
is a witness is also open to cross-examination and argument by the 
prosecutor that he had the opportunity to tailor his testimony.
  Just last month, the Supreme Court ruled in a case called Portuondo 
v. Agard, that despite the fact that a defendant has the constitutional 
right to be present at his trial, the prosecutor was entitled to 
comment in her closing argument on the fact that the defendant had the 
opportunity to hear all

[[Page 6061]]

other witnesses testify and to tailor his testimony. This same type of 
argument would be available in cases where the victim-witness is 
present during the trial.
  The constitutional amendment takes away nothing from the rights of 
the defendant. If the defendant's constitutional rights actually 
conflict with the participatory rights the amendment would guarantee 
the victim--and I submit to you that these conflicts would be few and 
far between--the judge is permitted under this amendment to balance 
these competing interests and grant exceptions where necessary.
  Let me repeat: a constitutional amendment for victims does not mean 
that victims' rights will take precedence over defendants' rights.
  Both the criminal defendant and the victim can and should have the 
chance to participate at trial and at other related public proceedings. 
There should be a balance. This amendment permits courts to balance.
  A constitutional amendment is needed to set a national floor of 
rights for all victims of violent crimes. In every state--as well as in 
the federal system--the doors of the criminal justice system must be 
opened to victims--to make sure that they are meaningful participants, 
and not just spectators, in a system that has for too long kept them on 
the outside looking in.
  With a victims' constitutional amendment, we will be telling 
prosecutors and judges, loud and clear: victims must be respected and 
included. They have rights--constitutional rights--that must be taken 
into account during the entire case.
  I believe that the contradiction that many people see between the 
rights of defendants and the rights of victims is a false one. Our 
Constitution is not a zero-sum game. We do not diminish the rights of 
defendants by recognizing the rights of victims.
  That is why I cosponsored this amendment. This amendment will give 
the victims of crime a voice and a measure of dignity and respect in 
the criminal justice process.
  Mr. BINGAMAN. Mr. President, before I discuss my position on Senate 
Joint Resolution 3, the crime victims rights constitutional amendment, 
I would like to briefly talk about my views on amending the 
Constitution.
  A recent letter each of use received from our colleagues Senator Byrd 
 and Senator Leahy provides some of the history of our Constitution and 
efforts to amend it.
  They note that, since its ratification, over 11,000 amendments have 
been proposed to the Constitution. In the last month alone, the Senate 
has voted on three constitutional amendments. However, while thousands 
of amendments have been proposed, only 27 amendments have been adopted. 
Of those, the first 10, the Bill of Rights, were ratified in 1791. 
Therefore, since ratification some 200 years ago, we have generally 
heeded the caution of James Madison, one of the architects of the 
Constitution, that amendments to the Constitution should be reserved 
for ``certain great and extraordinary occasions''. In other words, 
amending the Constitution should not be done in response to what is 
politically popular at the moment or because of passions of the moment. 
If it was, I'm afraid many of those 11,000 amendments would now clutter 
our Constitution and undermine the very foundation of the freedoms and 
liberties it gives each of us.
  Mr. President, the victims of violent crime are a compelling group of 
Americans and deserve our supports and our attentions. Nothing is more 
devastating to a family than loosing a loved one through a senseless, 
random act of violence. Nothing is more devastating to a community than 
the kind of violence we see in our schools and on our streets almost 
daily. Yet it is only in the past few years, perhaps 15 or 20, that our 
laws and lawmakers have begun to focus on the group of people we now 
refer to as ``crime victims''.
  During those years, however, the states have not ignored the 
legitimate calls of crime victims and their families for more 
protection and more participation in the criminal justice process. 
Thirty-three states, including my own, have passed either crime victims 
rights amendments to their constitution or statutes intended to provide 
many of the same rights contained in S.J. Res. 3.
  In New Mexico, the voters passed a constitutional amendment in 1992 
that is very similar to S.J. Res. 3 and the legislature subsequently 
passed enabling legislation. This, I think is appropriate and I am glad 
that New Mexico recognizes the rights of crime victims to more fully 
participate in the criminal justice system. In fact, it is particularly 
appropriate that the states have acted in this area because the states 
are responsible for approximately 99 percent of the criminal 
prosecutions in this country.
  From many indications, these amendments and statutes have worked. Not 
perfectly perhaps, but they have at least begun to bring victims of 
violent crime into the judicial process in a meaningful way.
  Because New Mexico has acted to protect the rights of crime victims, 
district attorneys who I've spoken with often ask why we need to amend 
the United States Constitution when New Mexico has already addressed 
this issue? That, Mr. President, is an extremely important question to 
ask ourselves before we vote on S.J. Res. 3.
  Mr. President, the Constitution provides a process for amendment when 
``both Houses deem it necessary . . .'' Today I would argue that only 
when absolutely necessary or, in the words of Madison, for great and 
extraordinary occasions, should we vote to amend the Constitution. I 
would also argue that, where doubt exists as to the absolute necessity 
of the occasion, the Senate should defer on amending that document.
  While I support the participation of crime victims in our judicial 
process Mr. President, and support the efforts of New Mexico and other 
states to give those rights to crime victims, I simply do find the 
evidence of a great occasion or compelling need to amend the 
Constitution in the arguments made by the sponsors of the amendment and 
therefore will vote no on S.J. Res. 3.
  As others have pointed out, S.J. Res. 3 is almost as long as the 
entire Bill of Rights. It reads like a statute and not a constitutional 
amendment. This is significant and more than simply a matter of form. 
Part of the reason why our Constitution and republican form of 
government have survived largely intact for over 200 years while 
virtually every other in the world has undergone radical, revolutionary 
change is the wisdom of the drafters in setting out clear principles 
and a coherent system to ensure the liberties that the Constitution 
guarantees. However, as I read the amendment before us today, I do not 
see the clarity or the simplicity of principle that I see in the Bill 
of Rights or the other amendments we've adopted. Because this amendment 
lacks clarity, I am concerned about the litigation this amendment could 
potentially spawn and the additional costs to an already overburdened 
legal system. Litigation over who is a ``victim'' alone would likely 
fill volumes.
  Mr. President, one of the biggest concerns with this amendment is 
that, because of its vagueness, it will inevitably lead to a result 
which I think none of us, even the proponents, want, the diminishing of 
the rights of the accused.
  No where in the amendment does it guarantee that it will not be 
construed to interfere with the rights of the accused. I understand 
that an amendment was offered in the Judiciary Committee that would 
have made that clear but was rejected. That to me is very troubling 
because, as important as the rights of victims are, we absolutely have 
to keep in mind that the rights of the accused must be paramount. That 
is because it is the accused that stands to lose life and liberty at 
the hands of the government. This is a bedrock principle of our 
judicial system, without argument the best system in the world, and we 
must not diminish that principle even in the name of a good cause.
  Finally, Mr. President, I am concerned by the lack of case law to 
support the arguments of the proponents of S.J. Res. 3. As I understand 
it, the proponents are unable to point to any

[[Page 6062]]

cases in which victims' rights laws or State constitutional amendments 
were not given effect because of defendants' rights in the Federal 
Constitution. Nor, as the committee report noted, is there any case law 
where a defendant's conviction was reversed because of victims' rights 
legislation or a State constitutional amendment. Why then are we 
amending the Constitution when there is no body of law that justifies 
the extraordinary step of amending the U.S. Constitution? This is very 
different from the situation we were in a few weeks ago when the Senate 
voted on an amendment to the Constitution on the issue of the 
desecration of the flag on campaign finance limits. In both of those 
instances, at least we had a final determination by the Supreme Court 
with which we could take exception. Without such a body of law I do not 
find the arguments in favor of a Federal constitutional amendment 
compelling.
  Mr. President, I strongly support the right of victims of violent 
crime to be included in the criminal justice system in a meaningful 
way. I think it helps bring closure to the inured victims and provides 
an important balance to a system that admittedly has not always been 
sympathetic to the rights of victims. I would support additional 
funding and resources for victims rights programs and to properly train 
the judiciary in the need to be sensitive to the rights of crime 
victims. However, before we take the drastic and, for all intents and 
purposes, irreversible step of amending our Constitution for only the 
28th time in our history, I believe we must be absolutely certain that 
we have exhausted all other avenues. As the National Clearinghouse for 
the Defense of Battered Women argues:

       The Federal constitution is the wrong place to try to 
     ``fix'' the complex problems facing victims of crime, 
     statutory alternatives and state remedies are more suitable. 
     Our Nation's constitution should not be amended unless there 
     is compelling need to do so and there are no remedies 
     available at the state level. Instead of altering the U.S. 
     Constitution, we urge policy makers to consider statutory 
     alternatives and statewide initiatives that would include the 
     enforcement of already existing statutes, and practices that 
     can truly assist victims of crimes, as well as increased 
     direct services to victims.

  Mr. President, I believe we should give the states additional time to 
implement their victims rights amendments and statutes. Change occurs 
slowly, but I am convinced that real change for the victims of crime 
will be addressed more effectively by the states and that the federal 
government should not impose a one-size-fits-all, the federal 
government knows best, solution on the states. Additionally, if we 
determine that action at the federal level is absolutely necessary, I 
believe we should try to fashion a legislative solution before we amend 
the Constitution. I believe that we can do that and provide meaningful 
rights to victims of crime.
  If, failing that, we find that victims are still not being afforded 
reasonable and real participation in the criminal justice system, then 
perhaps only a constitutional amendment will work but I am not 
convinced that we have done all that we can do short of that.
  Mr. President, good intentions do not necessarily produce good 
results. The intentions of the supporters of S.J. Res. 3 are certainly 
good and just and I share those intentions, as well as their belief 
that we should be doing more for the victims of violent crime. However, 
I do not believe that this amendment will produce good results and may 
actually harm those it is intended to help and for that reason, I will 
vote against S.J. Res. 3.
  Mr. DASCHLE. Mr. President, I rise to recognize all the Senators who 
participated in this important and healthy debate. In particular, I 
thank Senator Leahy and Senator Byrd for their tireless defense of the 
Constitution.
  In addition, however, I also want to recognize Senator Feinstein for 
her commitment to victims of violence and for working to ensure that 
they are treated with fairness and decency and respect. While I 
strongly disagree with the approach the proponents of this amendment 
have taken, I completely agree with the sentiments they express. 
Victims should have a strong voice in our criminal justice system. 
Senator Feinstein has been committed to this cause for decades and I 
believe her passion has brought new focus to this important issue.
  Like many of us, I know what it is like when violence strikes your 
own family. I would not wish that pain on anyone. And I certainly do 
not want to see any victim's grief compounded by a needlessly callous 
or insensitive judicial system.
  The question we have been debating, however, is not whether victims 
should have a voice in the criminal justice process. The question 
before us is whether we must amend our nation's Constitution to achieve 
that goal. I believe the answer is ``no.''
  On September 17, 1789, as our new Constitution was about to be 
signed--after four long months of debate--Benjamin Franklin announced 
with typical irony: ``I consent, sir, to this Constitution because I 
expect no better, and because I am not sure it is not the best.''
  Two-hundred and 12 years later, Mr. President, the United States 
Constitution is still the best constitution this world has ever known. 
It is, in my opinion, nearly sacred. James Madison, who penned most of 
our Constitution, urged that it be amended only in--quote--``certain 
great and extraordinary occasions.''
  For 212 years, Americans have heeded his words of caution. As Senator 
Leahy and Senator Byrd remind us, our Constitution has been amended 
only 17 times since 1791, when the first 10 amendments--Our Bill of 
Rights--was added.
  More than 11,000 amendments have been offered during that time. But 
only 17 have actually been added to our Constitution. Because of the 
genius of the Framers, and the wise restraint of those who came after 
them, we have today a document that we can fit in our pockets . . . 
that we can understand . . . that we can refer to, and live by.
  This beautiful document contains fundamental, unifying principles 
that protect our individual liberties and guarantee our democratic 
rights. The amendment we have been considering--while clearly well-
intentioned--does not belong in this document.
  With all due respect to its authors, it is not a constitutional 
amendment. It does not describe universal and eternal truths about 
human nature, or set forth the broad working of government. It is a 
statute.
  Last month, we debated another Constitutional amendment--to make 
flag- burning a crime. During that debate, some members of this Senate 
said it was right to take that extraordinary step because Americans had 
died to defend our flag.
  Mr. President, this Constitution is why Americans have fought and 
died for more than 200 years--not to protect a flag, but to protect the 
principles enshrined in this document. As United States Senators, we 
take an oath to defend the Constitution. It is our most important 
obligation, our most sacred duty.
  There is no ``great and extraordinary occasion'' requiring us to 
adopt this Victims' Rights Amendment. This amendment is popular. But it 
is not necessary. Every state--every single state--has some type of 
statute that identifies and protects victims' rights. Thirty-two states 
have passed state constitutional amendments protecting victims' rights. 
Not one of those statutes has been overturned. Not one of these state 
constitutional amendments has been found to conflict with our federal 
Constitution.
  Amending--re-writing--our Constitution--is a remedy that ought to be 
tried only when we have exhausted every other possible means, and they 
have been found inadequate. When it comes to protecting victims' 
rights, there is much we can do, short of amending the Constitution.
  Indeed, in my home state of South Dakota, every single protection 
identified in this proposed amendment is guaranteed by state law. In 
South Dakota, victims are included in every stage of the criminal 
justice process. They have the right to be notified about every court 
proceeding involving their case. They are told in advance

[[Page 6063]]

about bond hearings, plea offers and sentencing hearings, and they have 
the opportunity to have their opinions heard on these matters.
  Crime victims in South Dakota are told about all of these rights, and 
offered help, if they need it, to exercise them. These state laws 
provide South Dakotans with wide-ranging and effective protections. 
They may not, however, be a blueprint for Massachusetts, or 
Mississippi, or California.
  There is another reason we should reject this amendment, Mr. 
President. Not only is it unwarranted. But also, ironically, this 
amendment could actually weaken victims' rights by making it harder for 
police and prosecutors to do their jobs. That is not simply my opinion.
  This is a letter from the Chief Justice of the South Dakota Supreme 
Court. ``Victims' rights will not be furthered by SJR 3--and may indeed 
be harmed--as past state efforts in this area run headlong into an 
ethereal national standard that is incapable of responding to the 
constantly changing circumstances of the justice system.''
  Here is another letter--this one from the State's Attorney and the 
Victim Witness Advocate representing my most heavily populated county. 
Quote--``While victims' rights are a very important issue, this 
amendment would make it difficult for us to do our jobs and make 
appropriate decisions regarding the prosecution of criminal cases.''
  Many of my fellow Senators have voiced similar concerns. Senator 
Thompson has said--quote--``This constitutional amendment will make the 
procedure by which the District Attorneys around the country are trying 
to prosecute defendants more complex, more costly, more time-consuming 
in many respects, and ultimately will harm [the goal] that the victim 
is the most interested in--seeing justice done and a guilty defendant 
found guilty by our court system.''
  The federal government should encourage states to set minimum 
standards for victims' rights. But we should not trample the principles 
that have served us so well for so many years. Under our system of 
government, police powers are reserved for the states. That is why 95 
percent of all crimes are prosecuted at the state and local level.
  Do we really believe it is time to re-write this fundamental division 
of responsibility? Do we really believe we need to supercede state and 
local police powers with a national standard? A standard that can only 
be enforced by an act of Congress? Wouldn't the wiser, more prudent 
course of action be to encourage or require states to devise and 
enforce their own victims' rights standards?
  In addition to the threat this amendment poses to our constitutional 
framework, I am also concerned it may erode the rights of the accused. 
I know full well that accused criminals are not a popular group. But 
the cornerstone of our justice system is the belief that we are all 
presumed innocent until proven guilty. If we undermine that basic 
principle in any way, we are all hurt.
  Our Bill of Rights reflects our framers' deeply held belief that the 
enormous power of the government to deprive persons of life, liberty 
and property in criminal prosecutions must be checked. Thus, the 
document I hold in my pocket protects us all from unreasonable searches 
. . . guarantees us all impartial juries, and protects us all against 
cruel and unusual punishments.
  When these rights are diminished for some, they are diminished for 
all. For that reason, they should not be compromised lightly--no matter 
how politically popular it might be to do so. What crime victims need 
is real hope, not paper promises. For that reason, I strongly support 
both the Leahy ``Crime Victim Assistance Act'' and the Biden ``Violence 
Against Women Act'' re-authorization. Let's pass these bills.
  Let's also look at making certain federal funds contingent on states' 
implementation of meaningful victims' rights at the state level. In 
fact, I declare today that I will work tirelessly with any member of 
this Senate who wishes to enact legislation to bolster the rights of 
victims. But let us stop treating our Constitution so cavalierly.
  I am deeply troubled by the increasing tendency of this Congress to 
turn to constitutional tinkering to solve problems, rather than taking 
up the hard job of legislating. This is the second constitutional 
amendment we have debated in this Senate in a month!
  In his final speech to the Constitutional Convention, just before the 
Constitution was signed, Benjamin Franklin said something that pertains 
here. After calling the Constitution very likely ``the best'' human 
beings could hope for, he told his fellow signers: ``I hope for our own 
sakes and for the sake of our posterity, we shall act heartily and 
unanimously in recommending this constitution and turn our future 
thoughts and endeavors to the means of having it well administered.''
  That is our real responsibility as members of this Senate--not to 
second-guess the genius of this document, not to alter and undermine it 
but to see that it is well administered. In that regard, we have much 
work to do. Let us do that work.
  Again, I say to the sponsors of this amendment, I am as committed as 
anyone in this body to working with you to strengthen victims' rights. 
Indeed, I would consider every option--even conditioning federal funds 
on state implementation of basic protections for victims. I cannot, 
however, and will not--as much as I respect the Senators from 
California and Arizona--amend our great Constitution unless absolutely 
necessary.
  By withdrawing their amendment, I believe the sponsors have acted 
responsibly, in Senatorial fashion. The Senate should be proud that one 
more time we have resisted the urge to tamper with the miracle created 
in Philadelphia in 1787--our Constitution.
  At this time, I ask unanimous consent that letters from United 
States, District Judge Lawrence Piersol, Chief Justice Robert Miller, 
State's Attorney Dave Nelson, Victim Witness Assistant Becky Hess and 
Marshal Lyle Swenson be inserted into the Record following my remarks.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                              U.S. District Court,


                                     District of South Dakota,

                                  Sioux Falls, SD, April 19, 2000.
     Hon. Tom Daschle,
     U.S. Senator, Hart Senate Office Building, Washington, DC.
       Dear Senator Daschle: I was surprised to learn that Senate 
     Joint Resolution 3 would be up on the calendar next week in 
     the Senate. I am very much opposed to this proposed 
     constitutional amendment. To begin with, I think it 
     diminishes our Constitution to attach to it what amounts to 
     legislation. That proposition is true not only of this 
     proposed constitutional amendment but also some other 
     amendments that have been promised but failed.
       I realize at first impression that the public might find 
     such a resolution attractive because the rights of victims of 
     crime have sometimes in the past not received the attention 
     that they should. I know from my day-to-day experience as the 
     Chief Judge for the District of South Dakota that victims' 
     rights are considered. I have had victims testify on various 
     occasions in my Court at the time of sentencing and I 
     regularly consider the views of victims both in their letters 
     as well as in comments that are made in the presentence 
     investigative reports as a result of the interviews of 
     victims by the presentence report writers. The writers of 
     those presentence reports are Court personnel and a part of 
     my staff. In addition, when restitution is paid, it is paid 
     first to the victims and then applies to other monetary 
     obligations that are paid to the government after the victim 
     has been monetarily compensated. I say ``monetarily 
     compensated'' because I recognize that in some instances 
     money alone cannot compensate a victim. In other instances, 
     in an attempt to compensate victims, I have had Defendants, 
     as a part of their sentence, write to victims and I have 
     reviewed the letters before they went to the victims so that 
     I could make sure that the letter was appropriate. As you 
     know, Congress has done much in recent years by legislation 
     to enhance the rights of crime victims. If Congress would 
     choose to do more it would do so by legislation.
       On the other hand, a constitutional provision as broad and 
     as sweeping as this one is, especially without limiting 
     definitions in the language, poses many problems. Once those 
     problems come to light upon implementation, the problems will 
     not be able to be solved because it would be a constitutional 
     amendment. On the other hand, when legislation is passed and 
     it turns out upon implementation that there are problems or 
     that

[[Page 6064]]

     the solution should be addressed in a different way, then the 
     legislation can be amended. After I have drafted this letter 
     to you, I received a copy of a letter to Senator Charles 
     Schumer from Judge William Wilkins, Chair of the Committee on 
     Criminal Law for the Judicial Conference of the United 
     States. I am attaching his letter because it considers in 
     detail various problems with the proposed amendment. In 
     addition, it does make some suggestions for its improvement 
     if it is to be passed.
       Legislation enhancing victims' rights can be passed now--
     the amendment process and then its implementation if passed 
     by the states will take more than seven years.
       Finally, from my point of view and experience as a trial 
     judge, and that experience includes 180 sentencings last 
     year, the amendment would prevent many guilty pleas in state 
     and federal court. With all of the additional criminal 
     trials, the courts would virtually be brought to a 
     standstill, affecting civil and criminal cases.
       I urge that victims' rights continue to be addressed by 
     Congress by legislation.
       Thank you for considering my views.
           Sincerely yours,
     Lawrence L. Piersol.
                                  ____

                                                    Supreme Court,


                                        State of South Dakota,

                                                   March 14, 2000.
     Hon. Thomas Daschle,
     U.S. Senate, Office of the Democratic Leader, Capitol 
         Building, Washington DC.
       Dear Senator Daschle: I want to thank you for taking time 
     from your busy schedule to meet with me on Thursday, March 2. 
     I truly appreciated the time I was able to spend with you and 
     your staff. I am also deeply thankful for your interest in 
     our juvenile intensive probation program (JIPP) and your 
     efforts to secure more funding for it. The JIPP program 
     clearly demonstrates that community corrections can work for 
     certain juveniles who would otherwise be committed to 
     expensive institutions.
       There is one other matter that I need to bring to your 
     attention. As you may know, the Senate has under 
     consideration Senate Joint Resolution 3 ``Proposing an 
     amendment to the Constitution of the United States to protect 
     the rights of crime victims.'' It is difficult, on principle, 
     to argue against SJR 3. We are all clearly concerned that 
     victims of crime receive proper treatment by the justice 
     system. It is senseless for the system to re-victimize the 
     victims of crime through inattention to their needs and 
     concerns. In South Dakota, for example, we have built our 
     probation programs around a restorative justice philosophy 
     that seeks to restore victims of crime while working with 
     offenders to reduce recidivism. Regardless of how we consider 
     crime in the hypothetical world of legal theory, crime 
     produces real victims whose needs must be addressed by the 
     justice system.
       The fact remains, however, that SJR 3 will not radically 
     change things for victims. Most if not all states in this 
     country have victim rights provisions. South Dakota law 
     provides a long list of victim rights, including the right to 
     restitution, notices of scheduled hearings and releases, an 
     explanation of the criminal charges and process, the 
     opportunity to present a written or oral victim impact 
     statement at trial, etc. There is little in SJR 3 that is not 
     already in place in most if not all states.
       On the other hand SJR 3 creates a national standard against 
     which every aspect of the state and federal criminal justice 
     systems will be measured, regardless of local efforts to 
     address crime victim needs. In essence, SJR 3 would produce 
     federal oversight of state court operations far beyond what 
     may be in the interests of victims. For example, Congress, 
     believing that unreasonable delays in court proceedings are 
     harming the interests of victims, could pass national 
     legislation imposing time processing standards that may be 
     completely inapplicable to the peculiar circumstances of 
     state and local courts. Victims who do not believe proper 
     notice is being provided could seek a federal court 
     injunction to compel or prohibit certain state court 
     practices.
       I cannot emphasize enough that the criminal justice system 
     in South Dakota is committed to restoring victims of crime. 
     We have not always done this as well as we should have, but 
     we have always had it as a focus of our efforts. We continue 
     to work on improving victim access to the court system while 
     maintaining our independence, neutrality and impartiality. It 
     is important for everyone to understand that our courts must 
     balance the interests of victims with the interests of the 
     accused, the interests of the state, and the constitutional 
     rights we all possess. This is a delicate and difficult 
     balance. I believe setting a single legal standard--as a 
     matter of our national constitution--is ill advised. it can 
     too easily be used in the future to upset this delicate 
     balance.
       I hope you will give very careful consideration to SJR 3 
     before casting your vote. Clearly our response to the needs 
     and interests of victims should be and must be improved. But 
     I believe those needs and interests are best addressed at the 
     state and local level through new programs and state laws 
     recognizing victim rights. Victims' rights will not be 
     furthered by SJR 3 and may indeed be harmed as past state 
     efforts in this area run headlong into an ethereal national 
     standard that is incapable of responding to the constantly 
     changing circumstances of the justice system.
           Most sincerely,
                                                 Robert A. Miller,
     Chief Justice.
                                  ____



                               Office of the State's Attorney,

                             Minnehaha County, SD, April 21, 2000.
     Re Victim's Rights Amendment.

     Senator Tom Daschle,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Daschle: As you ponder your vote on the 
     Victim's Rights Amendment, we would like to express our 
     concerns about a Constitutional Amendment of that nature 
     being passed. We would strongly urge you to vote against this 
     amendment.
       Under our law in South Dakota, the victims' are afforded 
     many, if not all, of the rights contained in the amendment. 
     We currently have victim/witness assistants in many of the 
     prosecutor's offices across the state and are actively 
     working with victims on a daily basis. Each morning, our 
     office contacts by phone, if possible, all victims of crimes 
     against persons from the evening or weekend prior. We make 
     our attorneys aware of the victims' wishes and concerns 
     regarding the cases prior to arraignment. Following 
     arraignment, victims are notified of the next phase of court 
     either by phone or by letter. As the case proceeds, victims 
     are advised of any plea offers or possible issues or concerns 
     the attorneys may have with the case and are kept appraised 
     of the ongoing procedures. Additionally, victims are invited 
     to attend bond hearings, motion bearings, plea hearings, 
     sentencing hearings and any other hearings relevant to the 
     case. Victims are also encouraged to write victim impact 
     statements or letters to the court regarding their thoughts 
     and feelings about how this crime has affected them or their 
     family. Victims are also invited to speak at sentencing 
     hearings regarding these same issues.
       In 1999, we averaged approximately 85-90 cases per month 
     involving crimes against persons. We attempted contact with 
     all of these except when the victim is transient and has no 
     phone or address of any kind. Of those cases, an average of 
     51 cases per month were domestic assaults. Our office has 
     adopted a `victimless' prosecution position in that the 
     victim does not need to be cooperative on a domestic case for 
     our office to prosecute. Due to the nature of domestic 
     violence, our concerns have been that the defendant has a 
     great deal of power over the victim and can often convince 
     the victim to be unavailable for court or to ask that we 
     dismiss the charges. While our victim's input is important, 
     we hesitate to allow it to become the driving force in the 
     prosecution of these cases. Our fear is that given the 
     influence of the defendant in domestic violence, we would be 
     doing defendant driven prosecution. Typically, our victims 
     report assault many more times than they actually agree that 
     prosecution is necessary or important. Consequently, our 
     ability to get convictions on domestic cases would be greatly 
     hindered if the victim were allowed to run the case or make 
     the final plea negotiation decisions. Our ability to 
     prosecute without the victim makes it possible to get 
     conditions on defendants and keep our victims and our 
     community safe.
       I have enclosed copies of the letters that are sent to all 
     victims of every crime against persons. While there may be an 
     occasional victim that we fail to locate, we make every 
     effort to find them whenever possible. Occasionally, a victim 
     may ask that we stop notifying them of the next phases of 
     court and we honor that request.
       Please consider these concerns and understand that while 
     victim's rights are a very important issue, this amendment 
     would make it difficult for us to do our jobs and make 
     appropriate decisions regarding the prosecution of criminal 
     cases.
           Sincerely,
     Becky Hess, LSW,
       Victim Witness Assistant.
     David R. Nelson,
       State's Attorney.
                                  ____

                                       U.S. Department of Justice,


                                        U.S. Marshals Service,

                         District of South Dakota, April 24, 2000.
     Re Senate Joint Resolution 3, Proposing an amendment to the 
         Constitution of the United States to protect the rights 
         of crime victims.
     Hon. Thomas Daschle,
     U.S. Senator, Office of the Democratic Leader, Capitol 
         Building, Washington, DC.
       Dear Senator Daschle: As you are well aware, prior to my 
     current position as the United States Marshal for the 
     District of South Dakota, I served as the elected Sheriff of 
     Davison County for 32 years where I dealt directly with 
     victims of crime on a day to day basis. That experience 
     created a great deal of empathy towards victims on my part 
     and caused me to wonder about our system of justice at times. 
     I do have very strong feelings of support for victims of 
     crime and wish to help them in anyway possible.
       That said, I strongly believe that amending the 
     Constitution is absolutely the wrong

[[Page 6065]]

     way to correct the problem and will accomplish nothing other 
     than a ``feel good'' attitude and cost the American taxpayers 
     endless dollars! We already have many laws to protect victims 
     so that all that is needed is enforcement by prosecutors and 
     the Courts to correct any problem areas. If it is found that 
     more laws are necessary to better protect them, pass those 
     laws as needed but setting a national standard for all states 
     to follow may cause many more legal problems in the future 
     than we can imagine today.
       In addition, consider the problems that will immediately 
     occur within all of our penal institutions, city and county 
     jails throughout the country. Many of the victims of crimes 
     are in those same institutions and/or are becoming victims 
     within those places. This amendment will bring on 
     transportation nightmares for those various institutions as 
     they try to get each prisoner to their necessary hearings 
     creating great cost problems and worse yet possible escape 
     situations.
       Having 40 years experience dealing directly with prisoners 
     at the county jail level to the state penitentiary, I know 
     that most every one of them will attempt to use the system if 
     for no other reason than it would be a chance to abuse and 
     misuse the system! As an administrator now charged with the 
     responsibility of transporting prisoners to courts, to and 
     from institutions, I believe the associated problems would be 
     endless besides being very expensive.
       I ask for your kind consideration in this matter and I 
     stand ready to work with you to ensure that all victims 
     rights are preserved and they are fairly represented in all 
     criminal proceedings. I believe that can be best accomplished 
     at the state and local level without tampering with the 
     Constitution.
           Sincerely,
                                                  Lyle W. Swenson,
                                            United States Marshal.

  Mr. DASCHLE. I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Stevens). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I read the committee report relative to 
this constitutional amendment from beginning to end. I did so because 
of the extraordinarily important issue which has been raised by 
Senators Kyl and Feinstein, and others: an effort on their part to 
provide some compassion and some relief to victims of crime. I have 
tremendous respect for their effort and those of their cosponsors.
  After reading the committee report and giving a lot of thought to 
this issue, I have decided to oppose the amendment for a number of 
reasons.
  First of all, we all start with the proposition that we want victims 
to have rights and Congress and the State legislatures should act to 
provide those rights. I do not think there is a lot of dispute about 
that issue. The question that is before us in this constitutional 
amendment is whether or not the way to achieve that goal is through an 
amendment to our basic document.
  I believe it is fundamentally wrong to amend the Constitution for a 
number of reasons. First, the desired goals can be achieved by statute. 
Every State has a constitutional amendment or a statute which protects 
victims' rights. I do not believe there is one statute or one 
constitutional amendment in any State protecting victims' rights that 
has been held to be unconstitutional.
  One of the complaints seems to be that State statutes and State 
constitutional provisions are not being enforced adequately. Take, for 
example, a story that Marlene Young, executive director of the National 
Organization for Victim Assistance, brought to the attention of the 
House Judiciary Committee Subcommittee on the Constitution in February. 
This is what she said:

       Just within the past 2 weeks, our office received a copy of 
     a letter published in the Sumter (Georgia) Free Press. It 
     reads in part: ``I write this letter as a victim, not only of 
     the person who violated me but as a victim of a system gone 
     bad. . . . I was sexually battered here in Sumter County. I 
     chose to press charges. Several days after the arrest and 
     release of the accused, I received a packet from the court 
     which included a list of my rights as defined by Georgia 
     State law. I should have received this information from (the 
     detective) the day I gave my statement. Georgia Law states 
     that the investigator will provide the victim with a copy of 
     Georgia Victims Bill of Rights in plain English upon initial 
     contact. . . . Victims are everywhere and we have the right 
     to be protected under Georgia Law. How many other victims are 
     there who don't know what their rights are because the 
     agencies are not working together? Lucky for me, to date, I 
     have not been further injured by the accused. Others in this 
     country may not be as lucky as I have been. It is time the 
     victims of crimes be treated with respect and the laws set 
     forth by the State of Georgia be followed. At what point are 
     the laws of this state important to the authorities?''

  So, the problem in that case, and in so many other cases, was not 
that the law in Georgia was incapable of protecting the victim; the 
problem was that the law was not carried out or enforced. Georgia has a 
State statute guaranteeing victims' rights, and the officials in Sumter 
County did not abide by that statute or implement it in her case. Is 
that a reason for a Federal constitutional amendment? Or is it, 
instead, a plea to the Georgia attorney general--who supports a 
constitutional victims' rights amendment, by the way, as is documented 
by his signature on a letter to us--to enforce the laws of his State? I 
argue that it is the latter.
  Then we have the extraordinary testimony of Professor Laurence Tribe. 
Professor Tribe starts out with the proposition that:

       The States and Congress, within their respective 
     jurisdictions, already have ample affirmative authority to 
     enact rules protecting these rights,

referring to the rights of victims.
  Then he says:

       The problem . . . is that such rules are likely, as 
     experience to date sadly shows, to provide too little real 
     protection whenever they come into conflict with bureaucratic 
     habit, traditional indifference, sheer inertia. . . .

  What Professor Tribe is saying is that it is justifiable to amend the 
Constitution of the United States because statutes that are on the 
books are not enforced. That argument not only falls short of Madison's 
test that there be a ``great and extraordinary'' need before the 
Constitution is amended, it does not even come close.
  It is particularly inappropriate to amend the Constitution when the 
interests sought to be protected are so complex and are still in 
formation. The question of who is a victim alone is a subject of much 
discussion.
  We have had tragic instances in recent history, in New York City and 
in Oklahoma City, where the bombings of buildings created literally 
hundreds of victims--the families of those who were killed and the 
survivors.
  Are all of them to be given the protection that is set forth in this 
constitutional amendment? What restrictions can be put on their rights 
by statute? What about persons making false claims against others, 
charging others with a crime? That person, an alleged victim, is given 
standing to argue against bond in order to keep the person he falsely 
accused in jail, without bond, awaiting a trial.
  We have had too many instances of false accusations, including one 
recent notorious story of a schoolteacher of 32 years, who taught not 
too far from here, and was falsely accused by his students of sexual 
harassment and sexual assault.
  The possibility for injustices of many varieties should be explored, 
as they are currently being explored in the 50 States, all of which 
have either statutes or constitutional amendments that provide various 
means of protection for victims.
  The pending amendment will be implemented by congressional enactment. 
Congress will be legislating for 50 State criminal court systems, which 
handle 95 percent of the criminal cases in this country. Far better for 
us to pass legislation that will strengthen victims' rights in Federal 
criminal cases, over which we have jurisdiction, and test the dozens of 
critical concepts which are involved in the effort to provide victims 
with rights, including: Who victims are? What is the impact on 
prosecutions? Is it negative, as some in law enforcement believe? Will 
there be undue delays caused by the meaning of the many issues that are 
open to litigation?
  The Conference of Chief Justices of the States of the United States 
wrote a very compelling letter, part of which reads as follows:


[[Page 6066]]

       . . . all states have some type of statutory guarantee for 
     the protection of victims' rights, most of which have been 
     enacted recently. At least 31 of the states also have 
     constitutional provisions and these enactments provide 
     victims with the opportunity to be heard at the various 
     stages of criminal litigation, particularly at the point of 
     sentencing and in respect to release on bail or on parole. 
     Most states are considering further constitutional changes. 
     If the sponsors of S.J. Res. 3 are searching for a single 
     settled law governing victims, the goal will not be achieved 
     through a Federal Constitutional Amendment. Preempting each 
     State's existing laws in favor of a broad Federal law will 
     create additional complexities and unpredictability for 
     litigation in both State and Federal courts for years to 
     come. We believe that the existing extensive state efforts 
     provide a significantly more prudent and flexible approach 
     for testing and refining the evolving legal concepts 
     concerning victims rights.

  When the chief justices of our State courts make such a compelling 
argument, it seems to me that this body--always sensitive to the fact 
that we live in a Federal system--should give it great attention.
  Supporters have argued in the report at one place that the reason for 
this constitutional amendment is to ``establish consistent, uniform 
rights'' for crime victims in this country. On the other hand, in the 
same report the sponsors talk about giving the 50 different States the 
authority to ``flesh out the countours of the amendment by providing 
definitions of victims' and crimes of violence.' '' They cannot have 
that argument both ways.
  The subject of trying to provide rights for victims in Federal 
criminal cases is ripe for Federal statute, but it is wrong--it is 
simply wrong--to treat the Constitution as though it were a statute 
book.
  This amendment does not meet the test of Federalist No. 49. This 
great document, written by James Madison, said that a constitutional 
amendment provision should be reserved ``for certain great and 
extraordinary occasions.''
  This is an occasion where the cause is surely important and great, 
but the cause may be achieved by statutory means. It is not appropriate 
to amend the Constitution for this occasion.
  As a student and as a young lawyer, I grew to revere the 
Constitution. As an American, I thank God for it every day. Amending 
this hallowed document should be done when a great interest cannot 
otherwise be protected and when it can be described simply and in 
transcendent language. The amendment before us does not meet that test.
  Mr. President, I yield the floor.
  Mr. KENNEDY. Mr. President, over the past few days, there has been a 
great deal of discussion on the rights of victims and the need for 
increased participation of victims in the criminal justice system. I 
believe that all of us support victims' rights, greater federal 
recognition of these rights. Clearly, they deserve enforceable rights 
that are guaranteed by law. But, just as clearly, these rights can be 
achieved without taking the extraordinary step of amending the 
Constitution of the United States.
  The Constitution is the foundation of our democracy, and it reflects 
the enduring principles of our country. The framers deliberately made 
it difficult to amend the Constitution, because it was never intended 
to be used for normal legislative purposes. Chief Justice Rehnquist 
captures the essence of why this proposed amendment is misguided, when 
he states that a statute, rather than a constitutional amendment, 
``would have the virtue of making any provisions in the bill which 
appeared mistaken by hindsight to be amended by a simple act of 
Congress.''
  The Constitution is not a billboard which to plaster amendments as if 
they were bumper sticker slogans. In this Congress alone, over a dozen 
constitutional amendments have been introduced. With every new proposed 
amendment of this kind, we undermine and trivialize the Constitution 
and threaten to weaken its enduring strength.
  One of the guiding principles that has served the nation well for two 
hundred years is that if it is not necessary to amend the Constitution, 
it is necessary not to amend it. We have amended the Constitution only 
17 times in the two centuries since the adoption of the Bill of Rights. 
We should consider such amendments only in rare instances, when the 
enactment of a statute is clearly inadequate.
  We do have a responsibility to act to assure victims of crime that 
their rights in the criminal justice system will not be ignored. But 
amending the Constitution is not the appropriate remedy, and the debate 
over such a remedy in recent years has, as a practical matter, delayed 
the implementation of basic protections that are needed and that should 
be accomplished by statute.
  For too long, our criminal justice system has neglected the hundreds 
of thousands of victims of crime whose lives are shattered by violence 
or threats of violence each year. I believe, along with every other 
member of the Senate, that the rights of victims deserve better from 
our criminal justice system.
  Another irony is worth emphasizing in this debate. Many of the 
Senators who support the rights of victims and feel so strongly about 
this constitutional amendment are the same Senators who refuse to allow 
federal action, even by statute, to protect victims of hate crimes. For 
the past two years, the Senate has failed to send hate crimes 
legislation to the President's desk for signature. I hope that this 
debate will at least have the beneficial affect of encouraging Congress 
to take action to protect victims of hate crimes. Their needs too can 
no longer be ignored.
  Too often, the legal system does not provide adequate relief for 
victims of crime. They are not given basic information about their 
case--such as the case status, scheduling changes of court proceedings, 
and notice of a defendant's arrest and bail status. Victims deserve to 
know about their case, They deserve to know about hearings and other 
proceedings. They deserve to know when their assailants are being 
considered for parole. And they certainly deserve to know when their 
attackers are released from prison.
  Victims of crime and their families deserve legislation that will 
guarantee their basic rights and provide urgently needed support. 
However, particular provisions in the proposed constitutional amendment 
are of grave concern. It is no surprise that victims' rights groups and 
domestic violence groups oppose the constitutional amendment for a very 
practical reason. If a victim of domestic violence acts in self-
defense, the batterer would be entitled to all of the constitutional 
rights created by S.J. Res. 3, including the right to attend court 
proceedings and the right to be heard.
  Clearly, we can deal with this problem by statute, and I urge the 
Senate to do so. I would welcome the opportunity to work with my 
colleagues to enact bipartisan legislation to accomplish the goal we 
share of genuine protections for victims' rights.
  Finally, I commend all of my colleagues who have so eloquently 
defended the Constitution and opposed this misguided amendment, 
especially Senator Byrd and Senator Leahy. They have given Congress and 
the country an excellent lesson in the role of the Constitution in 
protecting our liberties. Rarely has there been a better example of 
Senators living up to our oath of office ``to support and defend the 
Constitution.''
  When we began this debate earlier this seek, the conventional wisdom 
was that the proposed constitutional amendment was within a vote or two 
in the Senate of obtaining the two-thirds majority needed for passage. 
The debate has so clearly demonstrated the fundamental flaws of this 
amendment that the amendment is likely to be withdrawn. It is a proud 
moment for the Senate, and I believe the founders who wrote the 
Constitution would be proud of us too.
  Mr. LEAHY. Mr. President, I do not want to conclude this debate 
without, again, acknowledging the commitment to crime victims of the 
Senator from Arizona and the Senator from California. I know that they 
are sincere in their support for crime victims. I compliment them as 
well for the manner in which they have conducted themselves throughout 
this debate and throughout

[[Page 6067]]

the Judiciary Committee's work on this matter. I view them not as 
opponents but as allies in our mutual efforts to assist crime victims.
  I also want to acknowledge the extraordinary efforts of the senior 
Senator from West Virginia and the thoughtful guidance of the 
Democratic Leader. Senators Dorgan, Durbin, Schumer, Dodd, Moynihan, 
Feingold, Murray, Thompson, Wellstone, Levin, and Bingaman each 
contributed greatly to the debate.
  I thank Senators from both sides of the aisle--Senators who supported 
preserving the Constitution and those who supported the proposed 
constitutional amendment. I commend the Senate for doing its duty and 
upholding the Constitution and Bill of Rights.
  I would also like to thank Rachel King and her colleagues at the 
ACLU; Sue Osthoff, Director of the National Clearinghouse for the 
Defense of Battered Women; John Albert, Public Policy Director of 
Victims Services; Donna Edwards, Director of the National Network to 
End Domestic Violence; Renny Cushing, Director of Murder Victims' 
Families for Reconciliation; Arwen Bird; Scott Wallace; Beth Wilkinson; 
Emmet Welch; and Professor Lynne Henderson. As always, I thank my 
staff, as well as the hard-working staff of our distinguished 
Democratic Leader.
  Finally, my special thanks to Professor Robert Mosteller of the Duke 
Law School, who has given so generously of his time, over many years, 
to many of us on the Judiciary Committee and in the Senate. Professor 
Mosteller is a leading scholar in this field, and his expertise and 
counsel have been invaluable.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, first, I compliment the wonderful 
statement by the Senator from Michigan in opposition to this amendment. 
On all issues I appreciate his knowledge and his understanding, and 
particularly his extremely clear way of presenting his views on this 
very important issue.
  Mr. LEVIN. I thank my friend.

                          ____________________