CQ TODAY
Feb. 10, 2003 - 8:42 p.m.

Feinstein, Kyl Ready to Renew Fight for Victims' Rights

By Jennifer A. Dlouhy, CQ Staff

When lawyer Steve Twist argues the case for amending the Constitution to enhance the role of victims in criminal cases, he recounts the story of a client whose wife was shot to death in 2000 while sitting at a homeowners association meeting.

Despite a requirement under Arizona law that victims' families be allowed to testify at sentencing hearings, Duane Lynn was not allowed to argue that his wife's killer be sentenced to life in prison - rather than be given the death penalty. The jury sentenced the convicted man, Richard Glassel, to death Jan. 11 without Lynn's testimony.

"The courts denied [Lynn] that right," said Twist, general counsel for the National Victims Constitutional Amendment Network. The group is pressing Congress for a constitutional amendment that would outline victims' rights.

Since 1996, supporters in Congress have tried to pass a such an amendment, but have run into opposition from lawmakers who say victims' rights should be achieved through enacting a new law rather than changing the Constitution.

Twist and other supporters believe the 108th Congress represents the proposed amendment's best chance yet.

Sens. Dianne Feinstein, D-Calif., and Jon Kyl, R-Ariz., have rewritten the proposal (S J Res 1 in the Senate, and Ed Royce, R-Calif., has offered a version (H J Res 10 ) in the House. The White House has supported the concept, and Twist believes others will get on board.

Support and momentum for the amendment has been building with each Congress. Even before a proposal was first introduced in April 1996, a handful of organizations had been lobbying to pass a resolution to amend the Constitution.

If cleared by Congress and ratified by at least 38 states, it would be the 28th amendment to the Constitution and the first since 1992.

The amendment would require that crime victims - or their lawful representatives - receive advance notification of judicial proceedings and parole hearings. It also would give the victim or representative the right to be heard at public release, plea sentencing and other proceedings and would require judicial officials to take victims' safety into account in deciding the fate of defendants.

Supporters argue the Constitution delineates - in great detail - the rights of the accused, but the victims of crime are not represented.

"While criminal defendants have almost two dozen separate constitutional rights - 15 of them provided by amendments to the U.S. Constitution - there is not a single word in the Constitution about crime victims,"Feinstein said."To level the playing field, crime victims need rights in the U.S. Constitution."

Twist said the Glassel case shows that a patchwork of 33 state constitutional amendments and state laws that give certain rights to victims and their families in criminal court cases isn't enough. In the end, judges still can make the final call on who testifies and who does not.

"The way we protect fundamental rights is to protect them in the U.S. Constitution," Twist said. "That's the way they take on the gravitas necessary to change the culture."

Unlike other proposed constitutional amendments - such as a ban on burning or otherwise desecrating the U.S. flag - the victims' rights proposal has appeal to a broad range of members.

Even Russell D. Feingold, D-Wis., who opposes the measure, noted at a hearing last year: "Of all the constitutional amendments I have considered since I became a senator, this one is perhaps the least troubling because the goal is so laudable."

Writing Law vs. Rewriting Constitution

Feingold would prefer such protection in a law, rather than a constitutional amendment, which is more difficult than a statute to change. He and others who oppose the victims' rights proposal have suggested Congress first pass a comprehensive statute and try a constitutional amendment only if the law does not work.

"Once this amendment is ratified, if some new development in the law requires a change to the amendment, we would once again need to get approval of two-thirds of the members of each house of Congress, and then ratification by three-fourths of the state legislatures," Feingold said. "This is a real problem because there are numerous uncertainties about the effect of this amendment."

Unlike the flag desecration amendment, which consists of a single sentence, the proposed victims' rights amendment includes five sections.

Feinstein and Kyl have rewritten the measure since it was last considered on the Senate floor in 2000. Then, they faced opposition from some that said - among other things - it was too unwieldy and read too much like a statute.

Ultimately, facing a potential filibuster, and lacking the 60 votes necessary to limit debate on the measure, Feinstein and Kyl pulled the resolution off the floor. The proposal has never been considered in the House.

Now, armed with the support of the White House, Feinstein and Kyl hope to draw more support in the Senate, where the measure still faces a tough challenge from lawmakers such as Feingold.