6020 CONGRESSIONAL RECORD—SENATE April 27, 2000

Santorum Smith (OR) Thomas PROPOSING AN AMENDMENT TO FEINSTEIN and I, however, are of the Sessions Snowe Thompson Shelby Specter Thurmond THE CONSTITUTION OF THE view that because of various things Smith (NH) Stevens Warner UNITED STATES TO PROTECT that have occurred, it is unlikely that THE RIGHTS OF CRIME VIC- a cloture motion, if filed, would be sup- NAYS—44 TIMS—Motion To Proceed—Re- ported by the requisite number of Sen- Akaka Edwards Lieberman sumed ators to succeed early next week. Baucus Feingold Mikulski Mr. KYL. Mr. President, we are in Therefore, what we are prepared to Bayh Feinstein Moynihan do is speak to the issue of the resolu- Biden Graham Murray the process of attempting to work out Bingaman Harkin Reed an arrangement of time for the debate tion, where we are with respect to the Boxer Hollings Reid resolution, to thank the many groups Breaux Inouye on the pending motion. I ask for all Robb concerned if the Chair will describe the and sponsors and other individuals who Bryan Johnson Rockefeller Byrd Kennedy have been so supportive of this effort, Sarbanes pending business of the Senate. Cleland Kerrey Schumer The PRESIDING OFFICER. The and to seek permission of the Senate, Conrad Kohl Torricelli when people have finished their com- Daschle Landrieu question is on the motion to proceed to Dodd Lautenberg Voinovich S.J. Res. 3. ments, to withdraw the motion to pro- Dorgan Leahy Wellstone Mr. KYL. I thank the Chair. ceed and to move to other business. Wyden Durbin Levin We are in the process of determining That merely means a timeout in our ef- forts to secure passage of this constitu- NOT VOTING—5 just how much time speakers are going to need in order to conclude debate on tional amendment. Kerry Mack Roth We recognize at this point in time Lincoln McCain the motion to proceed. Senator FEIN- STEIN and I both have some prelimi- that proceeding will simply encourage The PRESIDING OFFICER. On this nary remarks we would like to make in more Senators to use a great deal of vote, the yeas are 51, the nays are 44. connection with that debate as the two the Senate’s time in unproductive Three-fifths of the Senators duly cho- chief proponents of the resolution. We speeches that really do not go to the sen and sworn not having voted in the understand Senator LEAHY and Senator heart of our constitutional amendment affirmative, the motion is rejected. BYRD wish to take some time, and Sen- but take time away from the Senate’s important business. We have no inten- The Democratic leader. ator BIDEN as well a little later on. As soon as we can confirm the tion of doing that. Mr. DASCHLE. Mr. President, I re- amount of time people will need, we So we will make some remarks that gret that this vote had to have been will probably propound a unanimous will set the stage for what we are about taken. I have made it clear from the consent request in that regard. to do. But let me begin by noting the very beginning that my hope is we can Mr. LEAHY. Will the Senator yield? tremendous amount of support around find some way to compromise. We have Mr. KYL. I am happy to yield. the country that has accompanied our thought we have already compromised Mr. LEAHY. Mr. President, I am per- effort to bring this measure to the extensively. We have limited the num- fectly willing, from this side, to work floor of the Senate. I have to begin by ber of amendments. We have limited with the distinguished Senator from thanking two people in particular, Sen- the time on those amendments. We are Arizona and the distinguished Senator ator DIANNE FEINSTEIN and Majority now even prepared to allow second de- from California on time. I do not ex- Leader TRENT LOTT. We could not have grees so long as we get a vote. That is pect an enormous amount of time to be brought this amendment, over the course of the last 4 years, to the bipar- the regular order. consumed. It has not been announced, but there is a certain sense that there tisan level of support it now enjoys We believe, as strongly as we want to may not be any more rollcall votes this without the ability to work on both resolve the marriage tax penalty, that week so a lot of people are probably sides of the aisle. No one could have having the opportunity to offer a bet- going to be leaving. I will definitely try carried this matter on the Democratic ter alternative is something that is so to accommodate them. side more capably than Senator DIANNE fundamental to the rights of every The distinguished Senator from West FEINSTEIN. Before she came to the Sen- Democratic Senator. This vote we took Virginia does have a statement he ate, she was a passionate advocate for had nothing to do with the marriage wishes to make. I have a statement I victims of crime. As mayor of San tax penalty. It had everything to do wish to make. I am simply trying to Francisco, she was a proponent of area with a Senator’s right to offer an protect some others who may want to residents who were victims of crime amendment that would improve a mar- speak, as I am sure the Senator is on and carries that passion with her to riage tax penalty bill. I am hopeful we his side. But I will continue to work this debate now. can have some resolution on this mat- with the distinguished Senator to cut She and I have worked closely with ter at some point in the not-too-dis- down this time any way we can. victims’ rights advocates to shape the tant future. Mr. KYL. We will announce to all legislation. I might say, while some of Members, if we can work that time ar- our colleagues have suggested there is I will tell our colleagues in the ma- rangement out, just exactly how this something wrong with the fact that we jority that this vote will not change. will proceed. have conducted dozens of meetings This vote will stay at 45 for whatever In the meantime, let me see if I can with the administration, Department length of time it takes. So there will set the stage so everyone will know of Justice, and many others, and honed not be any diminution or any erosion where we are in this debate. Then I this amendment in 63 different drafts, in the strength of feeling we have would like to thank some people and we are very proud that we have in- about our right to offer amendments. I then move on to a colloquy with Sen- cluded anyone who wanted to talk am hopeful with that realization we ator FEINSTEIN, if I might. about this in our circle of friends work- can reach some compromise. Because of the way the Senate works, ing to get an amendment that could Mr. President, I yield 2 hours to the we have moved back and forth in Sen- pass the Senate and that we have care- distinguished senior Senator from West ate business. But the pending business fully taken their suggestions into ac- Virginia under the cloture to be used is the motion to proceed on S.J. Res. 3; count, thus accounting for the many as he deems appropriate during the de- that is, the crime victims’ constitu- different drafts as the 4-year progress bate on the marriage tax penalty. tional rights resolution sponsored by of this resolution has brought us to Senator FEINSTEIN and myself. this point. The PRESIDING OFFICER. The lead- We gained cloture earlier this week The fact that we have taken their er has that right. so we could proceed, and the motion to suggestions to heart and continually Mr. DASCHLE. I thank the Presi- proceed will certainly be agreed to, if polished this amendment we think is a dent. I yield the floor. we carry the debate that far. Senator strong point. While we were criticized

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00018 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6021 yesterday on the floor for engaging in using this time on the floor and explain Alliance of America, Darlene Hutch- yet more negotiations that might re- all of this to them, with the hope they inson and Laura Griffith have been sult in a final, 64th draft, I must say will then be better able to support us helpful. that was largely at the instigation of in the future. Various attorneys general, such as Senator FEINSTEIN, who said, given the So I thank Senator FEINSTEIN. We Delaware Attorney General Jane fact the Department of Justice has four have gone through a lot together on Brady, Wisconsin Attorney General concerns still pending with regard to this. There is nobody in this body for Jim Doyle, and Kansas Attorney Gen- our specific proposal, let’s meet with whom I have greater respect. eral Carla Stovall. By the way, these them and see if we can come to closure Again, I thank Senator LOTT, the ma- are Democrats and Republicans alike. on those items. jority leader, for his support for us as It is a totally bipartisan effort. As a Because of her leadership, we were well. matter of fact, the National Associa- able to come to closure on three of The National Victims’ Constitutional tion of Attorneys General—we have a them. We believe we made more than a Amendment Network is one of the real- very good letter signed by the vast ma- good faith effort with respect to the ly strong victims’ rights groups that jority of attorneys general in support fourth, which had to do with the pro- has backed us throughout this process. of our crime victims’ constitutional tection of defendants’ rights. We were Roberta Roper has been involved in rights amendment. willing to acknowledge that the rights that. She was in my office this morn- We also have support from former enumerated in this proposal take noth- ing. She was with us yesterday. She U.S. Attorneys General: Ed Meese, Bill ing whatsoever away from defendants’ has been with us throughout the proc- Barr, and Dick Thornburgh are strong- rights. I do not know how more clearly ess, helping us evaluate these various ly supportive of our proposal. we can say it. That was not acceptable proposals and assisting us. From a show with which Americans to the Department of Justice. The National Organization for Vic- are familiar, ‘‘America’s Most Want- But it is not for want of trying, on tim Assistance, known by the acronym ed,’’ John Walsh has been an early and the part of Senator FEINSTEIN, that we NOVA, headed by Marlene Young and strong supporter of our proposal. From the Stephanie Roper Founda- have been unable to secure the support John Stein, and all the people on the tion—I mentioned Roberta Roper—but of the Department of Justice for this NOVA board, we are enormously appre- Steve Kelly of the Stephanie Roper amendment. So my first sincere thanks ciative of their strong support and as- Foundation has been very helpful. go to the person without whom we sistance throughout this effort. They Arizona Voice for Crime Victims; a would not be at this point, my col- are going to continue to fight for sure. person who helped Senator FEINSTEIN league Senator FEINSTEIN. Marsha Kight, whom Senator FEIN- in the early years, Neil Quinter, a su- I also thank Leader LOTT. When I STEIN and I have come to know and re- perb former Senate staff member and went to him with a request for floor spect because of her advocacy as some- with whom I visited just this morning, time for this amendment, his first re- one whose daughter was killed in the continues his support for this. sponse was: You know all the business Oklahoma City bombing, brought the Matt Lamberti and David Hantman the Senate has to conduct. Are you experience of that trial and the first- of Senator FEINSTEIN’s office; Jason sure you want to go forward with this? hand knowledge of how victims were Alberts, Nick Dickinson, and Taylor I said we are absolutely certain. denied their rights even to attend the Nguyen of my office; and, most impor- Despite all the other pressing busi- trial. She has been an important wit- tant, Stephen Higgins of my staff and ness, he was willing because he, too, ness for us before the Judiciary Com- Steve Twist, an attorney from Arizona, believes strongly in this proposal, as a mittee and at various other forums. whose support and competence in help- cosponsor, to give us the floor time to One of the groups in the country that ing us through this process was, frank- try to get this through. It is partially is most strongly in support, and has ly, simply indispensable. out of concern for his responsibilities provided a lot of grassroots support, is Also, I will submit for the RECORD as leader that we recognize that to pro- Mothers Against Drunk Driving, or two things. One is a list of crime vic- ceed would result in a vote that would MADD. Also, Students Against Drunk tims’ rights amendment supporters. not be successful, and therefore, rather Driving, SADD, a group of younger This list includes, in addition to those than use that precious time, we are people, has been helpful. Tom Howarth, I mentioned, more than half a page of prepared to visit privately with our Millie Webb, Katherine Prescott, and law enforcement organizations. I men- colleagues to further provide education others have been very helpful to us in tion this because there has been some to them about the necessity of this that regard. suggestion that law enforcement does amendment since, clearly, the method- Parents of Murdered Children has not support us: ology we have engaged in thus far was been enormously helpful. Rita Gold- The Federal Law Enforcement Offi- not working. We would make strong ar- smith is from my State of Arizona, cers Association, Law Enforcement Al- guments, but I daresay it didn’t appear from Sedona. liance of America, American Probation that anyone was here on the floor lis- We have had tremendous help from and Parole Association, American Cor- tening because when various opponents legal scholars such as Professor Lau- rectional Association, the National would come to the floor, they would re- rence Tribe, Professor Doug Beloof, and Criminal Justice Association, the Na- peat the same mantra over and over Professor Paul Cassell. I thank them tional Organization of Black Law En- again that we had already addressed. for their enormous help in this effort, forcement Executives, National Troop- Part of that mantra was, Did you including their testimony before the ers Coalition, Concerns of Police Sur- know this amendment is longer than Judiciary Committee. vivors, and on and on. the Bill of Rights? We would patiently There are many prosecutors. I need This amendment is strongly sup- restate that is not true, that all of the to mention a couple from my own ported by prosecutors, law enforce- rights of the defendants in the Con- State. The two largest counties in Ari- ment, legal scholars, attorneys gen- stitution are embodied in language of zona are Maricopa and Pima Counties. eral, Governors, former U.S. Attorneys more words than this amendment that Rick Romley, the Republican-elected General, and many more. I ask unani- embodies the victims’ rights and so on. attorney from Maricopa County, the mous consent to print this list of sup- Then that individual would leave the sixth largest county by population in porters in the RECORD. floor, and another individual would the country, and Barbara LaWall, a There being no objection, the mate- come to the floor and repeat the same Democratic-elected attorney from rial was ordered to be printed in the erroneous information, and we would Pima County, have been very strong RECORD, as follows: have to patiently respond to that. supporters and helpful in our work. CRIME VICTIMS’ RIGHTS AMENDMENT Rather than continue that process, Law enforcement has been very well SUPPORTERS we believe it is better that we visit represented by organizations and indi- PUBLIC OFFICIALS with our colleagues when we are not viduals. From the Law Enforcement 42 cosponsors in the U.S. Senate (29R; 13D).

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00019 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 6022 CONGRESSIONAL RECORD—SENATE April 27, 2000 Former Senator Bob Dole. National Organization of Black Law En- Professor Doug Beloof, Northwestern Law Representative Henry Hyde. forcement Executives. School (Lewis and Clark). Texas Governor George W. Bush. Concerns of Police Survivors (COPS). Professor Bill Pizzi, University of Colorado California Governor Gray Davis. National Troopers’ Coalition (NTC). at Boulder. Arizona Governor Jane Hull. Mothers Against Violence in America Professor Jimmy Gurule, Notre Dame Law Former U.S. Attorney General Ed Meese. (MAVIA). School. Former U.S. Attorney General Dick National Association of Crime Victim Security on Campus, Inc. Thornburgh. Compensation Boards (NACVCB). International Association for Continuing Former U.S. Attorney General William National Center for Missing and Exploited Education and Training (IACET). Barr. Children (NCMEC). Women in Packaging, Inc. The Republican Attorneys General Asso- International Union of Police Associations American Machine Tool Distributors’ As- ciation. AFL–CIO. sociation (AMTDA). Alabama Attorney General Bill Pryor. Norm Early, former Denver District Attor- Jewish Women International. Alaska Attorney General Bruce Botelho. ney. Neighbors Who Care. Arizona Attorney General Janet Maricopa County Attorney Rick Romley. National Association of Negro Business & Napolitano. Pima County Attorney Barbara Lawall. Professional Women’s Clubs. California Attorney General Bill Lockyer. Shasta County District Attorney Citizens for Law and Order. Colorado Attorney General Ken Salazar. McGregor W. Scott. National Self-Help Clearinghouse. Connecticut Attorney General Richard Steve Twist, former chief assistant Attor- American Horticultural Therapy Associa- Blumenthal. ney General of Arizona. tion (AHTA). Delaware Attorney General M. Jane Brady. California Police Chiefs Association. Valley Industry and Commerce Associa- Florida Attorney General Bob California Police Activities League tion. Butterworth. (CALPAL). Mr. KYL. Mr. President, finally, I Georgia Attorney General Thurbert E. California Sheriffs’ Association. Baker. Los Angeles County Sheriff Lee Baca. ask unanimous consent to print in the Hawaii Attorney General Earl Anzai. San Diego County Sheriff William B. RECORD a series of a dozen or so state- Idaho Attorney General Alan Lance. Kolender. ments and letters from supporters of Illinois Attorney General Jim Ryan. San Diego Police Chief David Bajarano. the amendment. Included in those, in- Indiana Attorney General Karen Freeman- Sacramento County Sheriff Lou Blanas. cidentally, is a strong statement of Wilson. Riverside County Sheriff Larry D. Smith. support for our specific amendment by Kansas Attorney General Carla Stovall. Chula Vista Police Chief Richard Emerson. Governor George Bush of the State of Kentucky Attorney General Albert Ben- El Dorado County Sheriff Hal Barker. jamin Chandler III. Contra Costa County Sheriff Warren E. Texas. I ask unanimous consent to Maine Attorney General Andrew Ketterer. Rupf. print these in the RECORD. Maryland Attorney General J. Joseph Placer County Sheriff Edward N. Bonner. There being no objection, the mate- Curran, Jr. Redding Police Chief Robert P. rial was ordered to be printed in the Michigan Attorney General Jennifer Blankenship. RECORD, as follows: Granholm. Yavapai County Sheriff’s Office. STATEMENT BY GOVERNOR GEORGE W. BUSH— Minnesota Attorney General Mike Hatch. Bannock County Prosecutor’s Office. APRIL 7, 2000 Mississippi Attorney General Mike Moore. Los Angeles County Police Chiefs’ Associa- Montana Attorney General Joseph P. tion. I strongly support passage of the Victims’ Mazurek. Rights Amendment. Two years ago, I joined VICTIMS Nebraska Attorney General Don Stenberg. my colleagues on the National Governor’s New Jersey Attorney General John Farm- Mothers Against Drunk Driving (MADD). Association in calling for a national Amend- er. National Victims’ Constitutional Amend- ment, like the one we have in Texas and 30 New Mexico Attorney General Patricia Ma- ment Network (NVCAN) other states. For too long, courts and law- drid. National Organization for Victim Assist- yers have focused only on the rights of North Carolina Attorney General Michael ance (NOVA) criminal defendants and not on the rights of F. Easley. Parents of Murdered Children (POMC) innocent victims. We need to make sure that Ohio Attorney General Betty D. Mont- Mothers Against Violence in America crime victims are not forgotten, that they gomery. (MAVIA). are treated fairly and with respect in our Oklahoma Attorney General W.A. Drew Justice for Murder Victims. criminal process. Edmondson. Crime Victims United of California. Oregon Attorney General Hardy Meyers. Justice for Homicide Victims. MARCH 14, 2000. Pennsylvania Attorney General Mike Fish- We Are Homicide Survivors. DEAR SENATORS KYL AND FEINSTEIN: Dur- er. Victims and Friends United. ing our years of service as Attorneys General Puerto Rico Attorney General Angel E. Colorado Organization for Victim Assist- of the United States, we saw first hand how Rotger Sabat. ance (COVA). the criminal justice system must command South Carolina Attorney General Charlie Racial Minorities for Victim Justice. the respect of all our citizens if it is to be ef- Condon. Rape Response and Crime Victim Center. fective. That respect can only be eroded South Dakota Attorney General Mark Stephanie Roper Foundation. when the system unfairly treats those it is Barnett. Speak Out for Stephanie (SOS). supposed to serve. Texas Attorney General John Cornyn. Pennsylvania Coalition Against Rape For victims, the system is neither fair nor Utah Attorney General Jan Graham. (PCAR). just. Despite federal statutes and states con- Virgin Islands Attorney General Iver A. Louisiana Foundation Against Sexual As- stitutional amendments passed to ensure fair Stridiron. sault. treatment of crime victims, in too many Virginia Attorney General Mark Earley. KlaasKids Foundation. courtrooms across the country, crime vic- Washington Attorney General Christine O. Marc Klaas. tims continue to be excluded and silenced; Gregoire. Victims’ Assistance Legal Organization, they are neither informed of proceedings nor West Virginia Attorney General Darrell V. Inc. (VALOR). given a right to be present or heard. McGraw, Jr. Victims Remembered, Inc. We believe the only way to extend the fun- Wisconsin Attorney General James Doyle. Association of Traumatic Stress Special- damental fairness demanded of our system Wyoming Attorney General Gay ists. for crime victims, is to secure their rights in Woodhouse. Doris Tate Crime Victims Bureau our fundamental law, the U.S. Constitution. Alaska State Legislature. (DTCVB). That is why we are writing now to express LAW ENFORCEMENT Rape Response & Crime Victim Center. our strong and unqualified support for the John Walsh, host of ‘‘America’s Most Federal Law Enforcement Officers Associa- constitutional amendment you propose, the Wanted’’. tion. Crime Victims’ Rights Amendment (S.J. Res. Marsha Kight, Oklahoma City bombing Law Enforcement Alliance of American 3). This amendment, once ratified, will re- victim. (LEAA). store to our justice system the basic fairness American Probation and Parole Associa- OTHER SUPPORTERS necessary to command the respect of all our tion (APPA). Professor Paul Cassell, University of Utah people. The rights spelled out in the amend- American Correctional Association (ACA). School of Law. ment are simple, yet profound. They are National Criminal Justice Association Professor Laurence Tribe, Harvard Univer- practical and attainable, and they will trans- (NCJA). sity Law School. form our justice system so that it will truly

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00020 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6023 protect the rights of the law abiding as well wishes, including the harm caused by the My office has nearly a decade of experience as the lawless. crime, throughout the plea negotiation proc- championing in assisting victims in exer- Sincerely, ess and pretrial phase of prosecution. Consid- cising their state constitutional rights. It WILLIAM BARR. eration of the victim’s views are again but would be disingenuous if I were to say that EDWIN MEESE III. one factor considered by the prosecutor. Our there had been no costs, yet the benefit to RICHARD THORNBURGH. experience has been that my deputies are not the victim, to the citizens of Arizona and our inappropriately influenced by emotion. To system of justice far outweighs those costs. OFFICE OF THE presuppose otherwise does a disservice to Our state constitutional amendment has MARICOPA COUNTY ATTORNEY, these dedicated public servants who have increased cooperation of victims with police Maricopa County, AZ, April 14, 2000. sworn to strive for equal justice. and prosecutors. Victims feel more of a part Hon. JON KYL, Prosecutors are responsible for informing of the criminal justice process. I believe that U.S. Senate, victims of the plea agreement and the rea- this has enhanced the ability of law Washington, DC. sons for the negotiated settlement. It has enforcemenet to put criminals behind the DEAR SENATOR KYL: As the chief pros- been our experience that very few victims bars, and thus has been a factor in the de- ecutor for the sixth largest prosecutor’s of- object to a plea agreement when fully in- crease in crime that we have experienced in fice in the nation, handling over 40,000 felony formed of the reasons and benefits of the recent years. and delinquency prosecutions each year, I plea. However, in some instances, after con- The scales of justice must be balanced, pro- have first hand knowledge of the ramifica- sidering the plea and victim’s opinion, the viding victims with equal access to the tions of providing constitutional rights for judge will reject the plea agreement holding courts, information and a voice in the crimi- victims. that the interests of justice are not served nal justice system. Our system of justice is I have been a strong proponent for victims’ by the plea. When this happens, although dependent upon the voluntary participation rights for many years, having served on the rare in our experience, the court has fulfilled of those who have been harmed by crime— Arizona Victim’s Bill of Rights Steering its function as an arbiter not an advocate. without their participation, our country Victim Rights Do Not Under Cut The Committee that was responsible for the pas- would see an increase in lawlessness and vig- Rights Of The Accused— ilantism. Balancing the scales of justice by sage of constitutional rights for victims in Victims desire to see justice, first and fore- providing for victim rights restores faith in 1990. I also participated in subsequent legis- most. Their natural desire to gain justice, is our system without detracting from the lative ad hoc committees charged with de- not something to fear. In our experience it rights of those accused. veloping the enabling legislation. I strongly has helped our office achieve that goal. support S.J. Res. 3 and your efforts to see While victims have a right to be present Sincerely, constitutional rights for victims become a throughout the course of trial in Arizona, it RICHARD M. ROMLEY, Maricopa County Attorney. reality in the United States Constitution. has been our experience that defendants and/ I recently read the Minority views in the or the friends and family of the defendants Judiciary Committee’s Report on S.J. Res. 3. are much more likely than victims to be- NATIONAL ASSOCIATION OF The ‘‘worst case’’ examples that were raised come disruptive during trial. In the rare ATTORNEYS GENERAL, Washington, DC, April 21, 2000. were for the most part extreme predictions cases where a victim has been emotionally which we in Arizona have not experienced, overwhelmed in court, he or she has either Hon. JON KYL, U.S. Senate, notwithstanding our long history with vic- voluntarily left the courtroom to calm down, Washington, DC. tims’ rights. I would like to take this oppor- or is requested to do so upon instruction by tunity to address several of the Minority re- the court. In every courtroom in our land, Hon. DIANNE FEINSTEIN, port concerns. the judge has the responsibility of maintain- U.S. Senate, Victims’ Rights Do Not Result in Substan- ing order and ensuring that the jury is not Washington, DC. tial Costs To The System— influenced by factors other than those pre- DEAR SENATORS KYL AND FEINSTEIN: We are Providng victims with constitutional sented from the witness box. To assume that writing to express our strong and unequivo- rights has not resulted in substantial costs the presence of a victim in the courtroom cal support for your efforts to pass S.J. Res. to law enforcement, prosecutors, the courts, will somehow so prejudice a jury that they 3, the proposed Crime Victims’ Rights corrections or probation departments. My of- would disregard the evidence and return a Amendment, and send it on to the States for fice provides victims’ rights services to over verdict of guilty predicated and influenced ratification. 30,000 victims each year and although the by an individual sitting in the spectator sec- As Attorneys General from diverse regions ‘‘exact cost’’ is difficult to determine, our es- tion of the court, presupposes that juries will and populations in our nation, we continue timates are that it costs my office approxi- ignore the instructions of the court to be fair to see a common denominator in the treat- mately $15.00 per victim. and impartial and to base their decision ex- ment of crime victims throughout the coun- While we have experienced an increase in clusively on the evidence. To adopt this posi- try. Despite the best intentions of our laws, trials, the increase cannot be attributed to tion, one must conclude that juries will ig- too often crime victims are still denied basic our constitution amendment for victim nore the law. To do so, would be to conclude rights to fair treatment and due process that rights. Any such increase has been in re- that our jury system is incapable of justice. should be the birthright of every citizen who sponse to our mushrooming population and Defendants have a constitutional right to a seeks justice through our courts. We are con- the resulting increase in case filings. speedy trial. Oftentimes defendants waive vinced that statutory protections are not The Arizona Court of Appeals and the Ari- this right for strategy advantage—hoping for enough; only a federal constitutional amend- zona Supreme Court have not been besieged memories to fade, critical witnesses to relo- ment will be sufficient to change the culture with appeals based on victim rights argu- cate, or victims to die. Victims have as much of our legal system. ments. an interest in the timely disposition of the The rights you propose in S.J. Res. 3 are Victim Rights Do Not Restrict The Discre- criminal case as do the defendants and need moderate, fair, and yet profound. They will tion Of The Prosecutor— to have equal consideration when a judge extend to crime victims a meaningful oppor- A victim’s right to be heard regarding a considers whether or not to delay the dis- tunity to participate in each critical stage of plea agreement does not mean a crime vic- position of a case. their cases. At the same time, they will not tim can veto a judge’s final decision. Judges, Federal Constitutional Rights Do Not In- infringe on the fundamental rights of those of course, consider the victim’s opinion when fringe On State’s Rights— accused or convicted of offenses. Neither will determining whether or not to accept a plea While those victimized by crime in Arizona these rights interfere with the proper func- agreement, however that opinion is merely are afforded victim rights in state court, tioning of law enforcement. Attorney Gen- one factor among others which contribute to that same victim would not be afforded con- eral Reno spoke for many of us in law en- the deliberative process. In Arizona, the vic- stitutional rights if that offense occurred on forcement when she noted, tim’s right to allocution has not caused our federal land, or if an Arizona resident were ‘‘[T]he President and I have concluded that judicial officers to abrogate their responsi- victimized in a state that does not have con- a victims’ rights amendment would benefit bility to render a decision free of bias. There stitutional rights. These rights are too im- not only crime victims but also law enforce- is no reason to believe that federal judicial portant to be left to a patchwork of rights ment. To operate effectively, the criminal officers will act otherwise when weighing the from state to state. Consistency in the appli- justice system relies on victims to report appropriateness of accepting a negotiated cation of our laws are paramount if our citi- crimes committed against them, to cooper- plea. zens are to realize the benefit of a judicial ate with the law enforcement authorities in- I have implemented a policy in which pros- system that is balanced between the accused vestigating those crimes, and to provide evi- ecutors solicit the victim’s opinion regard- and the interest of society at large. Incon- dence at trial. Victims will be that much ing the final outcome of the prosecution and sistency breeds contempt and cynicism. more willing to participate in this process if take the victim’s opinion into consideration Adoption of a federal constitutional amend- they perceive that we are striving to treat when neogitating a plea agreement. In this ment will recognize that there is but one law them with respect and to recognize their way, the prosecutor considers the victim’s for all. central place in any prosecution.’’

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00021 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 6024 CONGRESSIONAL RECORD—SENATE April 27, 2000 Some have argued that federal constitu- must ask, what happened to the statutes al- from the prosecution team. The prosecutors tional rights for victims will infringe on im- ready on the books? were apparently concerned about pressing portant principles of federalism. We dis- I am increasingly persuaded that the most this point further because the judge might agree. Each of our state criminal justice sys- formidable enemy of crime victims’ aspira- become irritated. tems accommodates federal rights for de- tions for getting justice under our Constitu- Beth Wilkinson urges the Congress to fendants. To provide a similar floor of rights tion are criminal justice officials—even well- ‘‘consider statutory alternatives to protect for victims is a matter of basic fairness. meaning ones like Beth Wilkinson—who be- the rights of victims.’’ While she says that Please share this letter with your col- lieve that only government lawyers know she opposes the Victim’s Rights Amendment leagues so that they may know of our strong best. Her testimony is in fact Exhibit A in in its ‘‘current form,’’ the context of this support for S.J. Res. 3. the case for the Amendment because it is the statement makes it clear that she opposes (Signed by 39 attorneys general.) voice of a superior government extending any constitutional rights for crime victims. handouts as an act of grace, not protecting She concludes with the following prescrip- STATEMENT OF MARSHA A. KIGHT, DIRECTOR, legitimate rights of a free people. She says tion: ‘‘We must educate prosecutors, law en- FAMILIES AND SURVIVORS UNITED, OKLA- that the ‘‘concerns’’ of the victims must be forcement and judges about the impact of HOMA CITY, OK., MARCH 24, 1999 balanced with the ‘‘need for a just trial,’’ as crimes so that they better understand the My daughter, Frankie Merrell, was mur- though these important values were some- importance of addressing victims’ rights dered in the Oklahoma City bombing, and in how in conflict, and that only the govern- from the outset.’’ But the truth is that there tribute to her and all the others, I founded ment knows how to achieve this goal. will be no real rights to address, as my expe- Families and Survivors United, which took a I cannot tell you how these words hurt me; rience makes clear, unless those rights are leading role in advocating for the victims they confirm my worst fears about the treat- enshrined in the United States Constitution. and survivors before and during the trials ment of victims in our justice system and Only then will victim’s rights be meaningful which followed. This is now I first came to how nothing will change without constitu- and enforceable. meet Beth Wilkinson. tional rights. Mr. KYL. Mr. President, I am going Having attended every day of the McVeigh It is painfully obvious to me that she to make some concluding remarks thinks of us as mere meddlers who must be trial, I came to regard Beth Wilkinson as the about why we believe so strongly in most effective advocate on the prosecution kept out of this important government busi- team. More than that, I and others trusted ness for fear that we might break something. this amendment, how we intend to pur- her to bring the victims’ perspective into the Beth Wilkinson may believe that she ‘‘grew sue the amendment, and why sup- courtroom, and she lived up to that trust. So to understand my grief first hand,’’ but porters of this amendment should take I believe that her statement before the Judi- clearly she does not. For me and so many of heart about how far we have come in ciary Committee today is from the heart— our families our grief was profoundly ex- this process and not at all be dispirited that she really believes that if our Victims tended when our government minimized and by the fact that there will not be a Rights Amendment were in place, it might discounted our interests by refusing to con- final vote on the amendment at this sult with us about this important develop- have jeopardized a very basic right—the time. I will make those comments ‘‘right of just conviction of the guilty,’’ as ment early in the case. she puts it. For example, consider the point Beth after Senator FEINSTEIN has had an op- But she is wrong. As she describes so well, Wilkinson makes about grand jury secrecy. portunity to make some comments the prosecution team worked hard to earn She says, ‘‘Due to the secrecy rules of the that I know she strongly wishes to our trust, and for the great majority of the grand jury, we could not explain to the vic- make. 2,000-plus of us who were designated victims tims why Fortier’s plea and cooperation was Mr. SCHUMER. Mr. President, will under the law, we gave them our trust. But important to the prosecution of Timothy the Senator yield? on the one tactical issue she says argues McVeigh and Terry Nichols.’’ Under existing Mr. KYL. Yes. federal law, however, courts are authorized against the Amendment, the prosecution Mr. SCHUMER. Mr. President, I team chose not to trust us for the reasons to enter appropriate orders allowing for the she describes, and in the process, that team disclosure of grand jury information in ad- asked the Senator to yield for two broke both our trust and the law. vance of a court proceeding. It apparently quick requests. I forgot to do this yes- She claims that, had the Amendment been did not even occur to her then, nor does it terday. I mentioned a letter from the in place, its right for victims to be heard be- today, to have sought such a court order for Judicial Conference on this amend- fore a plea bargain is accepted might have disclosure. Nor is it clear that such an order ment. I ask unanimous consent to harmed the prosecution. Specifically the would even have been necessary, as surely print this letter in the RECORD. suggestion that might have persuaded the there would have been ways to explain the There being no objection, the mate- circumstances to the victims without going judge to not accept the guilty plea of Mi- rial was ordered to be printed in the chael Fortier—and thus might have jeopard- confidential grand jury matters. ized the eventual conviction of Timothy Perhaps most disturbing of all to me is RECORD, as follows: McVeigh and Terry Nichols. There are three Beth Wilkinson’s assertion that the Victims COMMITTEE ON CRIMINAL LAW OF things wrong with this conjecture. Rights Clarification Act of 1997 ‘‘worked—no THE JUDICIAL CONFERENCE OF THE First, Michael Fortier’s testimony was not victims were precluded from testifying.’’ In UNITED STATES, critical to either conviction, as several ju- fact, I was precluded from testifying in the Greenville, SC, April 17, 2000. rors later made clear to me. sentencing phase of the trial. As she is well Hon. CHARLES E. SCHUMER, Second, had the Justice Department taken aware, I very much wanted to be a penalty U.S. Senate, Hart Senate Office Building, us into its trust on the usefulness of the phase witness. But because of my philo- Washington, DC. Fortier plea, the great majority of us would sophical beliefs in opposition to capital pun- Re: S.J. Res. 3, the Victims’ Rights Amendment have reciprocated that trust and encouraged ishment, I was not allowed by the govern- DEAR SENATOR SCHUMER: Thank you for the judge to accept the plea. I think from ev- ment prosecutors to testify. Clearly the stat- your letter requesting the views of the Judi- erything else Beth Wilkinson describes about ute did not work for me. cial Conference of the United States regard- the trust-building between the prosecution In addition, a number of victims lost their ing S.J. Res. 3, the Victims’ Rights Amend- and the victims confirms this belief. We were right to attend the trial of Timothy McVeigh ment to the Constitution. On behalf of the not blind sheep, willing to accept everything because of legal uncertainties about the sta- Judicial Conference, I appreciate the oppor- the prosecutors said was so—we were, most tus of victims’ rights. As I testified before tunity to have its viewpoint considered as of the time, informed citizens who were per- the Senate Judiciary Committee in 1997, the Senate takes up this important legisla- suaded by the prosectuors’ reasoning. Beth Judge Matsch rejected a motion made by a tion. Wilkinson as much as admits this when she number of us to issue a final ruling uphold- In March of 1997, the Judicial Conference notes that the victims overwhelmingly asked ing the new law as McVeigh’s trial began. resolved to take no position at that time on for a provable and sustainable case against His reluctance led the prosecution team (in- the enactment of a victims’ rights constitu- the guilty. cluding Beth Wilkinson) to tell us that, if we tional amendment. However, if the Congress And third, the prosecution team’s mistrust wanted to give an impact statement at the decides to affirmatively act in this area, the of us over the Fortier plea agreement was so penalty phase, we should seriously consider Judicial Conference strongly prefers a statu- great that it chose not to notify us over the not attending the trial. Some of the victims tory approach as opposed to a constitutional hearing in which the plea was offered, and it on the prosecution’s penalty phase list fol- amendment. chose not to confer with any of us before- lowed this pointed suggestion and forfeited A statutory approach would allow all par- hand about the plea—both of which were in their supposedly protected right to attend ticipants in the federal criminal justice sys- violation of existing federal law. McVeigh’s trial. Our lawyers also sought fur- tem to gain experience with the principles So when Beth Wilkinson says that statu- ther clarification from the judge (unsuccess- involved without taking the unusual step of tory reform will meet our just demands, we fully), but had to do so without further help amending our nation’s fundamental legal

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00022 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6025 charter, with its concomitant application to fenses dramatically exacerbates the poten- would be encountered if large numbers of the various state systems. Many of the prin- tial impact of this proposal. The number of victims wished to exercise their rights to al- ciples contemplated in S.J. Res. 3 represent persons who could claim to be emotionally locution at sentencing, unduly prolonging a significant change in our criminal justice harmed by significant, well-publicized the proceedings and pushing back other system, literally realigning the interests of crimes could be quite large. Moreover, sub- cases that need to be heard. The second cat- defendants and victims, as well as the proc- stantial litigation could result from the re- egory of cases are those in which the rights ess by which criminal cases are adjudicated. quirement of restitution, especially in cases of victims, exercised under certain cir- The rights and protections heretofore af- involving non-economic injury. Finally, cumstances, may have a substantive effect forded to citizens under the Constitution cases involving large numbers of victims, upon the rights of defendants or others, im- were largely part of the fabric of the law particularly victims of terrorist acts, are pairing due process or the right to a fair well-known and understood by the Founding particularly troubling. Providing the rights trial. An example of such a case would be if Fathers, while many of the concepts in the enumerated in the proposed amendment to a victim wished to both attend the trial and victims’ rights area are largely untested, at large numbers of victims could overwhelm testify at the guilt phase, even though the least in the federal system. It could take the criminal justice system’s ability to per- trial judge had ordered all witnesses seques- years for a settled body of law and judicial form its primary function of adjudicating tered. This could impair the fundamental in- administration to evolve. A statutory ap- guilt or innocence and punishing the guilty. tegrity of the trial. proach would accommodate this process. ENFORCEMENT Congress should consider modifying the A statutory approach would also vitiate The proposed amendment states that noth- proposed amendment to allow a judge, while the potential specter of significant federal ing ‘‘in this article shall provide grounds to recognizing the rights of the victims to the court involvement in the operations of the stay or continue any trial, reopen any pro- extent practicable, to provide for exceptions state criminal justice systems under a vic- ceeding or invalidate any ruling.’’ Unlike in individual cases when required for the or- tims’ rights constitutional amendment. Fi- some previously introduced victims’ rights derly administration of justice. Congress nally, a statutory approach is more certain constitutional amendment proposals, S.J. may also wish to consider modifying the pro- and immediate, an advantage to victims. Res. 3 does not stipulate that a victim has no posed amendment to additionally allow Con- Conversely, an amendment potentially grounds to challenge a charging decision. gress to statutorily enact exceptions in ‘‘aid would not be effective for many years, await- This addition would be a significant and of the administration of justice.’’ At the ing the ponderous and uncertain ratification valid limitation. Allowing victims to chal- very least, Congress should provide an excep- process required under Article V. lenge a prosecutor’s charging decision could tion permitting the sequestration from trial While S.J. Res. 3 appears to have less po- result in significant operational problems. proceedings of a victim who will appear as a tential adverse impact on the federal judici- We suggest that Congress also consider witness at the guilt phase of the trial. This ary than some previous amendment pro- modifying the proposed amendment to pro- could be accomplished through a general posals, there remain a number of funda- hibit a victim from challenging a ‘‘nego- provision in the proposed amendment stating mental concerns: tiated plea.’’ Permitting the challenge of a that the victim’s rights should not ‘‘inter- CLASSES OF CRIMES AND VICTIMS TO WHICH THE proposed plea interferes with the prosecu- fere with the constitutional rights, including AMENDMENT WILL APPLY tor’s ability to obtain convictions of defend- due process rights, of the person accused of Under S.J. Res. 3, the proposed amendment ants whose successful prosecution may rest committing the crime.’’ It could also be ac- will apply to any person who is a ‘‘victim of on the cooperation of another defendant. complished through a more narrow provi- a crime of violence, as these terms may be Guilty pleas are sometimes also negotiated sion, similar to that in the Wisconsin Con- defined by law.’’ It is not clear from the pro- because the prosecution witnesses are, for stitution, by the addition of a phrase allow- posed amendment whether these terms are various reasons, not as strong as they appear ing sequestration when ‘‘necessary to a fair to be defined by Congress, the states or to be on paper. Also, the sheer volume of trial for the defendant.’’ Another approach, through case law. The term ‘‘crime of vio- cases would generally overwhelm any pros- similar to that taken under the Constitution lence,’’ which is commonly utilized in legal ecutor’s office and the courts unless the vast of Florida, would add a phrase allowing se- parlance, has many meanings under state majority were settled. Permitting challenge questration ‘‘to protect overriding interests and federal law. Thus, it is unclear as to to a prosecutor’s judgment regarding an ac- that may be prejudiced by the presence of which specific crimes this provision would cepted plea could lead inadvertently to a the victim.’’ actually apply. This problem is magnified by failure to secure a conviction. The signifi- SPEEDY TRIAL CONSIDERATIONS the fact that this provision applies to mis- cance of this issue should not be underesti- The proposed amendment includes a vic- demeanor cases, the number of which is par- mated. tim’s right to ‘‘consideration of the interest ticularly large in the state courts. Failure to FEDERALISM of the victim that any trial be free from un- provide a clear and practical definition of The matter of victim enforcement raises reasonable delay.’’ Determining the meaning this term may well result in protracted and significant federalism concerns. While the of this phrase and how it interacts with ex- unnecessary litigation that will likely take proposed amendment includes provisions isting speedy trial provisions should be a fer- years and great expense to resolve. that bar monetary damages as a remedy, it tile source of diversionary litigation. In federal court, the sixth amendment Closely associated with this issue is the appears that victims may be able to seek in- right to a speedy trial and the Speedy Trial question of what classes of persons will qual- junctive relief against state officials for viola- Act, see 18 U.S.C. §§ 3161–3173, not only guar- ify as a ‘‘victim.’’ We note that the proposed tion of their new constitutional rights. Such antee the defendant’s right to a speedy trial, amendment includes no definition of victim. claims, almost inevitably filed in federal but also recognize the public’s, and therefore This leaves many fundamental questions un- courts, could cause significant federal court the victim’s, interest in swift justice. How- answered, including: supervision of state criminal justice systems ever, the Speedy Trial Act also recognizes Must a person suffer direct physical harm for the purpose of enforcing the amendment. several legitimate bases to postpone trial, to qualify as a victim? These conflicts between federal courts and Is it sufficient if the person has suffered including plea negotiations. See 18 U.S.C. state governments would be avoided by a pecuniary loss alone? § 3161. This mechanism is an integral part of statutory approach to victims’ rights. What if the person is alleging solely emo- the criminal justice system, balancing the tional harm? Is that enough to qualify him ADMINISTRATION OF JUSTICE EXCEPTION desirability of a speedy trial with the real- or her as a victim? S.J. Res. 3 permits Congress to create ex- istic requirements of a fair proceeding. Are family members of a person injured by ceptions to the proposed amendment ‘‘when How is this right to consideration of the a crime also victims? necessary to achieve a compelling interest.’’ interest of the victim that any trial be free Suppose that a defendant is accused of While this is a very valid and useful provi- from unreasonable delay to be enforced? Will committing a series of ten violent armed sion, Congress should carefully consider the the victim have a right to seek relief from robberies. Due to evidence strength and effi- need for a further exception based on adverse unreasonable delay? A motion to move the ciency considerations, the prosecutor sends impact on the administration of justice. In- case faster would require a collateral hear- only six of those cases to the grand jury. Are evitably, courts will handle cases where the ing to determine the extent of the delay and the other four injured persons victims under rights of victims collide with the functional whether it is unreasonable. The victim would the proposed amendment? administration of justice. Such cases might then be in an adversarial position to the Suppose an agreement is reached whereby fall into two general categories. The first prosecutor and perhaps to the presiding the defendant agrees to plead guilty to just category relates to the very real judge. Would another judge be required to one of the cases. Are the other nine injured practicalities of the administration of jus- make the determination? Would a federal persons victims under these circumstances? tice. One example would be an action involv- judge be asked to pass judgment on the effi- Will the answer affect a prosecutor’s ability ing exceptionally large numbers of possible ciency of a state court? to obtain plea agreements from defendants? victims wishing to attend the proceedings With ever increasing criminal dockets and Extending the definition of victim to those and overwhelming any available courtroom limited prosecutorial and judicial resources, who claim emotional harm from criminal of- or other suitable location. A similar problem victims in several cases on the same docket,

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insisting upon speedier proceedings, could I yield to Senator FEINSTEIN for com- away. We have them as part of this potentially cause severe internal conflicts ments I know she wants to make. enormous victims coalition. We will within units of the same court. Mrs. FEINSTEIN. Mr. President, I come back, and we will fight again an- NOTICE thank the distinguished Senator from other day. It is important that the responsibility for Arizona. I also thank the Senator from But today, Mr. President, I rise with providing notice of proceedings and of the re- New York, and I thank you, Mr. Presi- a sad heart because we must postpone lease or escape of a defendant be appro- dent, for allowing me to proceed. our battle for a crime victims’ rights priately allocated to the prosecution, law en- I begin by thanking the Senator from constitutional amendment. forcement agencies, or corrections agencies Arizona. Mr. President, I say to JON This is a fight that actually began 18 as is the law and practice in virtually all the KYL, working with him on this amend- years ago when the President’s Task states providing for victims’ rights. Many of the rights under the proposed amendment ment has truly been one of the high- Force on Victims of Crime rec- must attach long before a defendant is for- lights of my 7 years in the Senate. He ommended an amendment to the Con- mally charged in court. The judiciary would has worked with credibility and with stitution of the United States which not have access to much of the information integrity. He has been fulsome in his would address victims’ rights. This necessary to provide the required notice. It sharing of detail. We have gone shoul- isn’t a new idea. It has been around. has neither the personnel nor resources to der to shoulder through virtually every There is a track record to show why it provide such notice to large numbers of vic- rung of this, through 4 years of discus- is necessary. tims or to provide the specialized types of sions, of conferences, of hearings, of 800 As I said, Senator KYL and I intro- victim assistance that is available from the pages of testimony, some 35 witnesses. duced that amendment 4 years ago. We first line of contact that victims have with have worked long and hard. I think the criminal justice system. The situation is I agree with everything he said about likely no better—and possibly worse—in the the inclusive nature of the process. enough has been said about that. state courts. I must tell Senator KYL how much I What is unbelievable to me is that we Once again, I thank you for the oppor- admire him. We worked together on have also been criticized for the hard tunity to express the views of the Judicial the Technology and Terrorism Sub- work we have put into this amendment Conference on this important issue. If you committee of the Judiciary Com- over the past 4 years. have any questions regarding the matters mittee. I saw it there. I have never Senators have come to the floor and discussed herein, please do not hesitate to seen it with another Senator as pro- told us that the fact that we put our contact me. I may be reached at 864/233–7081. nounced as it was in these past 4 years amendment through so many drafts If you prefer, your staff may contact Dan in the work on this issue. I believe a and consulted so many interested par- Cunningham, Legislative Counsel at the Ad- friendship has developed in the process, ties shows that our amendment does ministrative Office of the U.S. Courts. He not deserve to be in the Constitution of may be reached at 202/502–1700. one which means a great deal to me. Sincerely yours, His leadership has been superb, and the United States. Yet, in fact, draft- WILLIAM W. WILKINS, Jr. there is certainly nothing either one of ing an amendment to the Constitution of the United States requires an un- Mr. SCHUMER. Mr. President, sec- us has done for the misunderstanding canny kind of precision. Because this ond, I thank both Senator KYL and out there still about what we are try- isn’t 1791 when the Bill of Rights was Senator FEINSTEIN for the passion, the ing to do and the importance of it. We written, or 1789 when the Constitution erudition, the conviction, and for the will come back another day; there is no was adopted, there has been a whole cause. It is, obviously, wise to delay question in my mind about that. I can- panoply of case law and interpretations this. I know we may be back for an- not thank him enough. From the bot- that have come throughout the ages other day. Maybe we can all come to- tom of my heart, I thank Senator KYL that makes the drafting of a constitu- gether. I plead with them to consider a for his credibility, his intelligence, his tional amendment such as this one proposal of making this a Kyl-Fein- integrity. He did his party proud. I am very happy to be a colleague of his and very difficult. However, I believe we stein statute, as opposed to a Kyl-Fein- have developed a document that will, stein constitutional amendment, where a friend as well. Before I get into my remarks, I also in fact, stand the test of time. I think it might get close to unani- echo the thanks Senator KYL provided What we have tried to do, in essence, mous support on the floor. to a whole host of victims, literally is very simple. I would like to show a I thought the debate we were having tens of thousands of them, to 37 State chart, once again. We have tried to and may well continue to have, at least attorneys general, to many Governors, take the Constitution, which provides to my young years in the Senate, was to all those across both party lines who 15 specific rights to the accused, and no one of the best times of the Senate, support this and understand it. I par- rights to victims of violent crimes— where we each talked about the issue ticularly thank three legal scholars with a scale of justice which we believe with our concerns, our intelligence, who were with us every step of the is weighted in a certain way to exempt and our passions. We tried to meet the way. victims from the administration of issue head on. I thank both the Senator I thank Larry Tribe, a professor of criminal justice—and give victims from Arizona and the Senator from constitutional law at Harvard Univer- some status and standing in the admin- California for their good work on this sity, for his testimony, for the phone istration of criminal justice, so that and hope we can come together on calls, for the advice he has provided the scale of justice would not be so some sort of compromise on an issue and for the statements he has made. badly tilted but would look something about which we all care so much. I also thank one of the primary legal like this other chart where the accused Mr. KYL. Mr. President, I reiterate scholars in this country who has been a would have certain basic rights, and what I said yesterday, and that is, the victims’ rights representative, legal victims would have certain basic, al- best part of the debate we had was the counsel—just a wonderful human being though limited, rights: The right to no- debate with Senator SCHUMER whose I have also gotten to know—and that is tice when a trial takes place; the right approach to this was serious and intel- Professor Paul Cassell, professor of law not to be excluded from a public pro- ligent. He asked the best questions. I at the University of Utah. ceeding; the right to be heard at that believe we answered them, but we did I would be remiss if I did not thank proceeding, if present; the right to sub- not come to agreement. Of course, we Steve Twist on behalf of both Senator mit a statement in writing; the right will be working with him in the future KYL and myself. There are few people to notice of the release or the escape of on this matter and, hopefully, persuade who have been as ardent in the cause an attacker; the right to consideration him that a constitutional amendment as Steve Twist has been, with his for the assurance of a speedy trial; the is the best way to go. The debate we knowledge, with his expertise, with his right to an order of restitution; and the had among Senator FEINSTEIN, Senator representation of victims throughout right to consideration of their safety in SCHUMER, and myself I thought was the this entire process. determining any conditional release of highlight of this debate. I appreciate I know that none of the three above- an attacker—simple, basic rights of his remarks. mentioned individuals is going to go status and standing.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00024 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6027 We have heard much about the fact sponsoring the Crime Victims’ Rights Con- ceedings related to the crime perpetrated that this should not be in the Constitu- stitutional Amendment. Your proposed against them, notice of the offender’s escape tion. There has been much talk on the amendment would fill a gaping hole in the or release from custody, as well as notifica- rights guaranteed to citizens in our Con- floor about James Madison and other tion of parole hearings and to have a voice at stitution by providing basic, essential rights these hearings. Without the help and deter- framers. Senators have suggested that to victims of crime in our nation. As a pros- mination of so many crime victims, the sys- our forefathers would not support the ecuting attorney, I have all too often seen tem cannot hold criminals accountable and amendment. the rights of perpetrators of horrendous stem the tide of future crime. I tried to point out why our fore- crimes protected at all costs while the basic Victims of crime need to have the same fathers did not have reason to consider human rights of victims and families of vic- rights across this great nation. We ‘‘THANK the amendment because when both the tims of those crimes are ignored and forgot- YOU’’ for taking an active role in this very Constitution and the Bill of Rights ten. It will be great day when our Constitu- important legislation and for the concern tion and criminal justice system work as were written, victims had a role in the and support that you continue to show vic- hard to protect the rights of victims as they tims of crime and their survivors. process. Up until 1850, victims had a do the rights of criminals. I commend you on Please feel free to call on us anytime we role in the process. But it was with the your efforts to make that day a reality. Do may be of help. development of the public prosecutors, not hesitate to call upon me if there is any- Sincerely, when victims were no longer in the thing I can do to support you with this work. HARRIET SALARNO, courtroom, that they became sum- Thank you for your attention to this mat- President. marily excluded from the process. ter. I point out that if we look back in Sincerely, MAY 20, 1996. MCGREGOR W. SCOTT, history, I find my views very commen- Senator DIANNE FEINSTEIN, District Attorney. U.S. Senate Hart Building, Washington, DC. surate with those of Thomas Jefferson. Attention: Neil Quinter He was not among those who wrote the STATE OF NEVADA DEAR SENATOR FEINSTEIN: Thank you for Constitution, but he thought deeply EXECUTIVE CHAMBER, meeting with me on such short notice last about the Constitution and how and Carson City, NV, May 24, 1996. week and sharing the Crime Victims’ Rights when we should amend it. He was also Hon. DIANNE FEINSTEIN, Amendment. As I am currently spending the the inspiration for our Bill of Rights, a U.S. Senate, Senate Hart Office Building, majority of my days in court attending the Washington, DC. document actually drafted by James trial of my daughter’s killer, I know too well DEAR SENATOR FEINSTEIN: I am writing to the inequities facing the families of victims. Madison. lend my support to your efforts to protect In 1816, 25 years after the Bill of For that reason I wish to offer my whole victims’ rights. As one of the original nine hearted endorsement and approval of your Rights became the law of the land, members of President Reagan’s Task Force attempt to guarantee rights for the victims Thomas Jefferson wrote to Samuel on Victims of Crime, I have long supported a and families of victims of violent crime. If Kercheval, stating his views on amend- Constitutional Amendment to protect the there is anything that I can do to promote ing the Constitution. I think it is im- rights of victims of crime. your efforts, please feel free to call on me at As the vice-Chairman, and soon to be portant that the RECORD reflect these any time. Chairman, of the National Governor’s Asso- Sincerely, views. He said: ciation, I would like to assist you by raising MARC KLAAS. I am certainly not an advocate for frequent this issue with our nation’s governors. and untried changes in laws and constitu- In Nevada, we’ve made great strides in pro- tions. I think moderate imperfections had tecting victims’ rights through legislative VICTIMS & FRIENDS UNITED, Sacramento, CA, April 21, 2000. better be borne with; because, when once measure ranging from guarding consumers known, we accommodate ourselves to them against auto repair fraud to expanding our Hon. DIANNE FEINSTEIN, U.S. Senate, Washington, DC. and find practical means of correcting their domestic violence laws to cover people in ill effects. But I know also that laws and in- dating or live-in relationships. Despite these Re: Support of Crime Victims’ Rights stitutions must go hand in hand with the efforts, more changes need to be made to en- Amendment Victims and Friends United (VFU), a Cali- progress of the human mind. As that be- sure that victims are treated fairly. The fornia grassroots organization is the rep- comes more developed, more enlightened, as criminal justice system should not overlook resentative of nearly 20,000 members which new discoveries are made, new truths dis- the interest of victims in light of protecting consists of crime victims, their families, and closed and manners and opinions change the rights of the criminals. I firmly believe other concerned citizens. We have been at with the change of circumstances, institu- that a speedy trial and information about the forefront of the fight for the rights of tions must advance also and keep pace with the proceedings of the trial are minimal crime victims for nearly 20 years. We ensure the times. rights that the constitution should grant to that existing victims’ rights laws are zeal- all victims. Similarly, 13 years earlier, he said in ously enforced, and encourage the drafting of a letter to Wilson Nicholas: Please let me know what other ways I can help you with this cause. new legislation to further protect the rights Let us go on perfecting the Constitution by Sincerely, of crime victims and improve public safety. adding by way of amendment, those forms BOB MILLER, As President and Board member of VFU, I which time and trial show are still wanting. Governor. am writing to ask you and your co-sponsored I believe very deeply that time and Senators to urge the full Senate to pass the trial show that our amendment is still JUSTICE FOR MURDER VICTIMS, Crime Victims’ Rights Amendment to the San Francisco, CA, April 19, 2000. U.S. Constitution. In supporting this amend- wanting and should be adopted. ment, the Senate has an historic opportunity I ask unanimous consent to have Hon. DIANNE FEINSTEIN, U.S. Senate, Washington, DC. to take a stand for the millions of Americans printed in the RECORD, in recognition Regarding: Support of S.J. Res. 3, the Vic- who are victimized each year in this coun- of the widespread support we have re- tims Rights Constitutional Amendment try. ceived, letters from virtually every law DEAR SENATOR FEINSTEIN: On behalf of Jus- For decades we have seen court decisions enforcement agency and every crime tice for Murder Victims, I would like to in- expanding the ‘‘rights’’ of criminals. Finally, victims group. form you of our strong support of S.J. Res. 3, it is encouraging to see legislators beginning There being no objection, the mate- the ‘‘Victims Rights Constitutional Amend- to place equal emphasis on the rights of rial was ordered to be printed in the ment’’ crime victims. The rights to be present, Criminals’ rights are inherently included heard and informed throughout the criminal RECORD, as follows: in America’s criminal justice system, while justice process are basic tenets guaranteed COUNTY OF SHASTA, crime victims, historically, have not had a by our U.S. Constitution to those accused or OFFICE OF THE DISTRICT ATTORNEY, place and/or voice within the criminal jus- convicted of crimes in our nation, yet the Redding, CA, April 17, 2000. tice system. In fact, to add insults to injury, rights of their innocent victims are not ar- Re: Crime Victims’ Rights Constitutional the majority of victims are violated and be- ticulated in our U.S. Constitution. The Amendment trayed a second time by the system. S.J. Crime Victims’ Rights Constitutional Hon. DIANNE FEINSTEIN, Res, 3 will secure basic rights for countless Amendment is necessary to ensure that vic- U.S. Senate, Senate HWA Office, victims of crime throughout our nation as tims’ rights are respected and enforced in Washington, DC. they struggle to survive their victimization. our criminal justice process. DEAR SENATOR FEINSTEIN: I write to offer Under this legislation, victims would have Thank you for all that you do for Califor- my wholehearted support for your efforts in a right to receive notice of public pro- nians, keep up the good work, and realize

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00025 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 6028 CONGRESSIONAL RECORD—SENATE April 27, 2000 that you have our full support. If we can be Inc. (WEAVE), I am happy to lend our sup- tive matter impacting federal law enforce- of further assistance or you need someone port of your Crime Victims Rights Constitu- ment. I can be reached at (202) 258–7884. from our organization to testify, please give tional Amendment (Senate Joint Resolution Respectfully, us a call. 3). This amendment is supported throughout BRIAN M. MOSKOWITZ, Legislative Director, National Executive Sincerely, our nation by 49 of 50 governors as well as PATSY J. GILLIS, Board Member.1 President and Co-Founder. Mothers Against Drunk Driving, Parents of Murdered Children and the National Organi- NATIONAL CENTER FOR THE LAW ENFORCEMENT zational for Victim Assistance. MISSING & EXPLOITED CHILDREN, ALLIANCE OF AMERICA, While criminal defendants have almost two Arlington, VA, April 25, 1996. Lynbrook, NY, April 12, 2000. dozen separate constitutional rights, fifteen Senator DIANNE FEINSTEIN, Hon. DIANNE FEINSTEIN, of which specifically provided as constitu- Hart Senate Office Building, U.S. Senate, Washington, DC. tional amendments, victims of crime have no Washington, DC. DEAR SENATOR FEINSTEIN: On behalf of the DEAR SENATOR FEINSTEIN: I am writing on constitutional rights. The Crime Victims Law Enforcement Alliance of America, I behalf of the National Center for Missing and would like to inform you of our strong orga- Rights Amendment brings much needed bal- Exploited Children to formally express our nizational support of S.J. Res. 3, the ‘‘Vic- ance to our justice system by granting vic- support and endorsement of the Victim’s tims Rights Constitutional Amendment.’’ tims the right to be informed, present and Rights Amendment you have introduced LEAA is asking for your active support of heard at critical stages throughout trials. with Senator Kyl and Congressman Hyde. this important legislation that is expected to The passage of this resolution will go far to go for a Senate floor vote in late April. Addi- We should not forget that justice is an at- tempt to give back to victims the sense of helping victims nationwide begin and con- tionally, LEAA asks that you oppose any at- tinue the difficult healing process necessary closure and fairness taken by their perpetra- tempts to dilute the intent of this critical after victimization. legislation. tors. This amendment is a long overdue step The National Center for Missing and Ex- LEAA is the nation’s largest coalition of toward justice for victims. ploited Children spearheads nationwide ef- law enforcement professionals, crime vic- Please convey WEAVE’s strong support to forts to locate and recover missing children, tims, and concerned citizens dedicated to and raise public awareness about ways to finding solutions to the problems plaguing your colleagues in the U.S. Senate. Thank prevent child abduction, molestation and our country’s criminal justice system. Fight- you for your advocacy efforts on behalf of sexual exploitation. As you continue your ing for passage of victims’ rights legislation victims and victim advocacy organizations. work in support of children and others vic- is of paramount importance in realizing just Sincerely, timized by criminal offenders, please do not one of LEAA’s many goals. MARY STRUHS, Paradoxically, criminals’ rights are inher- Associate Director. hesitate to contact us if we can be of assist- ently included in America’s most supreme ance in any way. Again, we strongly commend your efforts document while crime victims, historically, FEDERAL LAW ENFORCEMENT and thank you for your dedication to the in- have not had a place and/or a voice within OFFICERS ASSOCIATION, terests of America’s millions of criminal vic- the criminal justice system. In fact, to add East Northport, NY, April 21, 2000. tims. insult to injury, the majority of victims are Hon. DIANNE FEINSTEIN, Sincerely, violated and betrayed a second time by the U.S. Senate, Washington, DC. TERESA KLINGENSMITH, system. S.J. Res. 3 will secure basic rights Manager, Legislative Affairs. for countless victims of crime throughout DEAR SENATOR FEINSTEIN: On behalf of the our nation as they struggle to survive their National Executive Board of the Federal Law victimization. Enforcement Officers Association and out CALIFORNIA POLICE CHIEFS Under this legislation, victims would have ASSOCIATION, INC. more than 17,000 members across America, I Sacramento, CA, April 18, 2000. a right to receive notice of public pro- want to formally announce FLEOA’s strong Hon. DIANNE FEINSTEIN, ceedings related to the crime perpetrated support for S.J. Res. 3, the ‘‘Crime Victims’ against them, notice of the offender’s escape Senate Hart Office Building, Rights Constitutional Amendment.’’ or release from custody, as well as notifica- Washington, DC. tion of parole hearings and a voice at these FLEOA, the voice of America’s federal Re: Crime Victims Rights Constitutional hearings. As the President’s Task Force on criminal investigators, agents, and officers, Amendment Victims reported in 1982, ‘‘The criminal jus- is the largest professional association in the DEAR SENATOR FEINSTEIN: The California Police Chiefs Association fully supports your tice system is absolutely dependent upon the nation exclusively representing the federal cooperation of crime victims to report and to Crime Victims Rights Constitutional law enforcement community. FLEOA, a non Amendment (Senate Joint Resolution 3). testify. Without their help, the system can- partisan, volunteer organization comprised not hold criminals accountable and stem the This amendment is very much needed as of active and retired federal law enforcement tide of future crime.’’ demonstrated by the support of Mothers LEAA feels it is imperative to pass legisla- members from the agencies listed on the left Against Drunk Driving, Parents of Murdered tion to protect the country’s violent crime side of this document is dedicated to the ad- Children and the National Organization for victims. The high number of victims in this vancement of the federal law enforcement Victim Assistance as well as 49 of 50 Gov- country (including the tens of thousands of community. ernors. Law Enforcement has long recognized that officers assaulted each year and dozens mur- We are an organization comprised of indi- dered) indicates that we cannot afford to crime victims deserve to have a rightful viduals who have dedicated their lives to overlook this proposed amendment. Another place in our justice system. While criminal reason to endorse this amendment is that in protecting and serving the American public. defendants have almost two dozen separate the 18 years we’ve discussed this provision, It is our belief that the time is right to constitutional rights, fifteen of them specifi- 32.4 million Americans have been victims of amend the Constitution to correct the injus- cally provided as constitutional amend- violent crime. And they simply deserve bet- tice that that has developed in this area. ments, victims of crime have zero constitu- ter treatment in the criminal justice system. This amendment will ensure that those who tional rights. The Crime Victims Rights Once again, we urge you to take an active have been touched by crimes of violence are Amendment brings much needed balance to role in passing this very important legisla- not further victimized by laws that may pre- our justice system by granting victims the right to be informed, present and heard at tion. If there is any information LEAA can vent them from being notified, and provided provide on S.J. Res. 3, please don’t hesitate critical stages throughout trials. the opportunity to be present and heard at to call me or LEAA’s Crime Victims Advo- While many could claim that this legisla- cate Darlene Hutchinson at (703) 847–2677. critical stages of their cases. We believe that tion places burdens on the justice system, we Sincerely, the Founders created the Constitution to be should not forget that the spirit of justice is JAMES J. FOTIS, a living document and this proposed amend- to attempt to give back to victims the sense Executive Director. ment is consistent with that principle. of closure and fairness taken by their per- petrators. Unfortunately, we as a nation FLEOA looks forward to working with WEAVE, have often forgotten the victims of crime. Congress and the States in securing passage Sacramento, CA, April 21, 2000. With today’s population increasingly living of the Crime Victims’ Rights Constitutional Senator DIANNE FEINSTEIN, longer, we are seeing more and more victim- Senate Hart Office Building, Amendment. Please do not hesitate to con- ization of our elderly. They, along with our Washington, DC. tact me on this issue or on any other legisla- children, are the least able to fight back DEAR SENATOR FEINSTEIN: On behalf of against the criminal element and therefore Women Escaping a Violent Environment, need this amendment.

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The California Police Chiefs Association is help in your effort to protect the rights of SACRAMENTO COUNTY very pleased to stand with you on this crime victims. CAL PAL commends you for SHERIFF’S DEPARTMENT, amendment and fully supports your efforts. taking up this cause in the name of 8.6 mil- Sacramento, CA, April 21, 2000. Respectfully, lion Americans. Hon. DIANNE FEINSTEIN, CRAIG T. STECKLER, Sincerely, Senate Hart Office Building, Chief, Fremont Police Department RON EXLEY, Washington, DC. and Government Relations Director. DEAR SENATOR FEINSTEIN: I am writing to President, California Police Chiefs’ offer my support toward your efforts in spon- Association. soring the Crime Victim’s Rights Constitu- CITY AND COUNTY OF SAN FRAN- tional Amendment. Your proposed amend- CISCO, OFFICE OF THE SHERIFF, CALIFORNIA NARCOTIC ment would fill a void in the rights guaran- San Francisco, CA, April 24, 2000. OFFICERS’ ASSOCIATION, teed to citizens in our Constitution by pro- Santa Clarita, CA, April 24, 2000. Hon. DIANNE FEINSTEIN, viding basic, essential rights to victims of Senate Hart Office Building, Hon. DIANNE FEINSTEIN, crimes all across our nation. Washington, DC. Hart Senate Office Building, Law Enforcement has long recognized that Washington, DC. DEAR SENATOR FEINSTEIN: I write to lend crime victims deserve a rightful place in the Re: Crime Victims Rights/Constitutional my support to Senate Joint Resolution 3, the criminal justice system. While criminal de- Amendment proposed amendment to the Constitution in- fendants have nearly two dozen separate con- stitutional rights, fifteen of which are spe- DEAR SENATOR FEINSTEIN: The membership tended to protect the rights of crime vic- cifically provided as constitutional amend- of the California Narcotic Officers’ Associa- tims. tion is in strong support of your Crime Vic- ments, crime victims have no constitutional As Sheriff of San Francisco, I have wit- tims Rights Constitutional Amendment rights as it relates to being the victims of nessed the empowerment experienced by vic- (Senate Joint Resolution 3). As members of crimes. The Crime Victims Rights Amend- tims of crime when given the opportunity to law enforcement community, we recognize ment will bring much needed balance to our that crime victims must have voice in the speak about how their lives were impacted justice system by providing victims the right criminal justice system. Traditionally, they by violence. I have also witnessed the effect to be informed, present and heard at all crit- have been treated with less respect than on violent offenders of hearing how their ical stages throughout their respective those accused of terrible crimes. crimes harmed individuals and the entire trials. The opponents of this legislation claim The California Narcotic Officers’ Associa- community. As part of our Resolve to Stop that the amendment would place burdens on tion is very pleased to stand with you on this the Violence Project, an in-custody treat- the justice system, we cannot afford to for- very important amendment and fully sup- ment program for men with violent criminal get the intent of justice is to give back to port your efforts. histories, victims come to the jail to tell victims, the sense of security, closure and Sincerely, how the violence done to them changed their fairness, taken by the perpetrators of their WALTER ALLEN, lives. For the first time, many offenders re- President. alize that their actions have serious and crimes. I applaud you for your efforts and I stand harmful consequences, and this is often the with you as you pursue this important issue. catalyst for real change. Not only does the CALIFORNIA POLICE ACTIVITIES Please do not hesitate to call on me if I can experience give voice to crime victims, it LEAGUE (PAL), provide any assistance. I can be reached at Oakland, CA, February 8, 2000. gives both victim and offender the oppor- (916) 874–7146. tunity to work toward the common goal of Hon. DIANNE FEINSTEIN, Sincerely yours, U.S. Senate, Washington DC. the eradication of violence. LOU BLANAS, DEAR SENATOR FEINSTEIN: The California Participation of victims in the criminal Sheriff. Police Activities commends you on your ef- justice dialogue is essential to their well forts to protect the rights of crime victims. Mrs. FEINSTEIN. One of the unfortu- being and that of the entire community. I nate aspects of the debate in these hal- The California Police Activities League sup- am proud to support the Crime Victims ports your Amendment to the Constitution lowed Halls is the fact that many have Rights Constitutional Amendment. of the United States. As law enforcement Sincerely, chosen to ignore the fact that this personnel, we understand the importance of MICHAEL HENNESSEY, amendment would actually help poor this Constitutional Amendment to the many Sheriff. minority communities beset by crime. victims of crime that we meet during a It would give victims in these commu- criminal investigation. In many cases, it is nities rights our criminal justice sys- youth, which are the victims. They should SAN DIEGO COUNTY have the same rights as every citizen of the SHERIFF’S DEPARTMENT, tem often deny them through bureau- United States of America. A victim of a vio- San Diego, CA, April 24, 2000. cratic neglect and casual racism. lent crime should have the following rights: Hon. DIANNE FEINSTEIN, Among the many supporters of the To reasonable notice of public judicial pro- U.S. Senate, Hart Senate Office Building, amendment, for example, is a group ceedings Washington, DC. called Racial Minorities for Victim To attend all public proceedings. DEAR SENATOR FEINSTEIN: It is with great Justice. This group includes Norm To be heard at crucial stages in the judi- pleasure that I add my support to S.J. Res. Early, the former district attorney of cial process. 3, to provide constitutional rights for crime Denver, CO, and the founding president To receive reasonable notice of the offend- victims. There are rights articulated in the er’s release or escape. of the National Black Prosecutors’ As- U.S. Constitution to provide rights for crime To consider in the interest of the crime sociation. It includes Joseph Myers, ex- victims. Criminal defendants have almost victim that the trial is free from unreason- ecutive director of the National Indian two dozen separate constitutional rights, fif- able delay. Justice Center; David Osborne, an teen of them provided by amendments to the To receive restitution from the convicted U.S. Constitution. Asian American who is assistant sec- offender. retary of the State in California; Azim To consider for the safety of the victim Your proposed Crime Victims’ Rights Khamisa; Christine Lopez; Steven any conditional release from custody. Amendment will bring balance to the justice Njemanze. The group includes minority The California Police Activities is only system, by giving crime victims the rights to asking that the 8.6 millions victims of vio- be informed, present and heard at critical victims such as Teresa Baker, whose lent crime in our country receive fair treat- stages throughout their case. rights were denied after her son was ment by the judicial system, which they de- coldbloodedly murdered in Maryland; The need for this measure is evidenced by serve. For those accused of crimes in our Clementine Garfield, whose two teen- the forty-two bipartisan senators who have country, the Constitution specifically pro- agreed to cosponsor this amendment. I look age sons were shot in Detroit; Sarah tects them. However, nowhere in the text of forward to working with you on this and Fletcher, whose husband Reginald, son the United States Constitution does there other legislation that we mutually agree Ricky, daughter Crystal, and unborn appear any guarantee of rights for crime vic- granddaughter were all murdered. They tims. upon. The time has come for a Victim Bill of If I might be of further assistance, please wrote me an eight-page letter laying Rights. The California Police Activities in don’t hesitate to call me. out their thoughts about the amend- the name of its members support your drive Sincerely, ment. I will read some of that letter. for the passage of this Constitutional WILLIAM B. KOLENDER, The undersigned are founding members of Amendment. Please call us if we can be of Sheriff. Racial Minorities for Victim Justice which

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00027 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 6030 CONGRESSIONAL RECORD—SENATE April 27, 2000 strongly support Senate Joint Resolution 3, minority victims of violent crime who victim may, during the sentencing the Crime Victims’ Rights Constitutional can afford the counsel to process their hearing, testify as the effect of the of- Amendment. We are aware that some groups rights under State constitutions, under fense on the victim and the victim’s that seek conscientiously to speak for the State laws, or under the patchwork of family or as to any other factor for interests of racial minorities have expressed opposition to your proposed amendment. We laws to protect victims across this Na- which notice is required. That is clear. claim some understanding of the funda- tion at this time. Every time, if they We cleared it up. We gave them stand- mental concerns that guide their position— do, they will eventually lose because ing by law, passed by the House, passed concerns we share—but we also believe that the rights of the defendants or the ac- by the Senate, signed by the President they have reached the wrong conclusion on cused are deeply embedded in the heart of the United States. But the district this issue. of this great Constitution. They will court then said that this statute might To put it in the simplest terms, no one in find that, in effect, as they press a case be unconstitutional and postponed a our society stands to benefit more from the in court, they have no standing under decision until after the trial. So the adoption of the Victims’ Rights Amendment than people of color—for it is our people that the Constitution of the United States. judge paid no attention to the House of suffer the highest rates of victimization in That is what this is all about, to give Representatives, the Senate of the the Nation. victims standing in the Constitution of United States, or to the signature of Let us start with some common ground on the United States. No case dem- the President of the United States. which the great majority of racial minorities onstrated that more clearly than the This is why we press this cause stand in this country. Historically, we have Oklahoma City bombing case. today. This is why we do not believe had deep suspicions of the agencies of crimi- As we sum up, I will quickly refresh that a statute will ever be adequate to nal justice. Speaking specifically of the Afri- why that is the case. We had passed give victims basic rights. Push sort of can American experience, it was the agents of criminal justice who were the enforcers of two statutes—one in 1990—which al- comes to shove. There is an old expres- the Fugitive Slave Act and all the Jim Crow lowed victims to watch the trial and sion called ‘‘carrying water on both laws—often with lawless brutality. testify at sentencing. The Victims of shoulders.’’ It is sometimes a way that While we are proud of recent progress to Crime Bill of Rights, a 1990 law, passed people feel, in our business—that they end this pattern of bigotry in the adminis- by the House, passed by the Senate, can appease a group by saying, oh, tration of justice—proud because African and signed by the President, references something else will do. This case, to Americans and other minorities have led the the right to be present at all public me, is irrevocable evidence that the way in reforming these practices—we are not court proceedings related to the of- challenge of making a statute work is so naive as to believe that our criminal jus- tice system has grown altogether color- fense, unless the court determines that extraordinarily difficult to give any blind. testimony by the victim would be ma- minority or impoverished victim any More than most Americans, we believe terially affected if the victim heard meaningful right in real life. So we in- criminal justice has become too fearful of other testimony at the trial. In spite of tend to continue to press this case. people of color, too punitive toward minority that statute, the court denied the pros- I want to ask the distinguished Sen- offenders, with too few opportunities for ecutors’ request. The victims made a ator from Arizona now that he has their treatment and rehabilitation. similar request, and the court denied heard the outline of what happened— This is where we share common ground some people have criticized me, I with most members of the minority commu- that request, holding that victims nities in America. What we cannot under- lacked standing to raise their rights think, because I have used this case stand, however, is why some in those com- under that statute. over and over again, but it is the only munities have concluded that one way to The prosecutors and the victims were clearly definable case we have fol- bring justice agencies into harmony with our not satisfied. They both had good at- lowing the passage of two laws passed higher ideals is to deny the victims of crime torneys, Washington attorneys, Paul by our bodies to make a judgment— any effective and enforceable rights. To us, Cassell, distinguished attorneys. They and, true, we are making that judg- that makes no sense. We do nothing to im- appealed that to the Court of Appeals ment just on the Tenth Circuit Court— prove the fair treatment of minority defend- of the Tenth Circuit. As Professor nonetheless, does the Senator not be- ants by impeding the fair treatment of mi- nority victims. Cassell, one of the lawyers put it: lieve it is an applicable judgment to Three months later, a panel of the Tenth add to this to confirm the fact that a I couldn’t agree with that more. Circuit rejected—without oral argument— statute probably won’t work in this sit- They go on to say: both the victims’ and the United States’ uation? Leaders of America’s criminal defense bar claims on jurisdictional grounds. With re- Mr. KYL. Mr. President, Senator have testified frequently and heatedly spect to the victims’ challenges, the court FEINSTEIN is exactly correct. I think it against passage of the Crime Victims’ Rights concluded that the victims lacked ‘‘stand- illustrates the inconsistency of the op- Amendment, citing amorphous dangers to ing’’ under Article III of the Constitution be- ponents of the amendment. In the first defendants’ rights and liberties. And how cause they had no ‘‘legally protected inter- many cases did they cite where their mil- est’’ to be present at the trial and con- place, they say we should try a statu- lions of clients had run afoul of some over- sequently had suffered no ‘‘injury in fact’’ tory remedy. When we try the statu- zealous, unfair and harmful interpretation of from their exclusion. The Tenth Circuit also tory remedy and the court says you a crime victim’s rights already provided in found that victims had no right to attend lose, you still don’t have the rights— State Constitutions? Two hundred? Twenty? the trial under any First Amendment right and as Senator SCHUMER said, the court Two? Not even one! of access. Finally, the Tenth Circuit re- essentially ignored what Congress did, It is important to understand that victims’ jected, on jurisdictional grounds, the appeal rights statutes echoing those in the proposed and that was offensive to him because and mandamus petition filed by the United he had been one of the authors of that Amendment are to be found on the books of States. Efforts by both the victims and the every state—buttressed by constitutional Department to obtain a rehearing were un- legislation—we come back and say that amendments in 32 of them. While compliance successful, even with the support of separate illustrates the fact that you need a with those laws is woefully spotty (more on briefs urging rehearing from 49 members of constitutional protection because until that below) it is fair to estimate that in hun- Congress, all six Attorneys General in the you have that, the courts can’t con- dreds of thousands of cases, the victims Tenth Circuit, and some of the leading vic- tinue to ignore these statutes. Then rights were fully implemented, giving rise to tims groups in the nation. Senator SCHUMER said: But courts can- not one single appeal as to the fairness of the We heard about that. We responded application of those laws. not ignore statutes; they are just like In our opinion, people of color should be es- with alacrity. The House passed the the Constitution. You have to apply pecially outraged at these disproportionate Victims’ Rights Clarification Act of statutes. The answer to that is, well, deprivations of our legal and human rights, 1997. That statute said, notwith- you should, but what is the remedy if for it is our minority communities who dis- standing any statute, any rule or other you don’t? proportionately suffer the pain of criminal provision of law, a U.S. district court As the Senator pointed out, until we victimization. shall not order any victim of an offense provide standing in a constitutional I agree with that very much. There is excluded from the trial of a defendant amendment, if the courts don’t abide perhaps none but, at most, very few accused of that offense because such by the statutes, there is no recourse.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00028 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.000 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6031 That is the bottom line as to why a to achieve closure, and to be compensated if up through the State court process. constitutional amendment is necessary possible—into the background. Rather than Sometimes they can jump over to the in these kinds of cases. creatively and determinedly seeking ways to Federal court because of a constitu- The other inconsistency is the other protect victims’ rights in ways that manage fully to respect the genuine rights, privi- tional issue involved. But except on side says you don’t have a lot of court leges, and needs both of the accuser and the military reservations, Indian reserva- decisions overturning statutes for accused, state and local officials are under- tions, certain kinds of kidnapping State constitutional protection, so we standably but unfortunately tempted to rel- cases, and things of that sort where it don’t need a constitutional amend- egate victims and their rights to second- is not a Federal case, a Federal statute ment. class status or to shelf them altogether, as doesn’t apply. That is an odd argument. Most of the merely hortatory and aspirational provisions Mrs. FEINSTEIN. Of course that is constitutional protections are not the of law enacted with something much strong- right. I think the Senator from Arizona er and more operational in mind. result of a Supreme Court decision to said it very well. strike down a statute or a State provi- He essentially goes on to say again The PRESIDING OFFICER. The sion. In fact, I don’t know of any that why a statute won’t work. He says: Chair notes that the time of the Sen- are, frankly. The argument is flawed first, because it ator from California has expired. Most of the constitutional protec- fails entirely to come to terms with the Mrs. FEINSTEIN. I thank the Chair. basic reasons, set forth above, that merely I yield the floor. tions for defendants and other citizens statutory measures would be unable to com- have come about because of the rec- bat the deeply rooted attitudinal problems The PRESIDING OFFICER. The Sen- ognition that there are certain funda- confronting victims and their claims of ator from Arizona. mental rights that need to be pro- right; and second, because insofar as it as- Mr. KYL. Mr. President, the Senator tected, and we ought not to wait for sumes broad congressional power to act from California may have time yielded courts to strike something down in under Section 5 of the Fourteenth Amend- to her from someone else in her party order to assume that it is time to pro- ment, it is simply ignorant of the series of to advance the rest of her argument. decisions in the 1990s and reaching into 2000, She might find out how much time pose a constitutional amendment. But beginning with the invalidation of the Reli- if that were the proper standard, then there is. gious Freedom Restoration Act and con- I inquire of the Chair. How much we have a clear reason to do so because tinuing with the invalidation of provisions of as the Senator from California pointed the Patent Reform Act and the Age Dis- time do I have remaining? The PRESIDING OFFICER. The Sen- out, the Tenth Circuit Court of Appeals crimination Employment Act, in which the ator from Arizona has 2 hours 13 min- has now ruled that is the precedent, modern Supreme Court has dramatically utes. and for at least, I think, seven States curtailed the legislative authority of Con- Mr. KYL. I shall not take nearly that in the Tenth Circuit, they have a very gress to use its Section 5 power to protect in- terests that Congress, but not yet the Court, much time. It is my understanding bad ruling on their hands; namely, vic- is prepared to recognize as constitutional that I can’t yield any of that time to tims have no standing to assert the rights, or even to protect Court-recognized Senator FEINSTEIN. rights we provided for in statute. So if constitutional rights in circumstances, or by The PRESIDING OFFICER. The Sen- that is to be the standard—that you means, not shown in the legislative record to ator has time under the cloture rule to be ‘‘necessary.’’ have to have a court decision that yield time to other Senators. proves the need for a constitutional What Professor Tribe at this stage is Mr. KYL. I ask unanimous consent to protection—we have it. So whichever adding to this is that any statute yield 1 hour of my time to Senator way you want to argue it, I think the passed by us does not take into consid- FEINSTEIN. point is made that we need a constitu- eration the courts striking down of the The PRESIDING OFFICER. The Sen- tional amendment to provide real pro- Religion Freedom Restoration Act, the ator has that right as manager of the tection for victims of crime. Patent Reform Act, the Age Discrimi- bill. Mrs. FEINSTEIN. I thank the Sen- nation and Employment Act. He is say- Mr. KYL. I appreciate it. I thank the ator for that comment. I would like to ing that the authority of Congress is Chair. follow up with something. My staff has now more limited to use its section 5 The PRESIDING OFFICER. The Sen- handed me a letter from Professor power to protect interests that we ator from California. Tribe dated today. It is on this point. I think are valid. Mrs. FEINSTEIN. I thank the distin- think it adds some additional very dis- The striking down of these bills, in guished Senator from Arizona. I thank tinguished credibility to what the Sen- effect, makes the constitutionality of the Chair. ator is saying. It says: anything that we might pass by way of Let me briefly summarize. I sincerely I am writing to address one consideration a Federal statute extraordinarily vul- believe that the only way to afford vic- in particular that is highlighted by the pro- nerable. I think this is new informa- tims of violent crime standing under posed Crime Victims Assistance Act, S. 934, tion which we have not had a chance to the Constitution to be able to assert a whose sponsors—many of whom are my good analyze and consider which may enable right that is provided is by amendment friends—evidently hope that by this Federal us to come back and fight another day. to the Constitution. I don’t use my statute they obviate the need for the pro- Mr. KYL. Mr. President, another judgment. This is the judgment of the posed constitutional amendment. I favor S. EINSTEIN 934’s enactment, at least in principle. I as- point Senator F made yester- most distinguished legal scholars. sume that closer study of the detailed provi- day which people need to continue to I know there are strong forces at sion than I have been able to undertake focus on is that a Federal statute is work in this in front of the scenes and would disclose ways in which it might be im- going to apply to Federal crimes. A behind the scenes. I know there are proved. But minor technical flaws, or even U.S. constitutional amendment applies some people who believe what we are design defects in the contemplated statute to all cases in all courts in every State, trying to do is weaken defendants’ would be beside the point and are not my whether at the trial court level in the rights. That is simply not correct. De- focus. After all, detailed problems with the county—we call it superior court in Ar- fendants’ rights, as I see them, are ba- statute’s terms could be cured by redrafting sically rights that do not come into and would not in themselves explain why izona—all the way to any other court, only an amendment to the Constitution including Federal courts. But a statute collision with the rights we would af- could meet the need for fuller national pro- that we pass applies to Federal court ford the victims. They are totally dif- tection of victims’ rights. trials for the most serious crimes. In ferent rights. If there is a collision, our Then he goes on to say this—and I Federal law, that accounts for about 1 view is that the judge then provides am skipping some: percent of the victims of violent crime the balancing mechanism. This gives The mere brandishment of the banners of in the entire country. the victim a standing in law to assert defendants’ rights or of prosecutorial needs Almost always the local police catch the right that, in a sense, can’t be too often suffices to push the needs and in- the perpetrator, that perpetrator is trusted. terests of victims—to be notified, to observe, tried by the local county prosecutor in This issue goes down—let me be very to be heard, to have their views considered, the county courts, and the appeals go candid—on one phrase. That one phrase

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00029 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6032 CONGRESSIONAL RECORD—SENATE April 27, 2000 is the addition of language that would jumping up and down and threatening find that very difficult and troubling. say nothing in this Constitution would people. The judge has a way to control But here is the analogous situation abridge the right of a defendant as pro- his courtroom, and so on. which I think makes our case. This is vided by this Constitution. We are perfectly willing to make it what Professor Paul Cassell says: That is a paraphrase of what it is. crystal clear in our language that the Confirmation of the constitutional worthi- The Department of Justice insists on enumeration of these rights for victims ness of victims’ rights comes from the judi- that language. We will not get adminis- does not abridge any rights guaranteed cial treatment of an analogous right: the tration support, I believe, without that in the Constitution for defendants or claim of the media to a constitutionally pro- language. The victims movement be- those accused of crime. We are unwill- tected interest in attending trials. In Rich- mond Newspapers v. Virginia, the Court lieves they would not have sufficient ing to say, if there has to be any bal- agreed that the First Amendment guaran- standing in these rights to really as- ancing, the defendant always wins. teed the right of the public and the press to sert them in a meaningful way unless That would deny exactly what we are attend criminal trials. Since that decision, they were able to be balanced against trying to achieve for the victims, few have argued that the media’s right to at- the rights of the defendant. which is some equal consideration tend trials is somehow unworthy of constitu- The question I wanted to ask my under the Constitution for their fair- tional protection, suggesting a national con- friend and colleague, Senator KYL, is I ness given all of the things we have sensus that attendance rights to criminal think our challenge in proceeding may rightly done for defendants. trials are properly the subject of constitu- tional law. Yet the current doctrine produces be how we could reconcile this with the Mrs. FEINSTEIN. I thank the Sen- what must be regarded as a stunning dis- very real concern of victims that they ator. I think the analogy is actually a parity in the way courts handle claims of ac- once and for all—albeit for a limited very good one. I know defendants’ cess to court proceedings. Consider, for ex- right but nonetheless real rights—have rights are extraordinarily privileged, ample, two issues actually litigated in the standing for those rights in a court of and well they should be. Senator KYL Oklahoma City bombing case. The first was law. and I have discussed this. We believe the request of an Oklahoma City television Mr. KYL. Mr. President, Senator that our amendment does not collide, station for access to subpoenas for docu- ments issued through the court. The second FEINSTEIN has touched on a central and we understand how victims feel. point because none of the advocates for I think one of the points is that was a request for various family members of the murdered victims to attend the trial, dis- victims have ever sought to deny one throughout all of this we have commu- cussed previously. My sense is that the vic- single right to the defendant. In point nicated with victims groups. We have tims’ request should be entitled to at least of fact, the victims’ rights that we pro- been their advocates. We have tried to as much respect as the media request. Yet tect do not deny or abridge the defend- march to the sound of their drum. under the law that exists today, the tele- ants’ rights under the Constitution. It The tragedy for me, today, is that we vision station has a First Amendment inter- is not our intention, and it doesn’t hap- are so close that, if we could bridge est in access to the documents while the vic- pen. We have been willing to acknowl- that one gap, getting the support of the tims’ families have no First Amendment in- edge that in a variety of ways and in a Justice Department, the President’s terest in challenging their exclusion from the trial. The point here is not to argue that variety of words in the Constitution. support, the Vice President’s support, victims deserve greater constitutional pro- We are not willing to say if there is perhaps we might, on our side, pick up tection than the press, but simply that if ever a case in which the defendant as- some votes. That one inability to reach press interests can be read into the Constitu- serts a right under the Constitution this kind of consensus within the time- tion without somehow violating the ‘‘sacred- then that right automatically wins frame we have, in view of the feelings ness of the covenant,’’ the same can be done over any of these victims’ rights. What of our colleagues, is really the neces- for victims. we said, and what people in the Depart- sity of what we are doing here this That is the end of Professor Cassell’s ment of Justice and the President and afternoon. But I think at this stage quotation, the point being—to those others have agreed with, is there there is an impasse. Does my colleague who say the Constitution is sacred; we should be a balancing just as there is a agree? cannot change it—it includes rights of balancing of two constitutional rights, Mr. KYL. I do. If I may read one the media to attend trials, but some- defendants’ rights to a speedy and pub- paragraph from a piece written by Pro- how it would be wrong to grant those lic trial, a fair trial, and the right of fessor Paul Cassell, I think it helps to same rights to victims. That, indeed, is free press. elucidate what we are talking about, if a disparity. To the extent a defendant When the press wants to get into the the Senator would not mind. might say, ‘‘but I don’t want the vic- courtroom, sometimes, as we all know, We are talking about potentially con- tim or the victim’s family in the court- the judges say: No. We are only going flicting rights under the Constitution. room,’’ just as the Constitution says, to allow a limited number of certain Senator BIDEN has made this point. but there is a right that we have to bal- kinds of media in the courtroom. We Hopefully, he will be here a little bit ance with your concerns—and that is don’t want a media circus in the court- later to speak to this, but he made the the media’s right—we would be saying room. That wouldn’t be fair to the de- point he can’t see there ever being an here: The victim also has some consid- fendant. irreconcilable conflict between the de- eration here, and the court needs to The media says: Wait a minute. We fendant’s rights and the victim’s take that into account in deciding the have a first amendment right. rights, and in one sense I think he is circumstances under which victims and The defendant says: I have a con- absolutely correct because you can vin- victims’ families would be present. stitutional right, too, which amounts dicate two conflicting rights through a If we were to somehow insert lan- to a right for a fair trial. balancing test. But the fact is, there is guage that made it possible for courts The judge says: You are both right, only one situation I can think of in to rule that the defendant would al- and you are both going to get your which you even have that conflict, and ways win in the case of such an asser- rights vindicated, but neither of you that is the right to attend a trial, tion, then we would have, I think, per- have an absolute right that excludes where the defendant would say, it is petrated a cruel hoax on victims who any other consideration. The judge not fair to me if the victim or the vic- would think they had something that says to the defendant: I am not going tim’s family attends the trial, and the in fact they would not have. It would to allow your case to be prejudiced by victim’s family or the victim says, be similar to what victims experienced a media circus. Media, you are going to wait a minute, that’s one of my most when they proudly went into court have to restrain yourselves to the fol- fundamental rights, and the Senator with their new statute that the Con- lowing conditions. Judges say that guaranteed that in this provision. gress had passed, saying: ‘‘Now, judge, every day. There are ways to accommodate both we have a right to attend the trial,’’ The defendant has a right to sit at the defendant’s and victim’s rights, of and he ignored it. If we put it in the his trial. But he can’t sit there if he is course. At least the Senator and I un- Constitution, the judges can’t ignore going to be yelling, screaming, and derstand that, but there are some who it.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00030 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6033 But if we said in the Constitution: We are talking about things that are in the Constitution, but laws and insti- However, the defendant is always going serious, not frivolous. These are real tutions must go hand in hand with the to prevail in the case of a conflict, then cases. Both of the examples I cited are progress of the human mind. As that that would be a cruel hoax. I think we real cases—multiple cases, I might add. becomes more developed, more enlight- have gone so far as to suggest we are What are the arguments against it? ened, as new discoveries are made, new willing to acknowledge that the rights One argument is it is too long and spe- truths discovered and manners and enumerated for victims do not abridge cific. Right after that, we heard it is opinions change, with the change of rights guaranteed in the Constitution too general. Senator SCHUMER said we circumstances, institutions must ad- to defendants. I do not know how much should just have a general statement vance to keep pace with the times. more clearly we can say that. It leads about the fairness that victims are en- Indeed, Thomas Jefferson also said: us, and those who are supportive, to titled to and leave it at that. Others Happily for us, when we find our Con- conclude, if that is not good enough, say that would be far too general. How stitution is defective and insufficient that perhaps there really is not a de- would we ever define ‘‘unreasonable,’’ to secure the happiness of our people, sire on the part of those on the other which is one of the words in our we can assemble with all the coldness side to come to an agreement here in a amendment here? Of course, one could of philosophers and set them to rights, way that could permit us to have a have argued that same thing about while every other nation on Earth chance of succeeding in this debate this some of the protections for defendants must have recourse to arms to amend week or next. in the Bill of Rights. How will we de- or restore their constitutions. That is the unfortunate state of play. fine ‘‘unreasonable search and seizure,’’ It is certainly a reflection of our Senator FEINSTEIN is absolutely cor- it could have been argued. We have wonderful United States of America rect. Perhaps in the ensuing weeks we done all right on that. and our Constitution that from time to will have an opportunity to explore We were fairly specific about the time we have found it necessary to other ways of expressing this that enumerations of these rights because grant rights in this sacred document: make it clear we are not taking any- we didn’t want to take anything away the right to vote, the right to vote thing away from defendants. But by from defendants. We wanted it to be when you are 18, the right to vote and the same token, we have to give mean- crystal clear exactly what the rights not to be defined by one’s sex, the right ingful rights to victims. were so nobody could contend they to a speedy trial. These are rights that Mrs. FEINSTEIN. If I may, I think went further than they go, so that no- were granted by amendment to citizens the Senator has summarized it very body could argue we might be stepping after this sacred document was writ- well. I retain the remainder of my time on the toes of a defendant. We didn’t ten. We all agree with the proposition and yield the floor. I know there are want to step on the defendant’s toes. that it is a wonderful document, a sa- some other distinguished Senators who We wanted to make sure the govern- cred document, a document that ought wish to come to the floor and speak. ment wouldn’t deny victims access to not lightly be added to, which has a Mr. KYL. Mr. President, until those certain points in the criminal justice in opposition wish to be here, then, I wonderful and glorious history. Indeed, process. We were very careful to define I submit that some of the most pro- will speak to close out, really, what I this. Indeed, the Department of Justice found and glorious aspects of the his- have to say about this. I would like to met with us on numerous occasions tory of this Constitution are found in do two things: Just to reiterate a cou- and said we would have to be more pre- ple of circumstances why this is nec- its amendments. cise in our description because they To suggest that somehow those who essary, and, second, to respond to some could envision possible problems if we of the arguments that have been ad- propose an amendment to the Constitu- do not nail it down. We nailed it down. tion are doing a great disservice and duced against what we propose. That took a few words. are assaulting the Constitution is itself Why do we need these rights? Sup- Then we were criticized for having a great disservice to the process set pose your daughter was raped and mur- too long an amendment; it is longer dered and you wanted to attend the than the Bill of Rights. We pointed out, forth in the Constitution. It is said that the Constitution ordi- trial and you were told that, under the it is not longer than the Bill of Rights. narily precluded the government from law, you were going to have to sit out- Indeed, our amendment is shorter than affecting the rights of citizens, whereas side the courtroom every day. The de- all of the rights guaranteed to defend- we are granting rights to people. I fendant, the defendant’s family and ants in the Constitution. The defend- talked about three or four amendments friends, they can be in the courtroom, ants’ rights consume 348 words; the vic- they can watch the trial, but you are tims’ rights consume 179 words. There that granted rights to people: the right going to have to sit outside on the are 307 words in our amendment, ex- to vote if you are 18, the right to vote bench in the hallway. That is not fair. cluding the purely technical provision. if you are a woman, the right to a It tears at the gut of those who have Isn’t it amazing we have gotten down speedy trial. Those were rights granted been victimized already by the com- to a word count, if that is one of the to citizens. Other rights are expressed mission of the crime that hurt or killed big objections of opponents? ‘‘It is a in terms of preventing the government their loved one. little too long.’’ It is not too long. If it from intruding on your rights. For ex- Suppose you pick up the newspaper were shorter, their argument would be ample, the government will not pre- someday and read that the person who it is not specific enough, we need to be clude you from having a speedy trial. raped you, or assaulted you, is out on more specific—and that takes more They will not deny you the right to a the street. He had been incarcerated. words. speedy trial. They won’t deny you the Your testimony helped put him there. Perhaps the least argument—and right to counsel. You have no idea he is running free. there will be others propounding this You can express it either way—as a His may be the knock on your door or argument—is that because the Con- grant of a right or the government not the person at the other end of the tele- stitution is sacred, it should not be denying you the ability to do these phone which rings. You did not get no- amended. Maybe it is appropriate to things. We say the government cannot tice of his parole hearing. You could read something in the sacred docu- exclude you from the courtroom. They not even go down and tell the parole ment, article V: Whenever two-thirds can’t exclude you from the trial. We board how vicious a person this was of both Houses shall deem it necessary, are not really saying you have a right and why they ought to think twice be- shall propose amendments to this Con- to attend the trial; we are saying you fore releasing him on parole. You did stitution . . . when ratified by the leg- have a right not to be excluded from not even have a chance to go down and islatures of three-fourths of the several the trial. There is a difference. The say, ‘‘Will you please consider my safe- States, it becomes effective as part of former could lead to assertions that ty in establishing conditions for his re- this Constitution. the government should pay for your lease, that he has to stay away from Thomas Jefferson said: I am not an getting to the trial, that your em- me,’’ for example. advocate for frequent changes in laws ployer should have to let you off work

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00031 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6034 CONGRESSIONAL RECORD—SENATE April 27, 2000 or pay. We don’t address that. We only to the parole board and asked them to come to the unhappy conclusion that say if you show up, you get to attend; reconsider their decision, after hearing we have more work to do. the government cannot exclude you. her story, they kept him in prison. The good news is that we prevailed Some of the other rights are ex- When I asked her if she thought her with 80-some votes—perhaps the Sen- pressed in terms of direct rights. How- life was in danger had he gotten out, ator can recall exactly how many votes ever, they all infer that the govern- she said: Maybe he would have tracked we got on the cloture motion to pro- ment can’t exclude you from these pro- me down, but, frankly, I was a random ceed. But it was over 80, as I recall. We ceedings. We are doing exactly what opportunity for him. I came along at have 41 cosponsors of our amendment other amendments to the Constitution just the time he wanted to do this to now, which is real progress. We got a have done. They are similar rights. The somebody, and he did it to me. Mostly good bipartisan vote out of the Judici- right of the press to be able to cover a I was concerned what would happen to ary Committee. trial, it seems to me, should be no somebody else because if he got out he This is the first time this Federal greater than the right of a victim to be would be sure to do this to somebody constitutional amendment has been present at the trial. What is the dif- else. brought to the floor of either House. ference? I conclude by challenging any- This is what we are talking about. We have reached a real milestone. We body to tell me what the difference is This is not frivolous. This is not triv- have done well. Most constitutional between granting the media the right ial. This is people’s lives we are talking amendments never pass. All of them to attend a trial and granting the vic- about. When opponents say, we can take a long time. I do not know of any, tim in the case the right to attend the protect it by statute, we say, the State at least in modern history, that passed trial. of Arizona had a very good statute. In the first time they were presented on I don’t understand why there is such fact, it was better than a statute; it the floor of the Senate. a visceral negative reaction to what we was a constitutional provision in the The fact we have been thwarted part are trying to do. If you have ever been State. She still didn’t get notice. In way down the road temporarily, while a victim or been part of a tragedy that fact, 60 percent of people don’t get no- a setback of sorts, should not dissuade has affected others, you know how tice under these constitutional provi- those advocates or crime victims in much they want to bring closure to the sions and State statutes. their efforts. As Senator FEINSTEIN event, why they want to witness the Opponents say: That is good enough; said, we will be back, and hopefully criminal justice process that brings the maybe we can pass a Federal statute. next time when we are back, more of matter to a close, why they want to We say a Federal statute can only af- our colleagues will have had an oppor- participate at a couple of the stages, fect 1 percent of all of these cases, and tunity to study this carefully, more particularly at the time of sentencing there is little reason to believe a Fed- victims and victims’ rights organiza- and also at the time of a conditional eral statute would be observed any bet- tions will have had an opportunity to release so that their safety can be con- ter than State constitutional provi- visit with Senators and Representa- sidered, as well as the safety of others. sions are, as the Oklahoma City bomb- tives, and we will have been able to No one opposing our amendment has ing case reveals. persuade a sufficient number of them suggested that those are unworthy of I am at a loss. I agree with Senator to allow us to proceed to a final vote. protection. Rather, they have said we FEINSTEIN. We are moved by these While there is some sorrow in our in- can do it by statute. But what did we cases. We are moved by the people. We ability to bring this to conclusion find yesterday when we looked at the want to help. Everybody wants to help. today, I am buoyed by the prospect and data according to the National Insti- Even opponents, I am convinced, want the fact we have at least gotten to this tute of Justice? After 18 years of Fed- to help. So let’s do something about it. point. eral and State statutes and State con- It is not doing something effective Mrs. FEINSTEIN. Mr. President, will stitutional provisions, looking at the about it to fall back on the notion: the Senator yield for a moment? statistics from the States that do it Well, we will just rely on another stat- Mr. KYL. I yield. Mrs. FEINSTEIN. Mr. President, I the best, that have the most stringent ute; let’s pass another law. That is not also am buoyed by the prospects. As we requirement for notice, fewer than 60 the answer. go through this more and more, I un- percent of victims were notified of the We are at this point now because we derstand more and more what is hap- sentencing hearing and fewer than 40 have not done enough to educate our pening behind the scenes. I do want to percent were notified of the pretrial re- colleagues, and I will accept part of the enter into the record this latest letter lease of the defendant. blame for that. I should have spent a As I said yesterday, would we con- lot more time—although I must confess from Professor Larry Tribe. Senator sider those adequate percentages for my colleagues got tired of me coming KYL will be interested in one quote. He defendants being given their Miranda around saying: Are you sure you says deep into his letter: warnings, something which isn’t even wouldn’t like to hear a little bit more I can count on the fingers of one hand the number of ostensibly ‘‘liberal’’ lawyers and in the Constitution? No. But somehow about this? Maybe we should have tried scholars who do not look askance when they we think it is OK that statutes provide a little harder to say: Will you please learn of my support for this amendment. notice to only 40 percent of the people listen one more time to our plea? Friends who otherwise respect me and ad- who want to be present at the parole What has happened is a very super- mire my work have a difficult time, it board, or at least have the opportunity ficial mantra of inaccuracies and false- seems, assimilating the notion that a liberal to be present, to say, please, don’t let hoods have persuaded colleagues to op- champion of defendants’ rights—something I my assailant go; he will hurt someone. pose this to the extent they would not think I have been all my life—should take We are no longer talking about some- be willing to allow it to come to a vote. seriously the idea that the victims of violent crime actually have ‘‘rights’’ that the Con- body accused of a crime; we are talking In other words, when we would seek to stitution should compel government to take about somebody who has been con- bring this to a final vote, we would not seriously and to treat with respect, rather victed and who has been serving time be able to stop the talking, to stop the than merely being the unfortunate—well, for the commission of that crime. filibuster, in effect, to get 60 of our col- victims—of criminal predations that the I mentioned the case of Patricia Pol- leagues to agree to bring the matter to state is charged with combating, in a system lard—because it is a case from Ari- a vote or to prevent nongermane where the only ‘‘rights’’ worth naming and zona—who was brutally raped and left amendments. There had been a sugges- treating as such of course belong to those to die. She wasn’t told that the parole tion by some that if we proceed, then unfortunate enough to find themselves on board was meeting to consider and the wrong end of the machinery of criminal we can expect a whole flurry of amend- justice. With all respect, I do not share that then eventually decided to let her as- ments that have nothing to do with perspective. Rather, I regard its deeply in- sailant out of prison on a home arrest what we are talking about. grained nature as the principal argument for kind of program. By accident, she was Obviously, we do not want to tie up the conclusion that statutory measures will made aware of it. When she went back our colleagues’ time with that, so we never fully suffice.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00032 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6035 Mr. President, I ask unanimous con- but unfortunately tempted to relegate vic- grained nature as the principal argument for sent to print Professor Tribe’s letter in tims and their rights to second-class status the conclusion that statutory measures will never fully suffice. the RECORD. or to shelve them altogether, treating as Permit me to add one point before closing: There being no objection, the letter merely hortatory and aspirational provisions of law enacted with something much strong- I want to address the argument that S. 934 was ordered to be printed in the er and more operational in mind. should not be faulted for failing to reach RECORD, as follows: State statutory and constitutional provi- state proceedings because, after all, it is de- HARVARD UNIVERSITY sions cannot overcome this phenomenon so signed only to operate at the federal level, LAW SCHOOL, long as the only parties whose rights receive and because either state statutes or state Cambridge, MA, April 27, 2000. federal constitutional recognition, recogni- constitutional provisions or perhaps federal Hon. DIANNE FEINSTEIN, tion that reinforces and amplifies traditional civil rights-like legislation enacted under U.S. Senate, Hart Senate Office Building, habits of mind at the state and local levels, Section 5 of the Fourteenth Amendment Washington, DC. are the defendants in criminal prosecutions. could fill the state and local gap that S. 934 necessarily leaves unfilled. That argument is DEAR SENATOR FEINSTEIN: I have pre- And S. 934, which obviously could not touch viously set forth my reasons for supporting the actual conduct of state and local crimi- flawed first, because it fails entirely to come to terms with the basic reasons, set forth S.J. Res. 3, the proposed Victims’ Rights nal investigations, prosecutions, and adju- above, that merely statutory measures Amendment now under consideration in the dications, is manifestly incapable of affect- would be unable to combat the deeply rooted Senate, and little purpose would be served by ing this pervasive tendency. attitudinal problems confronting victims my repeating those reasons here. I under- Indeed—and this is my second major con- and their claims of right; and second, be- stand the objections some have raised to the cern—even in the federal criminal context cause, insofar as it assumes broad congres- proposed amendment and have enormous re- within which S. 934 would operate, the pro- sional power to act under Section 5 of the spect for many who oppose the measure, but posed statute would take effect against the Fourteenth Amendment, it is simply igno- on balance I am persuaded that the consider- background of a legal culture in which the rant of the series of decisions in the 1990s ations favoring the amendment outweigh very notion of ‘‘victims’ rights’’ has tradi- and reaching into 2000, beginning with the those against it, even placing an appro- tionally been dismissed either as a vague invalidation of the Religious Freedom Res- priately skeptical thumb on the scale’s nega- metaphor or as an atavistic throwback to a toration Act and continuing with the invali- tive side. primitive era of private justice. In a federal dation of provisions of the Patent Reform I am writing to address one consideration universe within which victims are perva- Act and the Age Discrimination in Employ- in particular that is highlighted by the pro- sively perceived as mere passive bene- ment Act, in which the modern Supreme posed Crime Victims’ Assistance Act, S. 934, ficiaries of government protection—as by- Court has dramatically curtailed the legisla- whose sponsors, many of whom are my good standers to the majesty of the criminal proc- tive authority of Congress to use its Section friends, evidently hope by this federal stat- ess rather than as entitled participants in 5 power to protect interests that Congress, ute to obviate the need for the proposed con- that process—a merely statutory codifica- but not yet the Court, is prepared to recog- stitutional amendment. I favor S. 934’s en- tion of certain ‘‘rights,’’ removable by the nize as constitutional rights, or even to pro- actment, at least in principle. I assume that grace of the same Congress that bestowed tect Court-recognized constitutional rights closer study of its detailed provisions that I them, is most unlikely to effect the perva- in circumstances, or by means, not shown in have been able to undertake would disclose sive attitudinal change that is so badly need- the legislative record to be ‘‘necessary.’’ ways in which it might be improved, but ed. When push comes to shove, even where In sum, although S. 934 represents an intel- minor technical flaws or even design defects adequately protecting victims does not in ligent step in the much-needed strategy of in the contemplated statute would be beside truth entail any abridgment of the federal operationalizing and institutionalizing the the point and are not my focus here. After constitutional rights of criminal defendants rights of victims, neither by itself nor as all, detailed problems with the statute’s or of the needs of government prosecutors to part of a series of measures, both federal and terms could be cured by redrafting and would protect the public and vindicate the law, any state, can it hope to provide a satisfactory not in themselves explain why only an superficially plausible protest from either substitute for the more fundamental con- amendment to the Constitution could meet the prosecution’s table or the defense bar is stitutional step represented by S.J. Res. 3, a the need for fuller national protection of vic- likely to shove victims and their S. 934 step that I consider not only wise but nec- tims’ rights. rights back into the shadows, from which a essary despite—and (paradoxically) in part My concerns are different ones. First, I am federal judiciary steeped in precisely the because of—its current lack of appeal for concerned that, as the authors of S. 934 same legal culture is unlikely to rescue ‘‘the usual suspects’’ on the criminal justice doubtless realized given how they wrote them. scene, both in the defense and civil liberties their bill, it does nothing directly for the Evidence of the depth and pervasiveness of bars and among prosecutors and their cham- vast majority of crime victims—those vic- this basic attitude, and of the view that to pions. timized by violations of state or local rather defend the rights of victims is to engage in a I hope you find these observations to be of than federal law. To be sure, S. 934 would primitive exercise in emotionalism, incom- some use, and I apologize for my inability to offer the states money for pilot projects and patible with the structure of our adversary get them to you sooner. I wish you well in the like, and money of course helps, but the system of justice and with the rational char- the difficult effort to obtain passage of this basic reasons for the dramatic underprotec- acter of the modern bureaucratic state, is amendment by the requisite two-thirds vote tion of state crime victims are more attitu- the ferocity and generality of the opposition and, should you succeed in that respect, in dinal than fiscal: Even when states enact to a constitutional amendment to protect the onerous effort to win its ratification by victims’ rights measures of their own in re- victims’ rights, at least among the elite and the requisite three-fourths of the state legis- sponse to pressures from constituents, there especially in the supposedly enlightened cir- latures. is a tendency to ignore or underenforce such cles with which I like to think I associate. I Sincerely yours, rights whenever they appear to rub up can count on the fingers of one hand the LAURENCE H. TRIBE. against either the rights of the criminally number of ostensibly ‘‘liberal’’ lawyers and Mrs. FEINSTEIN. Mr. President, I accused or the needs or wishes of the pros- scholars who do not look askance when they extend my deepest thanks to Professor ecution. And I do mean to say ‘‘appear to rub learn of my support for this amendment. Tribe for his letter and for his support. up against,’’ for the problem I have in mind Friends who otherwise respect me and ad- We will certainly be consulting both he arises in those situations where a careful mire my work have a difficult time, it and Professor Cassell again and come analysis would reveal that the seeming con- seems, assimilating the notion that a liberal flict between victims’ rights and the rights champion of defendants’ rights—something I back to fight again another day. of the accused or the interests of the state is think I have been all my life—should take I want to say something to the vic- a false or a readily avoidable one. The mere seriously the idea that the victims of violent tims who have been so heartrending in brandishment of the banners of defendants’ crime actually have ‘‘rights’’ that the Con- this process. Those of us who are polit- rights or of prosecutorial needs too often suf- stitution should compel government to take ical come to grips with the sophisti- fices to push the needs and interests of vic- seriously and to treat with respect, rather cated lobbying around this place. One tims—to be notified, to observe, to be heard, than merely being the unfortunate—well, of the things I have seen in the people to have their views considered, to achieve victims—of criminal predations that the whom we represent is they are real closure, to be compensated if possible—into state is charged with combating, in a system people. They have been maimed, they the background. Rather than creatively and where the only ‘‘rights’’ worth naming and determinedly seeking ways to protect vic- treating as such of course belong to those have been harmed, they have been tims’ rights in ways that manage fully to re- unfortunate enough to find themselves on hurt, and with this—I have seen this in spect the genuine rights, privileges, and the wrong end of the machinery of criminal the past when I was active in the needs both of the accuser and of the accused, justice. With all respect, I do not share that criminal justice system—victims al- state and local officials are understandably perspective. Rather, I regard its deeply in- most become catatonic. They almost

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become unable to go out and do the preciate what she was telling me, not FEINSTEIN for her stalwart, effective lobbying that is necessary to move to understand it in advance, and not to support and her desire to continue this something such as this. counsel her to go ahead in this environ- battle on behalf of the victims of I want them to know how much we ment and express it in emotional crime. identify with their cause, how much we terms. This is not a court of law. This I assure you, Mr. President, that even intend to continue to pursue this is where the people’s business is done. though we will be withdrawing our mo- cause. It is a just cause. It is a cause I believe that until one fully appre- tion to proceed on S.J. Res. 3, we will that deserves remedy and recognition ciates what a victim goes through, it is continue to meet with, and work with, in the Constitution of the United hard to appreciate the necessity for anyone who wishes to work with us on States. It is a cause where, once vic- what we are doing here. this—opponents and proponents—to try tims have these rights, they lost them. Perhaps I could conclude by reading to get it into the condition that will fi- This Congress—the other body and a paragraph again from the remarks of nally be approved by two-thirds of this our body—should provide these rights Professor Paul Cassell before the Judi- body and two-thirds of the other body. again. I am hopeful that in the coming ciary Committee. That is our challenge. That is our com- years, we will be able to continue our He said: mitment. It is our promise that we will work on this. Perhaps we will be able continue in this effort. The available social science research sug- to solve this one dilemma of the bal- gests that the primary barrier to successful Mr. LEAHY. Mr. President, I am ancing. It is interesting; anytime one implementation of victims’ rights is ‘‘the so- pleased that the sponsors of S.J. Res. 3 reads a statement by the President or cialization of [lawyers] in a legal culture and have decided to withdraw their pro- by the Attorney General, it mentions structure that do not recognize the victim as posal to amend the Constitution. One the balancing of these rights. Yet when a legitimate party in criminal proceedings.’’ of the reasons they gave for their deci- we write something in the Constitution He is talking about a professor, a col- sion is that the many Senators who which, in effect, would provide for this, league of his, who disagrees with our came to the floor to oppose their it brings out the criminal defense bar; position, Professor Mosteller. amendment have not, in their view, en- it brings out the liberal scholars; it He says: gaged on the merits of their specific brings out people who say: You can’t do Professor Mosteller seems to agree gen- language. Because of this, and because this. You can’t give victims these erally with this view, explaining that ‘‘offi- they have vowed to continue in their rights. cials fail to honor victims’ rights largely as efforts to amend the Constitution to The cause is just that they have a result of inertia and past learning, insen- address victims’ rights, I feel obliged these rights. A statute, we believe, will sitivity to the unfamiliar needs of victims, to say a few words about some of the be unable to provide them, but as to lack of training, and inadequate or mis- most glaring defects of S.J. Res. 3. their standing in the Constitution, directed institutional incentives.’’ A con- One of the most fundamental respon- there is a time and there is a place, I stitutional amendment, reflecting the in- sibilities of United States Senators is predict, when that standing will hap- structions of the nation to its criminal jus- to make sure that we understand what tice system, is perfectly designed to attack we are enacting into law. That duty is pen and take place. these problems and develop a new legal cul- Mr. KYL. Mr. President, I want to ture supportive of victims. To be sure, one heightened when we are considering a add something to a point Senator FEIN- can paint the prospect of such a change in constitutional amendment. Justice STEIN just made. I do not think she culture as ‘‘entirely speculative.’’ Yet this John Marshall said that the Supreme would take offense at my mentioning means nothing more than that, until the Court ‘‘must never forget, that it is a what occurred in my office about 4 Amendment passes, we will not have an op- constitution we are expounding.’’ hours ago. portunity to precisely assay its positive ef- We, too, must never forget that it is We were summarizing the events and fects. Constitutional amendments have a constitution—the Constitution of the what led to the inability to get this changed our legal culture in other areas, and United States of America—that we are across the goal line this week. I said it clearly the logical prediction is that a vic- being urged to amend. is partially my fault for not bringing tims’ amendment would go a long way to- I could speak for hours about the de- wards curing official indifference. This hy- more victims to the Senate to talk di- pothesis is also consistent with the findings fects of this proposed amendment, but rectly with Senators and share their of the National Institute of Justice study on I trust that Senators have had an op- personal stories. state implementation of victims’ rights. The portunity to consider the minority I told that to Roberta Roper, who study concluded that ‘‘[w]here legal protec- views in the Committee report that I heads up the Stephanie Roper Founda- tion is strong, victims are more likely to be submitted, along with Senators KEN- tion. Stephanie Roper was brutally aware of their rights, to participate in the NEDY, KOHL, and FEINGOLD. murdered, and Roberta, her mother, criminal justice system, to view criminal The minority views run about 40 has carried this cause in Stephanie’s justice system officials favorably, and to ex- pages, and identify several specific name. They do a lot of good in terms of press more overall satisfaction with the sys- problems with the drafting of this tem. It is hard to imagine any stronger pro- victim support, in addition to victim amendment. tection of victims’ rights than a federal con- I would also direct Senators to the advocacy. stitutional amendment. Moreover, we can She said: You have to understand, confidently expect that those who will most additional views to the Committee’s though, we are conditioned not to often benefit from the enhanced consistency 1998 report, submitted by our distin- present these stories in an emotional, in protecting victims’ rights will be mem- guished Chairman. Senator HATCH’s personal way. We have been told over bers of racial minorities, the poor, and other views subject this amendment to pene- and over again in the court that ‘‘there disempowered groups. Such victims are the trating criticism. He reiterated such can be no display of emotion.’’ Those first to suffer under the current, ‘‘lottery’’ concerns just yesterday in his state- are the words the judges used. I have implementation of victims’ rights. ment to the Senate in which he indi- been told that a display of emotion I think that expresses well the reason cated the following reservations about would be wrong. for the frustration we have shared, the the proposed constitutional amend- Now, think about that. Part of what reason so many of our colleagues have ment: makes us great as a people is the will- come here repeating the mantra of the Its scope: the amendment’s protections ingness to act out of our heart as well legal profession that it has never been apply only to violent crimes; as our mind. We should never do incor- this way before. Maybe it is time to Its vagueness: some of its definitions are change the way things have been. That unclear and will be subject to too much judi- rect things or unintelligent things, act- cial discretion; and ing purely on the basis of emotion, but is why we have been so strongly in sup- Its effects on principles of federalism: the nor should we deny that emotion can port of this amendment. proposed amendment could pave the way for be a potent force in developing public I see one of the opponents of the more federal control over state legal pro- policy. amendment is here. I know he wishes ceedings. I tried to tell Roberta that I think it to speak. Therefore, let me conclude For the moment, I will just focus on was a mistake, on my part, not to ap- my remarks by again thanking Senator a few fundamental flaws.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00034 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6037 Let us start with the first, and most Pretend I am the prosecutor in this the special new constitutional rights of important, seven words of the amend- bank robbery. Tell me who are the vic- a crime victim at the bail and plea bar- ment. The amendment gives rights to tims I have to notify. The security gaining stage, before the wife has even ‘‘a victim of a crime of violence.’’ Sup- guard? The 20 customers who were had a chance to present her evidence to porters of this amendment have often uninjured but had a gun pointed at the jury that the husband is really the compared it to the fifth and sixth them? The 10 bank tellers? The CEO of guilty party. amendments, which give rights to the bank? And while you are at it, tell Or maybe the wife can insist on those accused of crimes. So let us com- me who gets the mandatory restitu- extra-judicial proceedings to contest pare them. tion—the bank that lost the money, the husband’s status as a victim—al- The most basic point about any con- the security guard who was injured, or though I do not know how you would stitutional right is, whose right is it? the customers and tellers who were squeeze in extra proceedings before bail The fifth and sixth amendments are scared, or the teams of plaintiffs’—or, I or indictment hearings. clear on that point: They give rights to guess, victims’—lawyers who are fight- Assuming that the husband is the people who have been charged with ing out these questions. ‘‘victim’’ for purposes of our new con- committing crimes, and we know who And who gets to reopen the restitu- stitutional amendment, what does that those people are. Of course, the other tion hearings? Or the bail hearings? get him? Maybe he will push for bail or amendments to our present Constitu- Feel free to assume that I am a com- for a plea with a minimum sentence tion are no less clear, since they apply petent prosecutor who can figure out conditioned on his getting custody of without exception to ‘‘the people,’’ or some administrative details. But, if the child, perhaps accompanied by a to ‘‘citizens of the United States,’’ or, you are going to pass this amendment, new kind of child support called ‘‘res- in the case of the fourteenth amend- do not pass the buck to me to decide titution.’’ ment, to ‘‘all persons born or natural- who has constitutional rights and who Or maybe the husband will be satis- ized in the United States and subject to does not. That is your job if you want fied with his new constitutional right the jurisdiction thereof.’’ But do we to be a Framer of the Constitution; it to notice of his wife’s release from cus- know who would have rights under the is not the job of individual courts and tody, which will help him track her proposed victims’ rights amendment? prosecutors. down and exact revenge. The answer in the text of the amend- I have talked about two of the most In some cases, the right end result ment is ‘‘a victim of a crime of vio- infamous crimes of violence, murder may be reached. But the process that lence.’’ Who is that? Let us make it and robbery. Other crimes, such as the proposed amendment seem to in- easy by taking the most obvious crime compound crimes under the federal volve bypassing a trial on the merits of violence—murder. Who is the victim RICO statute that can include lots of and potentially bypassing family court. of a murder? The last time I prosecuted different criminal acts, some violent By creating pre-trial rights for an un- a murder case, the victim was the dead and some non-violent, over an extended defined category of victims, it requires person. But that answer, what Justice period of years, will involve even hard- someone—I guess the prosecutor—to Scalia might call the plain language er problems when we try to identify decide who is the victim of a given approach to interpretation, will not do who is and who is not a ‘‘victim of a crime, and who gets special constitu- here, unless the purpose of the amend- crime of violence.’’ But we should also tional rights before there has been a ment is to enable the corpse to attend trial or even an indictment. the trial. consider the most common form of vio- So who, if anyone, gets the benefit of lence that afflicts our society, domes- Deciding who has constitutional the proposed constitutional rights in a tic violence. rights and who does not before there murder case? Maybe nobody. Or maybe Here is a typical scenario. The police has been even an ex parte judicial pro- the reference in section 2 to ‘‘the vic- get a call from neighbors who hear ceeding is un-American. Doing so in a tim’s lawful representative’’ refers to shouting and screaming and pots and case, like a domestic violence case, the trustee of the victim’s estate in a pans being thrown. They reach the where there are likely to be self-de- murder case, although I do not see house and find the husband and wife fense issues, risks giving special con- what the trustee of a murder victim’s hysterically angry at one another and stitutional rights to the criminal in- estate would have to contribute to a a young child cowering in the corner. stead of the victim. bail or parole hearing. Or maybe the It is not entirely clear who attacked One more comment on this half- amendment’s supporters are banking whom, but the husband is injured and baked, undefined term ‘‘victim of a on what I believe are called ‘‘activist the police arrest the wife and charge crime of violence.’’ Thus far, I have dis- judges’’ to add words to the amend- her with assault. The wife’s bail hear- cussed the easy cases in terms of what ment that are not there and extend ing comes up, or maybe there are plea constitutes a ‘‘crime of violence’’— rights to a murder victim’s family. negotiations. The wife claims it was murder, robbery, and assault. But This would raise other questions, like self-defense; the husband claims she at- there are a lot of hard cases, too. what happens when members of the tacked him without provocation. Is drunk driving a crime of violence victim’s family hold different views The wife claims she is a victim of a if the driver physically injures a pedes- about parole, or each wants a share of crime of domestic violence; so does the trian? What if the driver runs over the the mandatory restitution order? husband. Maybe the child is too. The pedestrian’s dog, or crashes into a Would unmarried couples, be they het- proposed amendment leaves us with no parked car? Can the same offense be a erosexual or homosexual, count as fam- clue whether a witness to violence who crime of violence if someone is phys- ilies? Would the six-year-old son of a is psychologically but not physically ically injured, but not otherwise? victim be entitled to make arguments injured by the violence has the new What about elder abuse or child in connection with a negotiated guilty constitutional status of ‘‘victim’’. abuse? We have all heard heart-break- plea? Under current law, it is up to the ing stories of seniors and disabled peo- Okay, you may say, so murder is a jury to determine who is the victim ple who have suffered horrible abuse problem. What about other crimes of and who is the criminal in this sad do- and neglect at the hands of their so- violence? Let us take robbery. Let us mestic scenario, and the jury makes called care-givers, and of children say there is an armed robbery of a that determination after hearing all locked up in squalid conditions and bank. A gun is pointed at a lot of peo- the evidence from both sides at trial. subjected to appalling psychological ple, tellers and customers. A security Under the proposed amendment, that abuse by their parents. guard is shot and injured. The bank determination must be made before the Neglect of the weak and vulnerable loses a lot of money. A pretty simple wife’s bail hearing or plea negotiation. in our society by those who have taken factual story, and one that I know, If the husband can persuade the pros- the responsibility of being their care- from my time as a prosecutor, happens ecutor that he is the victim, and not givers can cause as much harm as al- all too often. the instigator of the violence, he gets most any violence, without a hand ever

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00035 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6038 CONGRESSIONAL RECORD—SENATE April 27, 2000 being lifted against them. But are ne- tify many more problems. But let us shifting political majorities from time glect and non-physical abuse ‘‘vio- sum up where we are so far. We are not to time, say it is. lence’’? What about the horrifying sure whether the amendment applies at Take, for example, the fourteenth slavery case involving more than 50 all to the most obvious ‘‘crime of vio- amendment guarantee of equal protec- Mexican immigrants in New York a few lence,’’ murder, and we have no idea tion of the laws. That does not mean years ago? Is enslavement a crime of who gets the new constitutional rights equal protection ‘‘as defined by law.’’ If violence? And what about kidnapping? for ‘‘victims’’ in a murder case if it it did, the legislature and Governor of If a parent who has been denied legal does. In other fairly common crimes of Arkansas might have been entitled to custody of a child kidnaps the child, is violence such as robbery, the amend- do what they did in 1957, when they that a crime of violence, and if so, who ment appears to apply, but even assum- ‘‘defined’’ the equal protection rights is the victim, the child, the custodial ing clear and simple facts, we are not of public school students to be rights parent or both? sure which type of person affected by to a ‘‘separate but equal,’’ racially seg- The words of the proposed amend- the crime gets to exercise the ‘‘vic- regated education. But our Constitu- ment do not answer these questions. tim’s’’ rights, and the answer may well tion has never worked that way, and in The majority report suggests answers, be a large number of people affected in 1958, in Cooper versus Aaron, the Su- some of which seem to stretch the con- vastly different ways—some physically, preme Court rightly ruled that Arkan- cept of a ‘‘crime of violence’’ to the some emotionally, and some finan- sas’ attempt to redefine the fourteenth breaking point. It suggests, for exam- cially—who have vastly different views amendment was unconstitutional, and ple, as possible crimes of violence bur- and interests. In what is probably the desegregated Arkansas’ schools. glary, driving while intoxicated, espio- most common violent crime scenario, Our Constitution has a provision, and nage, stalking, and the unlawful dis- domestic violence, the amendment ap- a process, for defining new constitu- playing of a firearm—very serious pears to require the prosecutor to de- tional rights or for redefining existing crimes, but crimes that usually do not cide who is the criminal and who is the constitutional rights. That provision, involve ‘‘violence’’ in the normal sense victim as a constitutional matter, the amendment provision, is in Article of the word. without the benefit of evidence at trial V. Article V provides for two-thirds of Last year, Senator HATCH criticized and without participation of judge or the members of both Houses of Con- the proposed amendment’s reliance on jury. And then we have what perhaps gress, plus three-fourths of the State the term ‘‘crime of violence’’ as ‘‘arbi- we should call ‘‘borderline crimes,’’ a legislatures, to amend the Constitution trary.’’ I can do no better than to quote wide range of crimes that may or may when ‘‘necessary’’. It does not provide his language: not be classified as crimes of violence. for us to pass the buck to bare majori- I believe we must tread carefully when as- On the ‘‘of violence’’ issue, Senator ties in State legislatures or in a future signing constitutional rights on the arbi- HATCH has raised troubling concerns Congress to define or redefine constitu- trary basis of whether the legislature has that it is arbitrary as a matter of prin- tional rights as we go along. classified a particular crime as ‘‘violent’’ or ciple. I agree, and add the further con- As a matter of principle, therefore, I ‘‘non-violent.’’ Consider, for example, the relative losses of two victims. First, consider cern that it is yet another huge point believe that an ‘‘as may be defined by the plight of an elderly woman who is vic- of uncertainty as to the meaning of law’’ provision is an abdication of our timized by a fraudulent investment scheme this amendment. On this and other duty, sitting as we do today as con- and loses her life’s savings. Second, think of points, the answer of the amendment’s stitutional Framers, to provide clear a college student who happens to take a supporters appears to be ‘‘don’t worry, constitutional standards against which punch during a bar fight which leaves him someone else will figure this out other laws may be judged. In a con- with a black eye for a couple of days. I do later.’’ stitutional democracy, the rule of law not believe it to be clear that one of these ‘‘Don’t worry, someone else will fig- means that constitutional rights are to victims is more deserving of constitutional protection than the other. While such dis- ure this out later.’’ I think we can all be found in the Constitution, not in or- tinctions are commonly made in criminal agree that is not a principle that Con- dinary statutes passed from time to statutes, the implications for placing such a gress should ever follow, especially not time. disparity into the text of the Constitution in the context of a constitutional If we are going to pass the buck, we are far greater. amendment. Supporters of the amend- should at least be clear about who we It is interesting to note that in their ment will no doubt contend that it is are passing it to. Who gets to write the additional views in this year’s Com- an unfair characterization of their po- ‘‘law’’ that ‘‘define[s]’’ the critical mittee report, Senators KYL and FEIN- sition. Well, let us see what their terms of this constitutional amend- STEIN do not in any way disagree that amendment says. ment? This is yet another basic ques- the scope of their proposed amendment The amendment seems quite candid tion that the amendment itself does is arbitrary. Instead, they explain it as in admitting that its central terms are not answer. So I have studied the Com- a political compromise. yet to be defined. Section 1 says that mittee report for an answer. I do not recall Madison and Jefferson the new constitutional rights created In a statement that must be pro- saying at the constitutional conven- by the amendment go to ‘‘A victim of foundly troubling to those Senators tion that the provisions they drafted a crime of violence, as these terms may who complain regularly about ‘‘activist were not great, but politics are politics be defined by law.’’ I take it that judges’’ making law, the report first and you should not expect too much. I ‘‘these terms’’ mean the two terms says that ‘‘[t]he ‘law’ which will define believe that we owe the American peo- that we have identified as hopelessly a ‘victim’ (as well as ‘crime of vio- ple something more than arbitrary po- vague: (1) ‘‘victim’’ and (2) ‘‘crime of lence’) will come from the courts inter- litical compromises when we amend violence.’’ preting the elements of criminal stat- their Constitution. The phrase ‘‘as these terms may be utes until definitional statutes are For anyone who shares Senator defined by law’’ is a new one for the passed explicating the term.’’ This, I HATCH’s and my concerns about the ar- United States Constitution. There is a suppose, is the ‘‘don’t worry, the courts bitrariness of focusing on ‘‘crimes of reason for this. Our Constitution was will figure it out’’ theory. Anyone who violence,’’ there is, by the way, a solu- conceived as, and is, ‘‘the supreme Law subscribes to this theory should be pre- tion at hand. Vote against the proposed of the Land.’’ pared to confirm the most activist constitutional amendment and, in- As Chief Justice John Marshall ex- judges this country has ever seen, be- stead, pass the Crime Victims Assist- plained in Marbury versus Madison in cause that is certainly the vaguest, ance Act, which provides strong and ef- 1803, our Constitution, as interpreted blankest check that has ever been writ- fective rights for all crime victims. by the U.S. Supreme Court, is the law ten to the judiciary. I have said a lot about the first, and by which our other laws, State and The Committee report ‘‘anticipates’’ most important, seven words of the Federal, are to be judged; it is not that judicial law-making under this proposed amendment; and I could iden- whatever our other laws, enacted by constitutional amendment may be

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00036 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6039 short-lived—that Congress and the eral help to protect them effectively. States, not because the States are un- State legislatures would quickly step They claim that: willing to recognize those rights, but in and enact ‘‘definitional laws’’ for States have had difficulty extending rights because Congress has been empowered purposes of their own criminal sys- to victims of crime through State statutes to enforce other constitutional rights tems. and constitutional amendments precisely be- in the past, so ‘‘why not here.’’ It is worth pausing for a moment to cause courts are used to considering, first I do not want to skip section 2. Let consider what this means. One of the and foremost, Federal constitutional rights. By extending Federal rights to victims me read you a sentence: main arguments that we have heard in throughout the States, it will then become Nothing in this article shall provide support of this amendment is that we easier for State criminal justice systems to grounds to stay or continue any trial, reopen need to eliminate the current ‘‘patch- protect the rights of victims. any proceeding or invalidate any ruling, ex- work’’ of victims’ rights. I frankly do not understand this ex- cept with respect to conditional release or restitution or to provide rights guaranteed We are told we need this amendment planation. If you want to empower because even though all 50 States pro- by this article in future proceedings, without State courts to take State statutes and staying or continuing a trial. vide rights for victims, the rights vary constitutional amendments seriously, Let us call that ‘‘the tax lawyer’s from State to State. A constitutional the last thing you do, I would think, is amendment that may be defined dif- impose a complex new Federal man- provision,’’ since it is so obscure that I ferently from State to State would not date on them. If you want to help will- think only someone who has spent half correct this situation —it would simply ing States protect victims, the last their life plumbing the depths of the replace one patchwork with another. thing you do, I would think, is to place tax code could understand it. It would The superficially simple concept of their criminal justice systems under certainly be the first triple negative in basic baseline rights for victims will congressional supervision and subject the United States Constitution. I think fracture into more than 50 different them to Federal enforcement through that ‘‘Nothing in this article shall pro- schemes of rights. I do not think that the Federal courts. vide grounds to stay or continue any there is anything wrong with such di- We are left, therefore, with an en- trial’’ should be a sentence on its own, versity; indeed, I believe that the forcement provision that mimics other since I do not think that this rule ends present system of defining crimes and amendments, but without any sugges- up being subject to the exception, in the rights of crime victims and enforc- tion of the need to coerce recalcitrant light of the exception to the exception, ing criminal justice primarily at the States that justified such provisions but frankly I am not sure. State level has served this country well elsewhere. Coercing the States here be- I am also puzzled by the exception throughout our history. But I do object cause we have done it before in other that appears to allow victims to reopen to a shell game that dresses up rights contexts is harmful to State sov- proceedings or invalidate rulings ‘‘to defined by State law as Federal con- ereignty. And empowering Congress to provide rights guaranteed by this arti- stitutional rights, thus trivializing the enforce against the States constitu- cle in future proceedings.’’ If the con- United States Constitution and casting tional rights which it is up to the cern is with future proceedings, I see doubt on the rights that it currently States to define is likely to be futile. If no need for the exception to allow the protects. the goal is, as asserted, to help the reopening of present proceedings. But Finally, I should note that the ‘‘as States protect victims’ rights, we maybe I missed a turn somewhere in these terms may be defined by law’’ should not be piling new constitutional the drafters’ maze. provision is not the only delegation in duties on the States; we should be pro- Regardless of how it is ultimately in- this proposed amendment. Section 3 viding assistance. Instead of threat- terpreted, this intricate web of excep- provides that ‘‘The Congress shall have ening them with the stick of federal tions is not the stuff of a Constitution. the power to enforce this article by ap- enforcement, I believe that we should One of the great virtues of our Con- propriate legislation.’’ In their addi- offer the States the carrot of funding stitution is that it speaks with a clear tional views, Senators KYL and FEIN- for the protection of victims’ rights. If voice, articulating principles of justice STEIN note that they originally pro- you agree with me, you should reject that ordinary Americans can under- posed to give enforcement power to the this amendment and, instead, support stand. The proposed amendment fails States as well as to Congress, but then the Crime Victims Assistance Act. to meet that standard. reached another of this amendment’s Senators KYL and FEINSTEIN urge us Finally, let me say a few words about political compromises. not to make perfect the enemy of the section 5, which states that the new I am, however, mystified as to what good. If this amendment responded to constitutional rights for victims shall function the section 3 enforcement an urgent need that could not be met apply ‘‘in Federal and State pro- power could possibly serve. Similar by statute, and if it were well-drafted ceedings, including military pro- provisions are contained in the four- but imperfect, I would give that argu- ceedings to the extent that the Con- teenth amendment and in the various ment serious consideration. I have ex- gress may provide by law, juvenile jus- amendments that protect voting plained before why I believe the goals tice proceedings, and proceedings in rights. In the fourteenth and voting of this amendment are not merely ade- the District of Columbia and any com- rights amendments, the Federal en- quately served, but better served, by monwealth, territory, or possession of forcement power against the States statute. But I want to highlight briefly the United States.’’ This section is was justified by the long history of re- the other problem with this amend- truly an enigma. No provision of the sistance of certain States to the Fed- ment. Not only is it not perfect; it is current Federal Constitution goes into eral constitutional mandates for equal not well-drafted. In fact, it is remark- detail about its geographic scope. protection of law and equal voting ably sloppy. There is a reason for that. rights. But there is no such history of I have just discussed the two major The purpose of the Bill of Rights, as State abuses with respect to victims’ problems with the text of the amend- envisioned by the Framers, was to pro- rights. In fact, many States provide ment. Section 1 creates a complex vide a fundamental uniform platform more protections for crime victims scheme of new federal constitutional of rights enjoyed by all people through- than Federal law provides. rights without saying with any clarity out the United States. Of course every The majority report alleges no con- who is entitled to those rights, then provision of the Constitution applies flict between States and the Federal says ‘‘don’t worry; someone, some- throughout the United States. The fact Government that would necessitate a where, in a court or in Congress or in that the drafters of this amendment Federal enforcement power. Rather, the States, will make a law that will felt the need to state that here sug- the reason given by the amendment’s identify who gets these rights.’’ Sec- gests a fundamental confusion about principal sponsors for putting victims’ tion 3 then empowers Congress to en- the nature of the Federal Constitution, right in the Federal Constitution at all force those rights on behalf of these which is, by definition, the supreme is that the States supposedly need Fed- yet-to-be-identified people against the law of the land. It was, perhaps, that

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00037 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6040 CONGRESSIONAL RECORD—SENATE April 27, 2000 same confusion that led them to pro- violent and non-violent—in disproportion- fective prosecution and put an enormous vide for the key phrase of this federal ately high numbers. It is for this reason that burden on state and federal law enforcement constitutional amendment, ‘‘a victim the National Association for the Advance- agencies. of a crime of violence,’’ to be defined ment of Colored People (NAACP) has always The Constitution has been amended only 17 had a keen interest in seeing that crime vic- times since ratification of the Bill of Rights by a patchwork of State and Federal tims are treated honorably, fairly and com- in 1791. Amendments should be added to our statutes. passionately by the American judicial sys- basic charter of government only when there A degree of uncertainty at the mar- tem, and that in the end they feel that jus- is a pressing need that cannot be addressed gins on questions of law and fact may tice has been served. in any other way. No such necessity exists in be inevitable in legislation. But, de- Yet people of color have also historically order to protect the rights of crime victims. spite the fact that it would be one of been wrongly accused in this nation of Virtually every right contained in the pro- the longest-ever amendment to the crimes varying from the very minor to the posed Victims’ Rights Amendment can be Constitution, the half-baked proposal most heinous. It is for this reason that the safeguarded by statute. NAACP has also been a strong and steadfast Thirty-three states have passed constitu- before the Senate is hopelessly vague supporter of the Constitution, the Bill of tional amendments and every state has ei- on the basics. I do not know from look- Rights, and the concept of due process in the ther a state constitutional amendment or ing at this amendment and listening to American judicial system. It is our deeply statute that protects victims’ rights. Many its supporters when it applies and who held belief in the need to protect the inno- of the rights offered by the VRA are already it applies to, or how that will be fig- cent and allow every American the right to protected by these laws. For example, res- ured out. a fair trial that leads us to oppose S.J. Res. titution for crime victims is required in fed- Senator HATCH has made many of the 3, the proposed constitutional amendment to eral court by the Antiterrorism and Effec- same points about this proposed con- protect the rights of victims of crimes. tive Death Penalty Act of 1996 and in every While we are very sympathetic to the stitutional amendment. At our last state by statute or constitutional amend- rights and the needs of crime victims ment. Similarly, the right of victims to at- Committee markup in September 1999, throughout this nation, and while we agree tend proceedings can be protected by statute however, the distinguished Senator that victims are often not treated as com- as shown by laws that exist in many states from Utah said that he intended to passionately as they should be by the judi- and by the recent federal legislation that vote for this amendment, even though cial system, the NAACP does not believe mandates that victims be allowed to attend he has ‘‘real questions’’ about it, ‘‘be- that S.J. Res. 3 is the answer. Rather than even if they will be testifying during the sen- cause of the hard work that has been expend the time and energy necessary for the tencing phase of the proceedings. Victim im- put into it.’’ I cannot go along with enactment of an amendment to the Constitu- pact statements are now a routine part of tion, the NAACP urges you to work together that reasoning. I commend the efforts sentencing proceedings at both the federal and with state legislatures to develop com- and state levels. There is every reason to be- of those who have worked on this prehensive packages of laws that address the lieve that the legislative process will con- amendment, as I commend the efforts specific and diverse needs of crime victims. tinue to be responsive to protecting crime of Federal and State legislators across The statutory route is preferable as it is victims so that there is simply no need to the country who have worked to pro- easier to update laws and to fit them to the amend the Constitution to accomplish this. vide rights for victims of crime. changing yet very specific needs of victims, Not only is the VRA unnecessary, there are But ‘‘A’’ for effort is not good enough and laws, as opposed to a broadly worded grave dangers in amending the Constitution. if it means subjecting the American constitutional amendment which is less like- The framers were aware of the enormous ly to have long-lasting negative repercus- power of the government to deprive a person people to a ‘‘C’’-grade Constitution. sions on the rights of the accused. As a Senator, I believe I have a con- of life, liberty and property in criminal pros- The NAACP appreciates and commends the ecutions. The constitutional protections ac- stitutional duty not to inflict on the attempts of the members of the Senate to corded criminal defendants are among the American people and our busy courts a improve the way in which the American judi- most precious and essential liberties pro- new constitutional provision when I cial system treats crime victims, and we vided in the Constitution. The VRA will un- and they have no idea what it means in agree that we can and should do more to see dermine these basic safeguards. For example, the most obvious type of case to which that victims feel safe and have closure after the proposed Amendment would give a crime it theoretically might apply. And I their ordeal. We support efforts to pass laws victim the right ‘‘[t]o a final disposition of have a constitutional duty as a Sen- that help victims of crimes, and we would the proceedings relating to the crime free like to work with you to develop a more nar- ator not to pass the buck to the courts from unreasonable delay.’’ Any victim of a rowly tailored and effective package. Yet we violent crime has standing under the Amend- by saying, ‘‘Here’s a new constitutional cannot support S.J. Res. 3 for, as well mean- ment to intervene and assert a constitu- provision that no one understands. Go ing as it is, we have grave concerns that the tional right for a faster disposition of the make something up.’’ negative effects this amendment would have matter. This could be used to deny defend- When Madison, Jefferson and their on the rights of the accused seeking a fair ants needed time to gather and present evi- compatriots wrote the original Con- and impartial trial would outweigh the bene- dence essential to prepare their defense, re- stitution, they did not settle for ‘‘don’t fits it bestows upon victims. sulting in innocent people being convicted. worry, someone else will figure this out Thank you in advance for your attention It could also be used to force prosecutors to to the concerns of the NAACP. If you have trial before they are ready, leading to guilty later.’’ Nor should we. any questions or comments, I hope that you I ask unanimous consent to include people going free. will feel free to contact me at (202) 638–2269. Section three of the proposed Amendment in the RECORD, a letter to me from the I look forward to working with you on this authorizes Congress to enact legislation to NAACP dated April 10, 2000, opposing serious and important issue. enforce the Amendment. This authority the proposed constitutional amend- Sincerely, could be used to negate the rights of crimi- ment, and a letter to Senators LOTT HILARY O. SHELTON, nal defendants in an effort to protect crime and DASCHLE dated April 19, 2000, from Director. victims. Courts would then face the enor- over 300 law professors opposing the mously difficult task of determining the ex- April 19, 2000. proposed amendment as unnecessary tent to which legislation to implement the Hon. TRENT LOTT, and dangerous. new Amendment can undermine the rights of Senate Majority Leader, Russell Senate Office those accused of crimes. There being no objection, the mate- Building, Washington, DC Moreover, the Amendment is likely to be rial was ordered to be printed in the Hon. TOM DASCHLE, counter-productive because it could hamper RECORD, as follows: Senate Minority Leader, Hart Senate Office effective prosecutions and cripple law en- WASHINGTON BUREAU—NATIONAL Building, Washington, DC. forcement by placing enormous new burdens ASSOCIATION FOR THE ADVANCE- DEAR SENATORS LOTT AND DASCHLE: We are on state and federal law enforcement agen- MENT OF COLORED PEOPLE, law professors and practitioners who oppose cies. Prosecutions could be hindered by the Washington, DC, April 10, 2000. adding a ‘‘Victims’ Rights Amendment’’ to creation of an absolute right for crime vic- Hon. PATRICK J. LEAHY, the Constitution (S.J. Res. 3). Although we tims to attend and participate in criminal U.S. Senate, commend and share the desire to help crime proceedings. In many instances, the testi- Washington, DC. victims, amending the Constitution to do so mony of a prosecutorial witness will be com- DEAR SENATOR LEAHY: Since this nation is both unnecessary and dangerous. Indeed, promised if the person has heard the testi- was first founded, Americans of color have ultimately the amendment is likely to be mony of other witnesses. Yet, the proposed been the victims of all types of crimes—both counter-productive in that it could hinder ef- Amendment creates a constitutional right

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00038 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6041 for a victim to be present at criminal pro- Bartlett, Duke University Law School; Ariela Gross, University of Southern ceedings even over defense or prosecution ob- Prof. Robert Batey, Stetson University California Law School; Prof. Phoebe A. jections. College of Law; Prof. Christopher L. Haddon, Temple University School of Prosecutorial efforts could also be ham- Blakesley, Louisiana State University Law; Prof. Eva Hanks, Yeshiva Univer- pered by the ability of crime victims to Law Center; Prof. Jack Charles Boger, sity, Benj. Cardozo School of Law; ‘‘submit a written statement . . . to deter- University of North Carolina School of Dean Joseph D. Harbaugh, Nova South- mine . . . an acceptance of a negotiated plea Law; Prof. Jean Boylan, Loyola Law eastern University, Shepard Broad Law or sentence.’’ It is unclear how much weight School, Los Angeles, CA; Prof. Ralph Center; Prof. David Harris, University judges will be required to give to a crime vic- Brill, Chicago-Kent College of Law. of Toledo College of Law; Prof. Lynne tim’s objection to a plea bargain. Over 90 Prof. Peter Arenella, University of Cali- Henderson, Stanford Law School; Prof. percent of all criminal cases do not go to fornia, Los Angeles School of Law; Susan N. Herman, Brooklyn Law trial but are resolved through negotiation. Prof. David Baldus, University of Iowa School. Even a small increase in the number of cases College of Law; Prof. Fletcher N. Bald- Prof. William S. Geimer, Washington and going to trial would unduly burden prosecu- win, Jr., University of Florida College Lee University School of Law; Prof. tors’ offices. There are many reasons why of Law; Prof Susan Bandes, DePaul Bennett L. Gershman, Pace University prosecutors enter into plea agreements such University College of Law; Prof. Ste- School of Law; Prof. Daniel J. as allocating scarce prosecutorial resources, phen F. Barnett, University of Cali- Goldberger, Ohio State University Col- concerns about weaknesses in the evidence, fornia, Berkeley School of Law; Prof. lege of Law; Prof. Phyllis Goldfarb, or strategic choices to gain the cooperation Donald F. Clifford, University of North Boston College Law School; Prof. Rob- of one defendant to enhance the likelihood of Carolina School of Law; Prof. Donna ert D. Goldstein, University of Cali- convicting others. Prosecutorial discretion Coker, University of Miami School of fornia, Los Angeles School of Law; would be seriously compromised if crime vic- Law; Prof. David Cole, Georgetown Prof. Ken Graham, University of Cali- tims could effectively obstruct plea agree- University Law Center; Prof. John O. fornia, Los Angeles School of Law; ments or require prosecutors to disclose Cole, Mercer University Law School; Prof. Samuel Gross, University of weaknesses in their case in order to persuade Prof. Doriane L. Coleman, Duke Uni- Michigan Law School; Prof. Martin a court to accept a plea. versity School of Law; Prof. George Guggenhein, New York University The Amendment would impose tremendous Copacino, Georgetown University Law School of Law; Prof. Paul M. Kurtz, financial costs on state and federal law en- Center; Prof. James D. Cox, Duke Uni- University of Georgia School of Law; forcement agencies. These departments versity School of Law; Prof. Jerome Prof. David L. Lange, Duke University would be constitutionally required to make McCristal Culp, Duke University School of Law; Prof. Richard Lempert, reasonable efforts to find and notify crime School of Law. University of Michigan Law School; victims every time a case went to trial, Prof. Mark Brown, Stetson University Prof. David Leonard, Loyola Law every time a criminal case was resolved, and College of Law; Prof. John Burkoff, School, Los Angeles, CA. every time a prisoner was released from cus- University of Pittsburgh School of Prof. Randy Hertz, New York University tody. Additionally, the Amendment can be Law; Prof. Paul D. Carrington, Duke School of Law; Lecturer Kenneth E. interpreted as creating a duty for the gov- University School of Law; Prof. George Houp, Jr., University of Texas School ernment to provide attorneys for crime vic- C. Christie, Duke University School of of Law; Prof. Alan Hyde, Rutgers Uni- tims. The term ‘‘victim’s representative’’ in Law; Prof. C. Antoinette Clarke, Uni- versity School of Law; Prof. Stewart section two might well be seen as creating a versity of Arkansas at Little Rock Jay, University of Washington School right to counsel in order to adequately pro- School of Law; Prof. Christine Desan, of Law; Prof. Paul R. Joseph, Nova tect these newly created rights. Criminal de- Harvard University Law School; Prof. Southeastern University Law Center; fendants do not receive adequate counsel in Norman Dorsen, New York University Prof. Yale Kamisar, University of many cases. Adding the financial burden of School of Law; Prof. Donald W. Dowd, Michigan Law School; Prof. Mark providing counsel to victims will likely fur- Villanova University School of Law; Kelman, Stanford Law School; Prof. ther limit defendants’ access to counsel. Prof. Joshua Dressler, McGeorge Bailey Kuklin, Brooklyn Law School; Protecting crime victims by federal and School of Law, University of the Pa- Prof. Brenda Jones Quick, Detroit Col- state statutes provides flexibility that is ab- cific; Prof. Robert F. Drinan, George- lege of Law at Michigan State; Assoc. sent in a federal constitutional amendment. town University Law Center; Assoc. Prof. Kathleen Ridofi, Santa Clara Uni- Moreover, amending the Constitution in this Prof. James Joseph Duane, Regent Uni- versity School of Law; Prof. Dean H. way changes basic principles that have been versity School of Law; Prof. Melvyn R. Rivkin, University of Tennessee Col- followed throughout American history. Prin- Durchslag, Case Western Reserve Uni- lege of Law; Prof. Robert Rosen, Uni- ciples of federalism always have allowed versity Law School; Prof. Fernand N. versity of Miami School of Law. states to decide the nature of the protection Dutile, Notre Dame Law School. Prof. Christine A. Littleton, University of victims in state courts. The ability of Prof. Harlon L. Dalton, Yale Law School; of California, Los Angeles School of states to decide for themselves is denied by Prof. Wes Daniels, University of Miami Law; Prof. Holly Maguigan, New York this Amendment. Also, no longer would pro- School of Law; Prof. Richard A. Dan- University School of Law; Prof. Mari tecting the rights of a person accused of ner, Duke University School of Law; Matsuda, Georgetown University Law crime be a preeminent focus of a criminal Prof. George C. Christie, Duke Univer- Center; Prof. Christopher May, Loyola trial. sity School of Law; Prof. Derryl D. Law School, Los Angeles, CA; Prof. Crime victims deserve protection, but that Dantzler, Mercer University Law Carolyn McAllaster, Duke University must not be accomplished at the expense of School; Prof. James J. Fishman, Pace School of Law; Prof. Andrew McClurg, the rights of the accused. As law professors University School of Law; Prof. Cath- University of Arkansas, Little Rock and practitioners we urge the rejection of erine Fisk, Loyola Law School, Los School of Law; Prof. Joel S. Newman, the proposed Victim’s Rights Amendment as Angeles, CA; Prof. Alyson Floumoy, Wake Forest University School of Law; unnecessary and dangerous. University of Florida College of Law; Prof. James O’Fallon, University of Or- Sincerely, Prof. Judy Fonda, Loyola Law School, egon School of Law; Prof. Robert Pop- Prof. Richard Abel, University of Cali- Los Angeles, CA; Prof. Eric M. Freed- per, University of Missouri-Kansas City fornia, Los Angeles School of Law; man, Hofstra University School of School of Law; Assoc. Prof. Grayfred B. Prof. David Abraham, University of Law; Prof. Monroe H. Freedman, Gray, University of Tennessee College Miami School of Law; Prof. Catherine Hofstra University School of Law; of Law; Prof. Clyde Spillenger, Univer- Adcock Admay, Duke University Prof. Richard D. Friedman, University sity of California, Los Angeles School School of Law; Prof. Albert W. of Michigan Law School; Prof. Edward of Law; Prof. Joan Steinman, Chicago- Alschuler, University of Chicago Law McGuinn Gaffney, Jr., Valparaiso Uni- Kent College of Law. School; Prof. Scott Altman, University versity School of Law. Prof. Thomas D. Rowe, Jr., Duke Univer- of Southern California Law School; Prof. Phoebe Ellsworth, University of sity School of Law; Prof. Susan Prof. Anthony G. Amsterdam, New Michigan; Prof. Anne S. Emanuel, Rutberg, Golden Gate University York University School of Law; Prof. Georgia State University College of School of Law; Assoc. Dean Rob Roger Andersen, University of Toledo Law; Prof. Deborah Epstein, George- Saltzman, University of Southern Cali- College of Law; Prof. Ellen April, Loy- town University Law Center; Assoc. fornia Law School; Prof. Michael ola Law School, Los Angeles, CA. Prof. Bryan K. Fair, University of Ala- Meltsner Northeastern University Asst. Prof. John A. Barrett, Jr., Univer- bama School of Law; Prof. Roger Fin- School of Law; Prof. Wallace J. sity of Toledo College of Law; Prof. dley, Loyola Law School, Los Angeles, Mlyniec, Georgetown University Law Elizabeth Bartholet, Harvard Univer- CA; Prof. Richard K. Greenstein, Tem- Center; Prof. Andre Moenssens, Univer- sity Law School; Prof. Katharine T. ple University School of Law; Prof. sity of Missouri-Kansas City School of

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00039 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6042 CONGRESSIONAL RECORD—SENATE April 27, 2000 Law; Prof. Emeritus Melvin G. Shimm, School; Prof. Joseph F. Smith, Jr., California, Los Angeles School of Law; Duke University School of Law; Prof. Nova Southeastern University Law Prof. Peter Lushing, Yeshiva Univer- Kenneth W. Simons, Boston University Center; Prof. Dan Simon, University of sity, Benj. N. Cardozo School of Law; School of Law; Prof. J. Clay Smith, Jr., Southern California Law School; Prof. John Scanlan; Indiana Univer- Howard University School of Law; Assoc. Prof. Gary L. Anderson, Univer- sity—Bloomington, School of Law. Prof. Girardeau A. Spann, Georgetown sity of Tennessee College of Law; Prof. Prof. David L. Chambers, University of University Law Center; Prof. H. Rich- Derrick Bell, New York University Law Michigan Law School; Prof. Stewart J. ard Uviller, Columbia University School; Prof. Leroy D. Clark, Catholic Schwab, Cornell University Law School of Law; Prof. William W. Van University Law School. School; Prof. Bridget McCormack, Uni- Alstyne, University of California, Los Prof. Sarah Welling, University of Ken- versity of Michigan Law School; Prof. Angeles School of Law. tucky College of Law, Prof. Sally Natsu Taylor Saito, Georgia State Uni- Prof. Margaret Stewart, Chicago-Kent Frank, Drake University Law School; versity Law School; Prof. Patricia College of Law; Prof. Allen Sultan, Prof. Kevin W. Saunders, University of Bryan, University of North Carolina University of Dayton School of Law; Oklahoma; Prof. Elizabeth Samuels, Law School; Prof. Harlon L. Dalton, Prof. Nkechi Taifa, Howard University University of Baltimore School of Law; Yale Law School; Prof. Diane School of Law; Prof. J. Alexander Prof. Anne Schroth, University of Geraghty, Loyola University—Chicago; Tanford, Indiana University School of Michigan Law School; Prof. David M. Prof. Susan Herman, Brooklyn Law Law—Bloomington; Prof. Andrew E. Skover, Seattle University of Law School; Prof. Marina Hsieh, University Taslitz, Howard University School of School; Prof. Paul H. Brietzke, of Maryland; Prof. Martha Moran, Uni- Law; Prof. David C. Thomas, Chicago- Valparaiso University School of Law; versity of Alabama; Prof. Susan Poser, Kent College of Law; Prof. Jack L. Prof. Christopher D. Stone, University University of Nebraska; Prof. David Sammons, Mercer University Law of Southern California Law School; Rudovsky, University of Pennsylvania; School; Prof. Jane Schacter, Univer- Prof. Theodore J. St. Antoine, Univer- Prof. Stanley Fisher, Boston Univer- sity of Wisconsin Law School; Prof. sity of Michigan Law School; Prof. sity; Prof. Sarah Burns, New York Uni- Stephen Schnably, University of Miami Paul Finkelman, University of Tulsa versity School of law. School of Law; Prof. Peter Tillers, Ye- College of Law; Prof. Robert A. Sedler, Prof. Roger Goldman, Saint Louis Uni- shiva University, Benj. N. Cardozo Wayne State University, Detroit versity; Prof. Frank Askin, Rutgers School of Law; Prof. Laura Michigan; Prof. Joseph Dodge, Univer- School of Law—Newark; Prof. Vivian Underkuffler, Duke University School sity of Texas Law School; Prof. David Berger, Columbia Law School; Prof. of Law; Prof. Charles Ogletree, Harvard E. Vandercoy, Valparaiso University Louis D. Bilionis, University of North Law School. School of Law. Carolina School of Law; Prof. Ronald Prof. Michael Vitiello, McGeorge School Prof. Glenn Harlan Reynolds, University Chen, Rutgers School of Law—Newark; of Law, University of the Pacific; Prof. of Tennessee College of Law; Prof. Prof. Margaret Russell, Santa Clara Welsch S. White, University of Pitts- Peter Linzer, University of Houston University; Prof. Phillipa Strum, burgh School of Law; Prof. Donald E. Law Center; Prof. Robert A. Burt, Yale Wayne State University Law School,; Wilkes, Jr., University of Georgia Law School; Prof. Jerome H. Skolnick, Prof. Leland Ware, Saint Louis Univer- School of Law; Prof. Gary Williams, New York University Law School; Prof. sity; Prof. Gary Williams, Loyola Uni- Loyola Law School, Los Angeles, CA; Jordan Paust, University of Houston versity—Los Angeles; Prof. Emeritus Prof. Bernard Wolfman, Harvard Uni- Law Center; Prof. Speedy Rice, Gon- Eugene Feingold, University of Michi- versity Law School; Prof. Larry W. zaga University School of Law; Prof. gan; Prof. Frances Ansley, University Yackle, Boston University School of Larry Yackle, Boston University; Prof. of Tennessee College of Law; Prof. Ger- Law; Prof. George C. Thomas III, Rut- Stanley Fisher, Boston University; ald E. Uelmen, Santa Clara University; gers, S.I. Newhouse Center for Law and Prof. Thomas Baker, Drake University Prof. Elizabeth M. Schneider, Brooklyn Justice; Prof. Larry Alexander, Univer- Law School; Prof. Lee Pizzimenti, Uni- Law School; Prof. David R. Dow, Uni- sity of San Diego; Assoc. Dean Fred G. versity of Toledo College of Law; Prof. versity of Houston Law Center. Slabach, Whittier Law School; Prof. Howard M. Friedman, University of To- Prof. Michael Kent Curtis, Wake Forest William Wesley Patton, Whittier Law ledo College of Law; Prof. Daniel J. University School of Law; Assoc. Prof. School; Assoc. Prof. Rachel Vorspan, Steinbock, University of Toledo Col- Morris Bernstein, University of Tulsa Fordham University School of Law; lege of Law; Prof. Alexander M. College of Law; Prof. John M. Levy, Prof. Alyson Cole, University of Michi- Capron, University of Southern Cali- William and Mary Law School; Prof. gan. fornia Law Center. Denise Morgan, New York University Prof. Angela Jordan Davis, Washington Prof. Gary S. Gilden, Pennsylvania State Law School; Assoc. Prof. Stephen C. College of Law America University; University; Prof. Gary Blasi, Univer- Thaman, Saint Louis University; Prof. John Payton, Wilma, Cutler & Pick- sity of California, Los Angeles Law Lefty Becker, University of Con- ering Washington, DC; Assoc. Prof. School; Prof. Stephen C. Yeazell, Uni- necticut School of Law; Prof. Ira C. Paulette J. Williams, University of versity of California, Los Angeles Law Lupu, George Washington University Tennessee College of Law; Prof. Susan School; Prof. Kenneth Brown, Univer- Law School; Assoc. Dean Ralph G. Looper-Friedman Capital University sity of North Carolina Law School; Steinhardt, George Washington Univer- Law School; Asst. Prof. Mellissa Cole, Prof. John Copacino, Georgetown Uni- sity Law School; Prof. Judith T. St. Louis University School of Law; versity Law Center; Prof. James Klein, Younger, University of Minnesota; Prof. Beatrice Moulton, University of University of Toledo College of Law; Prof. Ruti Teitel, New York Law California Hastings College of the Law; Prof. Jane R. Wettach, Duke Univer- School; Assoc. Prof. Sibyl Marshall, Prof. Victor Romero, Pennsylvania sity Law School; Prof. Naomi Mezey, University of Tennessee Law School; State University, Dickinson School of Georgetown University Law Center; Prof. Janet Cooper Alexander, Stanford Law; Prof. Peter Edelman, Georgetown Brian Wolfman, Public Citizen Litiga- Law School; Prof. Arnold H. Loewy, University Law Center; Prof. Richard tion Group, Washington, DC; Prof. University of North Carolina School of B. Bilder, University of Wisconsin Law Kimberley Hall Barlow, University of Law; Mr. Norman Dorsen, New York School; Prof. Robert P. Schuwert, Uni- California at Los Angeles Law School; University Law School. versity of Houston Law Center; Prof. Prof. Diane Dimond, Duke University Prof. Joel M. Gora, Brooklyn Law Ellen Suni, University of Missouri- Law School. School; Prof. David Weissbrodt, Uni- Kansas City School of Law; Prof. Prof. Eugene Volokh, University of Cali- versity of Minnesota; Prof. David Nancy Levit, University of Missouri fornia, Los Angeles Law School; Prof. Kairys, Temple University School of School of Law. James G. Pope, Rutgers State Univer- Law; Prof. Don Doernburg, Pace Uni- Prof. James G. Wilson, Cleveland State sity S.I. Newhouse Center for Law and versity School of Law; Prof. Lois Cox, University Law School; Lecturing Fel- Justice; Prof. Mary Ellen Gale, Whit- University of Iowa College of Law; low Brenda Berlin, Duke University tier Law School; Prof. Susan H. Her- Prof. Emeritus Samuel Mermin, Uni- Law School; Prof. Gilbert Paul man, Brooklyn Law School; Prof. Na- versity of Wisconsin; Prof. Steven G. Carrasco, University of Oregon Knight dine Strossen, New York Law School; Gey, Florida State University College Law Center; Prof. Douglas J. Whaley, Prof. Richard Klein, Touro College of Law; Prof. Aviam Soifer, Boston Col- Ohio State University College of Law; Jacob D. Fuchsburg Law Center; Prof. lege Law School; Prof. Arthur S. Leon- Dean McClindon, Howard University; Lori Andrews, Chicago-Kent College of ard, New York Law School; Prof. Emer- Dean Michael Newsom, Howard Univer- Law; Prof. Craig Bradley, Indiana Uni- itus Ted Finman, University of Wis- sity; Prof. Morell E. Mullins, Univer- versity—Bloomington School Law; consin—Madison; Prof. Lawrence M. sity of Arkansas-Little Rock Law Prof. Christine Goodman, University of Grosberg, New York Law School; Prof.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00040 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6043 Eric Janus, William Mitchell College of say, let’s have a full discussion of them Massachusetts, Nathaniel Gorham and Law; Assoc. Prof. Michael J. Gilbert, and then give consent to their being Rufus King; Connecticut, Roger Sher- University of Texas—San Antonio; withdrawn. man and William Samuel Johnson; New Prof. Jordan J. Paust, University of I honor those proponents who have York, Alexander Hamilton; New Jer- Houston Law Center. worked hard, especially the two prin- Prof. Carlin Meyer, New York Law sey, William Paterson, David Brearley, School; Prof. Lawrence O. Gostin, cipal ones, Mr. KYL of Arizona and Mrs. William Livingston, Jonathan Dayton; Georgetown University; Prof. Mark FEINSTEIN of California. They are very Pennsylvania, Benjamin Franklin, Strasser, Capital University Law dedicated, very worthy, very formi- Thomas Mifflin, Robert Morris, George School; Prof. Bruce J. Winick, Univer- dable protagonists. I respect them and Clymer, Jared Ingersoll, Thomas sity of Miami School of Law; Prof. respect their viewpoints. They have as FitzSimons, Gouverneur Morris—the Brian Bix, Quinnipiac Law School; much right to disagree with me as I tall man with the peg leg—and James Prof. Ronald D. Rotunda, University of have with them. They certainly have Wilson; Delaware, George Read, John Illinois College of Law; Assoc. Prof. the right to their viewpoints. I do not Dickinson, Jacob Broom, Richard Bas- Kathleen Wait, University of Tulsa quarrel with that right at all. College of Law; Prof. Donald N. sett; Maryland, Daniel of St. Thomas Let me also say to the victims of Jenifer, Daniel Carroll, James Bersoff, Villanova Law School; Prof. crime, wherever they may be, if they Emeritus Donald P. Rothschild, George McHenry; Virginia, George Wash- Washington University Law School; be watching, listening or reading the ington, John Blair, James Madison; Mr. Paul Lawrence, Preston Gates & congressional record of these state- North Carolina, William Blount, Rich- Ellis, Seattle, WA; Ms. Wendy C. ments, I certainly am not against vic- ard Dobbs Spaight, Hugh Williamson; Nakamura, San Diego, CA; Luz tims’ rights. I am sure I speak for all of South Carolina, Charles Pinckney, Buitrago, Berkeley, CA; Ms. Marjorie those in this body who oppose this con- Charles Cotesworth Pinckney, John Esman, Adjunct, Tulane Law School. stitutional amendment. We are not Rutledge, Pierce Butler; Georgia, Wil- Prof. Kenneth Lasson, University of Bal- against victims’ rights. I am for vic- timore; Prof. Jayne W. Barnard, Wil- liam Few and Abraham Baldwin. tims’ legitimate rights. As one who has What would they think? What would liam and Mary Law School; Prof. Colin been about as firm as any other Sen- S. Diver, University of Pennsylvania; they think of this amendment? Not Asst. Prof. Judge Steve Russell, Uni- ator could be when it comes to dealing what professor so-and-so of such-and- versity of Texas-San Antonio; Prof. A. with criminals, as one who believes in such university may think, but what Michael Froomkin, University of capital punishment, as one who be- would those framers of the Constitu- Miami School of Law; Ms. Alice lieves in the death penalty, as one who tion say if they were here? Bendheim, Phoenix, AZ; Mr. Roland has seen a public execution, as one who Most Americans can recall seeing the O’Hare, Detroit, MI; Mr. William believes in making the criminals pay, I statue of ‘‘Blind Justice’’ holding aloft Hinkle, Hinkle & Smith, P.C., Tulsa, certainly do not take a back seat to a balance scale in a courthouse or as a OK; Mr. John Burnett, Little Rock, anyone when it comes to supporting le- AR; Ms. Sandra Michaels, Atlanta, GA; logo for a favorite TV crime show. It is Mr. Jeremiah Gutman, New York, NY; gitimate victims’ rights. I am for that. an impressive and powerful representa- Mr. Paul Grant, Juneau, AK; Prof. But I am not for this amendment to tion with roots in Greek and Roman David Rudovsky, University of Penn- the Constitution of the United States. mythology. sylvania Law School. I think victims’ rights can be se- The scale symbolizes the impartial Ms. Gwen Thomas, Aurora, CO; Ms. Alli- cured, are being secured, and will con- weighing of evidence, while the blind- son Steiner, Hattiesburg, MS; Ms. tinue to have my support, when stat- folded figure, the goddess Themis, sym- Candace M. Carroll, Sullivan, Hill, utes are devised to protect those bolizes equal justice under the law for Lewin, Rez & Engel, San Diego, CA; rights. But when it comes to amending the accused. Prof. Donald N. Bersoff, Villanova Law the Federal Constitution, that is some- But in a larger sense, the scale sym- School; Ms. Jeanne Baker, Miami, FL; thing else. That is entirely another bolizes something even more signifi- Ms. Denise LeBoeuf, Adjunct Prof, Loyola Law School, New Orleans; Prof. matter. We don’t need to amend the cant. It symbolizes competing inter- Rodney Uphoff, University of Okla- Federal Constitution to secure victims ests—universal tensions, if you will— homa Law Center; Prof. Paul Bergman, rights. such as innocence versus guilt, truth University of California, Los Angeles I saw them tearing a building down, versus falsehood, personal privacy School of Law. A group of men in a busy town; versus the public welfare, the power of The PRESIDING OFFICER (Mr. L. With a ‘‘Ho, heave, ho’’ and a lusty yell, the State versus the rights of the indi- CHAFEE). The Senator from West Vir- They swung a beam and the sidewall fell. vidual. When those scales are put into ginia. I said to the foreman, ‘‘Are these men skilled equilibrium, they are said to be in bal- Mr. BYRD. Mr. President, I have The type you’d hire if you had to build?’’ ance, the right side weighed to be ex- been asked by the two distinguished He laughed, and then he said, ‘‘No, indeed, actly at level with the left. principal proponents, as I understand Just common labor is all I need; When it comes to human affairs, bal- it, to allow the motion to proceed to be I can easily wreck in a day or two, ance is a very difficult state to That which takes builders years to do.’’ withdrawn by unanimous consent, achieve. But once achieved, the sweet after which I and others who are op- I said to myself as I walked away, harmony of balance—one tension offset ‘‘Which of these roles am I trying to play? posed to the constitutional amendment Am I a builder who works with care, by just the right measure of the com- could proceed to make our speeches. Building my life by the rule and square? peting tension—allows for the calmest, I am opposed to that procedure. I Am I shaping my deeds by a well-laid plan, most rational functioning of man’s in- think that if we are going to call up Patiently building the best I can? stitutions of order. constitutional amendments around Or am I a wrecker who walks the town, Nowhere is the example of beautiful here—and certainly Senators have a Content with the labor of tearing down?’’ and near-perfect balance, despite com- right to offer constitutional amend- That is the picture we have before us. peting and conflicting ambitions, ments—but if they are going to be We are talking about the higher law of goals, and passions more profoundly called up, I think we ought to take the our land, the Constitution of the demonstrated than in that venerable full time and discuss them, the full United States of America. It was cen- charter, the U.S. Constitution, which I time allowed to us under the rules and turies in the making, but it can be hold here in my right hand. discuss those amendments—pro and trivialized in a day. Our Constitution embodies the ac- con—and not allow them to be with- We are talking about the Federal commodation of such difficult-to-rec- drawn and then, afterwards make our Constitution, the Constitution of the tify aspirations as the National Gov- speeches. United States of America, the Con- ernment’s need for supremacy and the That does not make sense to this stitution that was signed by 39 dele- individual State’s need for autonomy. Senator. They have a perfect right— gates on September 17, 1787. Our Constitution satisfies the States’ the proponents—to seek consent to Listen to them: New Hampshire, desire to maintain order without tram- have the amendments withdrawn. But I Nicholas Gilman and John Langdon; pling on the individual’s right to enjoy

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00041 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6044 CONGRESSIONAL RECORD—SENATE April 27, 2000 liberty. Liberty. That is the key word. about that oath. Think about the of the new year. I don’t go down very Liberty. Our Constitution bestows words: ‘‘Support and defend the Con- often. I don’t get invited down as much power on the institutions and offices of stitution of the United States against as I used to, but it doesn’t bother me. Government in such a way as to allow all enemies, foreign and domestic.’’ I went down when I was majority lead- them to adequately carry out their du- Then think, if you will, about the ex- er, when I was minority leader, and ties and yet be curbed and checked by treme difficulty of the procedure laid when I was majority leader again, and the duties and responsibilities of other out in that same Constitution for when I was President pro tempore of officials and institutions. Such is the changing that Constitution in any way. the Senate—all too much. I got tired of brilliance and the genius of our na- I do believe that the framers were quite going down there. tional charter that it has been amend- wary of injudicious disruptions to, and I must say they were very kind to in- ed only 27 times in our more than 200- even the meddling, piddling, tinkering, vite me down to what I think they year history. Ten of those 27 amend- and tampering with the careful balance called the New Millennium party. ments, of course, comprise the Bill of that they had so laboriously achieved. I said to my fine staff person, you Rights, leaving only 17 amendments in As in most things, they were only too tell that nice lady that the new millen- these 212 years. Seventeen amend- right. nium hasn’t begun yet, and it won’t ments. In the 106th Congress, as of April 17 begin until the year 2001, January. One of those—the prohibition amend- of this year, there had been 63 constitu- Now we have the latest constitu- ment of 1919—was repealed, wiped out— tional amendments proposed—63 con- tional amendment—something called that was the 18th amendment; it was stitutional amounts proposed. The Sen- the crime victims’ rights constitu- wiped out by the 21st amendment. So ate has only been in session 43 or 45 tional amendment, with the Senate take one away—the 18th amendment— days this year. In the 105th Congress, poised to consider it following, you and that leaves only 16 amendments. there were 107 constitutional amend- guessed it, ‘‘National Crime Victims’ One might say: How about the 21st ments proposed. I think that it is clear Rights Week,’’ a week during which the amendment, which wiped it out? Don’t the framers’ fears were quite well Senate was in recess. subtract that one because there is a founded. These amendments are pro- Does this suggest something to us? portion of that amendment that is still liferating at an unalarming level. To me, it suggests a less than serious, in the Constitution, and it will remain That is why I have taken the floor on dare I say somewhat frivolous, view of there until such time as it may be re- yesterday, that is why I have taken it the gravity and far-reaching nature of pealed. But you might say there are 16 today, and that is why I shall take it, constitutional amendments in general, amendments. Over 11,000 amendments the Lord willing, time and time again and of this constitutional amendment to the Constitution have been intro- in the days to come. in particular. duced in both Houses. These amendments are proliferating To those victims out there who are The men who created this amazing— at an alarming level. It seems that we watching over that electronic eye, let and it is amazing. One may read are almost intent on disrupting what me assure you again that I am for your Shakespeare and one may read the has served us and continues to serve us legitimate rights. But I am not for add- Bible time and time and time again, so well—the elegant wisdom and the ing an amendment to the Constitution. and each time one reads that Holy very careful balance inherent in the It isn’t necessary. Writ, he or she will find something Constitution. For the second time The amendment which is being pro- new—every time. But think of this within 30 days, the U.S. Senate—that posed is intended to restore and pre- truly amazing, durable Constitution. It remarkable body which Gladstone, who serve—although I understand there is a durable crucible for liberty. The had been Prime Minister of Britain were some negotiations going on with four times, remarked about—‘‘that re- men who created this durable, amaz- respect to this amendment as to how it markable body,’’ the U.S. Senate, ‘‘the ing, wonderful crucible for liberty were might be changed and altered from most remarkable of all of the inven- students of history and students of var- what it is in the printed amendment tions of modern politics,’’ the U.S. Sen- ious methods of governing going back, upon the desks of Senators, negotia- ate is being called upon to adopt an back, back, back, back into the misty tions going on with the White House, I amendment to the U.S. Constitution. centuries of antiquity, long before 1787. It would be laughable if it weren’t so understand. Why the White House? They were students of the philosophies serious. What do they have to do with it? The of the various methods of government. Who are we to conjure up all of these President of the United States doesn’t These men who wrote the Constitution myriad amendments to that great doc- sign a joint resolution that carries a came fresh from the mistakes of the ument? constitutional amendment. That is a experience of the Articles of Confed- So I say the Senate perhaps had bet- joint resolution that doesn’t go to the eration, the first Constitution of the ter adopt a resolution designating President’s desk. He can’t veto it. He United States. They lived under the April as ‘‘Amend the Constitution can’t sign it. Why negotiate with him? Articles of Confederation; they knew Month.’’ The amendment which is being pro- what the flaws of the Articles were. Let’s have at it. Let’s have a resolu- posed is intended to restore and pre- They knew where they fell short. They tion calling April, the fourth month of serve, ‘‘as a matter of right for the vic- knew where those provisions were lack- this year of our Lord, the year 2000, the tims of violent crimes, the practice of ing. The memory of the Revolutionary last year in the 20th century, the last victim participation in the administra- War and the bloodshed in that struggle year in the second millennium. tion of criminal justice that was the for freedom were at the forefront of Fie on the media, and fie on politi- birthright of every American at the their minds. They—the framers—God cians who try to hand the American founding of our Nation.’’ bless their names—bequeathed to me, people all of this flimflam about this This is a very impressive goal for the to us, something very profound—some- year’s being the first year of the 21st amendment, and, if the matter only thing strong, yet something also quite century—this year’s being the first stopped there, undoubtedly it would delicate. Over the years, I have come to year of a new century. Take the old enjoy the sympathy and the support of believe that we should tinker with math, take the new math, whatever every Member of this body because who their magnificent work only very, very math you want to take. It all comes is there who would be opposed to the rarely. out the same. legitimate rights of victims of violent Each Member of this body takes an There are 100 years in every century, crime? The title and the substance of oath when he or she becomes a U.S. and 1,000 years in every millennium. the measure are certainly worthy of Senator, and there have only been 1852 We are today in the last year of the consideration. men and women who have taken that 20th century. The Committee on the Judiciary rec- oath to be Members of this great body. I was invited down to the White ommended that victims’ rights under Think—just think—for a moment House a few days before the beginning nine general headings be protected in

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00042 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6045 the amendment to the Federal Con- branch. But once a constitutional that statutory alternatives are ‘‘more stitution. These nine rights are set amendment is set into place, the only suitable’’ than an amendment to the forth as follows: (1) a right of victims way to refine or amend that constitu- Federal Constitution. Victim Services, to receive notice of criminal justice tional amendment is to further amend the nation’s largest victim assistance proceedings; (2) a right of victims to the Constitution of the United States, agency, also opposes S.J. Res. 3, argu- attend criminal justice proceedings re- a procedure which necessarily requires ing that the proposed amendment lated to crimes perpetrated against years to do. The Prohibition amend- ‘‘may be well intentioned, but good in- them; (3) a right of victims to be heard ment was on the books from January tentions do not guarantee just re- at five points in the criminal justice 1919 to December 1933. It took years. sults’’. The National Network to End process, namely, plea bargains, bail or What are we talking about? This Domestic Violence, as well as the Na- release hearings, sentencing, parole Constitution may not be perfect, but tional Organization for Women Legal hearings, and pardon or commutation this amendment wasn’t perfect. It was Defense and Education Fund, and Mur- decisions; (4) a right of victims to no- changed, and then it was changed, and der Victim’s Families for Reconcili- tice of, and an opportunity to submit a then it was changed again, and now it ation, a national organization of fam- statement concerning, a proposed par- is being pulled back because there need ily members of murder victims, are don or commutation of sentence; (5) a to be further changes. What does that united in opposing the joint resolution. right of victims to notice of release or tell us? What if it had been welded into Moreover, prosecutors and other law escape of the accused; (6) a right to the Constitution of the United States enforcement authorities all across the consideration of the victims’ interest and then they would have found, lo and country ‘‘have cautioned that creating in a trial free from unreasonable delay; behold, this ought to be changed, this special Constitutional rights for crime (7) a right of victims to an order of res- isn’t right, this is wrong, we need to victims would have the perverse effect titution; (8) a right of victims to have change it. That is a long process. of impeding the effective prosecution their own safety considered whenever I was interested, as I scanned the of crime.’’ an accused or convicted offender is re- committee report, to note that the two It seems to me that one of the fore- leased from custody. legal experts who testified in support most rights of a victim of crime would These sound like good things, good of the amendment in the first hearing be to see the perpetrator of that crime amendments. They are good. in 1996 testified again and again and brought to justice, tried, convicted, No. 9, notice to the victims of these again in the subsequent three hearings. and punished. That is the first and rights inasmuch as such rights are of Professor Paul Cassell—I have never foremost right of the victim. little use if the victims remain un- had the pleasure of meeting that gen- The National District Attorneys As- aware of them. tleman—Professor Paul Cassell of the sociation has cautioned that the pro- What is wrong with that? Nothing is University of Utah College of Law and posed amendment would ‘‘afford vic- wrong with that. We can all be for Steve Twist, former chief assistant at- tims the ability to place unknowing, that. torney general of Arizona, were the and unacceptable, restrictions on pros- These participatory rights of victims chief legal experts. They may have ecutors while strategic and tactical de- are laudable and are worthy of consid- been the best in the Nation; I don’t cisions are being made about how to eration, certainly in the instance of know. Professor Cassell appears at all proceed with the case.’’ legislation, but not when it comes to four hearings in support of the amend- Prosecutorial discretion over plea amending the Federal Constitution. ment. It seemed to me there was a pau- bargaining ‘‘is particularly at risk’’ if Such rights can already be assured— city of expert academic witnesses who S.J. Res. 3 were to be adopted. While I here is the problem—such rights, as appeared in furtherance of the amend- personally believe, and have long be- those we are talking about, can already ment. lieved, that there is entirely too much be assured to victims by Federal or This duo—and I say it with great re- plea bargaining—I believed that for a State legislation. spect for them; they may be the best long time—the committee points out The majority states in the com- two in America—the same duo were that a prosecutor may need to obtain mittee report that the first Federal heard over and over again. Wouldn’t it the cooperation of a defendant who can constitutional amendment to protect have been well to have a few more? bring down an entire organized crime the rights of crime victims was intro- Wouldn’t it have been well to add to ring, or may need to protect the iden- duced with hearings thereon in 1996 and the list of experts? tity of an informant-witness, or may that additional hearings were con- It should not go unnoticed that the think that the evidence against the de- ducted in 1997, 1998, and 1999. The re- committee report states that the U.S. fendant will not convince a jury be- port also indicates that over these Judicial Conference favors a statutory yond a reasonable doubt, in which case years, many changes were made to the approach because it ‘‘would have the the accused killer, or whatever he original draft, several of which re- virtue of making any provisions in the might be, would go scot-free. Will the sponded to concerns expressed in the bill which appeared mistaken by hind- victim’s rights have been upheld? Will hearings. sight’’—that is 20/20, you know—‘‘to be the victim’s rights have been secured if The fact that so many changes were amended by a simple act of Congress.’’ the killer goes free? If the robber goes made over the years indicates to me The report also says that the State free? If the burglar goes free? that the subject matter could be better courts favor a statutory approach to In any event, I support the main ob- dealt with by legislation than by a the protection of victims’ rights, citing jectives in the measure for the protec- Federal constitutional amendment. If the fact that the Conference of Chief tion of victims’ rights, but such protec- it needs changing, if it needs modi- Justices—we only have one Chief Jus- tion can be afforded by legislation at fying, if it needs altering, it can be tice of the United States, but there are the Federal and State levels, and there done by legislation. And if we find that many chief justices of the 50 States— is absolutely no need for a Federal con- something is wrong and it isn’t work- citing the fact that the Conference of stitutional amendment to meet the ing right, we can change that law again Chief Justices has underscored ‘‘the in- needs set forth in the resolution. the next session. We can even change it herent prudence of a statutory ap- The chief justices of the States have during this session. Congress can proach’’ which could be refined as ap- expressed grave concerns that the pro- change, can alter, can modify, can propriate. posed constitutional amendment would amend the law almost overnight, if Other major organizations, including lead to ‘‘extensive lower federal court necessary, but not a constitutional several victims’ groups, opposed the surveillance of the day to day oper- amendment. That would take years to amendment, as is stated in the Com- ations of state law enforcement oper- do. Statutes can be modified and re- mittee report. For example, the Na- ations.’’ fined by subsequent legislation during tional Clearinghouse for the Defense of Now, get that. How many times have a single session of the legislative Battered Women takes the position we heard it said, ‘‘Get the Government

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00043 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6046 CONGRESSIONAL RECORD—SENATE April 27, 2000 off our backs! Get the Government off this amendment is inconsistent with 22 And it came to pass, that the beggar our backs!’’ Wasn’t that one of the the structure and the style of our coun- died, and was carried by the angels into complaints in the great, so-called— try’s great governing document, and, Abraham’s bosom: the rich man also died, and was buried; what was it called?—contract, the indeed, the resolution reads like a stat- 23 And in hell he lift up his eyes, being in great contract they talked about some ute, which suggests that that is, in torments, and seeth Abraham afar off, and few years ago, the Contract With fact, how the problem of protecting the Lazarus in his bosom. America. Why, of course, that was one rights of crime victims should be ad- 24 And he cried and said, Father Abraham, of the great things they talked about— dressed. have mercy on me, and send Lazarus, that he Get the Government off our backs; The majority report cites examples may dip the tip of his finger in water, and Contract With America. Whoopee. of overwhelming popular support and cool my tongue; for I am tormented in this Well, I will tell you, I have my Con- demonstrates that change toward bet- flame. 25 But Abraham said, Son, remember that tract With America right here in my ter implementation of victims’ rights thou in thy lifetime receivedst thy good pocket. I know this Senator here, from is occurring now, already, in the things, and likewise Lazarus evil things: but Vermont, he had two men from States. The majority admits that now he is comforted, and thou art tor- Vermont who signed this Constitution, ‘‘there is a trend’’—the majority in mented. John Langdon and Nicholas Gilman. He this subcommittee report issued by the 26 And beside all this, between us and you has his Contract With America in his Judiciary Committee of the U.S. Sen- there is a great gulf fixed: so that they which pocket—I have. It is called the Con- ate—admits that ‘‘there is a trend to- would pass from hence to you cannot; nei- ward greater public involvement in the ther can they pass to us, that would come stitution of the United States. from thence. Here we have grave concerns ex- process, with the federal system and a 27 Then he said, I pray thee therefore, fa- pressed by the chief justices of the number of states now providing notice ther, that thou wouldest send him to my fa- States, grave concerns that the pro- to victims.’’ Hence, it is my belief that ther’s house: posed constitutional amendment would we, here at the Federal legislative 28 For I have five brethren; that he may lead to ‘‘extensive lower federal court level, should avoid the adoption of a testify unto them, lest they also come into surveillance of the day to day oper- Federal constitutional amendment and this place of torment. ations of state law enforcement oper- that we should allow the States to con- 29 Abraham saith unto him, They have Moses and the prophets; let them hear them. ations.’’ Get the Government off our tinue to come up with innovations of 30 And he said, Nay, father Abraham: but if back, they say on one hand. Then they their own without undue Federal inter- one went unto them from the dead, they will say, Oh, let’s adopt this constitutional vention in a matter which, basically, is repent. amendment. in the purview of the States. 31 And he said unto him, If they hear not The minority view on the Senate Ju- Our illustrious friends who are the Moses and the prophets, neither will they be diciary Committee shares these con- chief cosponsors of the amendment, persuaded, though one rose from the dead. cerns, but states that the laudable goal very honorable Members of this body, That is the lesson. If the people in of making State and law enforcement one from the Democratic side and one the States will not be persuaded by the personnel more responsive to victims from the Republican side, have told us statutes of the States that are already should not be achieved by establishing that they will be back. ‘‘We’ll be on the books, if they cannot be en- Federal court oversight of the criminal back,’’ they say. forced, then will they listen to Moses justice and correctional systems of the In the meantime, I hope we can edu- and the prophets even if they rose from 50 States. They do not want the Gov- cate ourselves a little better with re- the dead? Will they hear even if it is a ernment on their backs, so they do not spect to the constitutional principles Federal constitutional amendment? support this proposed constitutional that we are here to defend and to pro- Why should we think they will hear amendment. tect. I hope that during this interim, better, that they will see better, that The minority on the committee while they are preparing to come back, they will honor more, that they will states that there is no pressing reason that we will be educating ourselves a abide more by words that are written to displace State laws in an area of tra- bit further and helping to educate oth- into the Federal Constitution than ditional State concern, and that there ers as to the history of American con- they will those words that are already is no compelling evidence pointing to stitutionalism so that Senators, in the written in the statute books of the the need for another unfunded man- future, may be a little better prepared States and the Federal statutes as date. to take on this new amendment when well? If they will not hear them, they They passed a bill here a few years it is brought back before the Senate, as will not hear Moses and the prophets, back dealing with unfunded mandates. we are assured that it will be. even though they were brought from That was one of the first great so- I have heard, during this debate, that the dead. called great plaints in the Contract— you can include these victims’ rights in If they will not abide by the statutes, what was it? The Contract With Amer- statutes, but they won’t be enforced. if they will not enforce them, what is ica? Some of them are already in statutes, there to ensure us that they would en- Mr. LEAHY. Mr. President, if the but they are not being enforced. That force the strictures of a new constitu- Senator will yield, I called it the Con- is what we heard the proponents say. tional amendment? And if they did not, tract On America. They called it the They are not being enforced. They what would we be doing to the Federal Contract With America. I think it was won’t be enforced. They are in the laws Constitution? We would trivialize it; a Contract On America. of various States, but they are not we would minimize it; we would lower Mr. BYRD. The Contract On Amer- being enforced so what we need is a it in the estimation of the people. ica. All right. Call it a Contract On constitutional amendment. How about When it comes to amending the high- America. that? How can we be assured that a est law in our constitutional system, it The minority also states that there constitutional amendment will be en- behooves us to step back and behold is no need for more Federal court su- forced? the forest, not just the trees. pervision and micromanagement of Let’s return to the Book our fathers Once before in our history we amend- State and local affairs, when every read: ed the Constitution without carefully State is already working hard to ad- 19 There was a certain rich man, which was thinking through the consequences. dress the issues in ways that are best clothed in purple and fine linen, and fared That was when the 18th amendment, suited to its own citizens and its own sumptuously every day: dealing with prohibition, was ratified criminal justice system. 20 And there was a certain beggar named on January 16, 1919. Lazarus, which was laid at his gate, full of There have been some 63 drafts of the sores. I can remember as a boy seeing those proposed amendment, and it remains 21 And desiring to be fed with the crumbs revenue officers come around to the both excessively detailed and decidedly which fell from the rich man’s table: more- coal company houses. I can see them vague. The level of detail provided in over the dogs came and licked his sores. climbing the hills of the coal mining

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00044 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6047 community going to various houses, more exacting upon those who would In the Federalist No. 49 Madison going into the woods, looking for the undertake to amend the Constitution. warned: ‘‘. . . As every appeal to the moonshine stills. Those were the reve- Paterson’s proposal provided for con- people would carry an implication of nuers, as they used to say—the reve- stitutional amendments in such man- some defect in the government, fre- nuers. That was under prohibition. ner ‘‘as they (the Congress) shall think quent appeals would in great measure That amendment opened a Pandora’s proper.’’ In other words, there is no re- deprive the government of that vener- box, or as Senator JEFF BINGAMAN quirement of necessity. The standard, ation which time bestows on every- says, a box of Pandoras. That amend- ‘‘as they shall think proper,’’ can vary thing, and without which perhaps the ment opened a Pandora’s box of unin- with whim or caprice or political moti- wisest and freest governments would tended and unforeseen consequences, vation. Thus, without any firm anchor, not possess the requisite stability.’’ and it was not until almost 15 years what may be thought ‘‘proper’’ one That was James Madison. He was later that the 21st amendment repeal- day, might very well not be thought only 36 years old, less than half my ing the 18th amendment was ratified on ‘‘proper’’ on the next. But on the con- age. Listen to him. Let me say it December 5, 1933. It took a long time to trary, Randolph’s language, ‘‘whenever again. He warned: . . . ‘‘As every ap- get the genie back into the bottle, and two-thirds of both Houses shall deem it peal to the people’’—as we are being we should have learned a lesson from necessary,’’—‘‘whenever two-thirds of asked to appeal to the people here with that experience. both Houses shall deem it necessary’’— S.J. Res. 3—‘‘. . . As every appeal to As a principle of simple prudence, we provides a surer anchor and firmer the people would carry an implication should be ever cautious about amend- foundation, and like the warning sign of some defect in the government, fre- ing the organic law of our Nation. Jus- at a railroad crossing, ‘‘stop, look, and quent appeals would in great measure tice Cardozo was explicit in his warn- listen’’, commands not only the rapt deprive the government of that vener- ing, uttered in the case of Browne v. attention, but also the considered judg- ation which time bestows on every- City of New York, and we should heed ment and focus of those who would thing, and without which perhaps the that warning. Here it is: alter, modify, add to, or repeal the fun- wisest and freest governments would The integrity of the basic law is to be pre- damental law of the Nation. not possess the requisite stability.’’ served against hasty or ill-considered Needless to say, Randolph’s language In this same Federalist paper, Madi- changes, the fruit of ignorance or passion. weathered the scrutiny of the Com- son went on to say: ‘‘The danger of dis- Mr. President, the Constitution itself mittee of Style and Arrangement; the turbing the public tranquility by inter- in article V, the article that provides Committee of Detail; the Committee of esting too strongly the public passions, for amendments to the Constitution, the Whole; and survived the storms and is a still more serious objection against carries such an implication. Here is changing vicissitudes of the Conven- a frequent reference of Constitutional what it says—listen carefully—as an tion itself. questions to the decision of the whole implication against hasty or ill-consid- The word ‘‘necessary’’ made it society.’’ ered changes: through all the committees, all the dis- Ah, what if Madison were here today The Congress, whenever two-thirds of both putations, all the disquisitions, all the to speak. The galleries would be filled. Houses shall deem it necessary, shall propose arguments, and came out at the end in The media galleries would be crowded. amendments to this Constitution,... that almost immortal document, the There would not be a seat vacant. They There is the warning, ‘‘whenever two- Constitution of the United States. would be all ears, all eyes, because this thirds of both Houses shall deem it nec- That word ‘‘necessary’’ is not just an would be Madison, 36 years of age, pur- essary.’’ The word ‘‘necessary’’ is not empty word. It is not just a place hold- ported to be the father of the Constitu- just a throwaway word that was just er. It is not just a word to be thrown in tion, speaking. inserted to fill up space in article V of to fill out the whole. It meant some- Listen to him. the U.S. Constitution. We can be sure thing. It required something. The word ‘‘But the greatest objection of all is, that the constitutional framers chose was ‘‘necessary.’’ ‘‘Whenever two- that the decisions which would prob- the word carefully, as they did all thirds of the States shall deem it nec- ably result from such appeals, would other words in that unique document. essary to amend.’’ not answer the purpose of maintaining It was the word chosen by Governor Supreme Court Justice Campbell, in the Constitutional equilibrium of the Edmund Randolph when he presented Marshall versus Baltimore & O.R.R., government.’’ the Virginia Plan to the Constitution offered these words which we might do Finally, Madison clinched his point, on May 29, 1787. That is my wedding an- well to ponder in this instance. Here is when he said: ‘‘It appears in this, that niversary date. My wife and I were what he said: ‘‘The introduction of new occasional appeals to the people would married on May 29. It will be 63 years subjects of doubt, contests and con- be neither a proper nor an effectual ago on May 29. I will never forget it. tradiction, is the fruit of abandoning provision, . . .’’ And that is the date in 1787 that Ed- the Constitutional landmarks.’’ Mr. President, an overriding ques- mund Randolph rose at that Constitu- We would profit greatly by reviewing tion, therefore, as we examine the pro- tional Convention and laid down his the constitutional landmarks as we are posed Constitutional amendment, is plan containing 15 resolves, 15 resolu- confronted today with this proposed simply this: ‘‘Is it necessary?’’ tions. The 13th of the 15 resolutions, constitutional amendment. ‘‘Is it necessary?’’ That is the stand- according to Madison’s notes, read as Madison, in The Federalist No. 43, al- ard that is set forth in the verbiage of follows: luded to ‘‘that extreme facility which the Constitution: ‘‘Is it necessary?’’ Resolved that provision ought to be made would render the Constitution too mu- Penetrating light has been shed upon for the amendment of the Articles of Union table’’; and he proceeded to implore this question by the minority views of whensoever it shall seem necessary,... against appeals to the people that were Senators LEAHY, KENNEDY, KOHL, and William Paterson of New Jersey laid too frequent. FEINGOLD, who, in the committee re- the New Jersey Plan before the Con- This was Madison talking. In The port, beginning on page 57, set forth a vention on June 15, and with respect to Federalist No. 43, he alluded to ‘‘that litany of major laws recently enacted amending the Constitution, he used the extreme facility which would render by Congress to grant broader protec- words that the Congress be authorized the Constitution too mutable’’ and pro- tions and provide more extensive serv- ‘‘to alter & amend in such manner as ceeded to implore against appeals to ices for victims of crime. Among these they shall think proper’’—‘‘in such the people that were too frequent. laws are the Victim and Witness Pro- manner as they shall think proper.’’ Here we have 11,000 of these proposed tection Act of 1982; the Victims of When one compares the pertinent amendments to the Constitution that Crime Act of 1984; the Victims’ Rights language in the two plans, it is readily have been floating around in one or and Restitution Act of 1990; the Vio- apparent that Randolph’s language in both Houses throughout the years— lence Against Women Act of 1994; the the Virginia plan was the stronger and 11,000. Mandatory Victims Restitution Act of

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00045 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6048 CONGRESSIONAL RECORD—SENATE April 27, 2000 1996; the Victim Rights Clarification stood the pressure behind this flood. The minority on the Judiciary Com- Act of 1997; the Crime Victims with Pheobe Cary’s I long ago read poem mittee—headed by my illustrious Disabilities Awareness Act of 1998; the about the lad who put his finger in the friend, the very able Senator from Identity Theft and Assumption Deter- hole in the dyke: he ‘‘held back the sea Vermont the 14th State—indubitably rence Act of 1998, as well as the Tor- by the strength of his single arm’’. The are of the view that the amendment be- ture Victims Relief Act; and the Child Senate must once again act to prevent fore us constitutes a significant intru- Abuse Prevention and Enforcement a hole in the dyke which, if exploited sion of Federal authority into a prov- Act, of March 10, 2000. here, might, in time, become a virtual ince traditionally left to State and These are public laws. They have al- flood. local authorities. The minority view- ready been passed by both Houses. Hamilton, in the Federalist Essay point States a truism: ‘‘Under our fed- They have been signed into law. No. 85, states: ‘‘For my own part, I ac- eral system the administration of Obviously, as the minority on the knowledge a thorough conviction that criminal justice rests with the states Senate Judiciary Committee point out, any amendments which may, upon ma- except as Congress, acting within the there is nothing in the U.S. Constitu- ture consideration, be thought useful, scope of those delegated powers, has tion that currently constitutes a bar- will be applicable to the organization created offenses against the United rier, that currently inhibits the enact- of the government, not to the mass of States.’’ Screws vs. United States ment of State or Federal laws that pro- its powers; . . .’’ It should be pre- Mr. President, let us view, therefore, tect crime victims. eminently clear to all observers that with a jaundiced eye, this proposal to With 33 States having adopted state the amendment we are considering at amend the Constitution. As I have al- constitutional amendments dealing this time, would not, as Hamilton had ready indicated, there is nothing in the with victims’ rights, and while every noted, ‘‘be applicable to the organiza- Constitution which currently inhibits State and the District of Columbia al- tion of the government,’’ but, instead, the National and State legislatures ready have some type of statutory pro- pertains ‘‘to the mass of its powers.’’ from enacting legislation and pro- vision providing for increased victims’ The Founders departed from prac- viding the necessary funds to deal with rights, including some or all of the tically all historical precedents by pro- the many problems surrounding vic- rights enumerated in S.J. Res 3, what ducing the system known as American tims’ rights. is needed is better enforcement of federalism, and they did this with Let me say again, for the benefit of State laws and increased funding, not a great care and skill, for the issue of the those victims who may not be sitting Federal constitutional amendment. States’ sovereignty was a flashpoint nearby but who may be out there on This should be ‘‘as clear,’’ as our upon which the endeavor at Philadel- the plains, in the Alleghenies, in the former illustrious and dear colleague, phia could very quickly have disinte- forests, on the lakes of this great coun- the late Sam Ervin, used to say, ‘‘as grated. try, let me say to them: There is noth- the noonday sun in a cloudless sky.’’ The Constitution really consists of ing, absolutely nothing, in this Con- Chief Justice Oliver Wendell Holmes two types of provisions. One set of pro- stitution which currently inhibits the once stated: ‘‘In my opinion, the Legis- visions is concerned with structure— National and State legislatures from lature has the whole lawmaking power the separation of functions and powers, enacting legislation and providing the except so far as the words of the Con- the departments of administration, the necessary funds to deal with the many stitution expressly or impliedly with- House of Representatives, the Senate, problems surrounding your rights, vic- hold it.’’ There is no indication whatso- the President, the Judiciary, and their tims’ rights—nothing! ever that the Federal Constitution of relations to one another. The other set All needful legislation at the na- today provides any barrier—either ex- of provisions is concerned with the re- tional and local levels should be con- pressly or impliedly—to the lawmaking lation of the States to the general gov- sidered and should be exhausted before power in the subject area of victims’ ernment. The powers of the general we embark upon a course that leads to rights. It would, therefore, be far bet- government are limited and the powers a further amendment of the Constitu- ter for lawmakers at the Federal and of the States are also under certain re- tion. That is what we are saying. Let’s State levels to exert their talents to- strictions. try all the others, and let’s enforce the ward enactment of any further legisla- This federalism was entirely new. laws if they are not being enforced. tion that may be needed—I will be There was nothing like it in the colo- Once we go down that road of amend- there to join them—rather than pur- nial charters or in the state Constitu- ing the Constitution, one amendment suing a course of amending the U.S. tions of 1776 and 1777. The development leads to another amendment, and then Constitution. of federalism went through similar to another amendment, and as Ham- Hamilton, in the Federalist No. 85— stages and took almost as long in its ilton predicted in Federalist No. 85, ‘‘it this is the final Federalist paper— processes as the development of the would be far more easy to obtain subse- states: ‘‘It appears to me susceptible of structural parts of the Constitution. It quent than previous amendments to absolute demonstration, that it would had been an important and a much de- the Constitution.’’ Willy-nilly amend- be far more easy to obtain subsequent bated question for more than a 100 ments to the Constitution can only than previous amendments to the Con- years before 1776, and more than 20 serve to trivialize it. stitution.’’ How right he was. In the plans of power-sharing had been sug- As Hippocrates admonished physi- light of Hamilton’s wise words, mem- gested and discussed. cians everywhere, ‘‘Do no harm,’’ we bers of the Senate should proceed with As the Articles of Confederation Senators who have taken an oath to the utmost caution in proposing and clearly demonstrated, the protection of support and defend the Constitution of supporting Constitutional amend- the States’ prerogatives continued to the United States should measure our ments. be held very dear, even in the face of actions likewise: Let us do no harm to It is more than noteworthy to again the exigencies of newly claimed inde- the Constitution. When amendments to reflect upon the fact that during the pendence and armed conflict with Brit- the Constitution become a political 212 years of the American Republic, its ain. What the Framers successfully way of life, when they dovetail with organic law has been amended only 27 crafted in 1787 was a system which re- hortatory national weeks for this or times—including the first time in tained enough sovereignty for the for that, then we have transcended which all ten amendments were rati- States to keep them from rejecting the mere bumper sticker politics and en- fied in one fell swoop. Those ten new Constitution, while at the same tered the very shaky world of bumper amendments constituted the Bill of time providing sufficient power to the sticker amendments to the U.S. Con- Rights. During this period of over two national government so that it could stitution. As a result, the public re- centuries, more than 11,000 constitu- be effective at home, and establish a spect for that venerable document will tional amendments have been proposed credible presence in international af- certainly diminish. Just amend it in Congress, but Congress has with- fairs—quite an achievement! enough and the public veneration for

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00046 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6049 that unique document, the Constitu- ing States to put consideration of these consists of 403 words. I am including, of tion of the United States, will cer- new victims’ rights and protections on course, the headings. In itself, it ex- tainly diminish. an equal footing with the rights of the ceeds the number of words in 9—not This particular amendment appears accused. Furthermore, in the majority the first 9, but 9 of the 10 amendments to contemplate rewriting the criminal report accompanying this amendment, comprising the Bill of Rights. Now, justice code and placing that rewrite concerns about disruptions to fed- many of us have participated in that into the Constitution. If we wish to re- eralism are deflected by the incredible little game of counting the words. I did write the criminal justice code, that is assertion that States will have ‘‘ple- so, also. Why not? Why should I not? one thing. Let us have at it, let us be nary authority’’ to tailor the amend- According to the committee report about it, and while we are about it, ment to fit the needs of their various accompanying this constitutional scan this proposed amendment for its criminal systems—that they may flush amendment, over 450 law professors ex- best provisions to incorporate. Cer- out such definitions as ‘‘victims of pressed opposition to this amendment tainly, victims’ rights, or rather pro- crime’’ and ‘‘crimes of violence.’’ So to the Constitution. Why weren’t they tections, as I prefer to call them, are a much for uniformity. They talk about invited to the hearings? In addition, cause that I can enthusiastically sup- uniformity. Well, so much for uni- the Cato Institute, the National Sher- port. I can embrace them and hold formity. iffs’ Association, the National Associa- them close to my heart. But why, oh The result of such a reading of this tion of Criminal Defense Attorneys, why, do we need to take the step of amendment is, again, the very patch- the National Legal Aid and Defenders pinning such a measure to the Con- work of laws that the proponents say Association, the NAACP, the ACLU, stitution itself, rather like some sort they are trying to avoid. Moreover, for the Justice Policy Institute, the Center of artificial tail? It would be quite the first time, we will have turned the on Juvenile and Criminal Justice, the funny if it weren’t so serious. concept of federalism on its head by Youth Law Center, the National Center The material which has been cir- saying that States and various State on Institutions and Alternatives, the culated in support of the need for this laws may be allowed to implement the American Friends Service Committee, constitutional amendment seems to intent of a constitutional amendment. and the Friends Committee on Na- cite two primary reasons as its jus- This is pure folly. What we will achieve tional Legislation—among others— tification—the first being that the if this poorly conceived amendment have expressed opposition to such an criminal justice system does not give manages to end up as part of our Con- amendment. They take the position adequate protection to the interests of stitution is a serious aberration re- that statutes work, statutes are more victims of crimes, and the second being garding the crowning achievement of flexible and are more easily enacted that existing statutory and State pro- the framers—federalism—and a recipe and more easily corrected and are more visions are not uniform. While both for a very nasty little stew of con- able to provide specific, effective rem- may be true, neither is a reason for a flicting interpretations of what is and edies on behalf of victims of crimes. constitutional amendment. what is not a victim’s right. I shudder The majority report cites President Clinton as having endorsed the con- In the first instance, these concerns to think of where that can lead us. can be addressed through statutory The term ‘‘victim’’ is undefined and stitutional amendment. Well, so what! means. In the second instance, the con- could be interpreted to mean any num- President Clinton also supported the cern can also be addressed through ber of individuals—some quite removed line-item veto, but the U.S. Supreme statutory means, and to achieve it via from the usual understanding. In the Court knocked it down. Presidents can the route of amending the Constitution case of a murder, couldn’t an entire be wrong and so can majorities. The majority also cites the National could be deleterious to a very impor- family be considered ‘‘victims’’? Take Governors’ Association as having tant bedrock principle in the Constitu- the tragedy at Columbine High School; passed a resolution in 1997 supporting a tion. That principle is one of the main could not the entire town of Littleton Federal constitutional amendment on thrusts and achievements of the fram- be considered ‘‘victims’’? If a battered victims’ rights. So what? ers coming out of the experience of the spouse, finally driven to retaliate to re- As I recall, the National Governors’ Articles of Confederation, and one peated violence, strikes back, is the Association not too long ago also sup- which is a central pillar of our Repub- abuser then also a ‘‘victim’’ and there- ported a constitutional amendment to lic. What is that? Federalism! fore entitled to a victim’s protections? balance the budget. Yes—a constitu- Each of the States in its wisdom, An ‘‘exceptions’’ clause is included in tional amendment to balance the Fed- through its legislature and its elec- this constitutional amendment. Con- eral budget. The National Governors’ torate, has the power and the right to sider that. Unlike any other part of the Association supported that. The Fed- protect and accommodate the interests Constitution, we are inviting excep- eral Government has since balanced of victims within its own criminal jus- tions without stating who can make the budget, at least on paper, without tice system. All of these decisions— the exceptions. Are we suggesting that resorting to a constitutional amend- those that have been made, and those Federal constitutional rights can mean ment. that will be made in all 50 States— different things from State to State? We didn’t need it. We didn’t need it would become subservient to a con- Please let us come to our collective all along. But what if we had written it stitutional standard if we were to senses. Let us come back down to earth into the Constitution? adopt this amendment, which in all again. Let us not shred the concept of I submit that the rights of victims of likelihood no one State would have federalism with one ill-considered vote crimes can be clarified and enhanced chosen for its own particular citizens. in the frenzy of an election year. by legislation at the Federal and State Obviously, the proposed amendment Let us pay attention to what we are levels without resorting to an amend- mandates a significant intrusion of the about to do, remembering John Mar- ment to the Federal Constitution. Federal Government into an area tradi- shall’s words: For, as Madison cogently stated in tionally left to State and local authori- We must never forget that it is a Constitu- the Federal No. 49, ‘‘A Constitutional ties. Nearly 95 percent of all the crimes tion we are expounding. road to the decision of the people, are prosecuted by the States. The Fed- This resolution, S.J. Res. 3, consists ought to be marked out, and kept open eral Government does not have general of 403 words. I counted them. I learned for certain great and extraordinary oc- police power. As the Supreme Court re- to count by the old math. Yes, I memo- casions.’’ The occasion for this amend- minded us in United States v. Lopez: rized my multiplication tables back in ment falls far short of being either Under our Federal system, the states pos- that little two-room schoolhouse in ‘‘great’’ or ‘‘extraordinary,’’ and does sess primary authority for defining and en- southern West Virginia more than 75 not measure up to Madison’s prescrip- forcing the criminal law. years ago. But it is still the same mul- tion. Congress can immediately pass a This proposed amendment could dras- tiplication tables; it hasn’t changed, statute and provide the financial re- tically shift the responsibility by forc- and it won’t change. This resolution sources necessary to assist the states

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00047 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6050 CONGRESSIONAL RECORD—SENATE April 27, 2000 in giving force to their own locally-tai- hubris, chutzpah, or foolishness, we after we have gone. Some day, all 100 lored statutes and Constitutional pro- were both running for the Senate—10 Senators who now serve will be gone visions, thus avoid tampering with our years later, in 1974. We met with Sen- and others will take our place. I hope national charter. ator BYRD at that time. they revere the Constitution, too. Jesus said it well, when he sat at I began my practice of keeping a I have not enjoyed any debate more meat in the house of Levi: ‘‘No man journal. I recently went back to read than I have the past few days, partly also seweth a piece of new cloth on an it. The Senator from West Virginia because of my friend from West Vir- old garment: else the new piece that told of his childhood—not being one ginia. We stood on many battles to- filled it up taketh away from the old, born with a silver spoon in his mouth. gether on constitutional amendments. and the rent is made worse.’’ Let us not There probably wasn’t a silver spoon in The Senator mentioned the balanced add this piece of clashing new cloth to the house. He told me what he had budget. I am sure we could go to West the venerable and beautiful garment of done—self-taught, went on to school, Virginia, Vermont, or anywhere else the Constitution, lest the new piece learned more, and learned history as and take a poll on whether voters want trivialize the old and a rent is made in few men in this country ever have. But a balanced budget amendment to bal- the carefully coordinated system of then he had the opportunity not only ance the budget and, resoundingly, yes federal and state relations. to learn history but to live history, as would be the answer. Senator BYRD, The Constitution of the United he has done day after day after day for myself, and others had to go back and States was not meant to be a politi- over 40 years in the Congress of the explain to the people of our States: cian’s plaything. It is not mine to play United States, in both bodies. You have trusted us with this vote. If with. It is not yours to play with. It is I wrote down some of the things he we pander to you on this, we misplace not ours to play with. It is a sad com- said that night. I even wrote down the your trust. We have to do it the right mentary that we find ourselves having music we heard that evening. way. to prepare in haste, without adequate When I came to the Senate as a 34- We have a dear friend, a former col- notice and under the strictures of pos- year-old—I was going to say ‘‘former league, a man for whom we both have sible cloture, to fend off this proposed prosecutor’’ but the first time I met respect and great affection, the distin- change in our Federal Constitution. him was before I was sworn in. I was guished former Senator from Oregon, Think of it! still a prosecutor. I recall meeting with Mark Hatfield. He and the Senator I do not question the sincerity of the him during the lame duck session. I from West Virginia have served alter- proponents of the measure, but I do don’t want to embarrass my good nately as chairman and ranking mem- question the necessity for a constitu- friend from West Virginia, because he ber and then as ranking member and tional amendment to achieve their met so many young Senators. But I re- chairman of the Senate Appropriations goals and our goals. I also question the member so well that it was a lame Committee. I have quoted Senator Hat- necessity, which is being forced upon duck session. I sat in the reception field on this floor, and I believe my friend from West Virginia remembers us, to make such a basic decision under room and Senator BYRD came out. I the Damocles’ sword of limited debate. started to reintroduce myself—after very well that balanced budget vote under enormous pressure on the Sen- That is not what our forefathers had in all, he meets so many—and he imme- ator from Oregon, especially when he mind for this great Senate. diately referred to having met me and knew it would be a 1-vote margin. He Surely no Senator needs to reread Senator-elect Durkin. He had absolute, said he would vote to protect the Con- history in order to remember how total recall of that time. stitution and do what was right. Both much blood and treasure it has cost I think about this because recently the Senator from West Virginia and I throughout the long centuries, dating in an unpleasant and unfortunate con- complimented him afterwards. I re- back to the Magna Carta and beyond, stitutionally necessary event in this member the steadfastness of Senator to establish the greatest document of body a year ago when all 100 Members Hatfield. its kind that was ever written—the of the Senate sat at the impeachment That is what we have to do on this Constitution of the United States, a trial. I recall a member of the other floor. We have stood together on very Constitution which, in the words of body made disparaging remarks about difficult treaty matters. We have stood Chief Justice Story, is ‘‘not intended to the Senate and that the House Man- side by side casting votes that at the provide merely for the exigencies of a agers would have to simplify things so time were unpopular. History has prov- few years’’ but ‘‘to endure through a we Senators could understand it. He en us right. long lapse of ages, the events of which came over to introduce himself to the The Senator from West Virginia has were locked up in the inscrutable pur- distinguished Senator from West Vir- cast well over 15,000 votes; I became poses of Providence.’’ ginia. I was sitting here. the 21st person to cast 10,000 votes, so Mr. President, I yield the floor. He said: Senator BYRD, I may have I have a long way to catch up. We can The PRESIDING OFFICER. The Sen- somewhat overstated that. all go back and find votes we might do ator from Vermont. Senator BYRD looked at him and differently today. But if it is a statute, Mr. LEAHY. Mr. President, I wish to said: I want you to understand two if it is an amendment, if it is a proce- do what I have done several times on things: I pay close attention and I have dural motion we usually get a chance the floor this week, and that is to a long memory. to vote on it again. thank my good friend and colleague, I repeated that to my oldest son and If it is a budget matter, whatever the the distinguished senior Senator from he said: Dad, Senator BYRD’s right on issue might be, it is going to come up West Virginia. He is to all our col- both accounts. again and again. Use your experience leagues not only a dear friend but a I know that long memory and we to make sure you do it right—maybe great mentor. As I have said—and I re- benefit by it. modify it, maybe change it, maybe re- alize I repeat myself—I have learned so I was thinking today when I came to peal it, maybe add to it. There is one much history not only this week but in work how fortunate I am. I have said exception—a constitutional amend- the 25 years I have served with him. many times on the floor of the Senate, ment. Write a constitutional amend- Senator BYRD was one of the very we serve at the wishes of our State, but ment. If that is then ratified, if that first Senators I met after I was elected service is a privilege. Every time I goes into effect, we do not come back to the Senate. We chatted at a dinner, come to the Capitol I feel privileged. I and change it. in Boston, which he will recall, at the have felt no more privileged in my 25 Look at the example the distin- residence of the then-mayor of Bos- years than in the past few days in this guished Senator from West Virginia ton—he and I and a classmate of mine debate on the constitutional amend- mentioned about prohibition, a bad from law school, John Durkin. John ment. We can not debate anything mistake in the Constitution. A lot hap- and I had both graduated from law more significant on this floor, any- pened. Finally it was changed, but only school 10 years before, and probably of thing that will affect history, long after a great battle.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00048 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6051 That is why we should always hesi- There was a popular misconception initiating their own private prosecutions. It tate. That is why the dean of our party, behind the proposed constitutional was decades after the ratification of the Con- the No. 1 in seniority in our party, has amendment. The distinguished Senator stitution and the Bill of Rights that the of- fices of the public police and the public pros- opposed this proposed constitutional from California, Mrs. FEINSTEIN, ecutor would be instituted. . . .’’ amendment. From one who is No. 6 in touched on this on the first day of the seniority to the Senator who is No. 1, I debate, and actually again today, when When I heard my distinguished col- applaud what the Senator has done. she discussed her theory as to why vic- league say there was no such thing as This is not a party issue. The Senator tims are not specifically mentioned in a public prosecutor in this country from West Virginia knows we have had either the original Constitution or the when the Constitution was drafted, I Senators from both sides of the aisle, Bill of Rights. was surprised. I had been a public pros- even some who were cosponsors, say, According to Senator FEINSTEIN, ecutor. I was the vice president of the ‘‘You are right, let’s back up.’’ This when the Constitution and the Bill of National District Attorneys Associa- proposed amendment will be withdrawn Rights were written in the late 18th tion at the time I was elected to the some time today. I hope the United century, public prosecutors did not Senate. The fact is that, had I not States has learned the Constitution is exist. I should quote exactly what the opted for the anonymity of the Senate, not something to treat in a cavalier distinguished Senator, my good friend, I was next in line to become president fashion. told us on this point. She said: of that association, one of my few re- I thank my friend from West Vir- When the Constitution was written, in grets in having to leave to come here, ginia. America in the late 18th century and well but the Senate would not wait. And, Mr. BYRD. Mr. President, I thank into the 19th century, public prosecutors did frankly, I did not want to wait. the able senior Senator from Vermont not exist. Victims could, and did, commence But as a former public prosecutor for his overly charitable words con- criminal trials themselves by hiring a sheriff and one who studied a great deal of his- cerning me. I thank him for his stead- to arrest the defendant, initiating a private tory of prosecution, I was quizzical. So prosecution. The core rights of our amend- fast support on the Constitution. I I did a little research. ment to notice, to attend, to be heard were I might say, when I state that, you thank him for the positions he has inherently made available to a victim of a taken on many occasions during the violent crime. understand, of course, we Senators are often times but constitutional impedi- years we have served together—posi- She then quotes the following pas- ments to our staff. But, by the same tions that were in the best interest of sage from an article by Juan Cardenas, token they deserve a lot of credit, Julie the Constitution, best interest of this in the ‘‘Harvard Journal of Law and Katzman, in my office, an able lawyer, institution, and in the best interest of Public Policy’’: our country. did a lot of research as did Bruce Cohen At trial, generally, there were no lawyers from the Judiciary Committee. They I join with the Senator in recalling for either the prosecution or the defense. the new profile in courage that was es- Victims of crime simply acted as their own found this article by Mr. Cardenas that tablished by our former colleague, Sen- counsel, although wealthier crime victims Senator FEINSTEIN quoted, which does ator Hatfield. He stood as a rock under often hired a prosecutor. appear in volume 9 in the ‘‘Harvard the pressures of colleagues. Those were She then continued: Journal of Law and Public Policy.’’ In difficult pressures, in the party con- Gradually, public prosecution replaced the fact, if you take the passage the distin- ference. He was threatened with his po- system of private prosecution....[T]his guished Senator from California quoted sition as chairman of the Appropria- began to happen in the mid 19th century, and relied upon, from page 367, about tions Committee. That took courage. around 1850, when the concept of the public how victims of crime used to act as And he had it. He had the real stuff. I prosecutor was developed in this country for their own counsel, it is describing the hope he is listening today. We don’t the first time. general practice in this country in the forget men such as Mr. Hatfield. She then argued the Constitution 17th century, not in the late 18th cen- Again, I thank my friend; he is my must now be amended to rebalance the tury when the Constitution was writ- friend, and I think of him as my friend. criminal justice system and ‘‘restore’’ ten. He is a very generous person, a person rights to crime victims. Mr. Cardenas discusses what hap- whom I would think of as a Good Sa- The distinguished chairman of the pened at the time of the American Rev- maritan in this journey of life. Judiciary Committee, also my friend, olution on page 371, a few pages after I thank him for his work here. He Senator HATCH, told us on Tuesday the passage quoted by the sponsor of will be here, he will be, long after the that he draws the same conclusion this proposed constitutional amend- good Lord has taken me away. But he from history. He said that when the ment. He writes: will be there holding the torch, holding Constitution was drafted: Whatever its derivation, the American sys- the Constitution, holding up this insti- There was no such thing as a public pros- tem of public prosecution was fairly well es- tution. And there will by others, and I ecutor; victims brought cases against their tablished at the time of the American Revo- hope there will be more, day by day. attackers. lution. I thank the Senator, and I yield the He then said: Mr. Cardenas notes that Connecticut floor. When the Constitution was drafted, vic- was the first colony to establish a sys- The PRESIDING OFFICER. The Sen- tims of crime were protected by the same tem of public prosecutors, in 1704, over ator from Vermont. rights given to any party to litigation. 80 years before the Constitution was Mr. LEAHY. Mr. President, in my ca- Not surprisingly, the majority views written. pacity as ranking member of the Sen- in the report of the Senate Judiciary In Vermont, the Office of the State’s ate Judiciary Committee, I also think Committee are likewise predicated on Attorney is established in chapter II, it is necessary, as we wind down this the notion of ‘‘restoring’’—‘‘restoring’’ section 50 of the State constitution of debate, that I take care of a couple of rights to crime victims that they en- 1793. Even before Vermont joined the misconceptions that occurred during joyed at the time the Constitution and Union as the 14th State, it had a sys- the debate. Bill of Rights were being ratified. The tem of public prosecutions run by the My late father, a man who had so majority views said the following: State’s Attorneys. Samuel Hitchcock much to do with shaping my views, a The Crime Victims’ Rights Constitutional was State’s Attorney for Chittenden man who was a self-taught historian— Amendment is intended to restore and pre- County, VT, from 1787 to 1790, during a very good one, I might say—always serve, as a matter of right for the victims of the time that the Federal Constitution told me if somebody misstates history, violent crimes, the practice of victim par- and the Bill of Rights were being writ- ticipation in the administration of criminal it is wise that someone else stands up justice that was the birthright of every ten. Samuel Hitchcock was State’s At- and states it correctly so the mistake American at the founding of our Nation. torney in Chittenden County, from 1787 does not go down to the next genera- At the birth of this Republic, victims could to 1790, some time before I became tion. participate in the criminal justice process by State’s Attorney, in the last century—

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00049 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6052 CONGRESSIONAL RECORD—SENATE April 27, 2000 or, this century, depending upon how public prosecution and had organized it on a in this country for the first time we do this. In May of 1966, until 11:59 in local basis. In many instances, a dual pat- ‘‘around 1850,’’ as the Senate was mis- the morning on January 3 of 1975, I tern was established within the same geo- takenly told on Tuesday. All these au- served as State’s Attorney, also, of graphical area, by county attorneys for vio- thorities agree that public prosecutors Chittenden County. At 12 noon, Janu- lations of state law and by town prosecutors for ordinance violations. This pattern was have been around in this country for ary 3, I took a different job. I have held carried over into the states as they became much longer—about 150 years longer— it ever since. part of the new nation. and that they were the rule, not the ex- Now, private prosecutions may not Actually, for almost 200 years that ception, by the time Mr. Madison and have been eliminated in all the colo- Mr. Hamilton and all the other framers nies by the time the Constitution was was the system in my own State of Vermont. Now prosecutions are done of our Constitution got together in written. They were, however, elimi- Philadelphia in 1787 to draft our Na- nated in Virginia, home of some of the by the State’s Attorneys of the 14 counties and, in some instances, by the tion’s founding charter. foremost architects of the Constitu- If the Bill of Rights, which was writ- tion. Mr. Cardenas writes: Attorney General. Professor Goldstein goes on to dis- ten a few years later, makes no specific [B]y 1711, the attorney general [of Vir- mention of crime victims, it is not be- ginia] appointed deputies to each county in cuss the fact that the Federal system the state, and these deputies began exer- of prosecution was always a system of cause the framers thought victims cising their authority to prosecute not only public prosecution. Under the Judici- were protected by a system of private in important cases, but in routine ones as ary Act of 1789, enacted the same year prosecutions. well. . . . By 1789, the deputy attorney gen- the Constitution was ratified, the U.S. My point, of course, is the proposed eral had complete control over all prosecu- Attorney General was ‘‘to prosecute constitutional amendment on victims’ tions within his county. and conduct all suits within the Su- rights cannot be justified as ‘‘restor- There was a place that had the sort preme Court of the United States in ing’’ victims’ rights enjoyed at the of criminal justice system that the dis- which the United States might be con- time the Constitution and the Bill of tinguished chairman of the Senate Ju- cerned.’’ The general authority to Rights were drafted. Rather, if we are diciary Committee and others attrib- ‘‘prosecute in each district’’ for Fed- to draw any lesson from history, it is uted to the time the U.S. Constitution eral crimes was vested in local U.S. dis- that the framers believed victims were was written, but that place was not the trict attorneys appointed by the Presi- best protected by the system of public United States. Mr. Cardenas describes dent. prosecutions that was then, and re- it on page 360 of his article: Professor Goldstein is a highly re- mains, the American standard for The right of any crime victim to initiate spected scholar. He is the Sterling Pro- achieving justice. and conduct criminal proceedings with the Mr. President, I ask unanimous con- paradigm of prosecution in England all the fessor of Law at Yale Law School. In way up to the middle of the 19th century. fact, at one time he was the dean of sent to print in the RECORD a letter dated April 25 from Assistant Attorney It was England that had a system of that prestigious institution. He is General Robert Raben opposing the private prosecution in the 18th and 19th widely regarded as an authority on proposed constitutional amendment. centuries, not the United States, not criminal law and criminal procedure. There being no objection, the letter even New England in the United When Professor Goldstein says every was ordered to be printed in the States. American colony had established some To make sure I had my facts form of public prosecution by the time RECORD, as follows: straight, I had to look through some of the Revolution, I think we Senators U.S. DEPARTMENT OF JUSTICE, other historical source material. I can probably take that to the bank. OFFICE OF LEGISLATIVE AFFAIRS, Washington, DC, April 25, 2000. looked at an essay in volume 3 of the To be on the safe side, since we heard Hon. TRENT LOTT, ‘‘Encyclopedia of Crime and Justice’’ Senators say otherwise about this, I Majority Leader, U.S. Senate, Washington, DC. by Professor Abraham S. Goldstein on thought we should check further. We DEAR MR. MAJORITY LEADER: I write to the history of the public prosecutor in checked another source, a 1995 article convey the views of the Department of Jus- America. Professor Goldstein tells us by Professor Randolph Jonakait of the tice on S.J. Res. 3, a resolution setting forth essentially the same thing as Mr. New York Law School. It appears in the text of a proposed Victims’ Rights Cardenas. volume 27 of the Rutgers Law Journal Amendment (VRA) to the Constitution, Most American colonies followed the beginning on page 77. Not surprisingly, which was voted out of the Committee on English model of private prosecutions it says much of the same thing about the Judiciary on September 30, 1999, and sent in the 17th century, but as Professor the history of public prosecutions as I to the full Senate. The Department con- tinues to have significant concerns with four Goldstein tells us, that system ‘‘proved had already learned from Mr. Cardenas aspects of S.J. Res. 3. Although we continue even more poorly suited to the needs of and Professor Goldstein. strongly to support a victims’ rights amend- the new society than to the older one.’’ I quote from page 99: ment to the Constitution, and would support For one thing, victims abused the sys- Although the American colonies initially S.J. Res. 3 if the concerns detailed in this tem by initiating prosecutions to exert followed the English prosecutorial pattern, a letter were addressed, we oppose the amend- pressure for financial reparation. These different process began to emerge around ment in its current form. In the interim, we colonies shifted to a system of public 1700. Public officials took responsibility for hope you will continue to help crime victims prosecutions because they viewed the the prosecution of crimes generally or just through the enactment of appropriate legis- system of private prosecutions as ‘‘in- for the limited set of offenses that directly lation. As you know, the President and the Attor- efficient, elitist, and sometimes vindic- affected the sovereign. As public prosecutors emerged, private prosecutions in the colo- ney General both strongly support a victims’ tive.’’ rights amendment that will ensure that vic- According to Professor Goldstein, nies disappeared. This evolution of the American criminal justice system was quick tims have a voice in the criminal justice sys- some of the colonies have no history at and thorough. By the time of the Revolution, tem. See Pres. Proc. No. 7290, 65 FR 19823 all in private prosecutions. In the areas public prosecution in America was standard, (Apr. 10, 2000); Speech of Attorney General settled by the Dutch in the 17th cen- and private prosecution, in effect, was gone. Janet Reno to the National Organization for tury, consisting of parts of what are Indeed, it was so established and taken for Victim Assistance (Apr. 7, 2000). At the same now Connecticut, New York, New Jer- granted at the inception of the new Federal time, this Administration believes that our sey, Pennsylvania, and Delaware, the Republic that public prosecutors, although constitutional system, which the Framers Dutch brought public prosecutions not mentioned in the Constitution, were, established after much deliberation and de- bate, has served our nation well for more with them. without debate, granted exclusive control over prosecutions in Federal courts. than 200 years and should not be altered In any event, Professor Goldstein without the most cautious deliberation. See comes to the same conclusions as Mr. Mr. Cardenas, Professor Goldstein, Statement of President Clinton in Support of Cardenas. On page 1287, he writes: and Professor Jonakait are all quite Victims’ Rights Constitutional Amendment [B]y the time of the American Revolution, clear that the concept of government- (June 25, 1996). Our support for the VRA has each colony had established some form of paid public prosecutors did not develop rested on the premise that the Amendment

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00050 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6053 would not undermine existing constitutional of executive clemency requests so that he See 18 U.S.C. § 3742(b); United States v. provisions’ thus, our first concern has been may receive the information he deems nec- DiFrancesco, 449 U.S. 117, 137 (1980). Likewise, that the resolution lacks an express provi- essary, including input from victims and the States can legislatively protect victims sion preserving the rights of the accused. In others. The current procedures are set out at in this regard by authorizing state prosecu- light of our role as the chief federal law en- 28 C.F.R. § § 1.1–1.10. The Department is pres- tors to appeal criminal sentences that do not forcement agency, our support has also de- ently exploring how, and under what cir- satisfy state restitution statutes. Congress pended on the Amendment not hampering ef- cumstances, additional victim interests can and the States can also enact legislation to fective law enforcement; accordingly, our be best integrated into the Department’s ad- address perceived gaps in current laws with- second concern has been the unduly strin- visory role in counseling the President as he out going so far as to amend the Federal gent standard for creating exceptions to the makes decisions about clemency. Constitution. Amendment’s applicability where necessary Furthermore, the pardon provision differs DOING MORE FOR VICTIMS WHILE IMPROVING THE to promote the interests of law enforcement. from the rest of the VRA, which focuses on AMENDMENT We are committed to an amendment that criminal proceedings. Although other provi- gives real rights to victims while satisfying sions of the VRA would give victims rights This Administration, with Congress, as these basic criteria. This letter augments in proceedings in which defendants have kept its commitment to victims of crime, our previous letter of June 17, 1998 (en- rights, the pardon provision would grant vic- even as it has pushed aggressively for a vic- closed), regarding the then-current S.J. Res. tims rights in a setting in which no one—in- tims’ rights amendment. We have witnessed 44, in which we noted the above-mentioned cluding defendants—has ever possessed historic reductions in violent crime over the concerns. This letter also reflects further rights, and that has always been controlled past seven years, and through our efforts, concerns we have about the Amendment’s entirely by the President. The Framers as- criminal victimization is at its lowest point application to the pardon power and the re- signed this power wholly to the President, in twenty-five years. opening of restitution that we discussed with and we oppose any amendment that would Even with the significant drop in violent committee staff before markup in Sep- encroach upon it. crime, we have not become complacent. In 1994 the President signed into law the Vio- tember. LAW ENFORCEMENT CONCERNS lent Crime Control and Law Enforcement PRESERVING THE EXISTING CONSTITUTION As we have noted previously, we are con- Act, which gives victims of violent crime As we stated in our previous letter, we be- cerned that the very high standard for excep- and sexual abuse the right to speak out in lieve that, to ensure the protection of exist- tions to the Amendment’s victims’ rights court before sentencing, providing them the ing constitutional guarantees, the VRA guarantees in Section 3 of S.J. Res. 3 would opportunity to describe the impact such vic- should contain language that expressly pre- render the government unable to remedy the timization has had on their lives. serves the rights of the accused. To that end, practical law enforcement problems that The Department, working with Congress, we urged that the following language be may arise under the Amendment. We believe has also provided unprecedented levels of added: ‘‘Nothing in this article shall be con- that the authority to create exceptions funding for victims’ services. Since 1993, we strued to deny or diminish the rights of the should exist where necessary to promote a have received over $2.2 billion in the Crime accused as guaranteed by the Constitution.’’ ‘‘significant’’ government interest, rather Victims’ Fund, over 90 percent of which has Moreoever, we are concerned that new lan- than the ‘‘compelling’’ interest required by been distributed to the states and victims’ guage that has been added to the proposed the current draft. It is important that the compensation and assistance funds. The Vio- VRA would further alter our existing con- VRA be flexible enough to permit effective lence Against Women Act has also infused stitutional framework. Section 1 of S.J. Res. and appropriate responses to the variety of new dollars into victim services: under that 3 has been amended to grant victims the difficult circumstances that arise in the act, the Department has funded nearly $1 bil- right ‘‘to reasonable notice of and an oppor- course of implementing the Amendment. lion in new domestic violence programs for tunity to submit a statement concerning any This concern is explained in more detail in states, communities, and tribes since 1995. proposed pardon or commutation of a sen- our letter of June 17, 1998. In addition to funding, the Department has tence.’’ This provision would create an un- Our last issue concerns the addition of res- taken other steps to improve the way it pro- precedented incursion on the President’s ex- titution to the list of proceedings and rul- vides services to victims. We are auditing clusive power to grant pardons, commute ings subject to retrospective relief. We be- every component that has any responsibility See sentences and remit restitution. U.S. lieve that any remedies provision should for our contact with victims to assure appro- Schick Const. art. 2, § 2, cl. 1 (pardon power); strive to make rights of victims real and en- priate staffing, improve practices and ad- v. Reed, 419 U.S. 256, 263–64 (1974) (commuta- forceable, while ensuring that society’s and dress problems. We have also revised and up-

tion power falls within the pardon power); victims’ interests in finality and effective dated the Attorney General’s guidelines for see also Knote v. United States, 95 U.S. 149, 153– law enforcement are not undermined. Meas- victim assistance. 155 (1877) (pardon power includes authority ured against these objectives, we believe There is more yet that can be done while to remit unpaid financial obligations im- Section 2 of S.J. Res. 3 is overly broad and we continue to strive for an appropriate con- posed as part of a sentence). The Supreme would unduly disrupt the finality of sen- stitutional amendment. For example, as Court has observed that ‘‘the draftsmen of tences. The current language would appear then Associate Attorney General Raymond [the pardon clause] spoke in terms of a ‘pre- to permit a victim to reopen the restitution Fischer testified before the Senate Judiciary rogative’ of the President, which ought not portion of a sentence for any reason at all, at Committee in 1998, we can enact federal leg- Schick, be ‘fettered or embarrassed.’ ’’ 419 any time, even after a sentence has been islation that will improve victims’ rights U.S. at 263. The Court has also observed that served in full. The problems for law enforce- and services in the federal system while at ‘‘whoever is to make [the pardon power] use- ment that could be caused by this provision the same time providing funds and other in- ful must have full discretion to exercise it.’’ include, for example, the possibility that be- centives to states to improve their own vic- Ex parte Grossman , 267 U.S. 87, 121 (1925). In cause of the limited economic means of tims’ rights laws and policies.1 By passing addition, we note that this provision could many defendants, restitution awarded to such legislation, we can build a crucial encroach upon the clemency powers of gov- some victims at sentencing might have to be bridge to the victims’ rights amendment. ernors in states where their authority is also decreased to accommodate subsequent We appreciate the Judiciary Committee’s plenary. claims by victims who come forward after willingness to work with the Department on S.J. Res. 3 does more than simply diminish sentencing; the potential that defendants issues relating to the Victims’ Rights the control over pardons that the Framers will litigate the reopening of a restitution Amendment over the last four years. Al- vested in the President; it does so in particu- order without the reopening of other parts of though we continue strongly to support a larly significant ways. The proposed lan- the sentence; and the difficulty in reaching victims’ rights amendment to the Constitu- guage would require the President to give and defending plea agreements in light of tion, and would support S.J. Res. 3 if the victims notice and an opportunity to submit possible reopenings of and changes in the concerns detailed in this letter were ad- a statement (Section 1), and would arguably terms of restitution. In our view, these dressed, we oppose the amendment in its cur- permit a court to reopen a pardon, commuta- issues constitute serious obstacles to includ- rent form because it fails to do so. We urge tion, or remission of restitution (Section 2). ing restitution among the matters subject to the Senate to continue to work with the De- It also seemingly would authorize Congress retrospective relief. partment in improving the constitutional to regulate the pardon power in some re- Further, we believe the inclusion of res- amendment, while in the interim, continuing spects by granting Congress ‘‘the power to titution in Section 2 is not necessary in light enforce [the VRA] by appropriate legisla- of existing legislation providing relief for tion,’’ rather than reserving enforcement au- victims who are denied restitution or whose 1 In this regard, it is worth noting that, thanks to thority to the President (Section 3). By con- restitution is inadequate. If a federal court the concerted efforts of crime victims’ advocates and governmental bodies at all levels, all fifty trast, under our existing constitutional fails to impose restitution in accord with States have now enacted laws safeguarding crime framework, the President has both the re- controlling statutes, the government can ap- victims’ rights in the criminal justice process, and sponsibility and authority to determine the peal the unlawful sentence without impair- 32 States have amended their constitutions accord- procedures for his Administration’s handling ing the defendant’s Double Jeopardy rights. ingly.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00051 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6054 CONGRESSIONAL RECORD—SENATE April 27, 2000 to assist crime victims through the enact- constitutional amendment. Many of guarantee two things: Guarantee the ment of appropriate legislation. Should you them are decorated war veterans. BOB freedom of speech, including the free- have any questions, please do not hesitate to KERREY, for example, is the only Mem- dom to say things that might be un- contact me. Sincerely, ber of this body to hold the Congres- popular at the moment because you ROBERT RABEN, sional Medal of Honor. The vote did not may find within a few years they will Assistant Attorney General. mean they do not respect the flag. be the popular ones; and, secondly, Mr. LEAHY. Mr. President, I have When Gen. Colin Powell and Senator guarantee the right to practice any re- said over and over that no one in the John Glenn opposed the flag amend- ligion you want, or none, if you want. Senate is against crime victims. I care ment, it was not because they lack de- Because if you protect those two deeply about the rights of crime vic- votion to this country. Anybody would rights, you protect diversity. If you tims, just as I care about the rights of be hard pressed to find two people more protect diversity in your country, you all Americans. patriotic than they. Far from it, they protect democracy. I established one of the first formal are American heroes who showed their I say that those who have opposed systems in my State to make sure patriotism by standing up for the Bill this constitutional amendment are not crime victims are heard. It is some- of Rights. Frankly, that is ultimate pa- doing it because they lack concern for thing that is done all the time now. In triotism. victims’ rights. Decent and sincere peo- fact, one of the distinguished family There have been studies over time in ple in both parties who serve in this court judges, Judge Amy Davenport, which people are asked about different Chamber respect victims’ rights, but was in town yesterday and listened to parts of our Bill of Rights that we all many of us oppose this amendment. I part of this debate. She said: There is rely upon, and the study would say: support crime victims’ rights. I do not nothing you talked about here that we Would you vote for the right of free support a victims’ rights constitu- just don’t do automatically. In speech today, the right of assembly, or tional amendment. Vermont, we do not need a constitu- some of these others? People say: Yes, The issue before the Senate is wheth- tional amendment to do it. all except this or all except that. er to amend the U.S. Constitution—and We all care about the rights of crime Thank goodness people had the courage almost double the length of the entire victims. This is not a case of for or to write and vote for it earlier. Our Bill of Rights—by adding a complex against amending the Constitution. We country has it. And then others made listing of constitutional victims’ rights establish whether we care about crime sure we did not go back and change it and limitations that may diminish the victims. We all do. I care about their because we might have some problems. Constitution and do little to protect rights. I also care about the rights of In my years in public life, I cannot victims. It is not like passing a com- mothers and expectant mothers, the think of more times that devotion to memorative resolution. rights of immigrants, the rights of the first amendment has been tested or Do we have to pass constitutional workers, the rights of farmers, the that any area in the Constitution has amendments to prove we care about rights of hospital patients, the rights been tested more than the first amend- people? We care about victims, but we of the young, the rights of the old, the ment. We do not need the first amend- also care about mothers, immigrants, rights of people seeking housing, the ment to protect popular speech; we workers, farmers, hospital patients, rights of students, the rights of artists, need it to protect unpopular speech. the young, the old, artists, journalists, journalists, and scientists, the rights of That really is the crux of why we scientists, nature lovers, and families. those people who care about the envi- should care about amending our Con- We have heard complaints in this ronment, and the rights of families. stitution and carving exceptions or Chamber more than a few times about I do not know anybody in this body, making changes in our Constitution. ‘‘group entitlements.’’ We are not Democrat or Republican, who does not We had a Member of Congress in going to have a constitutional amend- care about the rights of all these peo- Vermont who was prosecuted under the ment for every group. ple. Alien and Sedition Act in a way that Stuart Taylor recently wrote in the We all care about the rights of all we all know would be highly unconsti- National Journal about this amend- law-abiding Americans. We could eas- tutional. Why? Because he criticized ment. He wrote: ily pass unanimous resolutions to that the Federal Government. They locked Most of us agree, of course, that prosecu- effect. But Americans want practical him up. You know what? This is why I tors and judges should be nice to crime vic- solutions to practical problems from love my native State of Vermont: We tims (as they usually are). Most of us also their Government, not just expressions do not let other people tell us what to agree that parents should be nice to their of concern. They certainly do not want think. While he was locked up, what children. But would we adopt a constitu- us to try to define every one of these did we do? We reelected him and sent tional amendment declaring, ‘‘Parents shall be nice to their children’’? Or ‘‘Parents shall rights in a separate constitutional him right back down to Congress. And give their children reasonable notice and an amendment. the shame was on those who supported opportunity to be heard before deciding So the issue is not whether we care the Alien and Sedition Act, they were whether and how to punish older children about the rights of crime victims. I soon gone. who have pushed them around’’? Would we point out that a couple weeks ago my It was a Vermonter, I think the most leave it to the courts to define the meaning dear friend Senator FEINGOLD voted outstanding Vermont U.S. Senator of of terms like ‘‘reasonable’’ and ‘‘nice’’? against a constitutional amendment to the 20th century, who stood on the A ban on spanking, perhaps? A minimum limit campaign contributions. Anyone floor of this body—a quintessential of one candy bar per day? Would we let the conservative—Republican Ralph Flan- courts override all state and federal laws who would infer from that vote that that conflict with their interpretations? Senator FEINGOLD is not passionate ders of Vermont, who introduced a mo- We don’t need constitutional amendments about campaign finance reform knows tion of censure against Joseph McCar- to embody our broad agreement on such gen- nothing about Senator FEINGOLD and thy, the late Senator from Wisconsin. eral principles. And we should leave it to the his attitude about campaign finance re- Joseph McCarthy ran roughshod for states (and Congress) to detail rules for ap- form. In all the years I have been here, too long over the first amendment of plying such principles to the messy realities I have never seen anybody as pas- the United States, and lives and ca- of life. sionate about it as he. reers were ruined because of his accu- There is no precedent in a national Recently we voted on a constitu- sations. Ralph Flanders stood up and constitution for a victims’ rights tional amendment to criminalize phys- called a halt to that. Then other Sen- amendment. But there is precedent for ical destruction of the American flag. ators came forward and joined with treating constitutional provisions as Senators BOB KERREY, ROBERT BYRD, him. That reign was over. group entitlements. For most of the MITCH MCCONNELL, BOB BENNETT, DAN- I would say to anyone who visits the 20th century, there was a nation that IEL INOUYE, DANIEL PATRICK MOYNIHAN, United States, from whatever country, rejoiced in criticizing America for not and many others voted against that if you want to guarantee a democracy, caring about the rights of various

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00052 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6055 groups of law-abiding people because any of procedural rights without sub- tion, as he wondered which one of these we did not have such provisions in our stance. Instead, they responded to a fishing boats he should try to inter- Constitution. That nation had special real, practical history of abuse by cept, knowing he could not intercept constitutional provisions for mothers, State governments of the rights of Af- any of them because he could not catch immigrants, workers, farmers, hospital rican-Americans. Even then our Nation them. patients, the young, the old, artists, was shamefully slow in implementing Whether it was because of the ‘‘fish- journalists, scientists, nature lovers, the anti-slavery amendments. ing’’ or not, for at least a generation and families. The proposed amendment under con- thereafter, the two most popular I would have brought a copy of its sideration is fundamentally mis- brands of alcohol in Vermont were the 1977 constitution along with me today conceived. It would be the most proce- two that are also the most popular in if I could carry it. But some of our visi- durally complex provision of the entire the Province of Quebec, right across tors today know that country is no Constitution, within just a few words the lake. longer here, the former Union of Soviet of doubling the length of the entire Bill As I said, I digress. But prohibition Socialist Republics. Back then, I felt of Rights. Every school child, every caused such a disrespect for the law. It confident that Mr. Madison and his senior citizen, every American can really made us look foolish, but it took compatriots had done a better job of pick up this Constitution and read it forever to change it because it was in drafting a Constitution than Mr. and understand it. That is the beauty the Constitution. If we made the mis- Lenin, Mr. Stalin, or Mr. Brezhnev, and of it. That is the strength of it. That is take of doing it as a statute, we could I am no less proud to be an American why a quarter of a billion people live in have amended it. We could have today. Madison, Jefferson, Washington, such freedom. changed it within a year. Everybody and the other founders understood We have referred to the last Amer- knew it was not working. Everybody three key lessons other countries are ican precedent for a constitutional knew it was increasing the power of or- only learning now, 200 years later. amendment to increase the power of ganized crime. Everybody knew it was First, in a democracy, it is better to government over law-abiding citizens. bringing about corruption and bribery have a short constitution everyone can That was prohibition. It was well in- and everything else. But worse than read and understand rather than a long tentioned but, my word, what a dis- that, a democracy can enforce its laws one full of symbolic declarations, aster. It ended up staining the reputa- only if people respect the laws. A de- legalese, and procedural details. I hold tion of Senator Volstead and others mocracy can work only if we know the Constitution, including the Bill of who championed its cause. It was so ill that these laws are fair and these laws Rights and the Declaration of Inde- suited to the framework of our Con- are just. We do not have a police officer in pendence in this little booklet. stitution that it bears the distinction The distinguished senior Senator everybody’s house. We do not have a of being the only constitutional from New York mentioned a country police officer on every corner. We ex- amendment that had to be repealed. we all respect, a democracy, France, pect people to obey the laws. But if I still remember the stories I was which amended its Constitution so they have no respect for them, then told as a child, many in Vermont, of many times to fit in every single little they do not. In all the years it took to good, upright citizens who prospered thing they could possibly think of so repeal this, for over a decade, the laws greatly during prohibition, perhaps be- that, as the story goes, in the libraries in this country and the people’s respect cause of the fortuitous aspect of our they do not file it under ‘‘constitu- for the laws of this country diminished geographical location bordering on tion,’’ they file it under ‘‘periodicals.’’ every single year. Nobody could do Canada. Well, I do not want that to be the U.S. anything about it because it takes so If I could digress for a moment, we Constitution. long to repeal a constitutional amend- have a large lake in the northern part Secondly, in a free society, the pur- ment. pose of a constitution is to constrain of Vermont, Lake Memphremagog. My So let us look at statutes when we the government, to establish a govern- wife was born on the shores of Lake can. Let us think of article V of the ment of limited powers, with the rest Memphremagog, as she quickly points Constitution, which says you amend of the powers to the people, not a gov- out, on the Vermont side. Her parents, only when necessary. ernment of expanding responsibilities. of French Canadian descent moved Last, but by no means least, the pro- Jefferson and Madison trusted to the there to take up life as new American posed amendment is not a practical re- States and the American people to care citizens. She became a first-generation sponse to a practical problem. Many for the rights of victims of crime and of American. States are ahead of the Federal Gov- other misfortunes by means of the Lake Memphremagog is a magnifi- ernment in protecting victims’ rights. democratic process and by using the cent lake that is half in Vermont and Recent years have seen huge advances tool at hand to solve problems as they half in Canada. During prohibition in protection of victims’ rights in arose. They did not mandate a set of time, some of the farmers who had lit- State constitutions and State legisla- procedures for relief of every problem tle farms, one or two cows and a falling tion, in the provision of restitution or by calling them rights and then tack- down barn along the lake, had very ex- other compensation where practical, ing them on to the Constitution. In- pensive Chris-Craft speedboats. I men- and in improvement of law enforce- stead, they reserved the Constitution tion this because the local Customs of- ment resources and techniques to en- for the protection of the people from ficial had a slower boat with an out- sure proper regard for victims. the government itself. board motor. Every evening about While Congress has been focusing its Thirdly, in a nation of ordinary prac- dusk, these farmers would go out with attention on more than 60 drafts of a tical people, what is needed are prac- their high-powered speed boats and constitutional amendment on victims’ tical responses to practical problems, they would have their fishing rod and a rights, it has actually slowed us down not symbols of concern that at the end couple worms and they would head out from doing real improvement to the of the day are empty. Madison and Jef- across the lake toward Canada to go way crime victims are treated in Fed- ferson designed the original Bill of fishing, their speedboats riding high. eral courts and by Federal prosecutors. Rights to respond to actual govern- About 2 o’clock in the morning, you Our legislative achievements of the pe- ment abuses such as suppression of un- would hear this awful roar across the riod from 1994 through 1997 have not popular speech or unpopular religion or lake as several of these came back, ob- been matched in the last several years. unpopular newspapers, that the States viously the ‘‘fishing’’ having been very I fear this debate on the proposed con- and the Federal Government could not successful because the boats are now stitutional amendment will be in lieu be otherwise trusted to remedy in the riding much, much lower. You can of consideration of scores of significant normal course of events. imagine the chagrin of the poor Cus- legislative proposals introduced by Likewise, the Reconstruction toms agent who had to try to fulfill the Senators on both sides of the aisle to Amendments did not enact a long lit- prohibition provision of the Constitu- help victims.

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00053 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6056 CONGRESSIONAL RECORD—SENATE April 27, 2000 Violent crime is a serious practical tion to help victims of all kinds of nothing in the constitutional text or United problem in our society—far more than crime. The distinguished Senator from States Supreme Court precedents even hints it was even when I was a prosecutor. As Delaware has helped write laws that at a conflict with victims’ rights that com- a parent, as a grandparent, that trou- can take effect and have money and mand lower statutory status: the right to no- tice and to have views considered in prosecu- bles me greatly. But there is not a fun- teeth in them to help victims. I have torial, sentencing, parade, or commutation damental problem—certainly not one done some, as have others. Usually, we decisions and to attend criminal trials. requiring a rigid, one-size-fits-all set of join in bipartisan efforts to do it. But Amendment proponents have searched in constitutionally mandated proce- they have been pieces of legislation vain for a single court decision that supports dures—in how the States treat victims that, once signed into law, we could their fretting. of violent crimes today. watch. We could see if they were work- Crime victims have demonstrated stunning We have visitors in the gallery today ing, and if they did, fine, we could ex- success in majoritarian politics who need no from Russia, the successor to the constitutional protection from potentially pand them and give them more money. hostile legislation. As a chief sponsor of the former Soviet Union. The old Soviet If they did not work, we could change Amendment, Rep. Steve Chabot, Ohio Repub- Constitution demanded the obedience them. We cannot do that with a con- lican, testified last Thursday before the of Russians. It really was not very sub- stitutional amendment. House Judiciary Subcommittee on the Con- tle about it. Article 59 declared that I ask those who are for victims’ stitution, ‘‘In 1982, California became the every citizen was ‘‘obliged to observe rights to support congressional action first state to pass a Victims’ Rights Amend- the Constitution and comply with the on S. 934, the Crime Victims Assistance ment to its constitution. Since that time, 32 standards of socialist conduct.’’ Act. states, including my home state of Ohio, Well, the U.S. Constitution does not Mr. President, we have editorials in have passed similar amendments . . . rati- fied [by an average of] 79 percent of the vote command; instead, it counsels humil- opposition to this constitutional in state-wide referendums.’’ ity. It is humbling to consider the amendment from the Asheville Citizen- That is no surprise. Crime victims evoke great minds that drafted it, its clarity Times, the Baltimore Sun, the Chicago almost universal sympathy, and no one cam- and simplicity in laying down a frame- Tribune, the Herald, the Philadelphia paigns boasting, ‘‘I will vote against victims’ work to protect law-abiding people by Inquirer, the Richmond Times-Dis- rights.’’ ensuring limited, democratic govern- patch, the San Francisco Chronicle, Amendment apostles also urge that state ment. It is also humbling to think how the San Francisco Examiner, the San laws are disrespected by state judges or pros- ecutors. But that is unvariably true of new it has stood the test of time. It remains Jose Mercury News, the Seattle Post- laws during their childhoods. Legal training extraordinary what was achieved in 4 Intelligencer, the St. Petersburg and habits are customarily backward-look- short months in Philadelphia in 1787, Times, the Washington Times, the Col- ing, and legal bureaucracies lie midpoint be- when communication meant walking legiate Times, the Pittsburgh Post-Ga- tween sclerosis and rigor mortis. But troglo- from one building to another to talk to zette; and the South Bend Tribune. dyte judges, prosecutors, and clerks will die somebody, or sending a letter by horse- I ask unanimous consent that several or retire; their replacements will be victims’ back. In 4 short months, look at what of these articles be printed in the rights enthusiasts indoctrinated in the new they wrote. RECORD. gospel. The problem of inattention to state There being no objection, the mate- or victims’ rights laws will solve itself, in By contrast, we have been waiting the same way that unionization rights flow- twice that long for the House-Senate rial was ordered to be printed in the ered in the legal system in the 1930s after conference on the juvenile crime legis- RECORD, as follows: decades of crabbed interpretations and appli- lation to meet and complete its work— [From the Washington Times, Feb. 15, 2000] cations of statutes. something that could really help vic- AN UNCLUTTERED CONSTITUTION Amendment champions retort that vic- tims of crime in this country, some- (By Bruce Fein) tims’ rights would command more prosecu- torial and judicial respect if enshrined in the thing that could be done now and What keeps our Constitution sacred and Constitution. But prosecutors and judges something that could be sent down to accessible to the ordinary citizen is majestic take oaths to defend state laws every bit as the President and signed into law and brevity and a confinement to essentials. Amendments should thus be limited to much as they vow to enforce the Constitu- it would be the law of the land imme- tion. If they would honor the first more in diately. But we do not meet because issues of great and enduring moment that cannot be safely entrusted to popular ma- the breach than in the observance, the sec- the gun lobby said do not meet. jorities. The pending Victims’ Rights ond would fare no better. History also speaks We ought to be very slow in this Amendment, under active consideration by volumes. The 1866 Civil Rights Act pro- Chamber to presume that we know bet- the House and Senate and lukewarmly sup- tecting freedom leaped into the Constitution ter than the founders how to balance ported by the Clinton administration, falls with the 1868 14th Amendment, but the civil the power of government and the rights short of that historically exacting standard. rights of blacks were routinely ignored by courts, including the United States Supreme of the accused. We should be reluctant The amendment, House Joint Resolution 64, would dictate an array of victims’ rights Court, for almost a century during the ugly to presume that we can draft a one- era of Jim Crow. Similarly, did the Roman size-fits-all set of detailed procedural in federal or state criminal or auxiliary pro- ceedings. The motivation is irreproachable: Catholic creed induce greater compliance rules that will work to protect dif- to guarantee crime victims a minimum op- with the proclamation of Papal infallibility ferent people who are victims of dif- portunity to be heard or to be otherwise in- in 1870? ferent crimes in cases in different volved when the disposition of their preda- Victims’ rights paladins wrongly equate States—the kind of constitutional tors in question. But good motivation, with- their cause with the constitutional protec- micromanagement of the judicial proc- out more, does not justify a constitutional tions of persons accused of crime. But crimi- nal defendants, unlike crime victims, are ess the framers were too wise to at- coronation. If it did, the 1964 Civil Rights Act, the 1965 Voting Rights Act, the 1968 Fair generally pariahs who need safeguards tempt. These 400-odd words of the 63rd against an infuriated public clamoring for draft of this proposed amendment do Housing Act, Title IX of the Higher Edu- cation Act, the American With Disabilities instant justice. Further, what is at stake for not fit with the size and style, the lim- Act, and an endless list of companion federal the accused is his life or liberty, the most ited Government vision, or the prac- laws would be elevated to constitutional sta- precious of our natural rights. tical approach of the U.S. Constitution tus and the document would smack more of * * * * * and the Bill of Rights. Edward Gibbon’s ‘‘Decline and Fall of the Every constitutional amendment dents our I hope when we finish this debate all Roman Empire’’ than of Lincoln’s Gettys- system of federalism. It removes an issue Senators will join in efforts to improve burg Address. from the agendas of state governments that victims’ rights through the States and VRA crusaders have cobbled together an can more closely tailor solutions that satisfy through Federal legislation. assortment of unpersuasive reasons for their constituents and serve as laboratories for I see the distinguished Senator from constitutional cause, as though adding zero sister states and the federal government to zero repetitively may eventually equal without risk to the entire nation. Errors can Delaware on the floor. As chairman something. It is said criminal defendants and be corrected by simple legislation, which is and as the ranking member of the Sen- prisoners enjoy constitutional rights that nimble compared to overcoming a constitu- ate Judiciary Committee, Senator trump victims’ rights enumerated in scores tional misstep, like the Prohibition Amend- BIDEN has worked very hard on legisla- of statutes and state constitutions. But ment. Deference to stale choice additionally

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00054 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6057 offers citizens greater opportunities to par- 67 senators are needed for passage. Three- You have the right to speak up, when vic- ticipate directly in the responsibilities of quarters of the states must ratify the timized by a criminal. California and 31 self-government, indispensable to sustaining amendment before it goes into effect. other states have passed victims’ rights a robust democratic culture. Victims’ rights is an idea that’s seductive amendments to their constitutions; all the In sum, the Victims’ Rights Amendment by its very simplicity. Of course victims rest have statutes. has nothing to commend and much to de- should have rights. Who can deny that? But So why do we need to amend the Constitu- plore. enshrining them in the Constitution is a tion of the United States of America to in- feel-good exercise of dubious value that car- clude a Crime Victims’ Rights Amendment? [From the San Francisco Chronicle, April 25, ries potential harm. Because it’s an election year. 2000] ‘‘The Constitution,’’ argues Feinstein, Next week, on April 25, the Senate will de- ‘‘gives 15 specific rights to the accused, but A VICTIMS’ RIGHTS PLAN THAT GOES MUCH bate the victims’ amendment, sponsored by victims have no basic rights under the Con- California Senator Dianne Feinstein, a Dem- TOO FAR stitution.’’ ocrat, and Arizona Senator John Kyl, a Re- Victims of crime deserve consideration and That misses the point of what the Con- publican. The vote may be April 27 or 28. compassion, but a constitutional amendment stitution and the Bill of Rights are about. Some 46 senators have signed on to the giving them a new category of ‘‘rights’’ goes The rights enumerated are protections for bill, but it will take a two-thirds majority too far. individuals against the awesome power of (67) and two-thirds of the House (291) for pas- The U.S. Senate will attempt this week to the government. They are not intended to sage, plus three-fourths of state legislatures alter the Constitution again, this time with referee fights between citizens or redress the to ratify. a Victims’ Rights Amendment drafted on the grievances of victims of private action, no The Constitution shields Americans—espe- premise that victims should have more say matter how terrible the consequences. cially the unpopular—from governmental about the trials and dispositions of defend- Littering the Constitution with other mat- power. ants. ters cheapens it and opens the door to inclu- The amendment grants rights to a politi- Specifically, it would give victims the sion of the flotsam and jetsam of some citi- cally popular and sympathetic group, vic- right to attend all proceedings, to make zens’ oddball desires. If you think this over- tims. But no legislation can guarantee sensi- their views known about sentencing and plea states the case, just look at the junk foisted tivity by prosecutors and judges or com- arrangements, to be notified whenever an of- on the California Constitution by an overac- petence by clerks assigned to notify victims fender is released from custody, to demand a tive initiative process. This is not to say there shouldn’t be a law. about changing court dates. No amendment speedy trial and to get restitution from the In fact, legislation is exactly where victims’ or law can give Americans what we really offending party. rights belongs. want: freedom from killers, rapists and rob- Considering the often deep pain they suf- As a bill in Congress, the planks of vic- bers. fer, victims deserve to be heard and pro- tims’ rights would be unobjectionable. Con- Instead, the amendment would federalize tected by the criminal justice system, but sider the constituent parts of the amend- rights already offered by the states: Victims tinkering with the Constitution is no way to ment. Among other features, it would give must be notified about bail, plea bargains, do it. Many of these concerns can and have some 9 million victims of violent crimes and trials, sentencing and parole hearings, and been addressed through legislation, which their families the right to notice of criminal about a prisoners’ release or escape. They’re can be amended as problems and unintended proceedings in their cases and the right to entitled to a restitution order, which is usu- consequences are identified. attend them; the right to testify or submit ally uncollectible. One of the problems with this amendment statements at trials, parole hearings and Feinstein-Kyl also includes ‘‘consideration is that its definition of ‘‘victim’’ is too other proceedings; the right of notice if the of the interest of the victim that any trial be vague, creating a financially onerous and felon escapes or is released, and the right of free from unreasonable delay,’’ which means otherwise impossible mandate. For example, restitution from the perpetrator of the the victim could ask for a speedy trial but in the Oklahoma City bombing, who would crime. the judge wouldn’t have to grant it. the victims be? The office workers who sur- So far, 32 states have passed legislation or Victims would have a right to attend the vived the bombing, the family members and constitutional amendments specifying vic- entire trial, even if they’re going to be called friends of the hundreds killed or maimed, or tims’ rights. But Feinstein complains that as witnesses and might tailor their testi- anybody in town still suffering the horri- until the U.S. Constitution is changed, a de- mony to fit an earlier witness’s statement. fying aftermath? fendant’s rights trump a victim’s rights However, the judge could decide the de- As such, all would have to be notified when there’s a conflict between the two. fendant’s constitutional right to a fair trial about trial proceedings, have the right to We’re glad she’s not also proposing to outweighs the victim’s constitutional right speak and to push for specific prosecution. change the standard of criminal guilt from to attend. And if they didn’t agree on sentencing or the ‘‘beyond a reasonable doubt’’ to a ‘‘prepon- Other than adding a symbolic statement— way the case was adjudicated, what would derance of the evidence.’’ Presumably that ‘‘Pols (hurt) Victims’’—to the U.S. Constitu- the court do then? would also make trials more fair for victims. tion, this wouldn’t change much. Except to Meanwhile, advocates for battered women But the American system of criminal justice provide more ways to file lawsuits, which dread what would happen if a women is ar- is built on the sane principle that letting a isn’t going to make justice any swifter. rested for responding to domestic abuse— possibly guilty defendant go free is a thou- Both presidential candidates are pro-vic- namely that the abuser could become the sand times preferable to convicting an inno- tim. victim with rights to oppose her bail and cent person. ‘‘I will lead the fight to pass a Victims’ seek restitution. Perhaps that’s why a slew The 13 men released from death row in Illi- Rights Amendment to the United States of victims’ rights groups is among those nois after new exonerating evidence was un- Constitution—so our justice system puts vic- most opposed to the amendment. covered would be glad to tell Sen. Feinstein tims and their families first again,’’ Al Gore Although a grand gesture, this proposed why legal protections for the accused are said in a Boston speech last July. constitutional change is clumsy and cum- splendid ideas. Anyway, the guts of a sen- Apparently, he hasn’t started yet. Gore’s bersome, destroying the very core of our jus- sible victims’ rights program wouldn’t con- ‘‘Fighting Crime’’ agenda on his tice system—the right to a speedy trial and flict with legal protections for defendants. Victims and their families sometimes do www.gore2000.org site doesn’t mention vic- the presumption of innocence. Both Congress get poor treatment from prosecutors and tims rights, and the vice president hasn’t en- and state legislatures have the ability to courts. Trying to remedy that by amending dorsed the Feinstein-Kyl amendment. strengthen victims’ rights without trying to the Constitution is a grandstand play that The Clinton administration is wavering on alter the principles of justice set forth in the generates a lot of publicity. But it is unnec- the amendment, worried about interfering U.S. Constitution. essary and wrong. It would dilute the time- with prosecutors, denying defendants’ rights tested and trusted document that defines re- and impinging on the president’s power to [From the San Francisco Examiner, April 14, lations in this nation between citizens and grant executive clemency. (If President Gore 2000] their government. wanted to pardon ex-President Clinton’s per- NO VICTIMS IN THE CONSTITUTION Don’t make us all victims of an ill-consid- jury, who’d be the victim: Paula Jones? Ken Dianne Feinstein is wrong on this one. The ered crusade. Starr? 275 million Americans?) usually astute Democratic U.S. senator from George W. Bush ‘‘strongly supports’’ the [From the San Jose Mercury News, April 20, California is leading a campaign to get a vic- Feinstein-Kyl amendment. It’s not on his 2000] tims’ rights amendment added to the federal Website, www.georgewbush.com however; Constitution. VICTIMS OF CRIME DON’T NEED CONGRESS’ there’s no issue statement on crime. Along with Sen. John Kyl, R-Ariz., and 40 CONSTITUTIONAL MEDDLING Most victim’s groups are for it, but not all. other senators, she is sponsoring legislation (By Joanne Jacobs) Bud Welch, whose daughter was killed in that would allow the states to vote on ratifi- You have the right to remain silent, when the 1995 Oklahoma City bombing, chairs Citi- cation of the 28th amendment. The votes of accused of a crime. zens for the Fair Treatment of Victims,

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00055 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.001 S27AP0 6058 CONGRESSIONAL RECORD—SENATE April 27, 2000 which opposes the amendment. Emotional The proposed constitutional amendment, Vermont for his kind comments. It is relatives might hamper prosecutors, Welch however, threatens to do more harm than rare on matters of constitutional law argues. Many relatives of victims objected to good. Its guarantees could sometimes con- and matters of civil rights and civil flict with the rights of defendants, as when it a plea bargain made to secure testimony of liberties that the distinguished Sen- an accomplice of Timothy McVeigh and gives victims the right to demand a speedy Terry Nichols, Welch Writes. ‘‘Had this trial. In such instances, the suspect’s right ator from Vermont and I end up on op- amendment been in place, the judge may to defend himself could be compromised, in- posite sides of the issue. We are on op- have refused the plea agreement, making it creasing the risk that innocent people will posite sides of this issue. I, as the Sen- significantly more difficult for the govern- go to jail. Or the defendant’s right could ator from Vermont, have been very re- ment to convict McVeigh and Nichols.’’ trump—in which case the new amendment luctant over my 28 years in the Senate Furthermore, consulting all the family would amount to little more than empty to support constitutional amendments. members of all the victims—168 were killed symbolism. In either case, the decision will be made by I think they are a matter of significant and many more injured—would have created concern and should not be undertaken chaos, delaying the trial. judges, not legislators or voters. The advan- Feinstein cites the Oklahoma City bomb- tage of protecting victims’ rights by law is without significant need and only after ing as proving the need for the amendment. that different states can experiment with it is concluded that the same result The judge told victims’ families they different approaches to see which are most could not be accomplished statutorily. couldn’t sit through the trial if they wanted effective and affordable. Once this amend- So it is after some considerable to testify at the sentencing hearing. When ment is entrenched in the federal Constitu- thought—and, I might add, a consider- Congress passed a law allowing it, the judge tion, though, the entire nation will have to live with a ‘‘one size fits all’’ approach—and able amount of work with the two pri- said the Constitution, guaranteeing a fair mary sponsors of this amendment— trial to the defendants, trumped the law. we may find that one size fits none. This is Feinstein’s only example of a con- Someone once said that a vice is often just that I have arrived at the point where flict that would require a constitutional a virtue taken too far. The Senate shouldn’t I support this amendment. amendment. make that mistake on victims’ rights. Before I begin to discuss the details The amendment also gives victims rights Mr. LEAHY. Mr. President, I have so of the amendment, let me suggest to before a court has determined they’re really much respect and affection for two key the Senator from Vermont that I came victims, noted Robert P. Mosteller, a Duke sponsors, Senator KYL of Arizona and in at the tail end of his initial com- law professor, in testimony before the House Senator FEINSTEIN of California. They, ments regarding public prosecution as Judiciary Committee. Imagine the Rodney King case, with no as the other 98 Senators of both par- opposed to privately going out and hir- videotape, Mosteller said. The police officers ties, care deeply about the rights of ing a prosecutor to redress a criminal charge King attacked them. As victims, the victims. Anybody who has seen some of wrong that had been done to you, and officers could ‘‘sit in the courtroom during the violent crimes in this country his discussion about whether or not it the testimony of all other witnesses as a could not feel otherwise. A great, pow- was an established principle that the matter of federal constitutional right. This erful, wealthy nation ought to care founders thought public prosecution provision would permit the true perpetrators about the victims of child abuse, or was appropriate at the time of the Con- of the crime to coordinate their false version fraud, and victims of all crime. That is of the facts’’ and convict the real victim. stitution. He is dead right on the facts. A judge could weigh witness-victims’ right not the issue. The issue, I say to my But I suggest to him, and others, that to attend and the defendant’s right to a fair friends, is the legacy we leave to the I suspect the points being made—and I trial, Feinstein argues. The defendant might next generation. So much of that leg- have been in Colombia spending a good win. acy as Senators is what is in the Con- deal of time with President Pastrana Or be convicted by tainted testimony, lead- stitution. on the drug and narcotrafficking prob- ing to more appeals. We will not vote on anything more lem he faces, so I missed a day of de- It’s not worth it. important than constitutional amend- My bottom line is simple: Don’t mess with bate on this. So I may be mistaken in the U.S. Constitution. Since the Bill of ments, unless it is a declaration of war. what I am about to say. But I expect Rights was added 209 years ago, only 17 There have been thousands of votes I that those who talked about public amendments have been added to the Con- have cast, and many that I can remem- prosecution versus private prosecution stitution. It should not be changed unless ab- ber were inconsequential. Virtually all were trying to make the generic solutely necessary. It’s not necessary in this of them were on issues on which, if we point—I hope they were—that at one case, not even close. Leave the Constitution did not like the results we could come alone. point in our English jurisprudential back and revisit it the next Congress history, and for a number of centuries and change it. You cannot do that with [From the Chicago Tribune, April 25, 2000] early on, the issue of moving forward a constitutional amendment. You do it THE WRONG WAY ON VICTIMS’ RIGHTS to prosecute a wrong against you was with practical, pragmatic legislation Some national issues of grave importance totally in the hands of the victim. The that actually helps people—legislation can be dealt with adequately only by amend- victim made that judgment. ing the United States Constitution. That was that the Senator from Delaware has Early on, to overstate it, in the 14th, true of slavery, women’s suffrage, and the in- passed, legislation that I have passed, the 15th, the 16th and 17th century, if I come tax. But the same can’t be said about legislation that Senators on both sides were mugged in the stable, it would be the treatment of crime victims. of the aisle have passed, including Sen- Biden v. Jones. It would not be the Their needs are real and worthy of con- ators NICKLES, DEWINE, and others. I cern. The Victims’ Rights Amendment due Crown v. Jones. I was not represented do not mean to exclude other people by anyone but myself. This process for a Senate vote this week, however, is who have joined in on real legislation overdoing a good thing. evolved. The only good part of that Every state has a law or constitutional that really works for victims. process was that the victim controlled Mr. President, how much time is still provision assuring that crime victims may his or her own fate to a significant de- available to the Senator from attend judicial proceedings that concern gree. Vermont? them, be notified of the impending release of All of the years and years that I was their attackers, sue the offender for restitu- The PRESIDING OFFICER (Mr. chairman of the Judiciary Committee tion, and the like. Many of these measures HELMS). There are 48 minutes remain- are relatively young and, according to vic- ing. and the ranking member, we held hear- tims’ rights advocates, have not fulfilled the Mr. LEAHY. I yield the floor to the ing after hearing about how victims hopes lodged in them. Senator from Delaware. feel disenfranchised. One of the things That’s an argument for better funding and Mr. BIDEN. Mr. President, is the that victims of violent crime need to more meticulous implementation. It’s Senator from Delaware under a time be able to come to closure with is the grounds for electing prosecutors and judges constraint? dilemma and the horrible position in who will take them seriously. It’s also which they were placed. They have to grounds for realistic expectations: Some The PRESIDING OFFICER. Under goals are not likely to be realized no matter the cloture situation, the Senator has see it come to fruition. They have to be what. Restitution, for example, is largely a up to 1 hour. able to know that they had some hand vain hope simply because most criminals are Mr. BIDEN. I thank the Chair. Mr. in the idea that the person who did bad poor and thus lack the money to pay it. President, I thank my friend from things to them was pursued, and they

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00056 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.002 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6059 got their day in court—‘‘they,’’ the vic- were not circumstances where the vic- dural rights, including the right to no- tim. tims of crime who were so callously tice of court proceedings, the right to Also, there is an overwhelming treated that they weren’t even in- confer with the prosecutor, and the amount of evidence that began to pile formed, and the person against whom right to information about the convic- up in the 1960s, 1970s, and then in the they had sworn out the warrant they tion, sentencing, imprisonment, and re- 1980s it reached a high pitch. In the found sitting in the trolley car with lease of the offender. 1990s it pertained as well. That is where them on the way home. They were not The 1994 Biden crime law: people lost respect for the government in that position. Gave federal victims of sexual and and lost respect for the law because What are constitutional amendments child abuse the right to mandatory res- they believed they were not treated about? titution; with respect—where victims found Constitutional amendments are Gave victims of violent crimes and themselves, in their view, victimized about dealing with serious concerns of sexual abuse the right to be heard at not only by the criminal but victimized the public that come about as a con- the sentencing of their assailants; by the system. sequence of changed circumstances. Provided special court-appointed ad- That is why, I note parenthetically, One of the circumstances changed—and vocates for child victims of crime; when I wrote the Violence Against I suspect what previous speakers have And it also included the piece of leg- Women Act I provided for a means by been speaking to when they talked islation closest to my heart: the Vio- which a woman who was a victim of about how the system used to work—is lence Against Women Act, which pro- violent crime could, if the prosecutor that there is a feeling on the part of vided ground-breaking and sweeping chose not to go after her assailant, the vast majority of the victims of assistance to victims of family vio- after the person who did those bad crimes that they have no control over lence and sexual assault—and which, I things to her, she could at least go into the situation. They have no control. might add, needs to be re-authorized the civil court and sue that individual. Not only were they victimized by the this year through my Violence Against Again, there was overwhelming testi- criminal, but they go in and either find Women Act II bill, which has 46 cospon- mony from psychiatrists and psycholo- themselves in the circumstance where sors. gists that there is a need for healing. there has been a deal made which they The 1996 Anti-Terrorism Act included Part of the catharsis in healing is to be were no part of, or there was a sen- Hatch-Biden provisions guaranteeing able to go through the process and be- tencing that took place and they didn’t mandatory restitution to all victims of lieve you are getting fair and decent get a chance to tell the judge how violent federal crimes; treatment. badly this guy beat them up, or that And, now, I am pleased to support— There are two things at stake when money that was stolen from them was and urge all of you to support—a con- this cause of victims’ rights begins to the last money they had in the whole stitutional amendment to protect vic- arise. world, and they lost their home. Just tims’ rights. The public prosecutors, not because the need to cry out and say: Listen to I am proud of my track record on vic- they were no longer caring, but be- me, listen to me. Just listen to me. tims’ rights. But I am convinced that cause of the overwhelming burden, That is all I am asking you to do. federal statutory guarantees are not found themselves becoming increas- It is not that the prosecutors are bad enough. Judges are simply too quick to ingly callous about the plight of the guys or bad women. They are incred- conclude, almost reflexively, that the victims. ibly overloaded. defendant’s constitutional rights I used to be a public defender. When As the Presiding Officer knows, we trump the victim’s mere statutory I was a young lawyer, I would be as- have an incredible amount of time, rights, even when conflict is illusory or signed three or four or five cases to be notwithstanding the fact it has could readily be resolved. You heard tried in 1 day. The prosecutor would be dropped the last 7 years in a row. about the difficulties we had after the assigned five, six, seven, or eight cases This is about going back to a time Oklahoma City bombing with a federal to be tried in 1 day. Everyone knew when public prosecutors had the time statutory approach to help the victims that plea bargaining process was nec- and exercised judgment to make a deci- and their families. Senator FEINSTEIN essary. sion relative to moving forward against outlined in detail the chronology of Often, looking back on it, the victim, a defendant in conjunction with the events there, and so I will not repeat or the alleged victim of the crime, concerns of the needs of and the desires them. found himself or herself showing up for of the victims. But equally important, because more court and learning from some pros- That is what is missing. than 95 percent of all crimes are han- ecutor that they had dismissed the We are here today to discuss two dled at the state level, our federal stat- case. We didn’t think there was suffi- matters that I have cared about for utory rights simply do not reach the cient evidence, or we decided to allow many years. The first is crime—more great majority of crime victims. them to plead to petty larceny rather specifically, the victims of violent Regrettably, the hodge-podge of pro- than robbery or burglar, or we decided crime. The second is the Constitution tections for victims in place at the so on and so on. of the United States of America. state level is spotty and inadequate. The impact upon victims and their As the Presiding Officer knows, we There is no common denominator of faith in the system and their notion of came at the same time, and both of us rights that victims are guaranteed in whether or not government worked was dedicated a significant portion of our every state of the union. As a Decem- always damning—always impacting life in the Senate to various issues. We ber 1998 report by the National Insti- upon them in a negative way. developed different interests, expertise, tute of Justice found: To make a long story not quite so and/or assignments. In my case, it has Enactment of state laws and state con- long, the Senator from Vermont is cor- been both the plight of crime victims stitutional amendments alone appears to be rect. Public prosecution did take place and the preservation of our constitu- insufficient to guarantee the full provisions when our Republic became a republic. tional liberties. That is why I have of victims’ rights in practice. There were not, for example, in the thought long and hard about amending This report found numerous in- city of Philadelphia, 25,000 felonies the Constitution to guarantee the vic- stances in which victims were not af- tried a year in one little city. There tims of crime the elemental rights that forded the rights to which they were were not 68,000 habeas corpus out there. they deserve, but too often are denied. entitled. There was not the need for a pros- Time and again, I wrote and sup- For example, even in states identi- ecutor to find himself or herself in the ported many statutory protections for fied as providing ‘‘strong protection’’ position where they dismissed a large victims. To cite just a few examples: to victims’ rights, more than 40 per- number of cases just because they The 1990 Victims Bill of Rights gave cent of victims were not notified in ad- didn’t have time to get to them. There victims a number of important proce- vance of the defendant’s sentencing

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00057 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.002 S27AP0 6060 CONGRESSIONAL RECORD—SENATE April 27, 2000 hearing. And more than 60 percent of Earlier drafts of the amendment gave United States, a State, a political sub- victims in these strong-protection victims the right to ‘‘a final disposi- division, or a public officer or em- states did not receive notice of a de- tion of the trial proceedings free from ployee, at the same time, it does noth- fendant’s pre-trial release. unreasonable delay.’’ Prosecutors be- ing to bar defendants from obtaining And so, I have come to the conclu- lieved that this could allow victims to relief for violations of their own con- sion that it is time to write a basic force them to proceed to trial before stitutional rights. charter of victims’ rights into our Con- they are prepared. And let me comment further about stitution setting a national, uniform Defense lawyers believed that the the rights of the accused—an issue that baseline of rights for all victims of vio- language created the risk that the de- I know gives some of you pause about lent crimes. fendant might be forced to proceed to this amendment. I have spent my en- Now, one of reasons there were more trial without sufficient time to prepare tire career in the U.S. Senate looking than 60 drafts of this constitutional a defense. In other words, this language out for the rights of the criminal de- amendment is because I insisted on a would have made it both more difficult fendant. There is an obvious and nat- number of basic changes before I would for prosecutors to get convictions and ural tension in the system between agree to support it. And with the help easier for those defendants who are protecting the rights of the criminal of Professor Larry Tribe, I proposed convicted to overturn their convictions defendant and ensuring that law en- these changes, and the sponsors accept- on appeal. forcement is effective, and I have al- ed them. We want to make sure—above all— ways worked to achieve a balance be- My three key specific ‘‘principles’’ that we get the right criminal, and tween these competing interests. for drafting the language of the amend- that we don’t convict an innocent per- I say to you that this constitutional ment were as follows: son. And we also want to make sure amendment, with the changes upon Principle No. 1: The amendment that the great police power of the gov- which I have insisted, strikes that bal- must set out the specific rights to be ernment is not exercised in heavy- ance. Judges will have the power under accorded constitutional status—the handed, over-reaching ways that this amendment to strike a balance. core of which should be rights of par- threaten the constitutional liberties of I keep hearing critics of the amend- ticipation. Victims should be entitled all of us. ment say that defendants’ rights will to the following rights of participation: And so I insisted on modifying that not be adequately protected if this The right to be informed about, and language so that victims have the right amendment becomes part of the fabric not excluded from, any public pro- ‘‘to consideration of the interest of the of our Constitution. ceedings involving the crime; victim that any trial be free from un- For example, we heard testimony be- The right to make a statement to the reasonable delay.’’ fore the Judiciary Committee and court about bail, the acceptance of a This is an important change. This statements on the Senate floor giving plea, and sentencing; means—in plain English—that before examples of how judges routinely—al- The right to be informed about, and granting a third, fourth, or fifth con- most reflexively—exclude victims from to participate in, parole proceedings to tinuance, judges in every state—from the courtroom when they are potential the same extent as the convicted of- Delaware to Utah to California—must witnesses in the case. Critics of the fender; and take into account the inconvenience amendment contend that maybe that is The right to be informed of an escape and hardship to a victim and must pro- how it should be, and they complain or release from custody. ceed with the trial unless there is a that the amendment would change that Principle No. 2: The amendment good reason to wait. presumption of exclusion. must not unintentionally hamstring What this does not mean is that These critics argue that the presence criminal prosecutions. We cannot for- judges must push lawyers to try cases of victim-witnesses at trial will under- get: the best thing for victims is to before they’re ready. mine the defendant’s right to a fair catch and convict the bad guys; we Next change: prosecutors and others trial by giving the victims the oppor- have to make sure that nothing in the worried that with the old drafts, a de- tunity to observe the other witnesses amendment would make that job more fendant could withdraw his plea or a testify and tailor their testimony ac- difficult. judge could be forced to throw out a cordingly. Principle No. 3: The amendment sentence after it had been accepted, I submit to you that that is not as it must not abridge the rights of the ac- jeopardizing the government’s ability should be. That is not how it needs to cused. The protections in our Constitu- to get a conviction of guilty defend- be. The witness sequestration rule is a tion for the accused—such as the right ants. prophylactic measure rather than a to counsel, the right to a jury of one’s I insisted on new language that constitutional imperative. The purpose peers, and the right against self-in- makes it clear that nothing in the of the rule can be accomplished crimination—are there, above all, so amendment provides grounds to over- through defense cross-examination of that our system does not convict an in- turn a sentence or negotiated plea. fact witnesses, defense argument about nocent person. Locking up an innocent Finally, I was concerned with earlier the opportunity to tailor, and jury in- person benefits no one—except the drafts that the amendment could be structions, without categorically ex- guilty. perceived as giving a victim’s rights a cluding victims from the trial. Let me describe for you a few of the higher constitutional standing than There is nothing that remarkable changes on which I insisted, and which those of the criminal defendant—in about the scenario of one witness hav- I believe makes this an amendment ev- other words, that victims’ rights would ing the opportunity to listen to the eryone can and should support: be perceived as trumping defendants’ testimony of others: the defendant who Originally, the constitutional amend- rights. Section 2 of an earlier draft is a witness has that opportunity. And ment would have covered the victims stated that nothing in the amendment the defendant who is a witness is also of all crimes. But prosecutors worried would ‘‘provide grounds for the accused open to cross-examination and argu- that the extension of rights to non-vio- or convicted offender to obtain any ment by the prosecutor that he had the lent crimes—particularly those crimes form of relief.’’ opportunity to tailor his testimony. affecting massive numbers of victims, I insisted that we change that lan- Just last month, the Supreme Court such as may be the case with mail guage, and with the help of Professor ruled in a case called Portuondo v. fraud or environmental crimes—would Tribe, we redrafted Section 2 and re- Agard, that despite the fact that a de- backfire, making it too difficult, too moved that restriction on the rights of fendant has the constitutional right to burdensome, to bring these cases. I in- the defendant. be present at his trial, the prosecutor sisted that the amendment be limited While the language is clear that was entitled to comment in her closing to the victims of violent crimes, and nothing in the amendment itself gives argument on the fact that the defend- that change was made. rise to a claim of damages against the ant had the opportunity to hear all

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In other words, amending ment. tional rights actually conflict with the the Constitution should not be done in While I support the participation of participatory rights the amendment response to what is politically popular crime victims in our judicial process would guarantee the victim—and I sub- at the moment or because of passions Mr. President, and support the efforts mit to you that these conflicts would of the moment. If it was, I’m afraid of New Mexico and other states to give be few and far between—the judge is many of those 11,000 amendments those rights to crime victims, I simply permitted under this amendment to would now clutter our Constitution do find the evidence of a great occasion balance these competing interests and and undermine the very foundation of or compelling need to amend the Con- grant exceptions where necessary. the freedoms and liberties it gives each stitution in the arguments made by the Let me repeat: a constitutional of us. sponsors of the amendment and there- amendment for victims does not mean Mr. President, the victims of violent fore will vote no on S.J. Res. 3. that victims’ rights will take prece- crime are a compelling group of Ameri- As others have pointed out, S.J. Res. dence over defendants’ rights. cans and deserve our supports and our 3 is almost as long as the entire Bill of Both the criminal defendant and the attentions. Nothing is more dev- Rights. It reads like a statute and not victim can and should have the chance astating to a family than loosing a a constitutional amendment. This is to participate at trial and at other re- loved one through a senseless, random significant and more than simply a lated public proceedings. There should act of violence. Nothing is more dev- matter of form. Part of the reason why be a balance. This amendment permits astating to a community than the kind our Constitution and republican form courts to balance. of violence we see in our schools and on of government have survived largely A constitutional amendment is need- our streets almost daily. Yet it is only intact for over 200 years while virtually ed to set a national floor of rights for in the past few years, perhaps 15 or 20, every other in the world has undergone all victims of violent crimes. In every that our laws and lawmakers have radical, revolutionary change is the state—as well as in the federal sys- begun to focus on the group of people wisdom of the drafters in setting out tem—the doors of the criminal justice we now refer to as ‘‘crime victims’’. clear principles and a coherent system system must be opened to victims—to During those years, however, the to ensure the liberties that the Con- make sure that they are meaningful states have not ignored the legitimate stitution guarantees. However, as I participants, and not just spectators, calls of crime victims and their fami- read the amendment before us today, I in a system that has for too long kept lies for more protection and more par- do not see the clarity or the simplicity them on the outside looking in. ticipation in the criminal justice proc- of principle that I see in the Bill of With a victims’ constitutional ess. Thirty-three states, including my Rights or the other amendments we’ve amendment, we will be telling prosecu- own, have passed either crime victims adopted. Because this amendment tors and judges, loud and clear: victims rights amendments to their constitu- lacks clarity, I am concerned about the must be respected and included. They tion or statutes intended to provide litigation this amendment could poten- have rights—constitutional rights— many of the same rights contained in tially spawn and the additional costs that must be taken into account dur- S.J. Res. 3. to an already overburdened legal sys- ing the entire case. In New Mexico, the voters passed a tem. Litigation over who is a ‘‘victim’’ I believe that the contradiction that constitutional amendment in 1992 that alone would likely fill volumes. many people see between the rights of is very similar to S.J. Res. 3 and the Mr. President, one of the biggest con- defendants and the rights of victims is legislature subsequently passed ena- cerns with this amendment is that, be- a false one. Our Constitution is not a bling legislation. This, I think is appro- cause of its vagueness, it will inevi- zero-sum game. We do not diminish the priate and I am glad that New Mexico tably lead to a result which I think rights of defendants by recognizing the recognizes the rights of crime victims none of us, even the proponents, want, rights of victims. to more fully participate in the crimi- the diminishing of the rights of the ac- That is why I cosponsored this nal justice system. In fact, it is par- cused. amendment. This amendment will give ticularly appropriate that the states No where in the amendment does it the victims of crime a voice and a have acted in this area because the guarantee that it will not be construed measure of dignity and respect in the states are responsible for approxi- to interfere with the rights of the ac- criminal justice process. mately 99 percent of the criminal pros- cused. I understand that an amend- Mr. BINGAMAN. Mr. President, be- ecutions in this country. ment was offered in the Judiciary Com- fore I discuss my position on Senate From many indications, these mittee that would have made that Joint Resolution 3, the crime victims amendments and statutes have worked. clear but was rejected. That to me is rights constitutional amendment, I Not perfectly perhaps, but they have at very troubling because, as important would like to briefly talk about my least begun to bring victims of violent as the rights of victims are, we abso- views on amending the Constitution. crime into the judicial process in a lutely have to keep in mind that the A recent letter each of use received meaningful way. rights of the accused must be para- from our colleagues Senator BYRD and Because New Mexico has acted to mount. That is because it is the ac- Senator LEAHY provides some of the protect the rights of crime victims, cused that stands to lose life and lib- history of our Constitution and efforts district attorneys who I’ve spoken with erty at the hands of the government. to amend it. often ask why we need to amend the This is a bedrock principle of our judi- They note that, since its ratification, United States Constitution when New cial system, without argument the best over 11,000 amendments have been pro- Mexico has already addressed this system in the world, and we must not posed to the Constitution. In the last issue? That, Mr. President, is an ex- diminish that principle even in the month alone, the Senate has voted on tremely important question to ask our- name of a good cause. three constitutional amendments. selves before we vote on S.J. Res. 3. Finally, Mr. President, I am con- However, while thousands of amend- Mr. President, the Constitution pro- cerned by the lack of case law to sup- ments have been proposed, only 27 vides a process for amendment when port the arguments of the proponents amendments have been adopted. Of ‘‘both Houses deem it necessary . . .’’ of S.J. Res. 3. As I understand it, the those, the first 10, the Bill of Rights, Today I would argue that only when proponents are unable to point to any

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cases in which victims’ rights laws or tion. I believe that we can do that and and Senator BYRD remind us, our Con- State constitutional amendments were provide meaningful rights to victims of stitution has been amended only 17 not given effect because of defendants’ crime. times since 1791, when the first 10 rights in the Federal Constitution. If, failing that, we find that victims amendments—Our Bill of Rights—was Nor, as the committee report noted, is are still not being afforded reasonable added. there any case law where a defendant’s and real participation in the criminal More than 11,000 amendments have conviction was reversed because of vic- justice system, then perhaps only a been offered during that time. But only tims’ rights legislation or a State con- constitutional amendment will work 17 have actually been added to our Con- stitutional amendment. Why then are but I am not convinced that we have stitution. Because of the genius of the we amending the Constitution when done all that we can do short of that. Framers, and the wise restraint of there is no body of law that justifies Mr. President, good intentions do not those who came after them, we have the extraordinary step of amending the necessarily produce good results. The today a document that we can fit in U.S. Constitution? This is very dif- intentions of the supporters of S.J. our pockets . . . that we can under- ferent from the situation we were in a Res. 3 are certainly good and just and stand . . . that we can refer to, and live few weeks ago when the Senate voted I share those intentions, as well as by. on an amendment to the Constitution their belief that we should be doing This beautiful document contains on the issue of the desecration of the more for the victims of violent crime. fundamental, unifying principles that flag on campaign finance limits. In However, I do not believe that this protect our individual liberties and both of those instances, at least we had amendment will produce good results guarantee our democratic rights. The a final determination by the Supreme and may actually harm those it is in- amendment we have been considering— Court with which we could take excep- tended to help and for that reason, I while clearly well-intentioned—does tion. Without such a body of law I do will vote against S.J. Res. 3. not belong in this document. not find the arguments in favor of a Mr. DASCHLE. Mr. President, I rise With all due respect to its authors, it Federal constitutional amendment to recognize all the Senators who par- is not a constitutional amendment. It compelling. ticipated in this important and healthy does not describe universal and eternal Mr. President, I strongly support the debate. In particular, I thank Senator truths about human nature, or set right of victims of violent crime to be LEAHY and Senator BYRD for their tire- forth the broad working of govern- included in the criminal justice system less defense of the Constitution. ment. It is a statute. in a meaningful way. I think it helps In addition, however, I also want to Last month, we debated another Con- bring closure to the inured victims and recognize Senator FEINSTEIN for her stitutional amendment—to make flag- provides an important balance to a sys- commitment to victims of violence and burning a crime. During that debate, tem that admittedly has not always for working to ensure that they are some members of this Senate said it been sympathetic to the rights of vic- treated with fairness and decency and was right to take that extraordinary tims. I would support additional fund- respect. While I strongly disagree with step because Americans had died to de- ing and resources for victims rights the approach the proponents of this fend our flag. programs and to properly train the ju- amendment have taken, I completely Mr. President, this Constitution is diciary in the need to be sensitive to agree with the sentiments they ex- why Americans have fought and died the rights of crime victims. However, press. Victims should have a strong for more than 200 years—not to protect before we take the drastic and, for all voice in our criminal justice system. a flag, but to protect the principles en- intents and purposes, irreversible step Senator FEINSTEIN has been committed shrined in this document. As United of amending our Constitution for only to this cause for decades and I believe States Senators, we take an oath to de- the 28th time in our history, I believe her passion has brought new focus to fend the Constitution. It is our most we must be absolutely certain that we this important issue. important obligation, our most sacred have exhausted all other avenues. As Like many of us, I know what it is duty. the National Clearinghouse for the De- like when violence strikes your own There is no ‘‘great and extraordinary fense of Battered Women argues: family. I would not wish that pain on occasion’’ requiring us to adopt this The Federal constitution is the wrong anyone. And I certainly do not want to Victims’ Rights Amendment. This place to try to ‘‘fix’’ the complex problems see any victim’s grief compounded by a amendment is popular. But it is not facing victims of crime, statutory alter- needlessly callous or insensitive judi- necessary. Every state—every single natives and state remedies are more suit- cial system. state—has some type of statute that able. Our Nation’s constitution should not be The question we have been debating, identifies and protects victims’ rights. amended unless there is compelling need to however, is not whether victims should Thirty-two states have passed state do so and there are no remedies available at have a voice in the criminal justice constitutional amendments protecting the state level. Instead of altering the U.S. Constitution, we urge policy makers to con- process. The question before us is victims’ rights. Not one of those stat- sider statutory alternatives and statewide whether we must amend our nation’s utes has been overturned. Not one of initiatives that would include the enforce- Constitution to achieve that goal. I be- these state constitutional amendments ment of already existing statutes, and prac- lieve the answer is ‘‘no.’’ has been found to conflict with our fed- tices that can truly assist victims of crimes, On September 17, 1789, as our new eral Constitution. as well as increased direct services to vic- Constitution was about to be signed— Amending—re-writing—our Constitu- tims. after four long months of debate—Ben- tion—is a remedy that ought to be Mr. President, I believe we should jamin Franklin announced with typical tried only when we have exhausted give the states additional time to im- irony: ‘‘I consent, sir, to this Constitu- every other possible means, and they plement their victims rights amend- tion because I expect no better, and be- have been found inadequate. When it ments and statutes. Change occurs cause I am not sure it is not the best.’’ comes to protecting victims’ rights, slowly, but I am convinced that real Two-hundred and 12 years later, Mr. there is much we can do, short of change for the victims of crime will be President, the United States Constitu- amending the Constitution. addressed more effectively by the tion is still the best constitution this Indeed, in my home state of South states and that the federal government world has ever known. It is, in my Dakota, every single protection identi- should not impose a one-size-fits-all, opinion, nearly sacred. James Madison, fied in this proposed amendment is the federal government knows best, so- who penned most of our Constitution, guaranteed by state law. In South Da- lution on the states. Additionally, if we urged that it be amended only in— kota, victims are included in every determine that action at the federal quote—‘‘certain great and extraor- stage of the criminal justice process. level is absolutely necessary, I believe dinary occasions.’’ They have the right to be notified we should try to fashion a legislative For 212 years, Americans have heeded about every court proceeding involving solution before we amend the Constitu- his words of caution. As Senator LEAHY their case. They are told in advance

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00060 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.002 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6063 about bond hearings, plea offers and erode the rights of the accused. I know California and Arizona—amend our sentencing hearings, and they have the full well that accused criminals are not great Constitution unless absolutely opportunity to have their opinions a popular group. But the cornerstone of necessary. heard on these matters. our justice system is the belief that we By withdrawing their amendment, I Crime victims in South Dakota are are all presumed innocent until proven believe the sponsors have acted respon- told about all of these rights, and of- guilty. If we undermine that basic prin- sibly, in Senatorial fashion. The Sen- fered help, if they need it, to exercise ciple in any way, we are all hurt. ate should be proud that one more time them. These state laws provide South Our Bill of Rights reflects our fram- we have resisted the urge to tamper Dakotans with wide-ranging and effec- ers’ deeply held belief that the enor- with the miracle created in Philadel- tive protections. They may not, how- mous power of the government to de- phia in 1787—our Constitution. ever, be a blueprint for Massachusetts, prive persons of life, liberty and prop- At this time, I ask unanimous con- or Mississippi, or California. erty in criminal prosecutions must be sent that letters from United States, There is another reason we should re- checked. Thus, the document I hold in District Judge Lawrence Piersol, Chief ject this amendment, Mr. President. my pocket protects us all from unrea- Justice Robert Miller, State’s Attorney Not only is it unwarranted. But also, sonable searches . . . guarantees us all Dave Nelson, Victim Witness Assistant ironically, this amendment could actu- impartial juries, and protects us all Becky Hess and Marshal Lyle Swenson ally weaken victims’ rights by making against cruel and unusual punish- be inserted into the RECORD following it harder for police and prosecutors to ments. my remarks. do their jobs. That is not simply my When these rights are diminished for There being no objection, the letters opinion. some, they are diminished for all. For were ordered to be printed in the This is a letter from the Chief Jus- that reason, they should not be com- RECORD, as follows: tice of the South Dakota Supreme promised lightly—no matter how po- U.S. DISTRICT COURT, Court. ‘‘Victims’ rights will not be litically popular it might be to do so. DISTRICT OF SOUTH DAKOTA, Sioux Falls, SD, April 19, 2000. furthered by SJR 3—and may indeed be What crime victims need is real hope, Hon. TOM DASCHLE, harmed—as past state efforts in this not paper promises. For that reason, I U.S. Senator, Hart Senate Office Building, area run headlong into an ethereal na- strongly support both the Leahy Washington, DC. tional standard that is incapable of re- ‘‘Crime Victim Assistance Act’’ and DEAR SENATOR DASCHLE: I was surprised to sponding to the constantly changing the Biden ‘‘Violence Against Women learn that Senate Joint Resolution 3 would circumstances of the justice system.’’ Act’’ re-authorization. Let’s pass these be up on the calendar next week in the Sen- Here is another letter—this one from bills. ate. I am very much opposed to this proposed the State’s Attorney and the Victim Let’s also look at making certain constitutional amendment. To begin with, I think it diminishes our Constitution to at- Witness Advocate representing my federal funds contingent on states’ im- tach to it what amounts to legislation. That most heavily populated county. plementation of meaningful victims’ proposition is true not only of this proposed Quote—‘‘While victims’ rights are a rights at the state level. In fact, I de- constitutional amendment but also some very important issue, this amendment clare today that I will work tirelessly other amendments that have been promised would make it difficult for us to do our with any member of this Senate who but failed. jobs and make appropriate decisions wishes to enact legislation to bolster I realize at first impression that the public regarding the prosecution of criminal the rights of victims. But let us stop might find such a resolution attractive be- cause the rights of victims of crime have cases.’’ treating our Constitution so cavalierly. sometimes in the past not received the at- Many of my fellow Senators have I am deeply troubled by the increas- tention that they should. I know from my voiced similar concerns. Senator ing tendency of this Congress to turn day-to-day experience as the Chief Judge for THOMPSON has said—quote—‘‘This con- to constitutional tinkering to solve the District of South Dakota that victims’ stitutional amendment will make the problems, rather than taking up the rights are considered. I have had victims tes- procedure by which the District Attor- hard job of legislating. This is the sec- tify on various occasions in my Court at the neys around the country are trying to ond constitutional amendment we have time of sentencing and I regularly consider prosecute defendants more complex, debated in this Senate in a month! the views of victims both in their letters as more costly, more time-consuming in In his final speech to the Constitu- well as in comments that are made in the presentence investigative reports as a result many respects, and ultimately will tional Convention, just before the Con- of the interviews of victims by the harm [the goal] that the victim is the stitution was signed, Benjamin Frank- presentence report writers. The writers of most interested in—seeing justice done lin said something that pertains here. those presentence reports are Court per- and a guilty defendant found guilty by After calling the Constitution very sonnel and a part of my staff. In addition, our court system.’’ likely ‘‘the best’’ human beings could when restitution is paid, it is paid first to The federal government should en- hope for, he told his fellow signers: ‘‘I the victims and then applies to other mone- courage states to set minimum stand- hope for our own sakes and for the sake tary obligations that are paid to the govern- ards for victims’ rights. But we should of our posterity, we shall act heartily ment after the victim has been monetarily compensated. I say ‘‘monetarily com- not trample the principles that have and unanimously in recommending this pensated’’ because I recognize that in some served us so well for so many years. constitution and turn our future instances money alone cannot compensate a Under our system of government, po- thoughts and endeavors to the means victim. In other instances, in an attempt to lice powers are reserved for the states. of having it well administered.’’ compensate victims, I have had Defendants, That is why 95 percent of all crimes are That is our real responsibility as as a part of their sentence, write to victims prosecuted at the state and local level. members of this Senate—not to second- and I have reviewed the letters before they Do we really believe it is time to re- guess the genius of this document, not went to the victims so that I could make write this fundamental division of re- to alter and undermine it but to see sure that the letter was appropriate. As you know, Congress has done much in recent sponsibility? Do we really believe we that it is well administered. In that re- years by legislation to enhance the rights of need to supercede state and local police gard, we have much work to do. Let us crime victims. If Congress would choose to powers with a national standard? A do that work. do more it would do so by legislation. standard that can only be enforced by Again, I say to the sponsors of this On the other hand, a constitutional provi- an act of Congress? Wouldn’t the wiser, amendment, I am as committed as any- sion as broad and as sweeping as this one is, more prudent course of action be to en- one in this body to working with you especially without limiting definitions in the courage or require states to devise and to strengthen victims’ rights. Indeed, I language, poses many problems. Once those would consider every option—even con- problems come to light upon implementa- enforce their own victims’ rights tion, the problems will not be able to be standards? ditioning federal funds on state imple- solved because it would be a constitutional In addition to the threat this amend- mentation of basic protections for vic- amendment. On the other hand, when legis- ment poses to our constitutional tims. I cannot, however, and will not— lation is passed and it turns out upon imple- framework, I am also concerned it may as much as I respect the Senators from mentation that there are problems or that

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00061 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.002 S27AP0 6064 CONGRESSIONAL RECORD—SENATE April 27, 2000 the solution should be addressed in a dif- will be measured, regardless of local efforts other hearings relevant to the case. Victims ferent way, then the legislation can be to address crime victim needs. In essence, are also encouraged to write victim impact amended. After I have drafted this letter to SJR 3 would produce federal oversight of statements or letters to the court regarding you, I received a copy of a letter to Senator state court operations far beyond what may their thoughts and feelings about how this Charles Schumer from Judge William Wil- be in the interests of victims. For example, crime has affected them or their family. Vic- kins, Chair of the Committee on Criminal Congress, believing that unreasonable delays tims are also invited to speak at sentencing Law for the Judicial Conference of the in court proceedings are harming the inter- hearings regarding these same issues. United States. I am attaching his letter be- ests of victims, could pass national legisla- In 1999, we averaged approximately 85–90 cause it considers in detail various problems tion imposing time processing standards cases per month involving crimes against with the proposed amendment. In addition, that may be completely inapplicable to the persons. We attempted contact with all of it does make some suggestions for its im- peculiar circumstances of state and local these except when the victim is transient provement if it is to be passed. courts. Victims who do not believe proper and has no phone or address of any kind. Of Legislation enhancing victims’ rights can notice is being provided could seek a federal those cases, an average of 51 cases per month be passed now—the amendment process and court injunction to compel or prohibit cer- were domestic assaults. Our office has adopt- then its implementation if passed by the tain state court practices. ed a ‘victimless’ prosecution position in that states will take more than seven years. I cannot emphasize enough that the crimi- the victim does not need to be cooperative Finally, from my point of view and experi- nal justice system in South Dakota is com- on a domestic case for our office to pros- ence as a trial judge, and that experience in- mitted to restoring victims of crime. We ecute. Due to the nature of domestic vio- cludes 180 sentencings last year, the amend- have not always done this as well as we lence, our concerns have been that the de- ment would prevent many guilty pleas in should have, but we have always had it as a fendant has a great deal of power over the state and federal court. With all of the addi- focus of our efforts. We continue to work on victim and can often convince the victim to tional criminal trials, the courts would vir- improving victim access to the court system be unavailable for court or to ask that we tually be brought to a standstill, affecting while maintaining our independence, neu- dismiss the charges. While our victim’s input civil and criminal cases. trality and impartiality. It is important for is important, we hesitate to allow it to be- I urge that victims’ rights continue to be everyone to understand that our courts must come the driving force in the prosecution of addressed by Congress by legislation. balance the interests of victims with the in- these cases. Our fear is that given the influ- Thank you for considering my views. terests of the accused, the interests of the ence of the defendant in domestic violence, Sincerely yours, state, and the constitutional rights we all we would be doing defendant driven prosecu- LAWRENCE L. PIERSOL. possess. This is a delicate and difficult bal- tion. Typically, our victims report assault ance. I believe setting a single legal stand- many more times than they actually agree SUPREME COURT, ard—as a matter of our national constitu- that prosecution is necessary or important. STATE OF SOUTH DAKOTA, tion—is ill advised. it can too easily be used Consequently, our ability to get convictions March 14, 2000. in the future to upset this delicate balance. on domestic cases would be greatly hindered Hon. THOMAS DASCHLE, I hope you will give very careful consider- if the victim were allowed to run the case or U.S. Senate, Office of the Democratic Leader, ation to SJR 3 before casting your vote. make the final plea negotiation decisions. Capitol Building, Washington DC. Clearly our response to the needs and inter- Our ability to prosecute without the victim DEAR SENATOR DASCHLE: I want to thank ests of victims should be and must be im- makes it possible to get conditions on de- you for taking time from your busy schedule proved. But I believe those needs and inter- fendants and keep our victims and our com- to meet with me on Thursday, March 2. I ests are best addressed at the state and local munity safe. truly appreciated the time I was able to level through new programs and state laws I have enclosed copies of the letters that spend with you and your staff. I am also recognizing victim rights. Victims’ rights are sent to all victims of every crime against deeply thankful for your interest in our juve- will not be furthered by SJR 3 and may in- persons. While there may be an occasional nile intensive probation program (JIPP) and deed be harmed as past state efforts in this victim that we fail to locate, we make every your efforts to secure more funding for it. area run headlong into an ethereal national effort to find them whenever possible. Occa- The JIPP program clearly demonstrates that standard that is incapable of responding to sionally, a victim may ask that we stop noti- community corrections can work for certain the constantly changing circumstances of fying them of the next phases of court and juveniles who would otherwise be committed the justice system. we honor that request. to expensive institutions. Most sincerely, Please consider these concerns and under- There is one other matter that I need to ROBERT A. MILLER, stand that while victim’s rights are a very bring to your attention. As you may know, Chief Justice. important issue, this amendment would the Senate has under consideration Senate make it difficult for us to do our jobs and Joint Resolution 3 ‘‘Proposing an amend- OFFICE OF THE STATE’S ATTORNEY, make appropriate decisions regarding the ment to the Constitution of the United Minnehaha County, SD, April 21, 2000. prosecution of criminal cases. States to protect the rights of crime vic- Re Victim’s Rights Amendment. Sincerely, tims.’’ It is difficult, on principle, to argue Senator TOM DASCHLE, BECKY HESS, LSW, against SJR 3. We are all clearly concerned Hart Senate Office Building, Victim Witness Assist- that victims of crime receive proper treat- Washington, DC. ant. ment by the justice system. It is senseless DEAR SENATOR DASCHLE: As you ponder DAVID R. NELSON, for the system to re-victimize the victims of your vote on the Victim’s Rights Amend- State’s Attorney. crime through inattention to their needs and ment, we would like to express our concerns concerns. In South Dakota, for example, we about a Constitutional Amendment of that U.S. DEPARTMENT OF JUSTICE, have built our probation programs around a nature being passed. We would strongly urge U.S. MARSHALS SERVICE, restorative justice philosophy that seeks to you to vote against this amendment. District of South Dakota, April 24, 2000. restore victims of crime while working with Under our law in South Dakota, the vic- Re Senate Joint Resolution 3, Proposing an offenders to reduce recidivism. Regardless of tims’ are afforded many, if not all, of the amendment to the Constitution of the how we consider crime in the hypothetical rights contained in the amendment. We cur- United States to protect the rights of world of legal theory, crime produces real rently have victim/witness assistants in crime victims. victims whose needs must be addressed by many of the prosecutor’s offices across the Hon. THOMAS DASCHLE, the justice system. state and are actively working with victims U.S. Senator, Office of the Democratic Leader, The fact remains, however, that SJR 3 will on a daily basis. Each morning, our office Capitol Building, Washington, DC. not radically change things for victims. Most contacts by phone, if possible, all victims of DEAR SENATOR DASCHLE: As you are well if not all states in this country have victim crimes against persons from the evening or aware, prior to my current position as the rights provisions. South Dakota law provides weekend prior. We make our attorneys aware United States Marshal for the District of a long list of victim rights, including the of the victims’ wishes and concerns regard- South Dakota, I served as the elected Sheriff right to restitution, notices of scheduled ing the cases prior to arraignment. Fol- of Davison County for 32 years where I dealt hearings and releases, an explanation of the lowing arraignment, victims are notified of directly with victims of crime on a day to criminal charges and process, the oppor- the next phase of court either by phone or by day basis. That experience created a great tunity to present a written or oral victim letter. As the case proceeds, victims are ad- deal of empathy towards victims on my part impact statement at trial, etc. There is little vised of any plea offers or possible issues or and caused me to wonder about our system in SJR 3 that is not already in place in most concerns the attorneys may have with the of justice at times. I do have very strong if not all states. case and are kept appraised of the ongoing feelings of support for victims of crime and On the other hand SJR 3 creates a national procedures. Additionally, victims are invited wish to help them in anyway possible. standard against which every aspect of the to attend bond hearings, motion bearings, That said, I strongly believe that amend- state and federal criminal justice systems plea hearings, sentencing hearings and any ing the Constitution is absolutely the wrong

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00062 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.002 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6065 way to correct the problem and will accom- to achieve that goal is through an referring to the rights of victims. plish nothing other than a ‘‘feel good’’ atti- amendment to our basic document. Then he says: tude and cost the American taxpayers end- I believe it is fundamentally wrong The problem . . . is that such rules are less dollars! We already have many laws to to amend the Constitution for a num- likely, as experience to date sadly shows, to protect victims so that all that is needed is provide too little real protection whenever enforcement by prosecutors and the Courts ber of reasons. First, the desired goals can be achieved by statute. Every they come into conflict with bureaucratic to correct any problem areas. If it is found habit, traditional indifference, sheer inertia. that more laws are necessary to better pro- State has a constitutional amendment ... or a statute which protects victims’ tect them, pass those laws as needed but set- What Professor Tribe is saying is ting a national standard for all states to fol- rights. I do not believe there is one that it is justifiable to amend the Con- low may cause many more legal problems in statute or one constitutional amend- stitution of the United States because the future than we can imagine today. ment in any State protecting victims’ statutes that are on the books are not In addition, consider the problems that rights that has been held to be uncon- will immediately occur within all of our enforced. That argument not only falls stitutional. penal institutions, city and county jails short of Madison’s test that there be a One of the complaints seems to be throughout the country. Many of the victims ‘‘great and extraordinary’’ need before that State statutes and State constitu- of crimes are in those same institutions and/ the Constitution is amended, it does tional provisions are not being en- or are becoming victims within those places. not even come close. This amendment will bring on transpor- forced adequately. Take, for example, a It is particularly inappropriate to tation nightmares for those various institu- story that Marlene Young, executive tions as they try to get each prisoner to amend the Constitution when the in- director of the National Organization terests sought to be protected are so their necessary hearings creating great cost for Victim Assistance, brought to the problems and worse yet possible escape situ- complex and are still in formation. The ations. attention of the House Judiciary Com- question of who is a victim alone is a Having 40 years experience dealing directly mittee Subcommittee on the Constitu- subject of much discussion. with prisoners at the county jail level to the tion in February. This is what she said: We have had tragic instances in re- state penitentiary, I know that most every Just within the past 2 weeks, our office re- cent history, in New York City and in one of them will attempt to use the system ceived a copy of a letter published in the Oklahoma City, where the bombings of if for no other reason than it would be a Sumter (Georgia) Free Press. It reads in buildings created literally hundreds of chance to abuse and misuse the system! As part: ‘‘I write this letter as a victim, not an administrator now charged with the re- only of the person who violated me but as a victims—the families of those who sponsibility of transporting prisoners to victim of a system gone bad. . . . I was sexu- were killed and the survivors. courts, to and from institutions, I believe ally battered here in Sumter County. I chose Are all of them to be given the pro- the associated problems would be endless be- to press charges. Several days after the ar- tection that is set forth in this con- sides being very expensive. rest and release of the accused, I received a stitutional amendment? What restric- I ask for your kind consideration in this packet from the court which included a list tions can be put on their rights by stat- matter and I stand ready to work with you of my rights as defined by Georgia State law. ute? What about persons making false to ensure that all victims rights are pre- I should have received this information from claims against others, charging others served and they are fairly represented in all (the detective) the day I gave my statement. with a crime? That person, an alleged criminal proceedings. I believe that can be Georgia Law states that the investigator best accomplished at the state and local will provide the victim with a copy of Geor- victim, is given standing to argue level without tampering with the Constitu- gia Victims Bill of Rights in plain English against bond in order to keep the per- tion. upon initial contact. . . . Victims are every- son he falsely accused in jail, without Sincerely, where and we have the right to be protected bond, awaiting a trial. LYLE W. SWENSON, under Georgia Law. How many other victims We have had too many instances of United States Marshal. are there who don’t know what their rights false accusations, including one recent Mr. DASCHLE. I yield the floor and are because the agencies are not working to- notorious story of a schoolteacher of 32 suggest the absence of a quorum. gether? Lucky for me, to date, I have not years, who taught not too far from been further injured by the accused. Others The PRESIDING OFFICER (Mr. STE- here, and was falsely accused by his in this country may not be as lucky as I have VENS). The clerk will call the roll. been. It is time the victims of crimes be students of sexual harassment and sex- The legislative clerk proceeded to treated with respect and the laws set forth ual assault. call the roll. by the State of Georgia be followed. At what The possibility for injustices of many Mr. LEVIN. Mr. President, I ask point are the laws of this state important to varieties should be explored, as they unanimous consent that the order for the authorities?’’ are currently being explored in the 50 the quorum call be rescinded. So, the problem in that case, and in States, all of which have either stat- The PRESIDING OFFICER. Without so many other cases, was not that the utes or constitutional amendments objection, it is so ordered. law in Georgia was incapable of pro- that provide various means of protec- Mr. LEVIN. Mr. President, I read the tecting the victim; the problem was tion for victims. committee report relative to this con- that the law was not carried out or en- The pending amendment will be im- stitutional amendment from beginning forced. Georgia has a State statute plemented by congressional enactment. to end. I did so because of the extraor- guaranteeing victims’ rights, and the Congress will be legislating for 50 State dinarily important issue which has officials in Sumter County did not criminal court systems, which handle been raised by Senators KYL and FEIN- abide by that statute or implement it 95 percent of the criminal cases in this STEIN, and others: an effort on their in her case. Is that a reason for a Fed- country. Far better for us to pass legis- part to provide some compassion and eral constitutional amendment? Or is lation that will strengthen victims’ some relief to victims of crime. I have it, instead, a plea to the Georgia attor- rights in Federal criminal cases, over tremendous respect for their effort and ney general—who supports a constitu- which we have jurisdiction, and test those of their cosponsors. tional victims’ rights amendment, by the dozens of critical concepts which After reading the committee report the way, as is documented by his signa- are involved in the effort to provide and giving a lot of thought to this ture on a letter to us—to enforce the victims with rights, including: Who issue, I have decided to oppose the laws of his State? I argue that it is the victims are? What is the impact on amendment for a number of reasons. latter. prosecutions? Is it negative, as some in First of all, we all start with the Then we have the extraordinary tes- law enforcement believe? Will there be proposition that we want victims to timony of Professor Laurence Tribe. undue delays caused by the meaning of have rights and Congress and the State Professor Tribe starts out with the the many issues that are open to litiga- legislatures should act to provide those proposition that: tion? rights. I do not think there is a lot of The States and Congress, within their re- The Conference of Chief Justices of dispute about that issue. The question spective jurisdictions, already have ample the States of the United States wrote a that is before us in this constitutional affirmative authority to enact rules pro- very compelling letter, part of which amendment is whether or not the way tecting these rights, reads as follows:

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00063 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.002 S27AP0 6066 CONGRESSIONAL RECORD—SENATE April 27, 2000 . . . all states have some type of statutory they deserve enforceable rights that take action to protect victims of hate guarantee for the protection of victims’ are guaranteed by law. But, just as crimes. Their needs too can no longer rights, most of which have been enacted re- clearly, these rights can be achieved be ignored. cently. At least 31 of the states also have Too often, the legal system does not constitutional provisions and these enact- without taking the extraordinary step ments provide victims with the opportunity of amending the Constitution of the provide adequate relief for victims of to be heard at the various stages of criminal United States. crime. They are not given basic infor- litigation, particularly at the point of sen- The Constitution is the foundation of mation about their case—such as the tencing and in respect to release on bail or our democracy, and it reflects the en- case status, scheduling changes of on parole. Most states are considering fur- during principles of our country. The court proceedings, and notice of a de- ther constitutional changes. If the sponsors framers deliberately made it difficult fendant’s arrest and bail status. Vic- of S.J. Res. 3 are searching for a single set- to amend the Constitution, because it tims deserve to know about their case, tled law governing victims, the goal will not be achieved through a Federal Constitu- was never intended to be used for nor- They deserve to know about hearings tional Amendment. Preempting each State’s mal legislative purposes. Chief Justice and other proceedings. They deserve to existing laws in favor of a broad Federal law Rehnquist captures the essence of why know when their assailants are being will create additional complexities and un- this proposed amendment is misguided, considered for parole. And they cer- predictability for litigation in both State when he states that a statute, rather tainly deserve to know when their and Federal courts for years to come. We be- than a constitutional amendment, attackers are released from prison. lieve that the existing extensive state efforts ‘‘would have the virtue of making any Victims of crime and their families provide a significantly more prudent and provisions in the bill which appeared deserve legislation that will guarantee flexible approach for testing and refining the evolving legal concepts concerning victims mistaken by hindsight to be amended their basic rights and provide urgently rights. by a simple act of Congress.’’ needed support. However, particular When the chief justices of our State The Constitution is not a billboard provisions in the proposed constitu- courts make such a compelling argu- which to plaster amendments as if they tional amendment are of grave con- ment, it seems to me that this body— were bumper sticker slogans. In this cern. It is no surprise that victims’ always sensitive to the fact that we Congress alone, over a dozen constitu- rights groups and domestic violence live in a Federal system—should give it tional amendments have been intro- groups oppose the constitutional great attention. duced. With every new proposed amendment for a very practical reason. Supporters have argued in the report amendment of this kind, we undermine If a victim of domestic violence acts in at one place that the reason for this and trivialize the Constitution and self-defense, the batterer would be en- constitutional amendment is to ‘‘estab- threaten to weaken its enduring titled to all of the constitutional rights lish consistent, uniform rights’’ for strength. created by S.J. Res. 3, including the crime victims in this country. On the One of the guiding principles that has right to attend court proceedings and other hand, in the same report the served the nation well for two hundred the right to be heard. sponsors talk about giving the 50 dif- years is that if it is not necessary to Clearly, we can deal with this prob- ferent States the authority to ‘‘flesh amend the Constitution, it is necessary lem by statute, and I urge the Senate out the countours of the amendment not to amend it. We have amended the to do so. I would welcome the oppor- by providing definitions of victims’ and Constitution only 17 times in the two tunity to work with my colleagues to crimes of violence.’ ’’ They cannot have centuries since the adoption of the Bill enact bipartisan legislation to accom- that argument both ways. of Rights. We should consider such plish the goal we share of genuine pro- The subject of trying to provide amendments only in rare instances, tections for victims’ rights. rights for victims in Federal criminal when the enactment of a statute is Finally, I commend all of my col- cases is ripe for Federal statute, but it clearly inadequate. leagues who have so eloquently de- is wrong—it is simply wrong—to treat We do have a responsibility to act to fended the Constitution and opposed the Constitution as though it were a assure victims of crime that their this misguided amendment, especially statute book. rights in the criminal justice system Senator BYRD and Senator LEAHY. This amendment does not meet the will not be ignored. But amending the They have given Congress and the test of Federalist No. 49. This great Constitution is not the appropriate country an excellent lesson in the role document, written by James Madison, remedy, and the debate over such a of the Constitution in protecting our said that a constitutional amendment remedy in recent years has, as a prac- liberties. Rarely has there been a bet- provision should be reserved ‘‘for cer- tical matter, delayed the implementa- ter example of Senators living up to tain great and extraordinary occa- tion of basic protections that are need- our oath of office ‘‘to support and de- sions.’’ ed and that should be accomplished by fend the Constitution.’’ This is an occasion where the cause statute. When we began this debate earlier is surely important and great, but the For too long, our criminal justice this seek, the conventional wisdom was cause may be achieved by statutory system has neglected the hundreds of that the proposed constitutional means. It is not appropriate to amend thousands of victims of crime whose amendment was within a vote or two in the Constitution for this occasion. lives are shattered by violence or the Senate of obtaining the two-thirds As a student and as a young lawyer, threats of violence each year. I believe, majority needed for passage. The de- I grew to revere the Constitution. As along with every other member of the bate has so clearly demonstrated the an American, I thank God for it every Senate, that the rights of victims de- fundamental flaws of this amendment day. Amending this hallowed document serve better from our criminal justice that the amendment is likely to be should be done when a great interest system. withdrawn. It is a proud moment for cannot otherwise be protected and Another irony is worth emphasizing the Senate, and I believe the founders when it can be described simply and in in this debate. Many of the Senators who wrote the Constitution would be transcendent language. The amend- who support the rights of victims and proud of us too. ment before us does not meet that test. feel so strongly about this constitu- Mr. LEAHY. Mr. President, I do not Mr. President, I yield the floor. tional amendment are the same Sen- want to conclude this debate without, Mr. KENNEDY. Mr. President, over ators who refuse to allow federal ac- again, acknowledging the commitment the past few days, there has been a tion, even by statute, to protect vic- to crime victims of the Senator from great deal of discussion on the rights of tims of hate crimes. For the past two Arizona and the Senator from Cali- victims and the need for increased par- years, the Senate has failed to send fornia. I know that they are sincere in ticipation of victims in the criminal hate crimes legislation to the Presi- their support for crime victims. I com- justice system. I believe that all of us dent’s desk for signature. I hope that pliment them as well for the manner in support victims’ rights, greater federal this debate will at least have the bene- which they have conducted themselves recognition of these rights. Clearly, ficial affect of encouraging Congress to throughout this debate and throughout

VerDate jul 14 2003 12:37 Aug 24, 2004 Jkt 029102 PO 00000 Frm 00064 Fmt 0686 Sfmt 0634 E:\BR00\S27AP0.002 S27AP0 April 27, 2000 CONGRESSIONAL RECORD—SENATE 6067 the Judiciary Committee’s work on And I included not just donations by rule on the siting of telecommuni- this matter. I view them not as oppo- business interests but from interests cations towers, oil royalties—we did it nents but as allies in our mutual ef- on both sides of these debates, includ- twice on that one, consolidation in the forts to assist crime victims. ing trial lawyers and gun control advo- railroad industry, the Passengers’ Bill I also want to acknowledge the ex- cates. of Rights, the F–22 program, the Africa traordinary efforts of the senior Sen- Last year when I began my Calling of Growth and Opportunity Act, the Fi- ator from West Virginia and the the Bankroll effort, I did so because I nancial Services Modernization bill, thoughtful guidance of the Democratic thought it was time for someone in and finally the Bankruptcy Reform Leader. Senators DORGAN, DURBIN, this body finally to talk about what we Act. SCHUMER, DODD, MOYNIHAN, FEINGOLD, all think about and what the American As I said, there was no shortage of MURRAY, THOMPSON, WELLSTONE, people really are quite angry about; material for calling the bankrolls. LEVIN, and BINGAMAN each contributed and that is, how money can influence This year, it’s time again to examine greatly to the debate. what we do here and how we do it. legislation before this body with an eye I thank Senators from both sides of I know that this is an uncomfortable to the interests that seek to influence the aisle—Senators who supported pre- topic, and I know full well that there the legislative process. serving the Constitution and those who are some who would prefer that I stop I have already begun that effort—I supported the proposed constitutional Calling the Bankroll—that there are recently called the bankroll during the amendment. I commend the Senate for those who wish that I would stop put- debate on the budget resolution. Of doing its duty and upholding the Con- ting the spotlight on facts that reflect course, the budget process itself is stitution and Bill of Rights. poorly on our system, and in turn on tainted by the flood of money that I would also like to thank Rachel the Senate, and on both major political flows to those of us who decide the na- King and her colleagues at the ACLU; parties. tion’s spending priorities. During that Sue Osthoff, Director of the National I have to tell you, Mr. President, no debate we addressed the question of Clearinghouse for the Defense of Bat- one wishes I could stop Calling the whether or not we should drill for oil in tered Women; John Albert, Public Pol- Bankroll as much as I do. the Arctic National Wildlife Refuge, and I called attention to the signifi- icy Director of Victims Services; I wish wealthy interests with busi- cant contributions by the companies Donna Edwards, Director of the Na- ness before this body didn’t have un- with an interest in the outcome of that tional Network to End Domestic Vio- limited ability to give money to our political parties through the soft debate. lence; Renny Cushing, Director of Mur- Before that I also called the bankroll money loophole, but they do. der Victims’ Families for Reconcili- on the interests lobbying both sides of I wish these big donors weren’t able ation; Arwen Bird; Scott Wallace; Beth the nuclear waste debate. Wilkinson; Emmet Welch; and Pro- to buy special access to our political I talked about phony issue ads, PAC fessor Lynne Henderson. As always, I leaders through meetings and weekend contributions, unlimited soft money thank my staff, as well as the hard- retreats set up by the parties, but they contributions—the money that’s al- working staff of our distinguished can. ways here, just beneath the surface of I wish fundraising skills and personal Democratic Leader. our debates. Finally, my special thanks to Pro- wealth weren’t some of the most It’s our unwillingness to discuss it or fessor Robert Mosteller of the Duke sought-after qualities in a candidate even acknowledge the influence of this Law School, who has given so gener- for Congress today, but everyone money that speaks volumes about how ously of his time, over many years, to knows that they are. uncomfortable so many of us are with many of us on the Judiciary Com- Most of all, I wish that these facts the current campaign finance system. mittee and in the Senate. Professor didn’t paint a picture of Government so The purpose of the Calling of the Mosteller is a leading scholar in this corrupt and so awash in the influence Bankroll is to force this body to face field, and his expertise and counsel of money that the American people, es- up to the appearance of corruption the have been invaluable. pecially young people, have turned system causes and face up to our re- Mr. FEINGOLD. Mr. President, I ask away from their Government in dis- sponsibility to do something about it. unanimous consent to speak as in gust, but every one of us knows that So I can assure my colleagues that I morning business. they have. will keep Calling the Bankroll until we The PRESIDING OFFICER. Without But I also know something else: that do something about the campaign fi- objection, it is so ordered. we have the power to change this em- nance system that causes the Amer- Mr. FEINGOLD. Mr. President, first, barrassing state of affairs. ican people to question our motives I compliment the wonderful statement Here in the Senate we have the power when we act on legislation, and, I am by the Senator from Michigan in oppo- to show the American people that we afraid, to question the very integrity of sition to this amendment. On all issues have the will to shut down the soft this body and our democracy. I appreciate his knowledge and his un- money system. And today they have more reason derstanding, and particularly his ex- As I said, I Called the Bankroll 19 than ever to take a cynical view of our tremely clear way of presenting his times last year—and I could have done work. views on this very important issue. it even more times. Because last year was another Mr. LEVIN. I thank my friend. Unfortunatey there is never a short- record-breaker in the annals of soft f age of material. money fundraising—the national polit- When I Call the Bankroll I describe ical party committees raised a record CALLING OF THE BANKROLL KICK- how much money the various interests $107.2 million during the 1999 calendar OFF lobbying on a particular bill have spent year—81 percent more than they raised Mr. FEINGOLD. Mr. President, as on campaign contributions to influence during the last comparable presidential many of my colleagues may remember, our decisions. election period in 1995, according to during the first session of this Congress I Called the Bankroll on: A mining Common Cause. I initiated the Calling of the Bankroll. rider to emergency supplemental ap- An 81 percent increase is astounding, It is a time when I come to the floor to propriations, the gun control amend- especially considering that the year chronicle the massive amount of PAC ments to the juvenile justice bill, the it’s compared with—1995, the last off- and soft money pumped into the cam- Super Hornet amendment to DoD au- election year preceding a presidential paign finance system by donors looking thorization, the Y2K liability legisla- election—which was itself a record- to influence the work we do here on tion, the Patients’ Bill of Rights—we breaking year for soft money fund- this floor. did it twice on that, China/NTR, the to- raising. I called the bankroll many times last bacco industry, last summer’s tax bill, This year one of the most notable year—19 times, to be exact. agriculture appropriations, the FCC fundraising trends hits very close to

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