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Volume 18, Number 3 (of 12 issues), 1998

Senator Biden Joins as Co-Sponsor

Victims’ Amendment Drive Revived

On April 1, 1998, Senators Jon Kyl (R-AZ) and Dianne Feinstein (D-CA) proposed a new version of a victim rights amendment to the U.S. Constitution. Joining them as a lead co-sponsor of Senate Joint Resolution 44 was Senator Joseph Biden (D-DE) and 37 other colleagues.

Thus began a flurry of activities to revive the amendment drive. At a Capitol Hill news conference called to announce the revised proposal, Senator Kyl spoke first, then Senator Feinstein, who then brought on the third speaker by saying, "Welcome, Joe Biden!" Her effusion was the culmination of a long courtship.

As background, Senator Biden or his staff had been present at virtually all the negotiations among the chief sponsors, Justice Department and White House officials, and legal consultants Steven Twist and Harvard law professor Laurence Tribe. All along, Senator Biden, like the Clinton Administration, agreed that victim rights needed to be elevated to constitutional status. But each had misgivings over certain provisions of S. J. Res. 52, introduced in 1996, and S. J. Res. 6, introduced in the 105th Congress in January of 1997.

Both lead sponsors wanted to come to terms with the two friendly critics of their proposal. When it appeared that progress could be achieved by reaching agreement with either the Justice Department or Senator Biden – their concerns were similar but not exactly the same – Senator Feinstein persuaded Senator Kyl that they focus first on Senator Biden, a one-time chair of the Judiciary Committee where he had achieved a record of crafting major crime legislation, including the 1994 Violence Against Women Act, on a bipartisan basis. She viewed him as a mentor and as an eminent leader in her party on crime issues.

For his part, Senator Kyl did well in shoring up the base in his party by bringing in Senate Majority Leader Trent Lott (R-MS) as a new co-sponsor.

The basis of the two substantive changes initiated by Senator Biden was a pragmatic concern over the sheer volume of change that the earlier proposal would have imposed overnight on the justice system. Senator Biden has long worked with prosecutors and judges who, on this issue, feared that their systems could not meet the needs, say, of thousands of victims of massive fraud schemes or environmental crimes.

The two accommodations Senator Biden proposed were to limit the reach of the amendment to victims of violent crime only, and to eliminate a kind of "automatic" right to have plea bargains and sentences overturned when the victim’s rights had earler been violated.

These issues will be discussed at more length later in this issue. But to put them in context, it is worth noting here three features of the earlier version that did not change, and one that did.

First, the substantive list of rights remains exactly as before.

Second, victims explicitly retain "standing" to assert their rights so that, for example, they can obtain orders to end patterns of past abuse – a "prospective" method of enforcement that Attorney General Janet Reno said she favored in earlier testimony.

Third, there was no trimming of the victim’s various notification rights, which are the most burdensome on the system.

And fourth, the power of Congress and state legislatures to create remedies by statute was strengthened in the new version.

The revisions also entailed minor language changes to improve the clarity and simplicity of the proposal, as can be seen in the version of S. J. Res. 44 on the next page, showing and explaining its differences from the earlier proposal.

The members of the National Victims Constitutional Amendment Network (NVCAN) initially resisted any change, but after months of failed efforts to persuade Senator Biden to their view or to recruit other Democrats as co-sponsors, they met on February 12 with their Senate champions to reconsider their position. Senator Kyl made the case for the merits of a revised resolution, while Senator Feinstein bluntly told her visitors, "Let me put you out of your misery" – the old version could not win the needed votes. [See the Senate testimony on page 3 for the case for S. J. Res. 44.]

On March 11, NVCAN’s voting members decided 13 to 4 to support the Kyl-Feinstein position. John Stein, NVCAN Executive Board member and NOVA Deputy Director, voted with the majority, reflecting the unanimous vote of support earlier taken by the NOVA Board.

NOVA’s support was underscored at an April 28 hearing of the Senate Judiciary Committee to consider the new resolution, where Executive Director Marlene Young, along with Board members Norman S. Early, Jr., and Steve Twist, spoke in favor of S. J. Res. 44.

Significantly, the testimony of Associate Attorney General Raymond C. Fisher publicly spelled out for the first time the Administration’s concerns, even as he said "the [new] proposal represents substantial progress on issues of importance to us."

The next Newsletter will report on a speeded-up effort to reach a Kyl-Feinstein-Justice final settlement.

The race is on!