Congressional Record Remarks by Senator Jon Kyl
Introduction of SJR 6
(Senate - January 21, 1997)
By Mr. KYL (for himself and Mrs. Feinstein):
S.J. Res. 6. A joint resolution proposing an amendment to the Constitution of the United States to protect the rights of crime victims; to the Committee on the Judiciary.
THE VICTIMS' RIGHTS CONSTITUTIONAL AMENDMENTMr. KYL. Mr. President, to ensure that crime victims are treated with fairness, dignity, and respect, I rise to introduce, along with Senator Feinstein, a resolution proposing a constitutional amendment to establish and protect the rights of crime victims.
This resolution is the product of extended discussions with Chairman Henry Hyde, Senators Hatch and Biden, the Department of Justice, the White House, law enforcement officials, major victims' rights groups, and such diverse scholars as Professors Larry Tribe and Paul Cassell. As a result of these discussions, the core values in the original amendment remain unchanged, but the language has been refined to better protect the interest of all parties.
Each year, about 40 million Americans are victimized, first by criminals and a second time by a government that affords them no constitutional rights. The Victims' Rights Amendment is a constitutional amendment that will bring balance to the system by giving crime victims the rights to be informed, present, and heard at critical stages throughout their ordeal--the least the system owes to those it failed to protect.
NEED TO PROTECT CRIME VICTIMS' RIGHTS--SCALES OF JUSTICE IMBALANCED
Last Congress, the amendment was cosponsored by 29 Senators. Both the Republican and Democratic Party platforms called for a victims' rights amendment, as did Senator Dole and President Clinton in a Rose Garden ceremony in June 1996 and in his acceptance speech at the Democratic convention.
This strong bipartisan support makes clear that the Victims' Rights Amendment is not a partisan issue, or some election-year gimmick. The idea stems from a 1982 President's Task Force on Victims of Crime, which concluded that `the criminal justice system has lost its essential balance,' and that constitutional protection of victims' rights was the only way to guarantee fair treatment of crime victims. Since then, grass-roots citizens' organizations around the country have pushed for amendments to their State constitutions. A majority of States have responded to the unjust treatment crime victims face, and have enacted constitutional amendments. But this patchwork of State constitutional amendments is inadequate. A Federal amendment would establish a basic floor of crime victims's rights--a floor below which States could not go.
Victims of serious crimes need a constitutional amendment to protect their rights and restore balance to our justice system. Those accused of crime have many constitutionally protected rights: They have the right to due process; right to confront witnesses; right against self-incrimination; right to a jury trial; right to a speedy trial; right to a public trial; right to counsel; right to be free from unreasonable searches and seizures.
Yet, despite rights for the accused, the U.S. Constitution, our highest law, has no protection for crime victims. The recognized symbol of justice is a figure holding a balanced set of scales, but in reality the scales are heavily weighted on the side of the accused. Our proposal
will not deny or infringe any constitutional right of any person accused or convicted of a crime. But it will add to the body of rights we all enjoy as Americans.
Crime victims have no constitutional rights. They are often treated as mere inconveniences, forced to view the process from the sidelines. Defendants can be present through their entire trial because they have a constitutional right to be there. But in many trials, crime victims are ordered to leave the courtroom. Victims often are not informed of critical proceedings, such as hearings to consider releasing a defendant on bail or allowing him to plea bargain to a reduced charge. Even when crime victims find out about these proceedings, they frequently have no opportunity to speak.
RIGHTS IN THE AMENDMENT
The amendment gives crime victims the rights:
To be notified of the proceedings;
To be heard at certain crucial stages in the process;
To be notified of the offender's release or escape;
To proceedings free from unreasonable delay;
To an order of restitution;
To have the safety of the victim considered in determining a release from custody; and
To be notified of these rights.
As I noted earlier, each year about 40 million Americans are victims of serious crime. During 1995 there were 9.9 million crimes of violence, 6.4 million simple assaults, 2.0 million aggravated assaults, 1.3 million robberies, and 355,000 rapes or other types of sexual assault, according to the most recent statistics from the Department of Justice.
The breakdown of social order and the crisis of crime which accompany it have swelled the ranks of criminals, and those who suffer at their hands, to proportions that astonish us, that break our hearts, and that demand collective action. And the process of detecting, prosecuting, and punishing criminals continues, in too many places in America, to ignore the rights of crime victims to fundamental justice.
STRONG PUBLIC SUPPORT--TWENTY-NINE STATES HAVE CONSTITUTIONAL AMENDMENTS
Since 1982 when the need for a constitutional amendment was first recognized by a President's Task Force on Victims of Crime, 29 states have passed similar measures--by an average popular vote of almost 80 percent.
In 1996, eight states approved constitutional amendments--all by landslides. Connecticut: 78 percent. Indiana: 89 percent. Nevada: 74 percent. North Carolina: 78 percent. Oklahoma: 91 percent. Oregon: 57 percent. South Carolina: 89 percent. Virginia: 84 percent.
AMENDING THE CONSTITUTION IS A BIG STEP, BUT A NECESSARY ONE
Amending the constitution is, of course, a big step--one which I do not take lightly--but, on this issue, it is a necessary one. As Thomas Jefferson once said: `I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and options change, with the change of circumstances, institutions must advance also to keep pace with the times.'
Who would be comfortable now if the right to free speech, or a free press, or to peaceably assemble, or any of our other rights were subject to the whims of changing legislative or court majorities: When the rights to vote were extended to all regardless of race, and to women, were they simply put into a statute? Who would dare stand before a crowd of people anywhere in our country and say that a defendant's rights to a lawyer, a speedy public trial, due process, to be informed of the charges, to confront witnesses, to remain silent, or any of the other constitutional protections are important, but don't need to be in the Constitution?
Such a position would not stand. Yet that is precisely what critics of the Victims' Bill of Rights would tell crime victims. Victims of crime will never be treated fairly by a system that permits the defendant's constitutional rights always to trump the protections given to victims. Such a system forever would make victims second-class citizens. It is precisely because the Constitution is hard to change that basic rights for victims need to be protected in it.
The amendment is supported by major national victims' rights groups: Parents of Murdered Children, Mothers Against Drunk Driving [MADD], the National Organization for Victim Assistance, the National Victim Center, and the National Victims' Constitutional Amendment Network, the Victim Assistance Legal Organization, the Doris Tate Crime Victims Bureau, Citizens for Law and Order, the National Coalition Against Sexual Assault, and the Law Enforcement Alliance of America.
In closing, I would like to thank Senator Dianne Feinstein for her hard work on this amendment and for her tireless efforts on behalf of crime victims.
Mr. President, for far too long, the criminal justice system has ignored crime victims who deserve to be treated with fairness, dignity, and respect. Our criminal justice system will never be truly just as long as criminals have rights and victims have none. We need a new definition of justice--one that includes the victim.
Mr. President, I ask unanimous consent that the text of the resolution be printed in the Record at the end of my statement.
THE PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1)
There being no objection, the joint resolution was ordered to be printed in the Record, as follows:
S.J. Res. 6
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein, That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid for all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
Section 1. Each victim of a crime of violence, and other crimes that Congress may define by law, shall have the rights to notice of, and not to be excluded from, all public proceedings relating to the crime--
to be heard, if present, and to submit a written statement at a public pretrial or trial proceeding to determine a release from custody, an acceptance of a negotiated plea, or a sentence;
to the rights described in the preceding portions of this section at a public parole proceeding, or at a non-public parole proceeding to the extent they are afforded to the convicted offender;
to notice of a release pursuant to a public or parole proceeding or an escape;
to a final disposition of the proceedings relating to the crime free from unreasonable delay;
to an order of restitution from the convicted offender;
to consideration for the safety of the victim in determining any release from custody; and
to notice of the rights established by this article; however, the rights to notice under this section are not violated if the proper authorities make a reasonable effort, but are unable to provide the notice, or if the failure of the victim to make a reasonable effort to make those authorities aware of the victim's whereabouts prevents that notice.
Section 2. The victim shall have standing to assert the rights established by this article. However, nothing this article shall provide grounds for the victim to challenge a charging decision or a conviction; to obtain a stay of trail; or to compel a new trial. Nothing in this article shall give rise to a claim for damages against the United States, a State, a political subdivision, or a public official, nor provide grounds for the accused or convicted offender to obtain any form of relief.
Section 3. The Congress and the States shall have the power to enforce this article within their respective jurisdictions by appropriate legislation, including the power to enact exceptions when required for compelling reasons of public safety or for judicial efficiency in mass victim cases.
Section 4. The rights established by this article shall apply to all proceedings that begin on or after the 180th day after the ratification of this article.
Section 5. The rights established by this article shall apply in all Federal and State proceedings, including military proceedings to the extent that Congress may provide by law, juvenile justice proceedings, and collateral proceedings such as habeas corpus, and including proceedings in any district or territory of the United States not within a State.