Congressional Record Statements by
Senator Dianne Feinstein and Senator Jon Kyl
on Introduction of S.J. Res. 35
April 15, 2002

By Mrs. FEINSTEIN (for herself, Mr. KYL, Mr. BAYH, Mr. LOTT, Mr. BREAUX, Mr. ALLARD, Mr. CLELAND, Mr. BUNNING, Ms. LANDRIEU, Mr. CRAIG, Mrs. LINCOLN, Mr. DEWINE, Mr. WYDEN, Mr. FRIST, Mr. HAGEL, Mr. HELMS, Mr. HUTCHINSON, Mrs. HUTCHISON, Mr. INHOFE, Mr. MCCAIN, Mr. SHELBY, Mr. SMITH of Oregon, and Mr. WARNER):

S.J. Res . 35 . 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.

Mrs. FEINSTEIN. Madam President, National Crime Victims' Rights Week begins on Sunday.

Next week, communities across the country will be holding observances, candlelight vigils, rallies, and other events to honor and support crime victims and their rights.

Also, in just a few days--specifically, April 19--we will mark the 7th anniversary of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City.

That attack resulted in the deaths of 168 people.

And it was just over seven months ago that, over a period of two hours and three minutes, we suffered the deadliest act of domestic terrorism in our history.

Over 3,000 people died in the attacks on that day--more than died at Pearl Harbor.

Thus, it seems appropriate for all of us in this esteemed body to stop a minute and think about victims' rights.

Last year, the Senate debated a proposed constitutional amendment drafted by Senator KYL and me to protect the rights of victims of violent crime.

The amendment had been reported out of the Senate Judiciary Committee on a strong bipartisan vote of 12 to 5.

After 82 Senators voted to proceed to consideration of the amendment, there was a vigorous debate on the floor of the Senate.

Some Senators raised concerns about the amendment, saying that it was too long or that it read too much like a statute.

Ultimately, in the face of a threatened filibuster, Senator KYL and I decided to withdraw the amendment.

We then hunkered down with constitutional experts such as Professor Larry Tribe of Harvard Law School to see if we could revise the amendment to meet Senators' concerns. We also worked with constitutional experts at the Department of Justice and the White House. And we have come up with a new and improved draft of the amendment.

This new amendment provides many of the same rights as the old amendment.

Specifically, the amendment would give crime victims the rights to be notified, present, and heard at critical stages throughout their case.

It would ensure that their views are considered and they are treated fairly.

It would ensure that their interest in a speedy resolution of the case, safety, and claims for restitution are not ignored.

And it would do so in a way that would not abridge the rights of defendants or offenders, or otherwise disrupt the delicate balance of our Constitution.

There are many reasons why we need a constitutional amendment.

First, a constitutional amendment will balance the scales of justice.

Currently, while criminal defendants have almost two dozen separate constitutional rights--fifteen of them provided by amendments to the U.S. Constitution--there is not a single word in the Constitution about crime victims.

These rights trump the statutory and state constitutional rights of crime victims because the U.S. Constitution is the supreme law of the land.

To level the playing field, crime victims need rights in the U.S. Constitution.

In the event of a conflict between a victim's and a defendant's rights, the court will be able to balance those rights and determine which party has the most compelling argument.

Second, a constitutional amendment will fix the patchwork of victims' rights laws.

Eighteen states lack state constitutional victims' rights amendments. And the 32 existing state victims' rights amendments differ from each other.

Also, virtually every state has statutory protections for victims, but these vary considerably across the country.

Only a federal constitutional amendment can ensure a uniform national floor for victims' rights.

Third, a constitutional amendment will restore rights that existed when the Constitution was written.

It is a little know fact that at the time the Constitution was drafted, it was standard practice for victims--not public prosecutors--to prosecute criminal cases.

Because victims were parties to most criminal cases, they enjoyed the basic rights to notice, to be present, and be heard.

Hence, it is not surprising that the Constitution does not mention victims.

Now, of course, it is extremely rare for a victim to undertake a criminal prosecution.

Thus, victims have none of the basic procedural rights they used to enjoy.

Victims should receive some of the modest notice and participation rights they enjoyed at the time that the Constitution was drafted.

Fourth, a constitutional amendment is necessary because mere state law is insufficient.

State victims' rights laws lacking the force of federal constitutional law are often given short shrift.

A Justice Department-sponsored study and other studies have found that, even in states with strong legal protections for victims; rights, many victims are denied those rights. The studies have also found that statutes are insufficient to guarantee victims' rights.

Only a federal constitutional amendment can ensure that crime victims receive the rights they are due.

Fifth, a constitutional amendment is necessary because federal statutory law is insufficient.

The leading statutory alternative to the Victims' Rights Amendment would only directly cover certain violent crimes prosecuted in Federal court. Thus, it would slight more than 99 percent of victims of violent crime.

We should acknowledge that Federal statutes have been tried and found wanting. It is time for us to amend the U.S. Constitution.

The Oklahoma City bombing case offers another reason why we need a constitutional amendment.

This case shows how even the strongest Federal statute is too weak to protect victims in the face of a defendant's constitutional rights.

In that case, two Federal victims' statutes were not enough to give victims of the bombing a clear right to watch the trial and still testify at the sentencing--even though one of the statutes was passed with the specific purpose of allowing the victims to do just that.

Let me quote from the first of these statutes: the Victims of Crime Bill of Rights, passed in 1990. That Bill of rights provides in part that:

A crime victim has the following rights: The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial.

That statute further states that Federal Government officers and employees ``engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that victims of crime are accorded the[se] rights.''

The law also provides that ``[t]his section does not create a cause of action or defense in favor of any person arising out of the failure to accord to a victim the[se] rights.''

In spite of the law, the judge in the Oklahoma City bombing case ruled--without any request from Timothy McVeigh's attorneys--that no victim who saw any portion of the case could testify about the bombing's impact at a possible sentencing hearing:

The Justice Department asked the judge to exempt victims who would not be ``factual witnesses at trial'' but who might testify at a sentencing hearing about the impact of the bombing on their lives.

The judge denied the motion.

The victims were then given until the lunchbreak to decide whether to watch the proceedings or remain eligible to testify at a sentencing hearing.

In the hour that they had, some of the victims opted to watch the proceedings; others decided to leave to remain eligible to testify at the sentencing hearing.

Subsequently, the Justice Department asked the court to reconsider its order in light of the 1990 Victims' Bill of Rights. Bombing victims then filed their own motion to raise their rights under the Victims' Bill of Rights.

The court denied both motions. With regard to the victims' motion, the judge held that the victims lacked standing.

The judge stated that the victims would not be able to separate the ``experience of trial'' from the ``experience of loss from the conduct in question.'' The judge also alluded to concerns about the defendants' constitutional rights, the common law, and rules of evidence.

The victims and DOJ separately appealed to the Court of Appeals for the Tenth Circuit.

That court ruled that the victims lacked standing under Article III of the Constitution because they had no ``legally protected interest'' to be present at trial and thus had suffered no ``injury in fact'' from their exclusion.

The victims and DOJ then asked the entire Tenth Circuit to review that decision.

Forty-nine members of Congress, all six attorneys general in the Tenth Circuit, and many of the leading crime victims' organizations filed briefs in support of the victims. All to no avail.

The Victims' Clarification Act of 1997 was then introduced in Congress.

That act provided that watching a trial does not constitute grounds for denying victims the chance to provide an impact statement. This bill passed the House 414 to 13 and the Senate by unanimous consent.

Two days later, President Clinton signed it into law, explaining that ``when someone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in.''

The victims then filed a motion asserting a right to attend the trial under the new law.

However, the judge declined to apply the law as written.

He concluded that ``any motions raising constitutional questions about this legislation would be premature and would present questions issues that are not now ripe for decision.''

Moreover, he held that it could address issues of possible prejudicial impact from attending the trial by interviewing the witnesses after the trial.

The judge also refused to grant the victims a hearing on the application of the new law, concluding that his ruling rendered their request ``moot.''

The victims then faced a painful decision: watch the trial or preserve their right to testify at the sentencing hearing.

Many victims gave up their right to watch the trial as a result.

A constitutional amendment would help ensure that victims of a domestic terrorist attack such as the Oklahoma City bombing have standing and that their arguments for a right to be present are not dismissed as ``unripe.''

A constitutional amendment would give victims of violent crime an unambiguous right to watch a trial and still testify at sentencing.

There is strong and wide support for a constitutional amendment.

I am pleased that President Bush and Attorney General Ashcroft have endorsed the amendment. I greatly appreciate their support.

And I am also pleased that both former President Clinton and former Vice President Gore have all expressed support for a constitutional amendment on victims' rights.

Moreover, in the last Congress, the Victims' Rights Amendment was cosponsored by a bipartisan group of 41 Senators.

I have spoken to many of my colleagues about the amendment we introduce today and I am hopeful that it will receive even more support in this Congress. In addition:

Both the Democratic and Republican Party platforms call for a victims' rights amendment.

Governors in 49 out of 50 states have called for an amendment.

Four former U.S. Attorneys General, including Attorney General Reno, support an amendment. Attorney General Ashcroft supports an amendment.

Forty state attorneys general support an amendment.

Major national victims' rights groups--including Parents of Murdered Children, Mothers Against Drunk Driving, MADD, and the National Organization for Victim Assistance--support the amendment.

Many law enforcement groups, including the Nation Troopers' Coalition, the International Union of Police Associations AFL-CIO, and the Federal Law Enforcement Officers Association, support an amendment.

Constitutional scholars such as Harvard Law School Professor Larry Tribe support an amendment.

The amendment has received strong support around the country. Thirty-two states have passed similar measures--by an average popular vote of almost 80 percent.

I am delighted to join my good friend Senator JON KYL in sponsoring the Victims' Rights Amendment, and I look forward to its adoption by this Congress.

I think it is probably well known in this body that Senator KYL and I have authored what is called the victim's rights constitutional amendment. One of the most perplexing things about the history of this amendment has been that everybody outside of this Chamber supports it. Governors support it. Attorneys general support it. Democratic candidates support it. Republican candidates support it. But when it came down to the fine discussion on this floor, we were told, well, it is too pedantic. Well, there are too many words--well, well.

Senator KYL and I have hunkered down. We have gone back to our constitutional experts on this side of the aisle: Professor Larry Tribe, who has been a very active participant in drafting this, and Steve Twist representing the victims, and many victims' organizations, as well as Paul Cassell, show has worked with us on this amendment.

We have essentially redone the victims' rights constitutional amendment, really based on comments made on the floor. It is now succinct. It has a much more poetic flow to it. We believe it is an improved amendment. We are introducing it at this time because next week communities around the country will be holding observances, candlelight vigils, rallies, and other events to honor and support crime victims and their rights.

In just a few days--specifically April 19--we will mark the seventh anniversary of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. That attack resulted in the deaths of some 168 people.

I would like to very quickly read from a study that was conducted by the Department of Justice, the Office of Justice Programs, on this particular subject because I think their findings are significant.

Let me read one of them. I quote:

Nevertheless, serious deficiencies remain in the nation's victims' rights laws as well as their implementation.

The Presiding Officer will remember when we passed two statutes to clarify victims' rights as a product of the Oklahoma City bombing. The judge ignored them. Then we passed another one. It went to the appellate court, and the appellate court found that the victims were without standing in the Constitution. Of course, that is what we are trying to remedy here. Thirty-two States have passed victims' rights State amendments. They are all different. Sometimes they are observed and sometimes they are not.

Their report goes on to say:

The rights of crime victims vary significantly among States and at the Federal level. Frequently, victims' rights are ignored. Even in States that have enacted constitutional rights for victims, implementation is often arbitrary and based on the individual practices and preferences of criminal justice officials. Moreover, many States do not provide comprehensive rights for victims of juvenile offenders.

Let me go on to the recommendation of the Department of Justice. I quote:

A Federal constitutional amendment for victims' rights is needed for many different reasons, including: One, to establish a consistent floor of rights for crime victims in every State and at the Federal level; two, to ensure the courts engage in a careful and conscientious balancing of the rights of victims and defendants; three, to guarantee crime victims the opportunity to participate in proceedings related to crimes against them; and, four, to enhance the participation of victims in the criminal justice process.

A victims' rights constitutional amendment is the only legal measure strong enough to rectify the current inconsistencies in victims' rights laws that vary significantly from jurisdiction to jurisdiction on the State and Federal level.

I know Senator KYL would like to address himself to this measure. His leadership has been unparalleled. It has been a great delight for me to work with him.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. KYL. Madam President, I thank Senator FEINSTEIN for her work on this amendment for several years now. She was tremendously helpful in working with the past administration. She and I have both worked with various victims groups. I think they rightly regard her as a champion of victims' rights in this country.

She mentioned that next week is National Crime Victims' Rights Week. It begins Sunday. It is fitting that we could introduce this legislation today because tomorrow, at a ceremony at the Department of Justice, it is my understanding there will be a very important announcement by the President and the Attorney General with respect to this amendment.

Just to be very brief about our support for this amendment at this time, I will simply address the differences between this year's amendment and last year's amendment.

Even though last year's amendment to the Constitution had 40 cosponsors and was bipartisan, and was considered--incidently, I appreciate the efforts of the distinguished Presiding Officer as chairman of the committee, the Judiciary Committee. We had a strong bipartisan vote of 12 to 5 for this amendment out of the Judiciary Committee last year. I appreciate the Presiding Officer's assistance in that, notwithstanding some differences of opinion with respect to the specifics of the amendment.

We withdrew the bill from consideration on the floor when we knew it would be the subject of prolonged discussion--we shall put it that way--and agreed to consider the criticism of some of the opponents at that time that the phrasing of the language was not elegant enough and perhaps too wordy.

Now, the constitutional amendment contains 12 key lines of text with respect to the rights of victims. There are another 10 lines of text that provide for exceptions or caveats to that grant of constitutional protection. I think the language much more closely approximates the other amendments to the U.S. Constitution. I thank Professor Laurence Tribe for his consideration, expertise, and assistance in developing the language toward that end. I am hopeful my colleagues will give a close look at this new protection. The rights protected are essentially the same, but I think the way in which it is done is more in line with other constitutional amendments. I am hopeful we will have an opportunity to make a substantive case for this amendment and to discuss in detail, with our colleagues, the reasons for our desire that we get a vote on it this year.

I will just conclude by noting--especially because starting Sunday we will be celebrating National Crime Victims' Rights Week--the number of groups that are represented here in Washington to participate in various presentations and celebrations of National Crime Victims' Rights Week and who will also be participating in the meeting tomorrow at the Department of Justice.

Supporters include the National Governors Association, which has voted in favor of an amendment. Both the Republican and Democratic Party platforms of the last Presidential election and their nominees supported such an amendment. It is supported by major national victims' rights groups, including Parents of Murdered Children, Mothers Against Drunk Driving, and the National Organization for Victim Assistance, in addition to the Stephanie Roper Foundation, the Arizona Voice for the Crime Victims, Crime Victims United, and Memory of Victims Everywhere.

And especially, in addition to Senator FEINSTEIN and the Attorney General of the United States, who has been very helpful in helping us formulate the specific wording of the amendment, I thank the National Organization for Victims Assistance, the National Constitutional Amendment Network, Mothers Against Drunk Driving, Parents of Murdered Children, Roberta Roper, and the Stephanie Roper Foundation, and Steve Twist, who has been enormously supportive in working the language and coordinating the efforts with these various victims' rights groups. Steve is a lawyer in Phoenix, AZ, and has been indispensable in my efforts.

Finally, Mr. President, Senator FEINSTEIN has asked that I have printed in the RECORD a letter dated April 15, 2002, from Laurence H. Tribe to Senator FEINSTEIN and myself. I will just read two excerpts from it, conclude my remarks, and submit it for the RECORD.

Professor Tribe says:

Dear Senators Feinstein and Kyl:

I think that you have done a splendid job at distilling the prior versions of the Victims' Rights Amendment into a form that would be worthy of a constitutional amendment--an amendment to our most fundamental legal charter, which I agree ought never be altered lightly. .....

How best to protect that right without compromising either the fundamental rights of the accused or the important prerogatives of the prosecution is not always a simple matter, but I think your final working draft of April 13, 2002, resolves that problem in a thoughtful and sensitive way, improving in a number of respects on the earlier drafts that I have seen. Among other things, the greater brevity and clarity of this version makes it more fitting for inclusion in our basic law. That you achieved such conciseness while fully protecting defendants' rights and accommodating the legitimate concerns that have been voiced about prosecutorial power and presidential authority is no mean feat. I happily congratulate you both on attaining it.

I would say, editorially, not without substantial help from Professor Tribe himself.

Madam President, I ask unanimous consent that this letter be printed in the RECORD.

There being no objection, the letter was ordered to be printed in the RECORD, as follows:

HARVARD UNIVERSITY

LAW SCHOOL,

Cambridge, MA, April 15, 2002. Hon. DIANNE FEINSTEIN, U.S. Senate, Hart Senate Office Building, Washington, DC. Hon. JON KYL, U.S. Senate, Hart Senate Office Building, Washington, DC.

DEAR SENATORS FEINSTEIN AND KYL: I think that you have done a splendid job at distilling the prior versions of the Victims' Rights Amendment into a form that would be worthy of a constitutional amendment--an amendment to our most fundamental legal charter, which I agree ought never to be altered lightly. I will not repeat here the many reasons I have set forth in the past for believing that, despite the skepticism I have detected in some quarters both on the left and on the right, the time is past due for recognizing that the victims of violent crime, as well as those closest to victims who have succumbed to such violence, have a fundamental right to be considered, and heard when appropriate, in decisions and proceedings that profoundly affect their lives.

A case argued two weeks ago in the Supreme Judicial Court of Massachusetts, in which a woman was brutally raped a decade and a half ago but in which the man who was convicted and sentenced to a long prison term has yet to serve a single day of that sentence, helps make the point that the legal system does not do well by victims even in the many states that, on paper, are committed to the protection of victims' rights. Despite the Massachusetts Victims' Bill of Rights, solemnly enacted by the legislature to include an explicit right on the part of the victim to a ``prompt disposition'' of the case in which he or she was victimized, the Massachusetts Attorney General, to who has yet to take the simple step of seeking the incarceration of the convicted criminal pending his on-again, off-again motion for a new trial--a motion that has not been ruled on during the 15 years that this convicted rapist has been on the streets--has taken the position that the victim of the rape does not even have legal standing to appear in the courts of this state, through counsel, to challenge the state's astonishing failure to put her rapist in prison to begin serving the term to which he was sentenced so long ago.

If this remarkable failure of justice represented a wild aberration, perpetrated by a state that has not incorporated the rights to victims into its laws, then it would prove little, standing alone, about the need to write into the United States Constitution a national commitment to the rights of victims. Sadly, however, the failure of justice of which I write here is far from aberrant. It represents but the visible tip of an enormous iceberg of indifference toward those whose rights ought finally to be given formal federal recognition.

I am grateful to you for fighting this fight. I only hope that many others can soon be stirred to join you in a cause that deserves the most widespread bipartisan support.

Sincerely yours,

LAURENCE H. TRIBE.