[Congressional Record (Bound Edition), Volume 150 (2004), Part 6]
[Senate]
[Pages 7294-7315]
[From the U.S. Government Publishing Office, www.gpo.gov]




  SCOTT CAMPBELL, STEPHANIE ROPER, WENDY PRESTON, LOUARNA GILLIS, AND 
                  NILA LYNN CRIME VICTIMS' RIGHTS ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of S. 2329, which the clerk will report.
  The bill clerk read as follows:

       A bill (S. 2329) to protect crime victims' rights.

  The PRESIDING OFFICER. Under the previous order, each of the 
following Senators control 30 minutes: Senators Kyl, Hatch, Leahy, and 
Feinstein.
  The Senator from California is recognized.
  Mr. REID. Will the Senator yield for a parliamentary inquiry?
  Mrs. FEINSTEIN. Absolutely.
  Mr. REID. Following the use or yielding back of the time, the Chair 
just announced we will vote on this measure; is that true?
  The PRESIDING OFFICER. That is correct.
  Mrs. FEINSTEIN. Mr. President, 8 years ago the Senator from Arizona 
asked me if I would join with him in a pursuit to give victims basic 
rights under the Constitution of the United States. It was something I 
knew a little bit about and I was delighted to do it. What I didn't 
know a lot about was the drafting of a constitutional amendment and how 
difficult it was. The next 8 years actually proved to be one of the 
most rewarding times of my Senate experience.
  First, I thank the Senator from Arizona for his collegiality, for the 
ease with which we have been able to work together, and for his 
leadership on this issue, which has been absolutely 100 percent 
unrelenting.
  In a time of increasing partisan separation in this body, the 
friendship, the collegiality, and the leadership has been so 
appreciated by me. It has been one of the bright spots in my Senate 
career. I want him to know how much I appreciate it.
  I also thank victims, about 30 or 40 of whom are present in the 
gallery. These are victims who have had terrible things happen to them, 
but rather than sink back into the depths of despair, have decided they 
would fight for something so that anyone who had similar things happen 
to them could have a part in the criminal justice system. Particularly, 
I would like to acknowledge a few of those victims.
  The first is Colleen Campbell. Colleen Campbell has lost two members 
of her family as a product of murder. Senator Kyl, in his remarks, will 
make that clear. She has become an ardent supporter of our efforts, and 
a small pin that Senator Kyl and I are wearing today is the pin which 
represents a group called ``Force 100.'' These are victims who have 
been asking Congress to take this action. The pin depicts an angel 
holding a checkered flag. Her brother, Mickey Thompson, who was 
murdered, was a race car driver, and therefore the checkered flag. Her 
son, Scott Campbell, was also murdered. Colleen, a brilliant leader and 
a wonderful woman, has lost two members of her family--her son and her 
brother--to murder.
  The other was Roberta Roper. Roberta is one of the first people I 
met. She hails from Maryland. Again, Senator Kyl will say more about 
the circumstances of that crime.
  The third is Steve Twist, who has represented the victims with 
integrity and steadfastness over these past 8 years, to try to get for 
them as much as could be possible in the recognition of their rights.

[[Page 7295]]

  Essentially, bottom line, what we have found after numerous Judiciary 
Committee subcommittee hearings, committee hearings, markups, putting 
the victims' rights constitutional amendment out on the Senate floor in 
a prior session, taking it down because we didn't have the votes, 
beginning anew in this session, going through the processes in 
committee, and recognizing that we didn't have the 67 votes necessary 
for a constitutional amendment--both Senator Kyl and I, as well as the 
victims and their advocates, decided that we should compromise. There 
are Members of this body who very much want a statute. There are 
Members of this body who very much want a constitutional amendment. We 
have drafted a statute which we believe is broad and encompassing, 
which provides enforcement rights for victims, provides funding for the 
Department of Justice victims' rights programs, for legal clinics, for 
enforcement to carry out this law federally and also to spread the word 
to local and State jurisdictions to enact similar laws.
  We basically provide a set of eight rights:
  The right to be reasonably protected from the accused; the right to 
reasonable, accurate, and timely notice of public proceedings so that 
you know what is happening as well as notice if the accused is released 
or escapes from custody--
  I can't tell you how many victims who may have testified against 
their assailant live in dread of the fact that an assailant will be 
released, they won't know it, they won't be able to protect themselves, 
and the assailant will come after them. That is not theory. It has 
happened over and over again. There are cases of that, with which I am 
intimately, unfortunately, knowledgeable--
  The right to be present at public proceedings, not to be barred from 
a court hearing, not to be barred by a public proceeding involving a 
plea agreement;
  The right to be reasonably heard at critical steps in the process, 
those involving release, plea, or sentencing; the right to confer with 
the prosecutor;
  The right to full and timely restitution, as provided by law;
  The right to proceedings free from unreasonable delay;
  And the right to be treated with fairness and with respect for the 
victim's dignity and privacy.
  At one time the system of criminal justice in the United States of 
America provided these rights. Victims had rights until about the mid-
19th century, the 1850s, when the concept of the public prosecutor was 
developed in our Nation. Up to that time, victims brought cases. 
Victims hired lawyers. Victims even hired sheriffs to prosecute cases. 
That changed in the mid-19th century, and in that change the victim 
became left out of the process.
  Nowhere was the need for this legislation made more clear than during 
the trials over the Oklahoma City bombing.
  Because we got involved, the Senate and the House, because victims 
were not being given the rights afforded to them by prior legislation, 
victims then went to a district court of appeals and victims were then 
subsequently still told that they had no standing.
  A brief account of the trial in the Oklahoma City bombing case 
illustrates this point:
  During pre-trial conference in the case against Timothy McVeigh, the 
District Court issued a ruling to preclude any victim who wished to 
provide victim impact testimony at sentencing from observing any 
proceeding in the case.
  In a hearing to reconsider the issue of excluding victim witnesses, 
the trial court denied the victims' motion asserting standing to 
present their claims and denied the motion for reconsideration.
  Three months later in February 1997, the Tenth Circuit Court of 
Appeals, rejected, without oral argument, the victims' claims on 
jurisdictional grounds finding they had no ``legally protected 
interest'' to be present at the trial and had suffered no ``injury in 
fact.''
  Congress reacted the next month by overwhelmingly passing the 
Victims' Rights Clarification Act of 1997, which provided that watching 
a trial does not constitute grounds for denying the chance to provide a 
victim impact statement at sentencing. President Clinton signed the 
bill into law on March 20, 1997.
  When the victims filed a motion with the District Court seeking a 
hearing to assert their rights under the new law, the District Court 
concluded ``any motions raising constitutional questions about this 
legislation would be premature and would present issues that are not 
now ripe for decision.''
  The court then entered a new order on victim-impact witness 
sequestration, and refused to grant the victims a hearing on the 
application of the new law, stating that its ruling rendered the 
request ``moot.''
  I believe the result would be different if the bill we are 
considering today was law then. The victims and the families would have 
had standing, and would have been able to avail themselves of the 
mandamus proceeding to get a timely ruling on the merits from the Court 
of Appeals. Perhaps that would not have been necessary--the District 
Court judge, armed with the standing provision of this bill, perhaps 
would have reached a different result during the trial.
  We have written a bill that we believe is broad. We have written a 
bill that provides an enforcement remedy; namely, the writ of mandamus.
  This part of the bill is what makes this legislation so important, 
and different from earlier legislation: It provides mechanisms to 
enforce the set of rights provided to victims of crime.
  These mechanisms fall into four categories:
  A direction to our courts that they ``shall ensure that the crime 
victim is afforded the rights described in the law.''
  A direction to the Attorney General of the United States to take 
steps to ensure that our Federal prosecutors ``make their best 
efforts'' to see that crime victims are aware of, and can exercise 
these rights.
  A specific statement that the victim of a crime, or their 
representative, may assert these rights; the result is that, for the 
first time victims will have clear standing to ask our courts to 
enforce their rights.
  And a new use of a very old procedure, the writ of mandamus. This 
provision will establish a procedure where a crime victim can, in 
essence, immediately appeal a denial of their rights by a trial court 
to the court of appeals, which must rule ``forthwith.'' Simply put, the 
mandamus procedure allows an appellate court to take timely action to 
ensure that the trial court follows the rule of law set out in this 
statute.
  These procedures, taken together, will ensure that the rights defined 
in the first section are not simply words on paper, but are meaningful 
and functional.
  The bill also has two separate resource provisions, which together 
will authorize the appropriation of $76 million over the next five 
years to ensure that the federal government assist crime victims in 
asserting these rights, and to encourage states to do the same: The 
bill authorizes a total of $51 million over five years for crime victim 
assistance grants administered by the Department of Justice to 
establish and maintain legal assistance programs throughout the nation.
  These institutions are key to the success of this legislation, for 
this is how victims' rights will be really asserted and defended--by 
lawyers, standing up in court, and explaining to judges and prosecutors 
what the law means, and how it applies in the case at hand. Rights and 
remedies need articulation to work, and this money will help make that 
happen.
  These grants, championed by my colleague Senator Leahy, provide a 
total of $25 million over five years for a specific, and critical, 
purpose: to ``develop and implement'' the type of notification systems 
that take full advantage of modern technology.
  Computers, linked to sophisticated telephone or automatic mailing 
systems, can help us ensure that the right to notice, set out in the 
first section of this bill, is not simply abstract, but is made real by 
a notification system that can provide ``accurate, and timely'' notice 
to victims' of crime and their families.

[[Page 7296]]

  This act, of course, binds only the federal system, but is designed 
to affect the states also. First it is hoped that states will look to 
this law as a model and incorporate it into their own systems. This law 
encourages that by allowing both types of grants--legal assistance and 
victim notification--to be provided to state entities, and for use in 
state systems, where the state has in place ``laws substantially 
equivalent'' to this act.
  Never before have these three critical components, rights, remedies 
and resources, been brought together. It has been said ``a right 
without a remedy is no right at all,'' and this law would couple 
victims' rights with victims' remedies in a way that has never been 
done before in the federal system. I believe that taken together we 
have a formula for success, and this law will work, and hopefully 
become the model for our States.
  So why is the law needed?
  Senator Kyl and I have been working on this issue for the past 8 
years. We offer this legislation because the scales of justice are out 
of balance--while criminal defendants have an array of rights under 
law, crime victims have few meaningful rights.
  In case after case we found victims, and their families, were 
ignored, cast aside, and treated as non-participants in a critical 
event in their lives. They were kept in the dark by prosecutors to busy 
to care enough, by judges focused on defendant's rights, and by a court 
system that simply did not have a place for them.
  The result was terrible--often the experience of the criminal justice 
system left crime victims and their families victimized yet again.
  Let me be clear. I am not talking about the necessary emotional and 
psychological difficulties which are almost inevitable in our adversary 
system. Cross examination can be hard. The legal system sometimes must 
seem complex and irrational to those who do not work in it. Sometimes 
judges and juries make decisions that victims of crime do not like. But 
that is not the problem that this law addresses.
  That problem is one of process and fairness. The rights I have spoken 
about are basic, and do not come at the expense of defendant's rights.
  Boiled down, they involve the simple right to know what is going on, 
to participate in the process where the information that victim's and 
their families can provide may be material and relevant, and the right 
to be safe from violence.
  I mentioned earlier the dramatic disparity between the rights of 
defendants in our constitution and laws, and the rights of crime 
victims and their families. My point is to illustrate that our 
government, and our criminal justice system, can and should care about 
both the rights of accused and the rights of victims. That is what this 
law addresses.
  Some have said that current law is adequate. For instance, the Victim 
of Crime Act of 1984 sets out rights for victims--in fact the bill 
before us restates many of those rights. But prior laws did not have 
the critical combination of rights and remedies that we now offer.
  In fact, a number of victims' rights laws have been passed:
  1982, the Victim and Witness Protection Act, mentioned before, which 
provided for victim restitution and the use of victim impact statements 
at sentencing in federal cases;
  1984, the Victims of Crime Act, which encouraged the States to 
maintain programs that serve victims of crime, and established a Crime 
Victims' Fund, which now matches up to 60 percent of the money paid by 
States for victim compensation awards;
  1990, the Victims' Rights and Restitution Act, which increased 
funding for victim compensation and assistance, and codified a victims' 
Bill of Rights in the federal justice system;
  1994, the Violence Against Women Act, which authorized over $1.6 
billion over six years to assist victims of violence and prevent 
violence against women and children;
  1996, the Mandatory Victims Restitution Act, which required courts to 
order restitution when sentencing defendants for certain offenses;
  1996, the Justice for Victims of Terrorism Act, which appropriated 
funds to assist and compensate victims of terrorism and mass violence;
  And 1997, the Victim Rights Clarification Act, which reversed a 
presumption against crime victims observing any part of the trial 
proceedings if they were likely to testify during the sentencing 
hearing, an issue which developed during the Oklahoma City bombing 
case. Specifically, this legislation prohibited courts from (1) 
excluding a victim from the trial on the ground that he or she might be 
called to provide a victim impact statement at sentencing, and (2) 
excluding a victim impact statement on the ground that the victim had 
observed the trial.
  All of these laws represent a step in the right direction. But they 
are not enough. They don't really work to protect victims' many had 
hoped. Why is this? I believe it because they fail to provide an 
effective procedure for victims to assert standing and vindicate their 
rights. The bill before us builds on these earlier attempts, and goes 
one very important step farther--linking rights to remedies, and, I 
hope, fixing the problem with these earlier laws.
  Some have asked--why proceed with a statute, rather than a 
Consitutional amendment? Why a law and not a constitutional amendment?
  Senator Kyl and I have been working for many years towards a 
constitutional amendment to establish these rights. I have always 
believed that amending the Constitution is the best way to ensure 
victims' rights are protected in the criminal justice process. But many 
have disagreed, arguing that we should try, once again, a legislative 
approach.
  It is clear to me that passage of a Constitutional amendment is 
impossible at this time. If we tried, and failed, it could be years 
before we could try again. Victims of crime have waited years for 
progress, and a compromise approach, resulting in the bill now under 
consideration, will result in meaningful progress.
  Will it work? I hope so. The bill before us is a new and bolder 
approach, than has ever been tried before in our Federal system.
  The standing provision, coupled with the mandamus provision, may have 
the desired effect. This will be a test, and I, for one, will be 
watching it closely.
  I think for both Senator Kyl, and now for Senator Hatch, the 
distinguished chairman of the Judiciary Committee, and Senator Leahy, 
the distinguished ranking member, who join us as major cosponsors of 
this bill, that we will follow this bill carefully and we will see 
whether the enforcement rights contained in this bill are adequate. If 
not, you can be sure as the Sun will rise tomorrow, we will be back 
with a constitutional amendment.
  This bill is named after some of the victims. Both Senator Kyl and I 
briefly want to state the story of the victims after whom the bill is 
named. I would like to tell the Senate a little bit about Louarna 
Gillis, who was 22 years old when she was slain on January 17, 1979, as 
part of a gang initiation. Her murderer wanted to enter the world of 
narcotics as part of the Mexican Mafia and was told the quickest way to 
do so was to murder the daughter of a Los Angeles Police Department 
officer. Can you believe it? It is true.
  Louarna Gillis was targeted by the killer. He knew her in high 
school. That was the reason he targeted her. The murderer picked her up 
a few blocks from her home, drove her to an alley in East Los Angeles 
where he shot her in the head as she sat in the car. He pushed her into 
the alley and fired additional shots into her back.
  Louarna's murderer was apprehended 6 months later. He had a long 
history of violence, including felony convictions.
  Louarna's family was not notified of the arraignment, nor were they 
notified of other critical proceedings in this case. Her family's 
rights were largely ignored. The first trial resulted in a hung jury, 
11 for first-degree murder, 1 not guilty. Louarna's father, John 
Gillis, was not allowed in the courtroom.
  At the second trial, the murderer pled guilty to second-degree murder 
to

[[Page 7297]]

avoid the death penalty. He was sentenced to 17 years to life. Parole 
for Louarna's murderer has successfully been blocked by her family to 
this day. He will be eligible for parole again in the next 6 to 8 
months. Louarna's father, a former homicide detective with LAPD, had 
just left an intelligence assignment working against street gangs and 
the Mexican Mafia at the time of her murder. Can you imagine?
  Mr. Gillis was later appointed by President George W. Bush as the 
Director of the Justice Department's Office for Victims of Crime. He 
testified before Congress on July 17, 2002. I said:

       I know firsthand the personal, financial, and emotional 
     devastation that violent crime exacts on its victims. As a 
     survivor of a homicide victim, I testify . . . with the 
     unique advantage of understanding the plight that victims and 
     their families face in the criminal justice system . . . When 
     a person is victimized by crime, he or she is thrust into a 
     whole new world in which the State's or the government's 
     needs take priority.
       This is the most devastating time in a person's life, when 
     they have lost a loved one to homicide or violent crime; they 
     need protection.
       They need to let the court know how this crime has impacted 
     their lives, because it will have a long-lasting, traumatic 
     impact in their lives. It's important that they have the 
     opportunity to say something to defend their loved one.

  This terrible story took place in my home State of California. This 
bill will help fathers like Mr. Gillis: he would be notified of key 
proceedings, and be able to participate in a meaningful way.
  I would like to tell you about Nila Ruth Lynn. Here is her picture. 
She was 69 years old. She was murdered at a homeowners association 
meeting on April 19, 2000, when an angry man stormed into the meeting 
and announced: ``I'm going to kill you.''
  He was unhappy with the way the association had trimmed the bushes in 
his yard the previous month. Nila and another woman were killed and 
several other men were injured during the rampage. She died on the 
floor in the arms of her husband Duane. They had been married 49 years 
and 9 months. Nila left behind Duane and six children. The money the 
children had been saving for a 50th wedding anniversary gift was 
instead used to pay for her casket.
  Duane Lynn suffered through long delays and continuances in this 
case. Despite clear State constitutional and statutory rights, Duane 
was not allowed to make a sentencing recommendation for his wife's 
murderer. Nila's killer was sentenced to death. Duane wanted the 
defendant to be sentenced to life imprisonment without the possibility 
of parole, rather than deal with the continuing appeals involving the 
death sentence.
  The U.S. Supreme Court has denied its petition for a review of the 
Arizona Supreme Court's refusal to protect the right. He testified 
before the Senate Judiciary Committee on April 8. Here is what he said:

       We, as a family of the victim, which was my wife, my love, 
     the person I still expect to walk through my front door every 
     day--she was a real person, not just a name and a number on a 
     document. We could say nothing about the consequences of that 
     man who took all this away from me. You have no idea what 
     this feels like. The evil done by a murderer inflicts 
     tragedy, and that is bad enough. But injuries inflicted by 
     our legal system are even harder to take. I felt kicked 
     around and ignored by the very system the government has in 
     place to protect law-abiding citizens.

  This is not the way criminal justice should be practiced in the 
United States of America. The time has come to give victims of crime 
the right to participate in the system, the right to notice of a public 
hearing, the right to be present at that public proceeding, the right 
to make a statement when appropriate, the right to have restitution, if 
ordered by a judge, the right to know when your assailant or attacker 
is released from prison, and the right to be treated by our prosecutors 
and by our criminal justice system with respect and dignity. That is 
not too much for the Congress of the United States to strive 
energetically to achieve for the 22 million victims in this country.
  It is with great pleasure that over the years I have worked with 
Senator Kyl to achieve this. Once again, I cannot thank him too much.
  I thank the Chair. I yield the remainder of my time to the 
distinguished Senator from Arizona.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Arizona.
  Mr. KYL. Madam President, it isn't always possible for us to schedule 
matters in the Senate in a convenient way. I am aware Senator Feinstein 
must leave to attend another meeting. It is my hope she will able to be 
here before we vote.
  While she is still here, I must say I share her sentiment that some 
of the most gratifying work I have done in the Senate has been my work 
with Senator Feinstein and her good staff in putting together a 
constitutional amendment and working hard to try to get it passed and 
preparing for the hearings--speaking with the victims, meeting with the 
Justice Department--literally hundreds of hours of time we have spent 
together working on this issue. It has helped to foster a bond of trust 
and friendship between us that I think could be used as a template for 
our colleagues in this body to work together in a bipartisan way.
  I can never thank Senator Feinstein enough for her work on this 
amendment. I know the many victims who are here in the gallery share 
that sentiment.
  This legislation would not be before us today without Senator 
Feinstein. That is simply a fact. For all of the hard work we have put 
in with her cooperation and her commitment to this, I thank Senator 
Feinstein deeply. She knows that bond of trust will continue to exist 
between us.
  Mrs. FEINSTEIN. Madam President, I thank the Senator. I do appreciate 
those words. They mean a great deal to me.
  If I might, I ask unanimous consent to add the Senator from Maryland, 
Senator Mikulski, as a cosponsor of the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Madam President, I would like to retain the remainder 
of my time.
  Mr. KYL. Madam President, I ask unanimous consent that Senators 
Nickles and Inhofe be added as original cosponsors of the legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Madam President, I join Senator Feinstein in supporting S. 
2329, which is the statutory version of the constitutional amendment we 
have prepared and about which Senator Feinstein has spoken.
  The legislation, as I will describe in a moment, will attempt to 
accomplish as much as possible the same goals the constitutional 
amendment which has been pending before us would have accomplished.
  But before I discuss the details of that, there are several people I 
would like to thank. In addition to Senator Feinstein--again it is 
impossible to express my appreciation enough for all of the hard work 
she put into this effort. We simply couldn't be here, because in order 
to get things passed in the Senate it is critical there be a bipartisan 
consensus, especially so for something that requires a supermajority. 
Without Democrats and Republicans working together, we would have never 
gotten to this point. Certainly Senator Feinstein was largely 
responsible for the work on the Democratic side of the aisle.
  I appreciate all of my colleagues' understanding and support on this 
as well.
  Senator Frist, who is willing to trust us in scheduling this for time 
on the floor--and there is very little time to take up matters, as the 
Presiding Officer knows--understood this was a very important 
commitment we had made to the victims of crime. During Crime Victims' 
Rights Month was the time to try to accomplish this. I appreciate his 
support.
  I appreciate the support of Senator Hatch who throughout the years 
has never stood in the way but always lent us a hand in setting up a 
hearing and getting a time and a room for markup on the constitutional 
amendment and supporting its passage.
  Again, it is not easy to get a constitutional amendment through even

[[Page 7298]]

the Judiciary Committee, let alone to get it adopted. But Senator Hatch 
was supportive of that effort. I very much appreciate his cosponsorship 
of the statutory version of this amendment, as well as the support of 
Senator Leahy.
  I think I would be remiss if I didn't make the point that the first 
cosponsors of this legislation were Senator Feinstein, myself, and 
Senators Hatch and Leahy, chairman and ranking member of the Judiciary 
Committee.
  Obviously this legislation has very strong support. We anticipate it 
will pass overwhelmingly and will be quickly sent to the House for 
action there, and hopefully to the President, who I am confident will 
be supportive of it and will sign it.
  Let me at this point thank some of the victims' rights organizations. 
Again, they were responsible for bringing the issue to our attention 
and for providing a lot of the information we needed to be able to make 
the cases and for, frankly, the moral support to keep going. When 
Senator Feinstein and I would get discouraged, after meeting with 
victims' rights groups we were no longer discouraged; we were even more 
committed to pursue this head on. Some of them are headed by remarkable 
people. There is a whole page of groups I will thank.
  Specifically, I thank Mothers Against Drunk Driving, the National 
Organization for Victim Assistance, Parents of Murdered Children, and 
Force 100, and especially Colleen Campbell for her leadership of Force 
100. Senator Feinstein has already spoken of Colleen Campbell, and this 
pin in memory of Mickey Thompson speaks volumes about her leadership of 
this effort.
  The fact this is Crime Victims' Rights Month and week I think is 
important. President Reagan actually had the first recognition of crime 
victims in a week that was designated for that purpose.
  I think it is important at this time we especially recognize the 
victims of crime all over America; that with this year's memorial of 
victims' rights, America's values will be vindicated to some extent 
with the passage of this legislation.
  It is especially poignant we would be waiting at this time to 
recognize these rights of victims of crime. Indeed, it is right to take 
up this issue. The right to fairness for crime victims and the right to 
notice and presence and participation are deeply rooted concepts in the 
United States of America. This country is all about fair play and 
giving power to the powerless in our society. It is about recognizing 
the values of liberty of the individuals against encroachments of the 
Government.
  Fair play for crime victims, meaningful participation of crime 
victims in the justice system, protection against a government that 
would take from a crime victim the dignity of due process--these are 
consistent with the most basic values of due process in our society.
  I was involved in Arizona issues for victims of crime even before I 
ever ran for the U.S. House of Representatives, so this was to some 
extent a cause for me before I became a public official. It was after I 
became a public official and people really came to me with these 
stories that I realized I had an opportunity to do more than the things 
I had done before. I have come to see the need for these protections as 
critical for our country.
  While engaged in all of the other important activities, at bottom, it 
is a country about individuals who have inherent rights recognized and 
given to us by God. That is the basis for the creation of this country. 
Human dignity and the right that all people are made in God's image is 
such an important part of the foundation of our country that we would 
be remiss if we did not recognize that concept, that value, especially 
for those who have been victimized in our society because we could not 
as a government provide adequate protection for them.
  I came to realize in many cases these victims were being victimized a 
second time because while we were asking them sometimes to come into 
court and testify against the perpetrators of the crime so they could 
be incarcerated or dealt with in an appropriate way for the further 
protection of society, we were not helping these victims at all. They 
were suffering through the trauma of the victimization and then being 
thrown into a system which they did not understand, which nobody was 
helping them with, and which literally prevented them from 
participation in any meaningful way. I came to realize there were 
literally millions of people out there being denied these basic rights, 
being victimized by our criminal justice system.
  Let me mention two circumstances, but we will discuss all of the 
rights in a moment. The one circumstance that seemed to be the most 
frequent is: My mother was murdered, my daughter was murdered--whatever 
the situation--and I could not attend the trial. That is what our 
system says today.
  While there are statutes in States and even some State constitutional 
provisions that purportedly guarantee a victim will not be denied 
access to the courtroom, it is still the case today that the victims, 
the victims' families, cannot even go into the courtroom. The defendant 
is there, the defendant's family is there seated in a reserved row 
seats, but the victim and the victim's family cannot be present. That 
is fundamentally wrong. We are not talking even about them saying 
anything. Obviously, everyone in the courtroom has to behave. The judge 
can throw anybody out if they do not behave or if they express emotions 
or try to communicate with the jury. That is not the issue.
  They could not attend sometimes because the defendant's lawyer would 
say: It would be prejudicial to my client if the victims are seen in 
the courtroom. This was one of the circumstances that I could not 
believe our criminal justice system was imposing. It is one of those 
things that is fixed in this statute.
  The other circumstance--and there is an especially telling, emotional 
case in Arizona I became familiar with which induced me to pursue this 
with all the vigor I could--is the circumstance where a crime has been 
committed, the perpetrator has been convicted and is in prison or jail, 
but unbeknown to the victim and the victim's family, the individual 
gets out of jail. The individual escapes, has some kind of a parole 
hearing or in some other way is able to leave before the sentence is 
up, and the victims are not even notified, let alone given an 
opportunity to appear before that parole board and say: Wait a minute, 
this person has a 15-year sentence and you are letting him out after 8 
years. Let me tell you what he did to me.
  Not to go into detail but to finish that story, in one of the Arizona 
cases with which I am familiar, the woman having been brutally raped 
and slashed and left to die recovered. Her perpetrator was convicted 
and put into prison. He had a parole hearing and the parole board 
decided to release him prematurely. She got no notice of that. She got 
no opportunity to be present.
  By not quite coincidence but enormous alertness and compassion on the 
part of an individual in the Governor's office at the time routinely 
reading through the notices of the parole board, a staff person saw 
this and again almost coincidentally thought, Wait a minute, I don't 
think that is right under our law. He tracked down this individual who 
had by then moved to California and asked her if she would like an 
opportunity to appear before another parole board hearing if that could 
be arranged. She said yes. The parole board agreed to revisit the issue 
in a subsequent hearing and she testified. She told her story. After 
she told her story, the parole board reversed its opinion.
  I asked her later: Were you afraid he would come after you if he were 
released? She said: No. My victimization was random. I was trying to 
hitchhike. I should never have done it.
  He--and, by the way, his wife--picked her up and she was then 
brutalized as I described it. She said: It was random. I don't think he 
would come after me again. What I was concerned about was knowing the 
nature of the kind of individual that commits this kind of crime, he 
would do it again to somebody else.

[[Page 7299]]

I didn't want him to have that opportunity to hurt somebody else like 
he hurt me.
  That tells you about the motivation of these victims of crime who are 
willing, despite the hurt that it causes them, to participate in the 
criminal justice system--not just for themselves because they get 
nothing out of it--because they know what it is like and they want to 
prevent that harm to others.
  Those are the kind of people whose portraits are behind me and who 
Senator Feinstein was talking about. That is why we are trying to do 
something about righting this wrong, about balancing the scales of 
justice. Rightly, defendants in this country are protected better than 
in any country in the world through constitutional amendments that give 
them rights. We are not trying to take one single right away from any 
defendant. That would be wrong under our system. But we do think it is 
time to balance the scales of justice. That was the motivation for 
Senator Feinstein and me.
  Let me talk about some of these individuals. Senator Feinstein talked 
about Duane Lynn. Duane is from Arizona. I will not repeat the entire 
story, but he enjoyed the Navy as a young man. He performed in the 
military. He had a successful career as a highway patrolman upholding 
the laws of the State of Arizona. He and his wife Nila literally fell 
in love as teenagers and had been married 49 years and 9 months, just 3 
months shy of their 50th anniversary when she was brutally murdered as 
Senator Feinstein talked about. They had left their home to attend this 
homeowners' meeting and just happened to be in the wrong place at the 
wrong time because the murderer, who was a disgruntled and enraged 
former resident of the community, burst into the room saying, I am 
going to kill you, and he started shooting.
  As I said, Duane and Nila had been married not quite 50 years when 
she was brutally murdered. In anticipation of the golden anniversary of 
their parents, the Lynn children had secretly been saving money to 
throw a surprise anniversary party, and that money was used to pay for 
Nila's casket.
  It is at this point that Duane's journey through the legal system 
really started. As Senator Feinstein recounted, he did not really 
understand what it meant to participate in the judicial system at that 
time but at least understood that he would have some voice in what 
happened.
  Under the Arizona law and constitution, he had a right, for example, 
to make a recommendation to the judge when the judge sentenced the 
perpetrator. But despite having that right in the Arizona 
Constitution--and, by the way, Arizona judges are pretty good about 
enforcing these rights--he was denied the right to even appear at the 
time of sentencing to tell the judge the sentence he thought the 
perpetrator should get.
  He lost an appeal to the Arizona Supreme Court and a petition for 
certiorari to the U.S. Supreme Court. They all told him his rights were 
unenforceable because for him to speak would violate the defendant's 
eighth amendment rights against cruel and unusual punishment.
  Now, that is one of the reasons that Senator Feinstein and I believed 
that a constitutional amendment was necessary, because as long as the 
defendant's rights are always asserted as Federal constitutional 
rights, a mere statutory right, such as we are creating today, is going 
to be subservient to that. It will be very difficult for victims to win 
in cases where the defendant's right is asserted under the U.S. 
Constitution.
  Even as a State constitutional right, Duane Lynn was denied the right 
to speak because the court perceived that the Federal eighth amendment 
superseded the Arizona State Constitution. So we may still have 
problems, even with the adoption of a statute here. But Senator 
Feinstein and I are committed to moving the cause forward, to see 
whether it is possible to make statutes work, so that we do not need a 
Federal constitutional amendment. If, as it turns out, we do, then we 
will revisit the issue, as she said. Hopefully, we will not need to do 
that.
  Just a final I think paradoxical or ironic ending in the Duane Lynn 
matter. He wanted to speak at the time of sentencing, not to urge the 
court to impose the death sentence but to impose life without parole. 
That recommendation was denied because, as I said, the court held that 
the defendant's rights outweighed his rights.
  Let me talk about some of the other victims. I just briefly want to 
mention Louarna Gillis, because John Gillis, her father, who was a Los 
Angeles police officer at the time, is now a very important person in 
our Government in protecting victims' rights because he heads up the 
Office for Victims of Crime in the Department of Justice.
  One of the reasons the Attorney General and the President wanted him 
in that position is because he felt firsthand the sting of being a 
crime victim when his daughter was killed, picked out at random by a 
gang member because the gang member, to be initiated in the gang, had 
to kill the child of a cop. She just happened to be a child of a cop 
and she was killed.
  John could not be here today, but his wife Patsy is in attendance. I 
commend her for her support of this effort as well.
  Their family has suffered further tragedy in the very recent death of 
their only other child, their son John. So it reminds us that it is 
important not only for people to have rights as victims of crime, but 
to recognize that these very people are the people who are willing to 
take up the cause here to right this injustice.
  By John Gillis' efforts, he literally became the person in charge of 
this issue in our Government. He is doing an incredibly great job. Part 
of this legislation is to give him some additional responsibility and a 
little bit more in the way of resources to see to it that our Federal 
Government, through the Department of Justice, the Attorney General, 
and the Office for Victims of Crime, can continue to support the effort 
of crime victims. I applaud John Gillis very much and appreciate his 
wife Patsy being with us today.
  Let me mention three other people, because this legislation is named 
for five people--the two I mentioned and then the other three I will 
mention. Let me discuss each of them.
  Roberta Roper is also in attendance. There is nobody who has pursued 
the cause for victims' rights more strongly than Roberta Roper. She has 
made numerous trips to Washington. She has testified before the 
Judiciary Committee in support of the constitutional amendment. She has 
given us incredible advice and strength. What she did, after her 
victimization, when her daughter Stephanie was murdered at the age of 
22, was to start a foundation in her daughter's name, and that 
Stephanie Roper Foundation has been a tremendous asset in pursuing the 
cause of victims around the country.
  Her daughter, on April 3, 1982, was kidnapped and raped, tortured and 
dismembered by two men. The killers had just come upon her when 
Stephanie's car had been disabled. They had kidnapped her and over a 
period of 5 hours had repeatedly tortured her. She tried to escape but 
was caught and killed in a most brutal manner.
  Her parents were not even notified of the many continuances that were 
granted in this case. They were excluded from the courtroom for the 
entire first trial that occurred. They could not even go into the 
courtroom. In 1982, the defense convinced the court that the victims 
would be emotional, irrelevant, and probable cause for a reversal of an 
appeal. The court agreed and, therefore, denied Vince and Roberta Roper 
the right to be a voice for their daughter.
  That is one of the things that will be corrected by this legislation. 
We hope a statutory correction will serve to be sufficient.
  Roberta Roper is in attendance, and I thank her from the bottom of my 
heart. She and Collene Campbell--who I will mention next--have been two 
of the real troopers in this battle.
  I also want to say, with regard to Collene Campbell, when Senator 
Feinstein discussed the death of her son

[[Page 7300]]

Scott, it is unfortunately the case in many of these situations that 
more than once people are victimized. Collene and Gary Campbell have 
been victimized twice. Collene's brother was killed as well and that 
has been discussed as well.
  One of the killers of their son Scott was released from prison. By 
the way, the circumstances of Scott's murder were especially gruesome. 
He met an individual who was going to fly him to North Dakota, and 
somewhere between Los Angeles and Catalina Island, Scott Campbell was 
killed. His body was literally thrown out of the airplane into the 
ocean and has never been located.
  His parents were not permitted to enter the courtroom during the 
trials for the men who murdered their son. They were not even notified 
of a district court of appeals hearing. When one of the killers was 
released, as I said, the Campbell family was not notified. They only 
learned of the developments through the newspaper.
  You can argue that a defendant might be prejudiced in certain 
situations by victims having certain rights, but to treat victims this 
way is not to treat them with the fairness and dignity any American 
deserves under our values as a nation. Even when these rights exist in 
statute, when they are not observed, it is time for the Congress to 
act. That is why we act here, so that no one else will have to suffer 
through this kind of unfair treatment.
  Scott Campbell is shown in this picture. I mentioned Nila Lynn 
before, as shown in this picture. Roberta Roper's daughter Stephanie is 
this beautiful young lady shown in this picture right here. As I said, 
her mother is with us today.
  I would also like to mention Robert Preston. In the case of Bob 
Preston's 22-year-old daughter, Wendy--the beautiful young lady shown 
in this picture right here--she was murdered in his home on June 23, 
1977. She was killed when a man broke into the home to steal money to 
buy drugs. Her body was found 6 days later. Wendy's murderer was 
arrested and charged with first-degree murder. Her parents were told 
that the State of Florida was the victim in the case and they would be 
notified if and when they were called as witnesses. That was it.
  After nearly 6 years, the murderer was allowed to plead to a second-
degree murder charge, and he was sentenced to life in prison. In 1987, 
the Florida Supreme Court overturned the killer's conviction, and in 
the decision also held that the victims had no rights. This is the kind 
of example that needs to be brought to light so Americans can 
appreciate that it is time for Congress to act.
  This is Wendy Preston, yet another example of victims being treated 
unfairly.
  There are a lot of other cases we could talk about. Wendy Preston and 
Stephanie Roper, Scott Campbell, Mickey Thompson, Nila Lynn, and 
Louarna Gillis are the best of America. We owe them our best. Our best 
is to ensure the families of future victims will not suffer through the 
same indignity their families have had to endure.
  That is why Senator Feinstein and I began the effort to try to 
persuade our colleagues a constitutional amendment was necessary to 
protect these rights, because the defendant's right was always 
constitutional. Unless we had an equal constitutional right, there was 
no chance in a conflict the court would ever afford the victim an equal 
right. That is why we still have reservations about a statutory remedy.
  But a lot of our colleagues have said, try a statutory remedy and 
let's see if by bringing these situations to light, by providing 
incentives for States to follow the Federal example, by embodying these 
same rights that were in the constitutional proposal in a statute and 
giving the victims a right to sue, a remedy, a mandamus remedy, let's 
see if that can work.
  After 8 years of work on the Federal constitutional amendment, 
supported by President Bush and the Attorney General, we were able to 
schedule, after we passed the bill through the Judiciary Committee, 
that constitutional amendment for floor action today. Knowing we would 
not have the 67 votes to pass it, we decided it was time to get 
something tangible in statute to protect the rights of victims, and 
accompanying it could be a modest appropriation of money to help 
actually support these victims in court when that was necessary and 
called for. We believed despite the potential that it would not serve 
adequately, it was time to try something, to be successful, and to at 
least move the ball forward.
  As Senator Leahy said in a press conference we had earlier: The 
Judiciary Committee of the Senate will provide very strong oversight of 
implementation of this statute so we will know if it is not working. If 
it does not work, we will be able to come back and pursue the 
constitutional remedy. But we consulted with the victims' rights groups 
that have been most active in support of this. They concurred it was 
time to pursue the statutory remedy, if we could get some assurance we 
would be successful in that pursuit and that it would not be simply a 
fool's errand.
  Through the significant help of an individual who I am sure all would 
acknowledge has been the national leader of this effort, Steve Twist, a 
lawyer from Phoenix, AZ, communicating with the various victims' rights 
groups, the consensus was reached it was time for us to convert the 
constitutional proposal into a statute. This occurred within the last 
48 hours. Through the cooperation of Senator Leahy, Senator Hatch, 
staff, and several other Senators, but most importantly because of the 
very hard work done by Senator Feinstein's staff and mine, they were 
able to literally convert these rights in the constitutional proposal 
into the statutory proposal for submission. That is what is before us 
today and what we will be voting on.
  These are the rights that are set forth in the new statute: That the 
victim would be reasonably protected from the accused; afforded 
reasonable, accurate, and timely notice of any public proceedings 
involving the crime or any release or escape of the accused; included 
in public proceedings; ensured proceedings are free from unreasonable 
delay; that they could confer with the attorney for the government in 
the case; that they would be given a voice to be heard at any public 
proceeding involving release or plea or sentencing.
  I ask unanimous consent to take time from the time under the control 
of Senator Feinstein.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. I noted in a rather inaccurate Washington Post editorial of 
yesterday that somehow victims would have a right to speak to the jury. 
That is what the Washington Post thought. They were very wrong, as they 
were in other comments in the editorial. There is nothing in here about 
anything like that. It is only during the time of a release, like the 
parole hearing I talked about earlier, or sentencing or pleading there 
would be an opportunity to speak.
  They would have a right to full and timely restitution in appropriate 
cases, and the right to be treated fairly, with respect for their 
dignity and privacy. Most importantly, they would be granted the right 
to enforce these rights. They would have legal standing to enforce 
their rights in court with the appropriate writ procedure to be able to 
take the court's decision to the higher court. That is one of the 
problems with existing Federal law which the Tenth Circuit Court of 
Appeals noted did not grant the victims the standing to sue. So that 
had to be corrected here.
  Finally, we authorized an appropriation of funds to assure the proper 
oversight of these rights is exercised, that moneys would be made 
available to enhance the victim notification system, managed by the 
Department of Justice's Office for Victims of Crime, and the resources 
additionally to develop state-of-the-art systems for notifying crime 
victims of important states of development.
  To pursue that a moment, all courts notify attorneys for the 
defendant, the prosecutor's office, and it is a relatively simple 
matter to add another name and telephone number or address to that 
list. That is what we are talking about here. It is now being done 
electronically. It is very easy. So the

[[Page 7301]]

notice to victims of crime is not something that should be seen as an 
impediment.
  I would like to conclude by thanking some people. Since I know 
Senator Feinstein did have to attend another meeting, let me thank some 
folks. Before I do that, I ask unanimous consent to add Senators Lott 
and Nickles as original cosponsors.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. As soon as Senator Leahy is here, I will relinquish the 
floor to him.
  I do want to thank President Bush and Attorney General Ashcroft; the 
Office for Victims of Crime Director John Gillis and the administration 
for their help; Colleen Campbell and her husband Gary; Roberta Roper; 
Bob Preston; Duane Lynn; Earlene Eason from Indiana, whose son 
Christopher was murdered; Sally Goelzer from Arizona, whose brother was 
murdered; Myssey Hartley from Arkansas, whose brother was murdered; Dee 
Engles, also from Arkansas, a family member murdered; the National 
Organization for Victim Assistance, especially Beth Rossman, president, 
Marlene Young, executive director, and John Stein, deputy director, who 
has been a tremendous help; the National Organization of Parents of 
Murdered Children, Nancy Ruhe-Munch, executive director; Mothers 
Against Drunk Driving, Wendy Hamilton, president, and Stephanie 
Manning; Professor Douglas Beloof, director of the National Crime 
Victim Law Institute, one of the entities integral to ensuring these 
rights are enforced--he has done a tremendous job in Oregon in setting 
up the programs and the lawyers who can defend victims' rights--
Attorney Meg Garvin, lead staff attorney at NCVLI; Attorney General 
Jane Brady and the National Association of Attorneys General--this has 
been a bipartisan effort and almost every attorney general in the 
country has signed on; the National District Attorneys Association; the 
Fraternal Order of Police, strongly in support of what we are doing; 
the International Association of Chiefs of Police; the National 
Restaurant Association; U.S. Chamber of Commerce; Maricopa County 
attorney Rick Romely and county attorney Barbara LaWall in Arizona, who 
have helped me a lot in this effort; District Attorney Josh Marquis; 
the Arizona Voice for Crime Victims.
  On Senator Hatch's staff, I thank Grace Becker, and on Senator 
Cornyn's staff, Jim Ho. On Senator Feinstein's staff, I can't thank 
enough Steve Cash and David Hantman who have been tremendously helpful 
in providing great advice and counsel, particularly in the last 3 or 4 
days, helping us to convert the amendment to a statutory provision and 
in working on the Democratic side to make this a truly bipartisan 
process.
  Without their assistance, we would not have the statute before the 
body either.
  I have a couple legal interns, Tom Stack and Kevin Wilson, who 
provided tremendous help to me, and finally I wish to thank my chief 
person on my staff, Stephen Higgins and I mentioned Steve Twist.
  All of these organizations and individuals have been of tremendous 
help in getting to this point and ensuring we will be able to get this 
statutory provision passed and sent over to the House for action.
  Madam President, I am going to conclude with a couple of points. As 
soon as Senator Leahy arrives, I am going to relinquish the floor to 
him because Senator Feinstein has the remainder of the time, and I 
advise colleagues, if anyone wishes to speak, they should do so right 
away because I suspect at the conclusion of Senator Leahy's remarks and 
anything Senator Hatch and Senator Feinstein wish to say, we will 
proceed to the final passage vote.
  The act before us, in addition to setting forth the rights and 
providing a remedy for the victims of crime, has an authorization of 
funding. Let me describe that authorization.
  In the first year, fiscal year 2005, $16.3 million will be available 
to the U.S. Attorney's Victims Witness Office for the Victims of Crime 
Office in the Department of Justice; $300,000 is for the Office of 
Victims of Crime to administer these new rights; $7 million to the 
Office of Victims of Crime for the National Crime Victim Law Institute 
to provide grants and assistance to lawyers to help victims of crime in 
court. It is the only entity in the country that provides lawyers for 
victims in criminal cases, and it will provide for two new regional 
offices and nine specific clinics. Finally, borrowing a provision from 
a bill Senator Leahy had earlier, there is $5 million for grants to 
States to develop and implement state-of-the-art victim notification 
systems.
  In the following 4 years, there will be each year authorized an 
appropriation of $26.5 million generally to the same entities and 
offices to ensure that these programs are carried out, that victims 
will have the support they need, and that the notice that is guaranteed 
in the legislation will be provided. Those are the authorizations for 
the funding. That is a description of the legislation.
  I will close by again referring to the people who have driven this 
effort, the people who represent the families and who are themselves 
victims of crime, who did not simply retreat into a shell following the 
tragedy that befell them but who were willing to muster the courage and 
the strength to do something about the issue, not necessarily so that 
they could receive any particular kind of vindication, but so future 
victims would not have to suffer through the same kind of problems and 
the same indignities they did.
  This is the real spirit of great people, of leaders, and it is the 
spirit of America. I commend all of these victims for the leadership 
role they have played in being willing to step out in very difficult 
circumstances to prod those of us in the legislative body to move this 
process forward and to get this legislation adopted. They are the ones 
who deserve the primary thanks today.
  The victory, when we pass this legislation, will be largely a victory 
for them and all of the future victims who will never have to suffer 
the same kind of indignities that they did.
  Mr. President, as the sponsor of this bill, I would like to enter 
into a colloquy with the Senator from California. She is the primary 
cosponsor of this bill. After extensive consultation with our 
colleagues, we have drafted a bill with a broad bipartisan consensus. 
It is not the intent of this bill to limit any laws in favor of crime 
victims that may currently exist, whether these laws are statutory, 
regulatory, or found in case law. I ask Senator Feinstein if she 
agrees.
  Mrs. FEINSTEIN. Yes, it is not our intent to restrict victims' rights 
or accommodations found in other laws. I would like to turn to the bill 
itself and address the first section, (a)(1), the right of the crime 
victim to be reasonably protected. Of course, the Government cannot 
protect the crime victim in all circumstances. However, where 
reasonable, the crime victim should be provided accommodations such as 
a secure waiting area, away from the defendant before and after and 
during breaks in the proceedings.
  Mr. KYL. I would like to address the notice provisions of section 2, 
(a)(2). The notice provisions are important because if a victim fails 
to receive notice of a public proceeding in the criminal case at which 
the victim's right could otherwise have been exercised, that right has 
effectively been denied. Public proceedings include both trial level 
and appellate level court proceedings. It does not make sense to enact 
victims' rights that are rendered useless because the victim never knew 
of the proceeding at which the right had to be asserted. Simply put, a 
failure to provide notice of proceedings at which a right can be 
asserted is equivalent to a violation of the right itself.
  Equally important to this right to notice of public proceedings 
contained in this subsection is the right to notice of the escape or 
release of the accused. This provision helps to protect crime victims 
by notifying them that the accused is out on the streets.
  For these rights to notice to be effective, notice must be 
sufficiently given in advance of a proceeding to give the crime victim 
the opportunity to arrange his or her affairs in order to be able to 
attend that proceeding and any

[[Page 7302]]

scheduling of proceedings should take into account the victim's 
schedule to facilitate effective notice.
  Restrictions on public proceedings are in 28 CFR Sec. 50.9, and it is 
not the intent here today to alter the meaning of that provision.
  I ask Senator Feinstein, if she can comment on her understanding of 
section (a)(2)?
  Mrs. FEINSTEIN. My understanding of this subsection is the same the 
Senator's. Too often crime victims have been unable to exercise their 
rights because they were not informed of the proceedings. Pleas and 
sentencings have all too frequently occurred without the victim ever 
knowing that they were taking place. Victims are the persons who are 
directly harmed by the crime and they have a stake in the criminal 
process because of that harm. Their lives are significantly altered by 
the crime and they have to live with the consequences for the rest of 
their lives. To deny them the opportunity to know of and be present at 
proceedings is counter to the fundamental principles of this country. 
It is simply wrong. Moreover, victim safety requires that notice of the 
release or escape of an accused from custody be made in a timely manner 
to allow the victim to make informed choices about his or her own 
safety. This provision ensures that takes place.
  I would like to turn to section 2, (a)(3) of the bill, which provides 
that the crime victim has the right not to be excluded from any public 
proceedings. This language was drafted in a way to ensure that the 
government would not be responsible for paying for the victim's travel 
and lodging to a place where they could attend the proceedings.
  In all other respects, this section is intended to grant victims the 
right to attend and be present throughout all public proceedings.
  This right is limited in two respects. First, the right is limited to 
public proceedings, thus grand jury proceedings are excluded from the 
right. Second, the Government or the defendant can request, and the 
court can order, judicial proceedings to be closed under existing laws. 
This provision is not intended to alter those laws or their procedures 
in any way. I ask the Senator is that is his understanding of this 
section.
  Mr. KYL. Yes. That it is my understanding as well. There may be 
organized crime cases or cases involving national security that require 
procedures that necessarily deny a crime victim the right not to be 
excluded that would otherwise be provided under this section. This is 
as it should be. National security matters and organized crime cases 
are especially challenging, and there are times when there is a vital 
need for closed proceedings. In such cases, the proceedings are not 
intended to be interpreted as ``public proceedings'' under this bill. 
In this regard, it is not our intent to alter 28 CFR Sec. 50.9 in any 
respect.
  Despite these limitations, this bill allows crime victims, in the 
vast majority of cases, to attend the hearings and trial of the case 
involving their victimization. This is so important because crime 
victims share an interest with the government in seeing that justice is 
done in a criminal case and this interest supports the idea that 
victims should not be excluded from public criminal proceedings, 
whether these are pretrial, trial, or post-trial proceedings.
  This right of crime victims not to be excluded from the proceedings 
provides a foundation for the next section, section 2, (a)(4), which 
provides victims the right to reasonably be heard at any public 
proceeding involving release, plea, or sentencing. This provision is 
intended to allow crime victims to directly address the court in 
person. It is not necessary for the victim to obtain the permission of 
either party to do so. This right is a right independent of the 
Government or the defendant that allows the victim to address the 
court. To the extent the victim has the right to independently address 
the court, the victim acts as an independent participant in the 
proceedings. When a victim invokes this right during plea and 
sentencing proceedings, it is intended that the he or she be allowed to 
provide all three types of victim impact--the character of the victim, 
the impact of the crime on the victim, the victims' family and the 
community, and sentencing recommendations. Of course, the victim may 
use a lawyer, at their own expense, to assist in the exercise of this 
right. This bill does not provide victims with a right to counsel but 
recognizes that a victim may enlist counsel on their own.
  It is not the intent of the term ``reasonably'' in the phrase ``to be 
reasonably heard'' to provide any excuse for denying a victim the right 
to appear in person and directly address the court. Indeed, the very 
purpose of this section is to allow the victim to appear personally and 
directly address the court. This section would fail in its intent if 
courts determined that written, rather than oral communication, could 
generally satisfy this right. On the other hand, the term 
``reasonably'' is meant to allow for alternative methods of 
communicating a victim's views to the court when the victim is unable 
to attend the proceedings. Such circumstances might arise, for example, 
if the victim is incarcerated on unrelated matters at the time of the 
proceedings or if a victim cannot afford to travel to a courthouse. In 
such cases, communication by the victim to the court is permitted by 
other reasonable means. Is this the understanding of the Senator of 
this provision?
  Mrs. FEINSTEIN. Yes. That is my understanding as well. The victim of 
crime, or their counsel, should be able to provide any information, as 
well as their opinion, directly to the court concerning the release, 
plea, or sentencing of the accused. This bill intends for this right to 
be heard to be an independent right of the victim, and thus cannot 
prevent the victim from being heard.
  It is important that the ``reasonably be heard'' language not be an 
excuse for minimizing the victim's opportunity to be heard. Only if it 
is not practical for the victim to speak in person or if the victim 
wishes to be heard by the court in a different fashion should this 
provision mean anything other than an in-person right to be heard.
  Of course, in providing victim information or opinion it is important 
that the victim be able to confer with the prosecutor concerning a 
variety of matters and proceedings. Section 2, (a)(5) provides a right 
to confer with the attorney for the Government in the case. This right 
is intended to be expansive. For example, the victim has the right to 
confer with the Government concerning any critical stage or disposition 
of the case. The right, however, is not limited to these examples. I 
ask the Senator if he concurs in this intent.
  Mr. KYL. Yes. The intent of this section is just as the Senator says. 
This right to confer does not give the crime victim any right to direct 
the prosecution. Prosecutors should consider it part of their 
profession to be available to consult with crime victims about concerns 
the victims may have which are pertinent to the case, case proceedings 
or dispositions. Under this provision, victims are able to confer with 
the Government's attorney about proceedings after charging.
  I would like to turn now to the section on restitution, section 2, 
(a)(6). This section provides the right to full and timely restitution 
as provided in law. This right, together with the other rights in the 
act to be heard and confer with the Government's attorney in this act, 
means that existing restitution laws will be more effective.
  I am interested in the Senator's views of this restitution provision.
  Mrs. FEINSTEIN. I thank the Senator. I join his comments.
  I would like to move on to section 2, (a)(7), which provides crime 
victims with a right to proceedings free from unreasonable delay. This 
provision does not curtail the Government's need for reasonable time to 
organize and prosecute its case. Nor is the provision intended to 
infringe on the defendant's due process right to prepare a defense. Too 
often, however, delays in criminal proceedings occur for the mere 
convenience of the parties and those delays

[[Page 7303]]

reach beyond the time needed for defendant's due process or the 
Government's need to prepare. The result of such delays is that victims 
cannot begin to put the crime behind them and they continue to be 
victimized. It is not right to hold crime victims under the stress and 
pressure of future court proceedings merely because it is convenient 
for the parties or the court.
  This provision should be interpreted so that any decision to continue 
a criminal case should include reasonable consideration of the rights 
under this section.
  I am eager to hear the Senator's view on this.
  Mr. KYL. I concur in the Senator's comments. I would add that the 
delays in criminal proceedings are among the most chronic problems 
faced by victims. Whatever peace of mind a victim might achieve after a 
crime is too often inexcusably postponed by unreasonable delays in the 
criminal case. A central reason for these rights is to force a change 
in a criminal justice culture which has failed to focus on the 
legitimate interests of crime victims, a new focus on limiting 
unreasonable delays in the criminal process to accommodate the victim 
is a positive start.
  I would like to turn to section 2, (a)(8). This provision contains a 
number of rights. The broad rights articulated in this section are 
meant to be rights themselves and are not intended to just be 
aspirational. One of these rights is the right to be treated with 
fairness. Of course, fairness includes the notion of due process. Too 
often victims of crime experience a secondary victimization at the 
hands of the criminal justice system. This provision is intended to 
direct Government agencies and employees, whether they are in executive 
or judiciary branches, to treat victims of crime with the respect they 
deserve.
  Does the Senator agree?
  Mrs. FEINSTEIN. Yes.
  It is not the intent of this bill that its significance be whittled 
down or marginalized by the courts or the executive branch. This 
legislation is meant to correct, not continue, the legacy of the poor 
treatment of crime victims in the criminal process. This legislation is 
meant to ensure that cases like the McVeigh case, where victims of the 
Oklahoma City bombing were effectively denied the right to attend the 
trial and to avoid federal appeals courts from determining, as the 
Tenth Circuit Court of Appeals did, that victims had no standing to 
seek review of their right to attend the trial under the former 
victims' law that this bill replaces.
  I would also like to comment on section 2, (b), which directs courts 
to ensure that the rights in this law be afforded and to record, on the 
record, any reason for denying relief of an assertion of a crime 
victim. This provision is critical because it is in the courts of this 
country that these rights will be asserted and it is the courts that 
will be responsible for enforcing them. Further, requiring a court to 
provide the reasons for denial of relief is necessary for effective 
appeal of such denial.
  Is that the understanding of the Senator?
  Mr. KYL. Yes, it is.
  Turning briefly to section 2, (c), there are several important things 
to point out in this subsection. First, where there is a material 
conflict between the Government's attorney and the crime victim, this 
provision protects crime victims' rights. This means that if Government 
lawyers interpret a right differently from a victim, urge a very narrow 
interpretation of a right, or do not believe a right should be 
asserted, they are in conflict with the victim and this provision 
requires that they inform the victim of this and direct the victim to 
independent counsel, such as the legal clinics for crime victims 
contemplated under this law. This is an important protection for crime 
victims because it ensures the independent and individual nature of 
their rights. Second, the notice section immediately following limits 
the right to notice of release where such notice may endanger the 
safety of the person being released. There are cases, particularly in 
domestic violence cases, where there is danger posed by an intimate 
partner if the intimate partner is released. Such circumstances are not 
the norm, even in domestic violence cases as a category of cases. This 
exception should not be relied upon as an excuse to avoid notifying 
most victims.
  Is that the Senator's understanding of this section?
  Mrs. FEINSTEIN. Yes.
  I would now like to address the enforcement provisions of the bill, 
specifically section 2, subsection (d)(1). This provision allows a 
crime victim to enter the criminal trial court during proceedings 
involving the crime against the victim and assert the rights provided 
by this bill. This provision ensures that crime victims have standing 
to be heard in trial courts so that they are heard at the very moment 
when their rights are at stake and this, in turn, forces the criminal 
justice system to be responsive to a victim's rights in a timely way. 
Importantly, however, the bill does not allow the defendant in the case 
to assert any of the victim's rights to obtain relief. This prohibition 
prevents the individual accused of the crime from distorting a right 
intended for the benefit of the individual victim into a weapon against 
justice.
  The provision allows the crime victim's representative and the 
attorney for the Government to go into a criminal trial court and 
assert the crime victim's rights. The inclusions of representatives and 
the Government's attorney in the provision are important for a number 
of reasons. First, allowing a representative to assert a crime victim's 
rights ensures that where a crime victim is unable to assert the rights 
on his or her own for any reason, including incapacity, incompetence, 
minority, or death, those rights are not lost. The representative for 
the crime victim can assert the rights.
  Second, a crime victim may choose to enlist a private attorney to 
represent him or her in the criminal case--this provision allows that 
attorney to enter an appearance on behalf of the victim in the criminal 
trial court and assert the victim's rights. The provision also 
recognizes that, at times, the Government's attorney may be best 
situated to assert a crime victim's rights either because the crime 
victim is not available at a particular point in the trial or because, 
at times, the crime victim's interests coincide with those of the 
Government and it makes sense for a single person to express those 
joined interests. Importantly, however, the provision does not mean 
that the Government's attorney has the authority to compromise or co-
opt a victim's right. Nor does the provision mean that by not asserting 
a victim's right the Government's attorney has waived that right. The 
rights provided in this bill are personal to the individual crime 
victim and it is that crime victim that has the final word regarding 
which of the specific rights to assert and when. Waiver of any of the 
individual rights provided can only happen by the victim's affirmative 
waiver of that specific right.
  Does all of this correspond with Senator Kyl's understanding of the 
bill?
  Mr. KYL. Absolutely. The enforcement provision the Senator addressed 
is critical to this bill. Without the ability to enforce the rights in 
the criminal trial and appellate courts of this country any rights 
afforded are, at best, rhetoric. We are far past the point where lip 
service to victims' rights is acceptable. The enforcement provisions of 
this bill ensure that never again are victim's rights provided in word 
but not in reality.
  I want to turn to section 2, subsection (d)(2) because it is an 
unfortunate reality that in today's world there are crimes that result 
in multiple victims. The reality of those situations is that a court 
may find that the sheer number of victims is so large that it is 
impracticable to accord each victim the rights in this bill. The bill 
allows that when the court makes that finding on the record the court 
must then fashion a procedure that still gives effect to the bill and 
yet takes into account the impracticability. For instance, in the 
Oklahoma City bombing case the number of victims was tremendous and 
attendance at any one

[[Page 7304]]

proceeding by all of them was impracticable so the court fashioned a 
procedure that allowed victims to attend the proceedings by close 
circuit television. This is merely one example. Another may be to allow 
victims with a right to speak to be heard in writing or through other 
methods. Importantly, courts must seek to identify methods that fit the 
case before that to ensure that despite numerosity of crime victims, 
the rights in this bill are given effect.
  Does the Senator agree with this reading of the bill?
  Mrs. FEINSTEIN. Absolutely. It is a tragic reality that cases may 
involve multiple victims and yet that fact is not grounds for 
eviscerating the rights in this bill. Rather, that fact is grounds for 
the court to find an alternative procedure to give effect to this bill.
  I now want to turn to another critical aspect of enforcement of 
victims' rights, section 2, subsection (d)(3). This subsection provides 
that a crime victim who is denied any of his or her rights as a crime 
victim has standing to appellate review of that denial. Specifically, 
the provision allows a crime victim to apply for a writ of mandamus to 
the appropriate appellate court. The provision provides that court 
shall take the writ and shall order the relief necessary to protect the 
crime victim's right. This provision is critical for a couple of 
reasons. First, it gives the victim standing to appear before the 
appellate courts of this country and ask for review of a possible error 
below. Second, while mandamus is generally discretionary, this 
provision means that courts must review these cases. Appellate review 
of denials of victims' rights is just as important as the initial 
assertion of a victim's right. This provision ensures review and 
encourages courts to broadly defend the victims' rights.
  Mr. President, does Senator Kyl agree?
  Mr. KYL. Absolutely. Without the right to seek appellate review and a 
guarantee that the appellate court will hear the appeal and order 
relief, a victim is left to the mercy of the very trial court that may 
have erred. This country's appellate courts are designed to remedy 
errors of lower courts and this provision requires them to do so for 
victim's rights. For a victim's right to truly be honored, a victim 
must be able to assert the rights in trial courts, to then be able to 
have denials of those rights reviewed at the appellate level, and to 
have the appellate court take the appeal and order relief. By providing 
for all of this, this bill ensures that victims' rights will have 
meaning.
  I would like to turn our attention to section 2, subsection (d)(4) 
because that also provides an enforcement mechanism. This section 
provides that in any appeal, regardless of the party initiating the 
appeal, the government can assert as error the district court's denial 
of a crime victim's right. This subsection is important for a couple of 
reasons. First, it allows the Government to assert a victim's right on 
appeal even when it is the defendant who seeks appeal of his or her 
conviction. This ensures that victims' rights are protected throughout 
the criminal justice process and that they do not fall by the wayside 
during what can often be an extended appeal that the victim is not a 
party to.
  Is that the Senator's understanding of the bill?
  Mrs. FEINSTEIN. Yes.
  I would like to turn to the next provision, section 2, subsection 
(d)(5). This subsection provides that a failure to afford a right under 
the act does not provide grounds for a new trial. This provision 
demonstrates that victim's rights are not intended to be, nor are they, 
an attack on defendants' protections against double jeopardy. This 
provision is not intended to prevent courts from vacating decisions in 
nontrial proceedings in which victims' rights were not protected and 
ordering those proceedings to be redone. It simply assures that a trial 
will not be redone. Thus, defendants' and victims' rights are both 
protected.
  Is that the Senator's understanding?
  Mr. KYL. Yes, it is. We have, over the years, tried to reassure those 
that oppose victims' rights that they are not an attempt to undermine 
defendants' rights. This provision reiterates that. It is important for 
victims' rights to be asserted and protected throughout the criminal 
justice process, and for courts to have the authority to redo 
proceedings other than the trial such as release hearings, pleas, and 
sentencings where victims' rights are abridged, but to not tread upon 
defendant's rights against double jeopardy in the process. Victims' 
rights are about a fair and balanced criminal justice system--one that 
considers defendant's rights as well as victims' rights. This provision 
protects that careful balance.
  I want to turn to the definitions in the bill, contained in section 
2, subsection (e). There are a couple of key points to be made about 
the definitions. A ``crime victim'' is defined as a person directly and 
proximately harmed as a result of any offense, felony or misdemeanor. 
This is an intentionally broad definition because all victims of crime 
deserve to have their rights protected, whether or not they are the 
victim of the count charged. Additionally, crime victims may, for any 
number of reasons, want to employ an attorney to represent them in 
court. This definition of crime victim allows crime victims to do that. 
It also assures that when, for any reason, crime victims are unable to 
assert rights on their own, those rights will still be protected.
  Is that the Senator's understanding of the bill as well?
  Mrs. FEINSTEIN. It is.
  Now I would like to turn to the portion of the bill concerning 
administrative compliance with victims' rights, section 2, subsection 
(f). The provisions of this subsection are relatively self-explanatory, 
but it important to point out that these procedures are completely 
separate from and in no way limit the victim's rights in the previous 
section.
  Is that Senator Kyl's understanding?
  Mr. KYL. Yes.
  Let me comment briefly on section 4, Reports. Subsection (a) requires 
the Administrative Office of the U.S. Courts to report annually the 
number of times a right asserted in a criminal case is denied the 
relief requested, and the reasons therefore, as well as the number of 
times a mandamus action was brought and the result of that mandamus.
  Such reporting is the only way we in the Congress and other 
interested parties can observe whether reforms we mandate are being 
carried out. No one doubts the difficulty of obtaining case-by-case 
information of this nature. Yes, this information is critical to 
understanding whether Federal statutes really can effectively protect 
victims' rights or whether a constitutional amendment is necessary. We 
are certain that affected executive and judicial agencies can work 
together to implement effective administrative tools to record and 
amass this data. We would certainly encourage the National Institute of 
Justice to support any needed research to get this system in place.
  Is this Senator Feinstein's understanding?
  Mrs. FEINSTEIN. Yes.
  One final point. Throughout this act, reference is made to the 
``accused.'' Would the Senator also agree that it is our intention to 
use this word in the broadest sense to include both those charged and 
convicted so that the rights we establish apply throughout the criminal 
justice system?
  Mr. KYL. Yes, that it is my understanding.
  Mr. President, I anticipate Senator Leahy's arrival. I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Madam President, I see my good friend, the Senator from 
Arizona, in the Chamber. I know the distinguished Senator from 
California will be joining us shortly. What is the time allocation? I 
know the distinguished Senator from Arizona wants to make sure we all 
have time, but I was just curious where we are.

[[Page 7305]]

  The PRESIDING OFFICER. The Senator from Vermont and the Senator from 
Utah each have 30 minutes. The Senator from California has 6 minutes 34 
seconds.
  Mr. LEAHY. I do not anticipate using all my time by any means. I 
appreciate the courtesy of the Senator from Arizona who had indicated 
earlier that he fit us in because of conflicting schedules that the 
Senator from California and I have. Before I even begin, I want to 
again thank the distinguished Senators from Arizona and California for 
all they have done on this issue.
  This past Sunday, as we all know, marked the start of National Crime 
Victims' Rights Week. We set this week aside each year to refocus 
attention on the needs and rights of crime victims. One would almost 
think we would not have to do that, but as a matter of fact, too often, 
the needs of victims are not met, and their rights are not fully 
honored. I learned this during my time as a prosecutor. I think all of 
us have learned this, from the experiences and some terribly gripping 
stories that we have heard from our constituents.
  This year, the Senate had been scheduled to mark the occasion of 
National Crime Victims' Rights Week by taking up S.J. Res. 1, a 
proposed constitutional amendment. It was going to end up being days, 
maybe weeks, of debate even though everyone knew that the 
constitutional amendment was not going to pass. We went through this 
process back in April of the year 2000, during the last Presidential 
election year.
  I said then, during that earlier debate on the constitutional 
amendment, that I have worked long and hard to protect and advance 
crime victims' rights, as have many on both sides of the aisle in this 
body. As a prosecutor for 8\1/2\ years, I worked day to day, year to 
year alongside victims, seeking justice on their behalf. This was back 
at a time before people spoke much about victims having rights. I like 
to think that my office was a model in this regard, for making sure 
that victims were heard.
  I have worked on and have led many legislative efforts on behalf of 
victims throughout my service in the Senate. One of the most recent of 
those efforts was the creation of the September 11 Victim Compensation 
Fund. I am grateful to have been able to take part in something that 
has brought some relief to so many victims.
  But I will never forget the victims I worked with as a prosecutor or 
the needs of the new victims minted each day through the crimes 
committed against them.
  For years, at Christmas time, I received a very poignant letter from 
a woman who was the victim of a very serious crime. She told me how she 
was doing, how her children were doing.
  When I go to the grocery store in Vermont, or I'm walking down the 
street, I run into people who were helped during those years and who 
had a voice during those years. It is gratifying, but I have to think 
about the fact that every single day, there are a whole lot more 
crimes, and a whole lot more victims.
  I have always believed that victims should be afforded certain basic 
protections. I believe victims should be notified when the defendant is 
in court or when he is about to be released. I believe victims should 
be heard at critical stages of the prosecution. I believe victims are 
entitled to restitution from offenders.
  In recent years, the debate has never been about whether victims 
should be protected. Of course they should. Rather, the debate has been 
about how victims should be protected.
  I did not think the proposed constitutional amendment was the best 
way forward. I still believe that. We all agree, and every witness who 
testified before the Judiciary Committee on this issue agreed, that 
every right provided by the victims' rights amendment can be, or 
already is, protected by State or Federal statutory law.
  So we have long had the power to enhance victims' rights through 
regular legislation, passed with a simple majority vote, and make an 
immediate difference in the lives of crime victims. Legislative 
enhancements are more easily enacted, more directly applied and 
implemented, and more able to provide specific, effective remedies. In 
addition, as Chief Justice Rehnquist and others have pointed out, 
statutes are more easily corrected if we find, in hindsight, that they 
need correction, clarification, or improvement.
  When we pass the Kyl-Feinstein-Hatch-Leahy Victims' Rights Act, we 
will take a step that I have long advocated. So I thank and commend the 
principal sponsors of S.J. Res. 1, the distinguished Senators from 
California and Arizona. We came from both sides on the constitutional 
debate, but all of us are deeply committed to the cause of victims' 
rights, and that is why we came together on this legislation.
  This legislation will provide crime victims in the Federal system 
with all the rights and protections that the proposed constitutional 
amendment would have provided. In fact, our statute goes further than 
the constitutional amendment because it gives the same rights and 
protections to all crime victims, not just to the victims of violent 
crimes. The elderly woman who is defrauded out of her life savings will 
get the same protection from this statute as other crime victims.
  This statute, S. 2329, also spells out how victims' rights are to be 
enforced, using language that Senator Kennedy and I developed in S. 
805, the Crime Victims Assistance Act. In addition to providing victims 
with standing to assert their rights in mandamus actions, S. 2329 will 
establish an administrative authority in the Department of Justice to 
receive and investigate victims' claims of unlawful or inappropriate 
action on the part of criminal justice and victims' service providers. 
Department of Justice employees who fail to comply with the law 
pertaining to the treatment of crime victims could face disciplinary 
sanctions, including suspension or termination of employment.
  We have incorporated other proposals from S. 805 as well, to help 
States implement and enforce their own victims' rights laws. And we 
have called for two annual reports, one by the Administrative Office of 
the Courts, and the other by the General Accounting Office, to make 
sure we get some feedback on how the rights and procedures established 
by the statute are working in practice. Over time, we will be able to 
modify and fine-tune the statute so that it provides an appropriate 
degree of protection for the rights of crime victims.
  I have no doubt we are going to pass this law today. I believe the 
other body will pass the law, and the President will sign it. Then part 
of our duty is going to have to be to follow up to see how it works.
  I said to some of the representatives of victims' groups this 
morning, keep our feet to the fire. Make sure we follow up. Passage of 
this bill will necessitate careful oversight of its implementation by 
Congress. If, as I hope, federal judges and prosecutors take victims' 
rights seriously, there should be little need for victims to bring 
mandamus actions to enforce their rights. But if, for whatever reason, 
victims feel that they are not being treated fairly, we may see a wave 
of new litigation in the federal courts, with victims and their lawyers 
having to insert themselves into criminal cases. We will need to 
monitor the situation closely.
  I am committed to giving victims real and enforceable rights. But I 
am convinced that prosecutors should be capable of protecting those 
rights, once we make them clear. In my experience, prosecutors have 
victims' interests at heart.
  Senator Kennedy and I proposed in the Crime Victims Assistance Act a 
limited-standing provision, which applied with respect to the victim's 
right to attend and observe the trial, and under which a victim could 
assert her right if the prosecutor refused to do so. Passing such a 
provision would have allowed us to observe over a period of time 
whether direct participation of victims in criminal proceedings has any 
unanticipated consequences for the administration of justice.
  This Victims' Rights Act proposes a bolder experiment, entitling 
victims to assert a panoply of rights, regardless of whether the 
prosecution is already asserting the same rights on their behalf.

[[Page 7306]]

For example, at the insistence of other sponsors, this bill will enable 
victims to bring mandamus actions alleging the denial of their 
statutory right ``to be treated with fairness and with respect for the 
victim's dignity and privacy,'' which may be difficult claims to 
adjudicate.
  I note with some regret that S. 2329 picks up language from S.J. Res. 
1 denying victims any cause of action for damages in the event that 
their rights are violated. Allowing victims to vindicate their rights 
through separate proceedings for damages instead of through mandamus 
actions in the criminal case could well be a more efficient as well as 
a more effective way of ensuring that victims' rights are honored. 
Certainly the prospect of being held to account in such proceedings 
would provide a powerful incentive to take victims' rights seriously. 
But the Republican sponsors of the bill did not want to provide for 
damages.
  Similarly, some Republican Senators did not want to allow courts to 
appoint attorneys to help crime victims. It is my hope and belief that 
victims will seldom need representation, since they already have 
powerful advocates in our public prosecutors. Still, it is possible 
that a judge would want to appoint an attorney for a victim in an 
extraordinary case, as for example if there is a material conflict 
between the victim's interests and the interests of the prosecution. By 
failing to provide for this possibility, S. 2329 may perpetuate a 
system of unequal justice for victims, where the wealthy have the 
benefit of counsel, and the poor do not.
  There are other provisions that were also, regrettably, left on the 
cutting-room floor during negotiations on this bill. First, we dropped 
a provision that was in the proposed constitutional amendment, which 
would have given victims certain rights in the context of clemency 
proceedings. I know Attorney General Ashcroft, when he was a Member of 
the Senate, felt strongly that victims should have a voice in these 
proceedings. I would welcome the chance to work with him, to have him 
provide for that within the Federal system, to do in the Federal system 
what he wanted to do while a member of this body.
  A second provision that I would have liked to include in the bill 
would have authorized funding for a broad range of compliance 
authorities to help enforce the rights of crime victims in the state 
systems. Senator Kennedy and I proposed such a program in the Crime 
Victims Assistance Act, but I was unable to persuade my colleagues to 
include it in this bill.
  There are a variety of remedies for violations of rights that are 
operating at the State level, all of which have strengths and 
weaknesses. Some States use more than one approach. Arizona has a non-
statutory ombudsman staff position in the Attorney General's office, to 
receive and investigate victim complaints; a victims' legal assistance 
project run by a non-profit and the Arizona State University College of 
Law, and a system of auditing those who receive grants to implement 
victims' rights. Wisconsin uses a State employee to receive and attempt 
to resolve victim complaints, as well as a victims' rights board that 
can formally receive complaints and seek sanctions for violations. 
Alaska has a State Office of Victims' Rights. South Carolina has an 
independent victim ombudsman. Connecticut has a State Victim Advocate. 
Vermont is exploring various options. We do have a Center for Crime 
Victims Services, which advocates informally for victims and is one of 
the premier victims' services sites in the country.
  Finally, I want to comment on the unusual genesis of this bill, and 
the extraordinary procedure that has brought us so swiftly to a vote in 
the Senate. As I mentioned earlier, the Senate was scheduled to begin 
work this week on the proposed constitutional amendment, S.J. Res. 1. 
On Wednesday, the Republican leadership moved to invoke cloture on the 
motion to proceed. I would not have opposed this motion. I voted to 
proceed to an earlier iteration of this constitutional amendment four 
years ago, and I would have been prepared to proceed to it again this 
week. Even given the time this would have taken and the expected 
outcome, I would not have opposed a debate on the constitutional 
amendment.
  It was under these circumstances that we had so little opportunity to 
work on crafting the crime victims' statute. I would have liked to have 
gotten the views of the Office for Victims of Crime and other 
components of the Department of Justice, for example. Many victims' 
groups and domestic violence organizations opposed the constitutional 
amendment, as did many law professors, judges, and prosecutors. I would 
have liked to hear their views on this statute. I am personally 
concerned that the statute may not adequately address the special 
problems raised in domestic violence and abuse situations. If it does 
not, then we may need to amend it again.
  Given the Republican leadership's insistence on proceeding to the 
constitutional amendment today, there was not as much time as I would 
have liked to develop the statutory alternative that we vote on today, 
and no time to hold hearings on it or improve the bill in Committee. 
Fortunately, however, this is to be a statute, not a constitutional 
amendment, and it can be modified and improved. We will be able to make 
it better as we go along.
  I commend my good friend, Senator Feinstein, for mediating this 
consensus legislation. I know that she would have preferred to pass a 
constitutional amendment. She has made that clear. Nevertheless, she 
worked hard to produce a bill that we all can support, showing once 
again that she is first and foremost a legislator who wants to get 
things done. Due in large part to Senator Feinstein's efforts, we now 
have an opportunity to advance the cause of victims' rights with 
strong, practical, bipartisan legislation. I have never doubted Senator 
Feinstein or Senator Kyl's commitment to victims' rights. I am 
delighted that we have come together to advance that common cause.
  My friend and the chairman of the Senate Judiciary Committee, Senator 
Hatch, is another lead sponsor of this legislation. He and I have 
worked together on the Judiciary Committee in this area. He has been a 
tireless advocate for the rights of crime victims, and more generally 
for fairness in the administration of justice.
  I want to thank David Hantman and Steve Cash of Senator Feinstein's 
staff; Bruce Artim and Grace Becker of Senator Hatch's staff; Steven 
Higgins of Senator Kyl's staff; Robin Toone of Senator Kennedy's staff; 
Bob Schiff and Alex Busansky of Senator Feingold's staff; Neil MacBride 
and Louisa Terrell of Senator Biden's staff; Chris Kang of Senator 
Durbin's staff; Mark Childress and Jennifer Duck of Senator Daschle's 
staff; and, most especially the members of my own staff for their hard 
work on this bill over the last several days under extraordinary 
circumstances and pressures.
  I also want to commend and thank the many victims' advocates and 
service providers in Vermont and across the country who show their 
dedication every day of the year to crime victims. I want to thank 
those who work in the area of domestic violence and abuse in 
particular. I am thankful for their dedication and grateful for their 
advice and insights over the years.
  For more than 20 years I have sponsored and championed legislation to 
help victims. I have mentioned the recent September 11 Victim 
Compensation Fund, and I am also proud of such other advancements on 
behalf of victims as a law to provide assistance to victims of 
international terrorism, and bills to raise the cap on victims' 
assistance and compensation programs and to protect the rights of the 
victims of the Oklahoma City bombing. Today's vote provides us the 
opportunity to make progress on yet another important measure to 
address the needs of victims.
  I ask unanimous consent that a letter from the National Center for 
Victims of Crime stating strong support for S. 2329 be printed in the 
Record as well as, for the sake of completeness, a number of editorials 
that appeared on this subject recently.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page 7307]]


                                           The National Center for


                                             Victims of Crime,

                                                   April 21, 2004.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: The National Center for Victims of 
     Crime strongly supports the Scott Campbell, Stephanie Roper, 
     Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' 
     Rights Act. This landmark piece of legislation would provide 
     clear and enforceable legal rights to all direct victims of 
     crime at the federal level. We are pleased to see a long 
     overdue recognition that victims of all crime, violent and 
     nonviolent crime alike, deserve these important rights.
       This bill also sets a new standard for federal victims' 
     rights compliance, giving victims and prosecutors the legal 
     standing to assert victims' rights; clearly authorizing 
     victims and the government to seek writs of mandamus to 
     enforce victims' rights; and calling on the Attorney General 
     to develop regulations to promote victims' rights through 
     training, disciplinary sanctions for violations of rights, 
     and the creation of an office to receive and investigate 
     complaints.
       By making new funding available to jurisdictions with laws 
     substantially equivalent to those established in this bill, 
     this bill legislation will promote a strengthening of 
     victims' rights across the country. By providing funding to 
     promote victim notification and compliance with victims' 
     rights at the state level, this bill will improve the 
     implementation of victims' rights nationwide. We urge 
     Congress to go further--to broaden this funding to support 
     other mechanisms to promote compliance, such as state-level 
     victim advocates and other authorities to receive and 
     investigate the complaints of victims, and not limit funding 
     for enforcement to one method.
       This legislation represents a real Congressional commitment 
     to improve our nation's response to victims of crime. The 
     National Center for Victims of Crime commends you for your 
     hard work and dedication to this issue, and we urge your 
     colleagues to join you in this effort.
           Sincerely,
     Susan Herman.
                                  ____


               [From the Washington Times, Apr. 19, 2004]

                             Amendmentitis

                             (By Bob Barr)

       The circus is back in town. Every 2 years, as we roll 
     around to another grand Olympics of federal, state and local 
     elections, the hopper in Congress begins to fill up with 
     dangerous and unnecessary amendments to our U.S. 
     Constitution.
       Few, if any, are for ``great or extraordinary occasions,'' 
     the bar James Madison set for changing our Founding document. 
     In fact, most are either one or two things: a cheap ploy to 
     get votes or an attempt to streamroll through right- or left-
     wings social policies--think gun control or marriage--that 
     have been unable to get any traction through normal channels 
     of government.
       Just this session alone, Congress has seen or will see 
     votes on the Flag Desecration Amendment, the Victims Rights 
     Amendment, the Federal Marriage Amendment, even the 
     Continuity in Government Amendment. Frankly, I would like to 
     see one last constitutional amendment--the No More Amendments 
     Amendment.
       In the American political system, the Constitution was 
     meant to operate like people who freeze their credit cards in 
     a block of ice. That is, when faced with supremely important 
     and emotional decisions involving things like the censorship 
     of unpopular ideas or the seizure of firearms, the 
     Constitution makes us walk to the corner and take a time out.
       Specifically, we have to get a two-thirds supermajority in 
     both chambers of Congress and then tree-quarters of the 
     States to agree. It is an amazingly onerous process.
       The last amendment to the Constitution--the 27th--which set 
     limits on congressional pay, was initially proposed in the 
     States' petitions to the first Constitutional Congress in the 
     1780s but only started to move in the 1990s. It took more 
     than two centuries to finally earn a spot alongisde free 
     speech and the right not to self-incriminate.
       During the Cold War, Americans of conscience like to brag 
     we were a Nation of laws, not men. That is, the main 
     difference between American representative democracy and 
     Soviet tyranny was that the latter's government did not have 
     to abide by a piece of yellowing parchment with some petty 
     clear instructions on what it could or could not do to its 
     citizens.
       And, while we have failed to meet those lofty goals on a 
     number of important occasions, for the post part, we have 
     managed to pedal through without too many monumental 
     abridgements of personal liberty. That is why we are still 
     here and they went long ago to a nursing home for evil ideas.
       However, we risk betraying that proud history in the 
     political imperative to fiddle with the Constitution. Take, 
     for instance, the Victims Rights Amendment. Pushed by a a 
     mixture of Democrats and Republicans feeling the need to 
     burnish their tough-on-crime badges, the VRA would be a 
     disaster for basic principles of fairness and dispassion in 
     our criminal justice system.
       It would guarantee victims of crime--a loosely defined term 
     in the legislation--the ``right'' to notice, to be present 
     and to speak at an array of judicial proceedings, including 
     those dealing with bail, trial, sentencing and parole. It 
     also requires the court to take victims into account in 
     deciding whether to release prisoners or when to schedule a 
     trial.
       As with many of these amendments, on its face the measure 
     hits all the right notes. It is tough on crime and soft on 
     victims. It is bipartisan--as a lawmaker, if you oppose it, 
     the other side will accuse you of being ``anti-victim,'' 
     whatever that means. It cost no federal tax dollars (at 
     least, not directly); states have to foot the bill. Finally, 
     it makes for a feel-good, ``I supported such and such'' 
     speech on the campaign trail.
       But, as with many of these other amendments, it is 
     seriously flawed. Foremost among its problems is that it 
     will, ironically, obstruct justice. In 2000, Beth Wilkinson, 
     the lead federal prosecutor in the Oklahoma City bombing 
     case, explained in testimony against the amendment that, had 
     it been in force, she might not have successfully sent 
     Timothy McVeigh to death row and Terry Nichols to jail for 
     life.
       Their convictions hinged on the testimony of one Michael 
     Fortier, who plea bargained to 12 years in federal prison, 
     for knowing about the impending bombing but not informing 
     authorities, in exchange for taking the witness stand. Had 
     the relatives of the 168 people killed in that horrible 
     tragedy been able to address the courtroom in opposition to 
     Fortier's plea, it could have sunk the whole case.
       In addition to these practical concerns, the VRA also 
     threatens basic due process protections and objectivity in 
     the criminal justice system by making it more about vengeance 
     than justice. We trust our adversarial process--which pits 
     zealous advocates against one another in front of a judge and 
     jury--to arrive at the best approximation of the truth in 
     criminal prosecution, which helps ensure the guilty are 
     punished and the innocent go free.
       However, when one injects the emotion of a murder victim's 
     family into a bail or a parole hearing, that adversarial 
     system is thrown directly out of whack. The defense counsel 
     then faces an onslaught of vindictiveness that cannot be 
     countered by facts or logic. Justice must remain blindfold to 
     be effective. Otherwise, we will have vigilante posses 
     waiting outside with lit torches and nooses tied every time 
     something really senational goes to trail.
       Finally, in an ironic twist that really hammers home the 
     folly of such constitutional amendments, the vast majority of 
     states--and the federal government--already have laws on the 
     books protecting victims and ensuring their interests are not 
     forgotten as their cases progress through the system.
       The bottom line with the Victims Rights Amendment and its 
     ilk is that the Constitution should not be co-opted as the 
     tag line for a political attack ad. It is arguable the most 
     sacred secular document in the history of the world, as it 
     has kept humanity's strongest democracy healthy long enough 
     to also make it humanity's oldest democracy.
                                  ____


        [From the Chicago Tribune Online Edition, Apr. 18, 2004]

                  A Phony Proposal for Victims' Rights


   There is no need to tinker with the Constitution to Guarantee the 
 rights of victims--our entire judicial system is already set up to do 
                               just that

                           (By Steve Chapman)

       Americans cherish and revere the Constitution. But often 
     their attitude brings to mind the Broadway show: ``I Love 
     You, You're Perfect, Now Change.'' It seems that the only 
     thing many of them like more than the Constitution is the 
     opportunity to fix its grievous flaws. The latest suggestion 
     for improvement stems from a belief that it shortchanges the 
     needs of crime victims.
       The entire criminal justice system, of course, could be 
     seen as a giant apparatus set up to vindicate the interests 
     of crime victims. Every year in the United States, we arrest 
     more than 13 million suspects and keep more than 1.4 million 
     offenders in prison. All those police, prosecutors, judges, 
     parole officers and prison guards are there mainly to detect, 
     investigate, prosecute and punish criminals for what they do 
     to their victims.
       But critics say the system often abuses the people it's 
     supposed to protect. And they insist that the only way to 
     assure fairness to victims is to enshrine their rights in the 
     Constitution. President Bush has endorsed the amendment. Sen. 
     John Kerry has not.
       Americans often have a tendency to see a problem and 
     conclude, ``There oughta be a law.'' In this instance, 
     though, there is already a multitude of laws. Every state has 
     passed legislation to protect victims' rights, and at least 
     33 have such provisions in their state constitutions.
       But Sen. Jon Kyl (R-Ariz.), co-sponsor of the amendment, 
     says these efforts have been a bust. He says one study found 
     that even in states with strong measures in place, 44 percent 
     of victims weren't alerted to the sentencing hearing, and 
     nearly half weren't notified of plea negotiations.
       Why don't existing laws do the job? Because, according to 
     Kyl, ``criminal defendants have a plethora of rights that are 
     protected by the Constitution that are applied to exclude 
     victims rights.''

[[Page 7308]]

       The only way to correct the imbalance is to give victims' 
     rights equal status.
       But where are the constitutional provisions that work 
     against victims?
       Defendants do have a right to a speedy public trial by 
     jury, to be represented by a lawyer, to avoid self-
     incrimination and so on. But nothing in the Constitution 
     prevents authorities from informing victims of proceedings, 
     from letting them speak during trials, sentencing and parole 
     hearings, from altering them when an assailant is about to be 
     released, or from requiring criminals to pay restitution. 
     Those are the victims' rights specified in the constitutional 
     amendment, all of which can be (and often are) safeguarded 
     without the drastic step of altering the nation's charter.
       Supporters complain that some courts have been so eager to 
     assure the defendant a fair trial that they bar victims from 
     the courtroom. But that happens only before a victim is 
     scheduled to testify, and it's simply meant to prevent 
     victims from tailoring their testimony (intentionally or not) 
     to match what other witnesses say.
       By protecting the truth-seeking function of a trial, the 
     practice works to the benefit of victims--who, after all, 
     gain absolutely nothing from sending the wrong person to 
     jail.
       If we want to abolish this custom, despite its virtues, we 
     don't need an amendment. Duke University law professor Robert 
     Mosteller says many states allow victims to be present 
     throughout a trial even if they are going to testify. The 
     practice of excluding victims until they testify, Mosteller 
     notes, ``is generally a matter of statutory or common law'' 
     and ``rarely even approaches constitutional significance.'' 
     It was an issue in Timothy McVeigh's Oklahoma City bombing 
     trial--but in the end, all victims were allowed to attend 
     even if they were expected to appear as witnesses.
       Victims' rights, it's true, have not always been enforced. 
     But that's partly because they're a new concept and take time 
     to be fully implemented. And it's partly because they are 
     administered by large, fallible government bureaucracies 
     trying to keep track of a lot of people and information, 
     sometimes without adequate funds.
       Amending the Constitution won't make the bureaucracies less 
     fallible. The obvious way to do that is to make them pay for 
     their mistakes by letting victims collect damages when their 
     rights are ignored. But this proposal explicitly forbids that 
     remedy. It's all bark and no bite.
       Unless, of course, the opponents hope to curtail the 
     protections we grant to those accused of crimes. The 
     supporters deny that, but they also decline to include a 
     section stating that the amendment wouldn't diminish any 
     existing guarantees.
       So maybe the amendment would be an attack on longstanding 
     constitutional rights, or maybe it would be an ineffectual 
     piece of symbolism. Either way, we're better off without it.
                                  ____


              [From the Washington Times, April 20, 2004]

                        We, the Clutterers . . .

            (By Bruce Fein, special to the Washington Times)

       The Senate should balk at cluttering the Constitution when 
     it votes next Friday on a crime victims' rights amendment 
     [VRA].
       To forgo the VRA is not to cherish victims' rights less, 
     but to venerate the brevity and accessibility of the 
     Constitution more. Amendments are appropriate only when 
     flexible and adaptable statutes would be insufficient to 
     achieve a compelling objective; or, to protect discrete and 
     insular minorities from political oppression. Neither reason 
     obtains for the VRA.
       Crime victims deserve and evoke legal sympathy. Every state 
     and the District of Columbia feature statutes that endow 
     victims with participatory rights in the criminal justice 
     system. Further, 33 states have amended their state 
     constitutions by overwhelming majorities to protect crime 
     victims.
       Congress has enacted a cornucopia of victim-friendly 
     statutes since 1982, including a right to restitution, victim 
     impact statements, and a victims' Bill of Rights. According 
     to the latter, federal law enforcement agencies must treat 
     putative victims with fairness and respect; protect them from 
     accused offenders; provide them notice of court proceedings; 
     offer opportunities to attend public sessions under certain 
     conditions and to confer with government prosecutors; and 
     transmit information about the conviction, sentencing, 
     imprisonment, and release of the offender.
       A crime victim's authenticity remains in doubt, it should 
     be remembered, unless and until the accused is convicted.
       As I previously testified before the Senate Judiciary 
     Committee: ``Crime victims have no difficulty in making their 
     voices heard in the corridors of power; they do not need 
     protection from the majoritarian political process, in 
     contrast with criminal defendants whose popularity 
     characteristically ranks with that of Gen. William Tecumseh 
     Sherman in Atlanta, Ga.'' A recent vignette from Lake County, 
     Mich., corroborates the political hazards of slighting crime 
     victims. In September 2003, a county prosecutor was recalled 
     by voters angry over a lenient plea bargain that had outraged 
     the family of a murder victim: a 23- to 50-year sentence for 
     the killer. The prosecutor's explanation he was seeking to 
     avoid costly trials on a penurious $200,000 annual budget 
     proved unavailing.
       VRA proponents insist statutory rights are second-class 
     rights compared with constitutional rights enjoyed by the 
     accused. Statutes fortified by strong pubic sentiments, 
     however, command virtual constitutional sanctity. The 1964 
     Civil Rights Act, the 1965 Voting Rights Act, the National 
     Labor Relations Act, and the Sherman Antitrust Act are 
     illustrative. As to the latter, the Supreme Court in United 
     States vs. Topco Associates [1972] amplified: ``Antitrust 
     laws in general, and the Sherman Act in particular, are the 
     Magna Carta of free enterprise.''
       Moreover, the elevation of victims' rights from a statutory 
     to a constitutional plateau does not guarantee greater 
     effectiveness. The 14th and 15th Amendment rights of blacks, 
     for instance, slept for 80 years in the chambers of 
     prosecutors and judges because of public indifference. In any 
     event, government officers are every bit as bound by oath to 
     obey statutes as to comply with the Constitution.
       VRA crusaders speciously argue victims' constitutional 
     rights in criminal prosecutions should reasonably mirror 
     those of the accused. Unlike a putative victim, a criminal 
     suspect confronts the loss of life, liberty, or property and 
     a formidable arsenal of government investigatory and 
     prosecutorial weapons. The victim, moreover, may seek damages 
     from the defendant, including restitution, in parallel civil 
     proceedings a la the O.J. Simpson wrongful death judgments.
       History has also demonstrated a government propensity to 
     persecute by overzealous prosecutions. The Declaration of 
     Independence denounced King George III, ``For transporting us 
     beyond the seas to be tried for pretended offenses.''
       Former Attorney General and Associate Justice of the 
     Supreme Court, Robert Jackson, worried that prosecutors are 
     routinely tempted to pick a man to indict for personal or 
     ideological reasons, and then to scour the books to pin an 
     offense on him, in lieu of discovering a crime and then 
     searching for the culprit. To blunt the potential for 
     vindictive or wrongful convictions, the Constitution endows 
     defendants with a modest array of rights, for example, proof 
     beyond a reasonable doubt, jury unanimity, and the right to 
     counsel. Crime victims, however, can point to no 
     corresponding history of government oppression. Indeed, they 
     are the contemporary darlings of state legislatures and 
     Congress.
       The VRA would also vitiate the truth-finding objective of 
     trials by injecting victim concerns that could undermine the 
     impartiality and reliability of verdicts. The amendment would 
     require judges in jury selection, evidentiary rulings, or 
     jury instructions to ``consider the victim's safety, interest 
     in avoiding unreasonable delay, and just and timely 
     restitution from the offender.'' It would permit victims who 
     intend to testify to avoid sequestration, a customary 
     requirement to foil the tailoring of witness stories. 
     Sequestration has been celebrated by an icon in the law of 
     evidence, however, as ``one of the greatest engines that the 
     skill of man has ever invented for the detection of liars in 
     a court of justice.''
       Thus, the biblical Apocrypha relates how Daniel exonerated 
     Susanna of adultery by sequestering two accusing elders and 
     eliciting conflicting answers as to where the alleged crime 
     occurred.
       Much additional mischief besets the VRA, but their telling 
     must be forgone as a concession to the shortness of life. The 
     proposed amendment should be smartly defeated.
                                  ____


               [From the Washington Post, Apr. 21, 2004]

                            Wrong on Rights

       The Senate is due to take up a constitutional amendment 
     designed to grant rights in criminal court proceedings to 
     victims of violent crimes. The last time the proposal arose, 
     its sponsors, Sens. Jon Kyl (R-Ariz.) and Dianne Feinstein 
     (D-Calif.), had to yank it back to avoid defeat. But support 
     for the idea has grown. Nobody likes to oppose crime victims, 
     and on its face the amendment's promises seem 
     unobjectionable: ``reasonable and timely notice'' of 
     proceedings; the right of victims to attend those proceedings 
     and to speak at sentencing, clemency and parole hearings; and 
     the right to seek restitution from perpetrators. What harm 
     can there be in placing victims' rights even with the rights 
     of the accused?
       Quite a lot, actually. For starters, none of the 
     amendments' terms are defined--including, critically, who 
     counts as a ``victim.'' Is it limited to immediate relatives 
     or can extended family members qualify? Nor does the 
     amendment specify a remedy for violations of victims' rights. 
     In fact, it specifically says that it does not ``authorize 
     any claim for damages.'' So it is unclear how exactly a 
     victim is supposed to take advantage of his rights. The 
     result will be litigation--a lot of it--as victims seek to 
     exercise their new constitutional rights and defendants seek 
     to ensure that victims' rights don't come at the expense of 
     their own.
       The fundamental trouble is that victims' rights, if taken 
     seriously, will come at the

[[Page 7309]]

     expense of the rights of the accused. Sometimes a defendant's 
     right to a fair trial cannot be reconciled with a victim's 
     right to speak to the jury. Right now, the victims' rights 
     yield in such cases, as they should. The state, after all, is 
     not seeking to deprive the victim of liberty or, in the 
     extreme case, life. The rights of the accused flow out of the 
     jeopardy in which the state puts them.
       Though the criminal justice system's treatment of victims 
     has improved, it could and should be better. But it would be 
     a profound error to place such obligations on the same plane 
     as the Constitution's essential protections against unchecked 
     government power.

  Mr. DeWINE. Mr. President, I rise today in support of the Crime 
Victims' Rights Act. As a former county prosecuting attorney, this is 
an issue about which I feel very strongly. All too often, our criminal 
justice system overlooks the victims of crime in efforts to ensure the 
legitimate rights of accused defendants.
  Crime victims simply have not been given the equal footing that they 
deserve. From start to finish, the legal system sometimes can be a 
terrible ordeal for victims--a bureaucratic nightmare that seems to and 
in fact many times does go on and on and on.
  We substantially protect the rights of defendants, as well we should. 
We ensure that they have every reasonable benefit--and that is good--so 
as to ensure the acquittal of the innocent. But, in the process, I 
believe that many times, we don't give the victims of crime the rights 
that they, too, deserve. When I was a county prosecutor in Greene 
County, OH in the 1970s I saw too many crime victims--people who had 
already been hurt--hurt a second time by a callous legal system. That 
is why I did everything that I could to protect the rights of those 
victims. Our bottom line has to be this: To be victimized once by crime 
is already once too often. To be victimized yet again by an uncaring 
judicial system is totally unacceptable.
  Accordingly, I am pleased to cosponsor this bipartisan legislation 
that will afford these victims, the fundamental right to participate in 
the criminal justice system. It just makes good sense for the innocent 
victim of a crime to be given the right to know if his or her assailant 
is released or escapes from prison. It is simply fairness to recognize 
a crime victim's right to reasonable notice of public proceedings 
involving the crime; the right to not be excluded from such public 
proceedings; and the right to be heard at the public release, plea, 
sentencing, reprieve, and pardon proceedings involving that victim's 
assailant. It's about time that we guarantee crime victims their rights 
to court decisions that duly consider their safety, their rights to 
have the courts avoid unreasonable delay in adjudicating those charged 
with harming them, and their rights to just and timely restitution from 
their offenders. This legislation is about victims. This legislation is 
about working to keep victims safe from further harm. This legislation 
is about keeping their concerns at the forefront.
  When I was Green County prosecuting attorney, I had seen the victims 
of murder and other terrible crimes. I interviewed people who had been 
abused, assaulted, and raped. I learned a lot from talking to these 
innocent people. I learned that we have to make the crime victim a full 
participant--not a forgotten person, not a neglected person--in the 
criminal justice system.
  That is why I cosponsored this bipartisan legislation. It is designed 
to help guarantee that the victims of crime have access to our criminal 
justice system. It is time to stop treating the victims like they are 
the criminals. Let's move the legitimate concerns of victims toward 
center stage in our criminal justice system and finally provide these 
innocent victims with the rights they deserve.
  Mr. DURBIN. Mr. President, I rise today in support of the Scott 
Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn 
Crime Victims' Rights Act.
  This week is National Crime Victims' Rights Week--a time to recognize 
the impact of crime and the rights and needs of victims. In 2002, there 
were 23 million criminal victimizations in the United States, and many 
of these crime victims feels as if the criminal justice system has 
wronged them. These people were innocent victims, but they feel 
deprived of the fundamental need to participate in the process of 
bringing the accused to justice.
  I support crime victims' rights, and I believed that every effort 
should be made to ensure that crime victims are not victimized a second 
time by the criminal justice system. At the same time, I agree with 
James Madison, who wrote that the United States Constitution should be 
amended only on ``great and extraordinary occasions,'' and I am 
reluctant to amend our Constitution for only the 18th time since the 
adoption of the Bills of Rights.
  This is why I am proud to be an original cosponsor of the Crime 
Victims' Rights Act, which reaches all of the goals that the proposed 
constitutional amendment sought to achieve, by providing crime victims 
with the same rights, including the following: No. 1, the right to 
notice of any public proceeding involving the crime or of any release 
or escape of the accused; No. 2 the right not to be excluded from any 
such public proceeding; No. 3, the right to be reasonably heard at any 
public proceeding involving release, plea, or sentencing; No. 4, the 
right to full and timely restitution; and No. 5, the right to 
proceedings free from unreasonably delay.
  By enacting legislation rather than amending the Constitution, our 
approach today also addresses my concerns regarding the rights of the 
accused. The premise of criminal justice in America is innocence until 
proven guilty, and our Constitution therefore guarantees certain 
protections to the accused. These include the Fifth Amendment 
protection against double jeopardy, as well as the Sixth Amendment 
rights to a speedy trial, the assistance of counsel, and an impartial 
jury.
  Although these protections for the accused sometimes are painful for 
us to give, they are absolutely critical to our criminal justice 
system. When the victim and the accused walk into the courtroom, both 
are innocent in the eyes of the law, but when the trial begins, it is 
the defendant's life and liberty that are at stake.
  During the Judiciary Committee debate on the proposed constitutional 
amendment regarding victims' rights, I offered an amendment that would 
have ensured that the rights of the accused as guaranteed under the 
Constitution would not be diminished or denied. However, this language 
is unnecessary in the bill we are debating today, because rights 
provided in a statute can not supercede those guaranteed by the 
Constitution.
  For example, I believe this statute would allow courts to protect 
defendants from possible violations of due process and to preserve the 
accused's right to an impartial jury, by excluding victims from a 
public proceeding if the victim is to testify and the court determines 
that the victim's testimony would be materially affected if the victim 
hears other testimony at trial.
  This statutory approach also provides Congress with the flexibility 
to modify this legislation if we find it is not perfect.
  I would like to commend Senators Feinstein and Kyl for their efforts 
to provide rights to crime victims and for introducing this statutory 
alternative. I am pleased to join them in this effort.
  Mr. KENNEDY. Mr. President, I strongly support this bill to provide 
enforceable rights to victims of crime, and I urge the Senate to 
approve it.
  For too long, our criminal justice system has neglected the hundreds 
of thousands of victims of crime whose lives are shattered by violence 
or other crime each year. Victims deserve better from our criminal 
justice system.
  Too often, the current system does not provide adequate relief for 
victims of crime. They are not given basic information about their 
case--such as notice of a defendant's arrest and bail status, the 
schedule of various court proceedings, and the terms of imprisonment. 
Victims deserve to know about their case. They deserve to know when 
their assailants are being considered for bail or parole or adjustments 
of their sentences. They certainly deserve to know when offenders are 
released from prison.

[[Page 7310]]

  Since 1997, Senator Leahy and I have sponsored legislation to provide 
enhanced protections for victims of violent or non-violent crimes and 
establish an effective way to implement and enforce these protections. 
Our legislation is designed to give victims a greater voice in the 
prosecution of the criminals who injured them and their families, fill 
existing gaps in Federal criminal law, guarantee that victims of crime 
receive fair treatment and the respect they deserve, and achieve these 
goals in a way that respects the efforts of the States to protect 
victims in ways appropriate to each State's unique needs.
  I am pleased to join Senator Kyle and Senator Feinstein, who are the 
lead sponsors of the proposed Victims' Rights Constitutional Amendment, 
in moving forward on victims' rights legislation now. Our bill is 
called the ``Scott Campbell, Stephanie Roper, Wendy Preston, Lourana 
Gillis and Nila Lynn Crime Victims' Rights Act,'' and is named in honor 
of five persons who were victims of crime. Our bill provides victims 
with a number of important rights, including the right to receive 
notice of public proceedings; to receive notice of the release or 
escape of the accused; to attend and be heard at proceedings involving 
release, plea, or sentencing; to confer with the government's attorney; 
and to receive full and timely restitution as provided by law. The bill 
also provides for the enforcement of these rights, by directing 
government officials to notify victims of their rights, requiring 
courts to grant these rights to victims, and giving standing to both 
prosecutors and victims or their legal representatives to assert the 
rights at trial and on appeal.
  The legislation will protect all victims of crime, including victims 
of identity theft, personal property theft, fraud, embezzlement, 
vandalism, and other non-violent offenses. The National Center for 
Victims of Crime has emphasized the great importance of including 
protections for victims of non-violent crime. Our legislation does so, 
and I commend the Center for its leadership on this important aspect of 
the issue.
  Our Victims' Rights Act also directs the Attorney General to act 
within a year to issue regulations to enforce the rights of crime 
victims and ensure compliance by all relevant officials. The bill 
strengthens victims' rights at the Federal, State, and local levels by 
authorizing the use of Federal funds to establish programs to promote 
compliance and develop state-of-the-art systems for notifying victims 
of important dates and developments in their cases.
  Once this bill is enacted into law, we intend to monitor its 
implementation by the Justice Department, other law enforcement and 
criminal justice agencies, and the courts, so that we can take 
appropriate action, if necessary, to ensure that the victims' rights 
are protected, and also ensure that the effective functioning of the 
law enforcement and criminal justice system is not impaired. I commend 
my colleagues for their leadership in making this legislation possible, 
and I urge the Senate approve it. We know that victims of crime have 
been waiting too long for our action, and hopefully this long-needed 
measure is finally on the fast track for enactment into law.
  Mr. SMITH. Mr. President, I rise to speak about the Crime Victims' 
Rights Act.
  America is a country ruled by law and not by individuals. For that 
reason, our criminal justice system serves as a beacon of light for 
many who live in the shadow of tyranny. Nowhere is this better 
demonstrated than those rights of the accused protected by the U.S. 
Constitution. A defendant has the right to due process under law, the 
right to a speedy trial, the right to counsel, the right against self-
incrimination, the right to confront witnesses as well as a host of 
other protections. These constitutional rights aim to protect the 
innocent and punish only the guilty. No American should be wrongly 
incarcerated and denied the most basic liberties.
  While the Constitution provides a panoply of rights for the accused, 
it does not guarantee any rights to crime victims. Victims do not have 
the right to be present during prosecution. Victims do not have the 
right to be informed of the defendant's hearing. They do not have the 
right to be heard at sentencing or at parole hearings. Victims have no 
rights to restitution or notification even if they may be endangered by 
the release of their attacker.
  To maintain the integrity of our judicial system, a careful balance 
must be struck between the rights of the accused and the rights of 
victims. Unfortunately, the scales of justice have been tilted. As a 
result, 32 States have enacted constitutional amendments to provide 
some protections for victims. Today, I am proud to have joined my 
colleagues in sponsoring and voting in favor of the Crime Victims' 
Rights Act which would extend rights to victims of federal crimes as 
well. Nationally, this sends a clear message to victims that they will 
finally be given a voice in the Federal criminal process.
  I also want to take this opportunity to recognize the leaders of the 
victim's rights movement in my home state. Established in 2000, the 
National Crime Victim Law Institute has been committed to the 
enforcement and protection of victims' rights in the criminal justice 
system. While there has been a flood of legislation at the State level 
on victims' rights, there has been a dearth of academic attention paid 
to this area of the law. The National Crime Victim Law Institute, at 
the Lewis and Clark School, is one of the first academic institutions 
to undertake a focused effort to study and enhance the effectiveness of 
victim rights laws. The Institute's Executive Director, Doug BeLoof, 
has authored Victims in Criminal Procedure, the first casebook to be 
published in this area of law.
  Along with this important legal scholarship, passage of this 
legislation is an important step in the fight to protect victims' 
rights. I look forward to President Bush signing this legislation into 
law.
  Mr. LEAHY. Madam President, I do not see others seeking time so I 
reserve the remainder of my time and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, it is my understanding Senator Leahy still 
has time remaining under his control.
  The PRESIDING OFFICER. That is correct.
  Mr. REID. How much time?
  The PRESIDING OFFICER. The Senator has 19.5 minutes.
  Mr. REID. Mr. President, using Senator Leahy's time, I will proceed.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Patriot Act and Senator Kerry

  Mr. REID. Mr. President, during this lull, prior to the vote on this 
legislation that has been changed from a constitutional amendment to a 
statute, I would like to take a few minutes hopefully to clear some of 
the confusion about the record of my colleague, the Senator from 
Massachusetts, John Kerry. This relates to the PATRIOT Act.
  First of all, everyone should understand John Kerry voted for the 
PATRIOT Act. This, of course, is a man who volunteered to fight for our 
country in the jungles of Vietnam. He risked his life to keep America 
safe. He was wounded on three separate occasions, received two medals 
for heroism for his acts above and beyond the call of duty. These were 
all in an effort to keep our Nation safe and strong.
  Like most of us who voted for the PATRIOT Act, Senator Kerry believed 
it gave law enforcement officials essential tools they needed in the 
war against terror.
  He not only voted for the PATRIOT Act, he actually authored parts of 
it. Senator Kerry helped draft the money-laundering provisions of the 
PATRIOT Act. He believes that provision should

[[Page 7311]]

be strengthened to include nonbank institutions and increase funding 
for information gathering and sharing. These provisions have helped 
choke financial support to terrorist groups.
  When Congress enacted the PATRIOT Act we gave it a sunset clause so 
we, the Senate, the Congress, and the American people, could see how it 
worked. We understood we were giving the Government unprecedented power 
and we would want to come back later and fine-tune the balance between 
the power of Government and the personal rights of citizens.
  Some parts of the PATRIOT Act will expire in approximately 20 months. 
Frankly, with all the important issues and business this Senate has yet 
to address, I don't understand why we have had a series of speeches on 
the Senate floor about making permanent the PATRIOT Act. It will not 
expire, as I have indicated, for 20 more months. At some point we will 
have to decide which parts of the PATRIOT Act should be reviewed, 
renewed, expanded, or in some way limited in some instances.
  Senator Kerry wants to extend more than 95 percent of the provisions 
of the PATRIOT Act. That is, so everyone is very clear, Senator Kerry 
believes 95 percent of the PATRIOT Act should remain as it is. But 
keeping America strong, as Senator Kerry believes, also means 
protecting our individual rights and privacy. Keeping America free 
means keeping a rein on the power of Government, so Senator Kerry does 
support some adjustments to the PATRIOT Act along with a number of 
other Senators, including the ``liberals'' Craig and Sununu. I say that 
facetiously because Senator Craig and Sununu are anything other than 
progressives.
  I am also a cosponsor of the amendment Senator Kerry suggests should 
make adjustments to this act.
  Nobody has ever accused any of these Senators--Senators Craig, 
Sununu, or Kerry--of being soft on terrorism. They are resolute in 
their commitment to protect our Nation from terror. But they are also 
resolute in their commitment to protect our individual rights and our 
freedom--just like John Kerry.
  Senator Kerry believes we need to improve the PATRIOT Act by making 
some changes in the provisions of a couple of wiretaps, sneak-and-peek 
warrants, and the seizure of business and library records.
  He isn't alone. The House of Representatives voted 309-118 to ban 
funds for these so-called ``sneak and peek'' searches, which allow 
government agents to surreptitiously search the homes of citizens, 
without ever notifying them.
  Senator Kerry wants to strengthen the Patriot Act in other areas, by 
adding new legal and organizational tools to fight terror.
  He has been and will be tough on terror, and he will keep America 
safe. He knows that the Patriot Act is just one of the many weapons we 
need in that fight against terror.
  Senator Kerry understands that we need to improve the lines of 
communication between different intelligence agencies, and between 
federal and local officials. He believes that appropriate state and 
local authorities should have immediate access to national terrorist 
lists and 24-hour operations center should be created to link local and 
federal law enforcement. It is called communication.
  Senator Kerry has called for tighter protection of chemical factories 
that could be targeted by terrorists. I am a cosponsor of that 
legislation. Bowing to the chemical industry, the Bush administration 
has opposed common sense measures to improve security of 123 chemical 
plants where the EPA says a terrorist attack could kill or injure one 
million people. John Kerry knows that we have to do a better job 
protecting these potential targets.
  Senator Kerry understands that we must give our police, firefighters 
and other first responders the equipment and training they need to 
respond to terrorist attacks. Right now, they aren't getting everything 
they need, and the result could be tragic.
  Finally, Senator Kerry knows that we aren't doing everything we 
should to keep our seaports safe. Ninety five percent of our trade 
outside North America moves by sea, and most of that is concentrated in 
a handful of ports. Senator Kerry understands that our economy and our 
national security both depend on keeping our ports safe. We need to 
develop security standards for our ports, invest in a system of 
container security and provide more customs inspectors.
  These are common sense measures to protect our homeland. Every day 
that we delay, we leave ourselves open to potential acts of terrorism.
  I hope my colleagues won't impugn Senator Kerry's commitment to 
national security just because he is concerned about safeguarding our 
personal rights and privacy.
  I understand we don't all agree on the need for measures like ``sneak 
and peek'' searches of American citizens or improving security at our 
seaports.
  Let's debate those differences--but let us never suggest that any 
Member of this body is not committed to keeping America strong and 
safe.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the 
Senator from New Mexico, Senator Domenici, be added as a cosponsor of 
the legislation before us.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I will say a few words in conclusion 
to my remarks.
  I believe the Senator from Arizona, Senator Kyl, will be coming back 
to the floor to make a small technical modification to the amendment 
since questions have been developed and they can be easily taken care 
of. I believe he will do that. Otherwise, I think everyone who is going 
to speak on this has spoken.
  I would like to end by saying how grateful I am for this day. This is 
an important day for many of us who care about victims' rights--I think 
every Member of this Senate--because for the first time we have a 
strong and comprehensive measure to be able to achieve a compendium of 
victims' rights. That compendium will give victims access to the 
criminal justice system so they may retain their dignity; so they have 
an opportunity to know when there is a trial and be present at the 
trial; to make statements if there is a public proceeding with respect 
to a plea bargain; to be there to make a statement; to receive 
restitution, if offered by a judge; to know when their attacker is 
released from jail or prison--not too much, but certain basic, 
elemental rights for anyone who has either been the victim of or has 
been dramatically affected by a crime.
  I am very proud of the work on this. I have worked with Senator Kyl 
for a long time, and now with Senators Hatch and Leahy as well.
  I thank everybody who has been involved.
  I particularly would like to thank my staff, Steven Cash and Dave 
Hantman, who over the years I think have grown more determined to get 
this job done.
  I am hopeful we will have a unanimous vote in this body, that the 
bill will be accepted by the House, and we will be able to say to 
victims all across this country there is a Federal statute with a 
remedy and a method of enforcement that will guarantee the very basic 
rights in Federal crimes; and also the funding to be able to go out and 
secure some of those same rights under State law.
  I thank everybody. I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I thank the distinguished Senator from 
California for her excellent work, and also the distinguished Senator 
from Arizona for his excellent work on this. They have worked on this 
year after year until we have finally reached this point where I 
believe we can get a bill through the Congress even though it is almost 
impossible to get a constitutional amendment through the Congress on 
this very important subject.
  I rise today in support of S. 2329, The Crime Victims' Rights Act. 
The issue addressed by this legislation--protecting the rights of 
victims of crime--is one of utmost importance to the American people.

[[Page 7312]]

  At the outset, let me commend the efforts of Senators Kyl and 
Feinstein, who have worked tirelessly since 1996 to try to get the 
crime victims' rights constitutional amendment passed.
  No one has worked harder than these two Senators in trying to protect 
victims' rights. Over the last 8 years, they have met with countless 
victims, listened to their tragic stories, held hearings, drafted and 
redrafted constitutional language, and consulted with academics, 
outside experts and governmental officials to make sure they got it 
just right.
  While I know their preference is to pass a constitutional amendment--
and that would have been my preference as well--they have now prudently 
opted to pursue a statutory remedy.
  I am especially pleased that the ranking minority member of the 
Judiciary Committee, Senator Leahy, is joining us in this initiative.
  When we last debated victims' rights, it was in April of 2000. There 
can be no question that the world has irrevocably changed since then.
  Four years ago, many could not truly appreciate what it means to be a 
victim of violence. Today, in the post-9/11 era, it is impossible not 
to empathize with victims. I am sure that none of us will forget the 
image of planes crashing into the World Trade Center. None of us will 
forget the image of victims jumping out of windows to avoid the flames 
that were creeping up the buildings. None of us will forget the images 
of two of the tallest buildings in the world crumbling to the ground 
like a house of cards with the victims trapped underneath the rubble. 
And none of us will forget the gaping hole in the side of the Pentagon 
and the grief of the families of those that died that day.
  In that single day, nearly 3,000 victims died in New York City and 
Washington, D.C. Yet as horrific as that statistic is, it cannot be 
compared to the more than five million violent crimes that are 
committed in the United States every year. Yet the victims of these 
violent crimes, as well as their families and loved ones, continue to 
suffer in silence. Some of them are not able to obtain notice of 
criminal proceedings; they are not permitted to remain in the courtroom 
while the trial is ongoing regardless of whether they are expected to 
be called as a potential government witness. That is why I am an 
original cosponsor of S. 2329.
  Let me give a couple of examples of why we need this legislation.
  On December 2, 1998, Jeffrey Weller, who was only 23 years old, was 
murdered by his childhood friend. The friend showed up at Jeff's home, 
where he lived with his new wife of 2 months. While the two men were 
sitting in a car, the murderer attacked Jeff with a knife. Jeff managed 
to get out of the car and run, but was shot once in the back. The man 
then shot Jeff again at point-blank range in the head. Although the 
defendant was arrested, convicted and sentenced to 10 years in prison, 
he was released after serving only 4 years. Jeff's family was denied a 
restraining order against the killer and was told to contact local law 
enforcement if he comes on the property. In January 2002, the killer 
kidnapped and murdered Jeff's 5-year old son and committed suicide. It 
is for families like the Wellers that we need to pass this bill--and 
there are so many. Yet, S. 2329 gives victims the right to be 
reasonably protected from the accused.
  In my home state of Utah, Pam Kouris lost her 11-year old son, 
Michael, when he was hit by a car while riding his bicycle. The 
negligent driver was a police officer who was under the influence of 
pain killers, muscle relaxers and Valium. He ultimately pled guilty but 
he was not sentenced until 5\1/2\ years after Michael's death and he 
received probation. It is for people like Pam that we are passing this 
legislation to protect her right to proceedings free from unreasonable 
delay.
  In addition to those rights, the bill also establishes other 
fundamental rights for victims, including the right to reasonable 
notice of public criminal proceedings, the right not to be excluded 
from those proceedings, and the right to be heard reasonably when a 
court is considering a criminal's release, plea or sentence. The bill 
also guarantees victims the right to confer with a Government attorney, 
the right to full and timely restitution, the right to proceedings free 
from unreasonable delay, and importantly, the right to be treated with 
fairness and with respect for the victim's dignity and privacy.
  The bill also directs the Department of Justice to promulgate 
regulations to enforce these rights and to create an administrative 
authority to receive and investigate complaints relating to the 
violation of the rights of crime victims. This administrative remedy 
creates a framework to quickly enforce victims' rights.
  Moreover, the bill provides that victims will have standing to sue in 
Federal court if they are wrongly denied these rights. For those who 
may be concerned that this bill might lead to new tort causes of 
action, let me assure you, that victims are not seeking to sue the 
government and get rich. All the victims want is a chance to 
participate in the criminal justice process. Accordingly, the bill 
states that there will be no cause of action for damages.
  Public support for victims' rights protection is very strong. All 50 
states have some form of victims' rights measures at a statutory or 
court-based level and 33 states have passed state constitutional 
amendments to protect victims' rights.
  In sum, this bill has strong bipartisan support and I strongly urge 
my colleagues on both sides of the aisle to vote for this important 
legislation.
  It is time to quit playing around and get this done. It is time to do 
what is right. The constitutional amendment itself, had we been able to 
bring that up, has been criticized because people around here say we 
should never amend the Constitution, it is perfect as it is.
  One reason some members want to amend the Constitution is to get it 
back to where it really was. In other words, we have courts that have 
gone way beyond the pale and have amended the Constitution by judicial 
fiat. Most of these constitutional amendments, I have found through the 
years, have been to get the Constitution back where it really belongs, 
away from rogue judges just deciding on their own to amend the 
Constitution because they are in a position that some believe, as 
Federal judges, is the closest thing to God in this life. Frankly, some 
of them take advantage of that.
  In the process, we wish we could get back to where the people rule 
and where the Constitution was before they changed it by judicial fiat. 
There are a number of reasons why judicial fiat has changed the laws 
with regard to victims' rights. Frankly, this bill will get us back to 
a point where we will be making headway on victims' rights and 
protecting the rights of those who have been suffering far too long.
  I compliment my two dear friends and colleagues on the Judiciary 
Committee and others in this Congress who have worked so hard to see 
this come to fruition.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KYL. 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. KYL. I ask unanimous consent Senator Kohl be added as a cosponsor 
to the legislation pending.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, notwithstanding the previous order, I ask the 
technical amendment which is at the desk be considered and agreed to 
and--I withhold on that request for a moment.
  The PRESIDING OFFICER. The request is withheld.
  Mr. REID. I apologize to my friend from Arizona. It is certainly not 
his fault. I told him it had all been cleared. I thought it had. 
Senator Feinstein has cleared it; obviously, there are a couple more 
people.
  Mr. KYL. I withdraw the request until it is clear.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

[[Page 7313]]


  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3047

  Mr. KYL. Notwithstanding the previous order, I ask the technical 
amendment at the desk be considered and agreed to and the motion to 
reconsider be laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3047) was agreed to, as follows:

       On page 7, line 24, strike the first period and insert the 
     following: ``, subject to appropriation.''.
       On page 10, line 20, strike the first period and insert the 
     following: ``, subject to appropriation.''.

  Mr. KYL. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. 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. REID. Mr. President, how much time remains on this matter now 
before the Senate?
  The PRESIDING OFFICER. The Senator from Utah has 16 minutes, the 
Senator from Vermont, 12.
  Mr. REID. Mr. President, I yield back the time of the Senator from 
Vermont.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I ask unanimous consent that Senator Shelby 
be added as a cosponsor of the legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, on behalf of Senator Hatch, I yield back the 
time that he has remaining.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. KYL. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill, as amended, pass?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Colorado (Mr. 
Campbell) and the Senator from Pennsylvania (Mr. Specter) are 
necessarily absent.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessarily absent.
  The PRESIDING OFFICER (Mr. Crapo). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 96, nays 1, as follows:

                      [Rollcall Vote No. 70 Leg.]

                                YEAS--96

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                                NAYS--1

       
     Hollings
       

                             NOT VOTING--3

     Campbell
     Kerry
     Specter
  The bill (S. 2329), as amended, was passed, as follows:

                                S. 2329

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Scott Campbell, Stephanie 
     Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime 
     Victims' Rights Act''.

     SEC. 2. CRIME VICTIMS' RIGHTS.

       (a) Amendment to Title 18.--Part II of title 18, United 
     States Code, is amended by adding at the end the following:

                  ``CHAPTER 237--CRIME VICTIMS' RIGHTS

``Sec.
``3771. Crime victims' rights.

     ``Sec. 3771. Crime victims' rights

       ``(a) Rights of Crime Victims.--A crime victim has the 
     following rights:
       ``(1) The right to be reasonably protected from the 
     accused.
       ``(2) The right to reasonable, accurate, and timely notice 
     of any public proceeding involving the crime or of any 
     release or escape of the accused.
       ``(3) The right not to be excluded from any such public 
     proceeding.
       ``(4) The right to be reasonably heard at any public 
     proceeding involving release, plea, or sentencing.
       ``(5) The right to confer with the attorney for the 
     Government in the case.
       ``(6) The right to full and timely restitution as provided 
     in law.
       ``(7) The right to proceedings free from unreasonable 
     delay.
       ``(8) The right to be treated with fairness and with 
     respect for the victim's dignity and privacy.
       ``(b) Rights Afforded.--In any court proceeding involving 
     an offense against a crime victim, the court shall ensure 
     that the crime victim is afforded the rights described in 
     subsection (a). The reasons for any decision denying relief 
     under this chapter shall be clearly stated on the record.
       ``(c) Best Efforts To Accord Rights.--
       ``(1) Government.--Officers and employees of the Department 
     of Justice and other departments and agencies of the United 
     States engaged in the detection, investigation, or 
     prosecution of crime shall make their best efforts to see 
     that crime victims are notified of, and accorded, the rights 
     described in subsection (a).
       ``(2) Conflict.--In the event of any material conflict of 
     interest between the prosecutor and the crime victim, the 
     prosecutor shall advise the crime victim of the conflict and 
     take reasonable steps to direct the crime victim to the 
     appropriate legal referral, legal assistance, or legal aid 
     agency.
       ``(3) Notice.--Notice of release otherwise required 
     pursuant to this chapter shall not be given if such notice 
     may endanger the safety of any person.
       ``(d) Enforcement and Limitations.--
       ``(1) Rights.--The crime victim, the crime victim's lawful 
     representative, and the attorney for the Government may 
     assert the rights established in this chapter. A person 
     accused of the crime may not obtain any form of relief under 
     this chapter.
       ``(2) Multiple crime victims.--In a case where the court 
     finds that the number of crime victims makes it impracticable 
     to accord all of the crime victims the rights contained in 
     this chapter, the court shall fashion a procedure to give 
     effect to this chapter.
       ``(3) Writ of mandamus.--If a Federal court denies any 
     right of a crime victim under this chapter or under the 
     Federal Rules of Criminal Procedure, the Government or the 
     crime victim may apply for a writ of mandamus to the 
     appropriate court of appeals. The court of appeals shall take 
     up and decide such application forthwith and shall order such 
     relief as may be necessary to protect the crime victim's 
     ability to exercise the rights.
       ``(4) Error.--In any appeal in a criminal case, the 
     Government may assert as error the district court's denial of 
     any crime victim's right in the proceeding to which the 
     appeal relates.
       ``(5) New trial.--In no case shall a failure to afford a 
     right under this chapter provide grounds for a new trial.
       ``(6) No cause of action.--Nothing in this chapter shall be 
     construed to authorize a cause of action for damages.
       ``(e) Definitions.--For the purposes of this chapter, the 
     term `crime victim' means a person directly and proximately 
     harmed as a result of the commission of a Federal offense. In 
     the case of a crime victim who is under 18 years of age, 
     incompetent, incapacitated, or deceased, the legal guardians 
     of the crime victim or the representatives of the crime 
     victim's estate, family members, or any other persons 
     appointed as suitable by the court, may assume the crime 
     victim's rights under this chapter, but in no event shall the 
     defendant be named as such guardian or representative.
       ``(f) Procedures To Promote Compliance.--
       ``(1) Regulations.--Not later than 1 year after the date of 
     enactment of this chapter, the Attorney General of the United 
     States shall promulgate regulations to enforce the

[[Page 7314]]

     rights of crime victims and to ensure compliance by 
     responsible officials with the obligations described in law 
     respecting crime victims.
       ``(2) Contents.--The regulations promulgated under 
     paragraph (1) shall--
       ``(A) establish an administrative authority within the 
     Department of Justice to receive and investigate complaints 
     relating to the provision or violation of the rights of a 
     crime victim;
       ``(B) require a course of training for employees and 
     offices of the Department of Justice that fail to comply with 
     provisions of Federal law pertaining to the treatment of 
     crime victims, and otherwise assist such employees and 
     offices in responding more effectively to the needs of crime 
     victims;
       ``(C) contain disciplinary sanctions, including suspension 
     or termination from employment, for employees of the 
     Department of Justice who willfully or wantonly fail to 
     comply with provisions of Federal law pertaining to the 
     treatment of crime victims; and
       ``(D) provide that the Attorney General, or the designee of 
     the Attorney General, shall be the final arbiter of the 
     complaint, and that there shall be no judicial review of the 
     final decision of the Attorney General by a complainant.''.
       (b) Table of Chapters.--The table of chapters for part II 
     of title 18, United States Code, is amended by inserting at 
     the end the following:

``237. Crime victims' rights................................3771''.....

       (c) Repeal.--Section 502 of the Victims' Rights and 
     Restitution Act of 1990 (42 U.S.C. 10606) is repealed.

     SEC. 3. INCREASED RESOURCES FOR ENFORCEMENT OF CRIME VICTIMS' 
                   RIGHTS.

       (a) Crime Victims Legal Assistance Grants.--The Victims of 
     Crime Act of 1984 (42 U.S.C. 10601 et seq.) is amended by 
     inserting after section 1404C the following:

     ``SEC. 1404D. CRIME VICTIMS LEGAL ASSISTANCE GRANTS.

       ``(a) In General.--The Director may make grants as provided 
     in section 1404(c)(1)(A) to State, tribal, and local 
     prosecutors' offices, law enforcement agencies, courts, 
     jails, and correctional institutions, and to qualified public 
     and private entities, to develop, establish, and maintain 
     programs for the enforcement of crime victims' rights as 
     provided in law.
       ``(b) False Claims Act.--Notwithstanding any other 
     provision of law, amounts collected pursuant to sections 3729 
     through 3731 of title 31, United States Code (commonly known 
     as the `False Claims Act'), may be used for grants under this 
     section, subject to appropriation.''.
       (b) Authorization of Appropriations.--In addition to funds 
     made available under section 1402(d) of the Victims of Crime 
     Act of 1984, there are authorized to be appropriated to carry 
     out this Act--
       (1) $2,000,000 for fiscal year 2005 and $5,000,000 for each 
     of fiscal years 2006, 2007, 2008, and 2009 to United States 
     Attorneys Offices for Victim/Witnesses Assistance Programs;
       (2) $2,000,000 for fiscal year 2005 and $5,000,000 in each 
     of the fiscal years 2006, 2007, 2008, and 2009, to the Office 
     for Victims of Crime of the Department of Justice for 
     enhancement of the Victim Notification System;
       (3) $300,000 in fiscal year 2005 and $500,000 for each of 
     the fiscal years 2006, 2007, 2008, and 2009, to the Office 
     for Victims of Crime of the Department of Justice for staff 
     to administer the appropriation for the support of the 
     National Crime Victim Law Institute or other organizations as 
     designated under paragraph (4);
       (4) $7,000,000 for fiscal year 2005 and $11,000,000 for 
     each of the fiscal years 2006, 2007, 2008, and 2009, to the 
     Office for Victims of Crime of the Department of Justice, for 
     the support of--
       (A) the National Crime Victim Law Institute and the 
     establishment and operation of the Institute's programs to 
     provide counsel for victims in criminal cases for the 
     enforcement of crime victims' rights in Federal 
     jurisdictions, and in States and tribal governments that have 
     laws substantially equivalent to the provisions of chapter 
     237 of title 18, United States Code; or
       (B) other organizations substantially similar to that 
     organization as determined by the Director of the Office for 
     Victims of Crime.
       (c) Increased Resources To Develop State-of-the-Art Systems 
     for Notifying Crime Victims of Important Dates and 
     Developments.--The Victims of Crime Act of 1984 (42 U.S.C. 
     10601 et seq.) is amended by inserting after section 1404D 
     the following:

     ``SEC. 1404E. CRIME VICTIMS NOTIFICATION GRANTS.

       ``(a) In General.--The Director may make grants as provided 
     in section 1404(c)(1)(A) to State, tribal, and local 
     prosecutors' offices, law enforcement agencies, courts, 
     jails, and correctional institutions, and to qualified public 
     or private entities, to develop and implement state-of-the-
     art systems for notifying victims of crime of important dates 
     and developments relating to the criminal proceedings at 
     issue in a timely and efficient manner, provided that the 
     jurisdiction has laws substantially equivalent to the 
     provisions of chapter 237 of title 18, United States Code.
       ``(b) Integration of Systems.--Systems developed and 
     implemented under this section may be integrated with 
     existing case management systems operated by the recipient of 
     the grant.
       ``(c) Authorization of Appropriations.--In addition to 
     funds made available under section 1402(d), there are 
     authorized to be appropriated to carry out this section--
       ``(1) $5,000,000 for fiscal year 2005; and
       ``(2) $5,000,000 for each of the fiscal years 2006, 2007, 
     2008, and 2009.
       ``(d) False Claims Act.--Notwithstanding any other 
     provision of law, amounts collected pursuant to sections 3729 
     through 3731 of title 31, United States Code (commonly known 
     as the `False Claims Act'), may be used for grants under this 
     section, subject to appropriation.''.

     SEC. 4. REPORTS.

       (a) Administrative Office of the United States Courts.--Not 
     later than 1 year after the date of enactment of this Act and 
     annually thereafter, the Administrative Office of the United 
     States Courts, for each Federal court, shall report to 
     Congress the number of times that a right established in 
     chapter 237 of title 18, United States Code, is asserted in a 
     criminal case and the relief requested is denied and, with 
     respect to each such denial, the reason for such denial, as 
     well as the number of times a mandamus action is brought 
     pursuant to chapter 237 of title 18, and the result reached.
       (b) General Accounting Office.--
       (1) Study.--The Comptroller General shall conduct a study 
     that evaluates the effect and efficacy of the implementation 
     of the amendments made by this Act on the treatment of crime 
     victims in the Federal system.
       (2) Report.--Not later than 3 years after the date of 
     enactment of this Act, the Comptroller General shall prepare 
     and submit to the appropriate committees a report containing 
     the results of the study conducted under subsection (a).

  Mr. FRIST. Mr. President, I want to take a moment to comment on the 
passage today of the Crime Victims' Rights Act. I am gratified by the 
overwhelming, bipartisan support for this crucial legislation.
  I especially thank the Senator from Arizona, Jon Kyl, and the Senator 
from California, Dianne Feinstein, for their labor over the past 
several years on behalf of a constitutional amendment, and for their 
efforts over the past days to write into Federal law appropriate 
protections for victims of crime across the country. Without their 
dedication we would not have this victory.
  While a constitutional amendment is preferable, this victims' rights 
Federal statute represents a significant improvement over the status 
quo. It ensures that crime victims have the right to fair treatment in 
the criminal justice system. It will give crime victims new legal 
standing to enforce their rights in court.
  Too often, victims are shut out of the criminal justice process. They 
aren't informed of hearings, plea deals, trial dates and sentencing, or 
of parole hearings once their attacker is convicted.
  The system rightly strives to protect the rights of defendants. But 
too often it overlooks the rights of the victims.
  Take, for example, the case of Jeanne Brykalski of Knoxville, TN. 
Nine years ago, Jeanne lost both of her parents in a double homicide.
  It was a Friday night, Jeanne's parents, Lester and Carol Dotts, went 
out for dinner. When they returned, they surprised three burglars in 
the act of looting their home.
  Jeanne's mother was shot seven times, once at point-blank range in 
the head. Her father was shot six times, first in the neck and then 
repeatedly while he lay crumpled on the floor. The assailants seized 
Jeanne's mother's purse. And in a final grisly act, stole her father's 
wallet from his back pocket as he lay dying.
  Jeanne's parents would have celebrated their 45th anniversary that 
summer.
  She tells my office:

       Something like this you never get over. At first you don't 
     sleep. You can't sleep, because when you close your eyes, 
     horrible images flood your mind. When you finally can sleep, 
     that's when the nightmares come.

  Jeanne found out about the first of the three perpetrators' public 
hearings on the front page of the local paper. As Jeanne recounts it, 
one morning before work, her husband went outside to fetch the paper 
from the delivery box. He came back in and tossed it on the kitchen 
table, telling her, ``You'll want to read this.''
  Says Jeanne:


[[Page 7315]]

       I saw the headline, and of course had to keep reading. And 
     then I found out for the first time the gruesome details of 
     how my parents were murdered. I completely fell apart. And I 
     still had to go to work that day.

  Jeanne says it took a long time for the justice system to acknowledge 
her need to be a part of the process. In fact, on three occasions, she 
showed up for hearings that she was never told were canceled. The 
youngest of the perpetrators was plea bargained without Jeanne and her 
husband being informed.
  Her experience with the system led her to become a volunteer for the 
East Tennessee Victims' Rights Task Force.
  Says Jeanne:

       All we want is equality and fair play in the courtroom. We 
     want to be treated with courtesy and respect. I don't think 
     that's too much to ask for.

  Mr. President, nor do I. And that is why I strongly support the Crime 
Victims' Rights Act and look forward to getting this bill to the 
President's desk.
  My home State of Tennessee has a Victims Bill of Rights. It was 
passed in November of 1998.
  Anna Whalley, clinical coordinator of the Shelby County Crime Victims 
Center, tells my office that the law has improved the status of victims 
in the Tennessee justice system. Judges are now getting used to seeing 
victims in their courtrooms and are making their courtrooms more 
comfortable and accommodating.
  Because the Tennessee law does not provide funding, however, victims 
continue to fall through the cracks. There simply is not enough money 
to stay on top of all of the cases and keep victims informed throughout 
the judicial process.
  The Crime Victims' Rights Act wisely addresses this problem. It 
provides legal assistance grants to help local law enforcement agencies 
promote victims' rights.
  It also authorizes over $97 million over the next 5 years to broadly 
carry out the legislation's goals.
  Mr. President, we are not all the way there. Our ultimate goal is to 
pass a victims' rights constitutional amendment. But this legislation 
represents a significant leap forward.
  I thank my colleagues for their support today.
  As we all agree, victims have rights, too.

                          ____________________