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“VICTIMS' RIGHTS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S11010-S11013 on Sept. 28, 1998.
The publication is reproduced in full below:
VICTIMS' RIGHTS
Mr. KYL. Madam President, Senator Feinstein and I have been granted time in this period of morning business to discuss a matter that we began working on about 2\1/2\ years ago, and we wanted to give a report to you, to the Members of the U.S. Senate, and, frankly, to all Americans who are interested in the subject of victims' rights.
In April of 1996, during National Victims' Rights Week, along with Representative Henry Hyde, chairman of the House Judiciary Committee, we introduced a Federal constitutional amendment to guarantee certain rights, fundamental constitutional rights, to all victims of violent crime. Since that time, we have worked with victims' rights groups across the country, with law enforcement officials, with our colleagues in the House of Representatives and here in the Senate, of course, with the Department of Justice, the Attorney General, and even the President of the United States, to craft an amendment that could gain acceptance in the two legislative bodies, and then be adopted by the people of the United States as an amendment to the Constitution. We have come a long way since that time.
I want to take this time to join with Senator Feinstein in giving a brief report about our progress, with the conclusion that we are not going to be presenting this amendment at this late date in this session of the Congress, but that we do hope to have a vote on this amendment in the U.S. Senate early next year.
I want to begin by thanking my colleague, Senator Feinstein from California. She has been an extraordinarily important proponent of crime victims' rights around the country; therefore, it was important for her to be one of the prime sponsors of this constitutional amendment. Her experience brought to bear on the subject made it much easier for people to join with us in the effort, and the work she had done with victims' rights groups before we introduced the amendment was important in galvanizing the support of those groups around the country to support this amendment and to work on the versions of it as we had to hone the language to meet the objections and concerns of various people around the country. I want to thank her also for her patience in working with me and her willingness to spend many, many long hours in working out the details of this amendment and meeting with various groups, trying to gather support among both the outside groups and our colleagues that would guarantee passage of the amendment.
In the final version that passed the Senate Judiciary Committee in July of this year by a bipartisan vote of 11-6, we had sponsorship by 30 Republicans and 12 Democrats. You can see by this bipartisan vote of 11-6 it required cooperation of Republicans and Democrats to move this matter forward. So there is nothing partisan about the matter of victims' rights.
I mentioned the fact that we had over 60 drafts of this amendment. What that demonstrates I think is that Senator Feinstein and I have been willing to meet with anyone at any time to hear their concerns, and objections in some cases, about what we are trying to do in specifics. We have been able to mold an amendment which meets their concerns to the extent that we have this strong, strong support.
I note that in a brand new publication from the Department of Justice called ``New Directions From the Field: Victims' Rights and Services for the 21st Century,'' hot off the press, the very first recommendation of this report from the Department of Justice is that victims' rights should be embodied in an amendment to the U.S. Constitution.
I would like to read from this report for a moment, if I might, because this is recommendation from the field No. 1.
The United States Constitution should be amended to guarantee fundamental rights for victims of crime.
What are these rights? They are the same ones that Senator Feinstein and I propose in our amendment.
Constitutionally protected rights should include the right to notice of public court proceedings and to attend them; to make a statement to the court about bail, sentencing, and accepting a plea; to be told about, to attend, and to speak at parole hearings; to notice when the defendant or convict escapes, is released, or dies; to an order of restitution from the convicted offender; to a disposition free from unreasonable delay; to consideration for the safety of the victim in determining any release from custody; to notice of these rights; and to standing to enforce them.
I would like to read on from this report the reasons stated for the conclusion that we need a Federal constitutional amendment, because these reasons summarize a great deal of testimony that we heard in the hearings we held which demonstrated that mere State statutes, or State constitutional provisions, are not adequate to provide a uniform floor of rights for all victims of serious crime in the United States.
Here is what this report goes on to say:
A federal constitutional amendment for victims' rights is needed for many different reasons, including: (1) to establish a consistent ``floor of rights'' for crime victims in every state and at the federal level; (2) to ensure that courts engage in a careful and conscientious balancing of the rights of victims and defendants; (3) to guarantee crime victims the opportunity to participate in proceedings related to crimes against them; and (4) to enhance the participation of victims in the criminal justice process.
The report goes on to say:
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 levels. Such an amendment would ensure that rights for victims are on the same level as the fundamental rights of accused and convicted offenders. Most supporters believe that it is the only legal measure strong enough to ensure that the rights of victims are fully enforced across the country. They also believe, however, that the efforts to secure passage of a federal constitutional amendment for crime victims' rights should not supplant legislative initiatives at the state and federal level.
Granting victims of crime the ability to participate in the justice system is exactly the type of participatory right the Constitution is designed to protect and has been amended to permanently ensure. Such rights include the right to vote on an equal basis and the right to be heard when the government deprives one of life, liberty, or property.
Madam President, hot off the press from the Department of Justice, the No. 1 recommendation is a Federal constitutional amendment to do the things that the amendment which Senator Feinstein and I have introduced would do for crime victims around this country.
I know Senator Feinstein is going to talk for a moment about how the scales of justice are imbalanced, and what our amendment is intended to do is right that imbalance between the legitimate rights of the accused on the one hand and the legitimate rights of victims on the other hand.
Let me get to the bottom line for those who have been wondering what the status of this amendment is and where we are going to go from here.
In July, as I said, the Senate Judiciary Committee passed out on a bipartisan basis, 11 to 6, the latest version of the amendment that Senator Feinstein and I have proposed. As noted, it has some 42 cosponsors. Since that time, we have sought to obtain floor time to debate and eventually vote on our constitutional amendment.
Madam President, as you are aware, it has been very difficult, in the waning weeks of this congressional session, to get floor time to take up even the most mundane of bills, because the Senate is very much concentrated on getting the appropriations bills passed so that we can fund the Government for the next year. And, of course, with the campaign coming up, leaders are very definitely committed to an adjournment date of around October 9 or 10.
Senator Feinstein and I conferred with the various leaders of the victims' rights movement and with our colleagues to determine what the best course of action would be. We understood that for something as important as amending the Constitution, we wanted to do it right. The last thing that Senator Feinstein or I would ever do is to try to hurry an amendment to the U.S. Constitution, to try to push this through without an adequate debate, without giving everyone an opportunity to have their say.
As I said, we have made changes to the extent of 62 different drafts, which I think establish our bona fides in wanting to hear from everyone with an interest in this important subject.
We determined, under the circumstances, rather than trying to amend another piece of legislation with our amendment or to try to rush this through in some way, that we would continue to work at the grassroots level with organizations that support the amendment, continue to work with the administration, whose support for an amendment has been very helpful, and continue to work with our colleagues to gain even more support in terms of cosponsorship, so that when we do bring it to the floor, we will have had the widest possible discussion and opportunity for everyone to participate. We understand that will make it more likely that this important effort will have quick success in the House of Representatives and, importantly, in the State legislatures, which would then have to ratify the amendment.
Madam President, we decided that under the circumstances it was better for us not to try to rush that amendment to the floor here in the waning days, literally, of this Congress, but that we would be willing to defer action until early next year. I know that both Senator Feinstein and I would like to see this matter dealt with perhaps during Crime Victims Week in April of next year.
But whatever the timing that is appropriate, we will be urging our colleagues early in the year to join us in cosponsoring the amendment in its final version and ensuring quick passage out of the Judiciary Committee, again because, of course, we will be in a new Congress and we will need to act anew on the legislation because of that and to secure the support of the leadership to quickly bring the amendment then to the floor of the Senate so that we can have a thorough debate and, hopefully, to pass the amendment out, sending it to the House for its subsequent action.
We hope that with that kind of a timetable, with that kind of an opportunity for everybody to participate, we will in the year 1999 have adopted a constitutional amendment that can then be acted upon by the States once and for all to protect the rights of crime victims around this country.
I want to close these brief remarks by again thanking Senator Feinstein and all of the others who have been so active in this effort. The outside groups I will name at another occasion, because they deserve very special recognition for all of the effort that they have put into this.
But, frankly, the amendment would not have gotten to this point without the strong and active support of one of the strongest supporters of victims' rights that I know in the United States, my friend and colleague from California, Senator Feinstein.
At this point, I would be happy to yield for her to make comments.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. I thank the Chair and I thank the Senator from Arizona.
I want Senator Kyl to know that it has really been a very great pleasure for me to work with the Senator over these past 2 years. I think it has been for me one of the best experiences I have had in the time I have been in the Senate, and that is two Senators from different political parties sitting down to try to work out something which is enormously difficult to do, and that is the drafting of a new constitutional amendment.
The Senator mentioned that we have done 60-plus drafts, and that we have met with the Attorney General, the White House, met members of victims' groups. The Senator brought in the counsel for victims. Larry Tribe, from Harvard University, worked with us, and we believe, I think, that we have an amendment that will now stand the test of public scrutiny and stand the test of time.
I want to share, Madam President, with the Senate how I first became involved in victims' rights. It was in the mid-1970s in San Francisco when a man broke into a home on Portrero Hill. He tied the man in the home to a chair and murdered him by beating him with a hammer, a chopping block and a ceramic vase. He then repeatedly raped his 24-
year-old wife, breaking several of her bones. He slit her wrist and tried to strangle her with a telephone cord before setting their home on fire and leaving them to go up in flames.
Miraculously, this young woman, whose name I purposely left out of this, is still alive. She testified against him. He is still in State prison, to the best of my knowledge. But when I became mayor she used to call me every year and say, ``I'm terrified that he might get out. I don't know if and when he will get out. His parole is coming up. Could you help me?''
I recognized then that there really were no rights that victims had. In 1982, California became the first State in the Union to apply some victims' rights. It was a bill of rights. It passed the electorate overwhelmingly. That is the reason when people saw the family of Nicole Brown Simpson and Ronald Goldman in court it wasn't because they had Federal rights or constitutional rights; it was because the constitution of the State of California provided that right in 1982. Some 28 other States have followed.
So you might say, ``Well, what's the problem?'' The problem is each State is different, and there is no basic floor of rights guaranteed to every victim. Therefore, if rights come in conflict, obviously, the rights provided in the Constitution prevail.
Now, what rights are in the Constitution? These are the constitutional rights today. You will see the rights of the accused, 15 specific rights guaranteed in the Constitution: the right to counsel, the right to due process, to a speedy trial, to a prohibition against double jeopardy, self-incrimination, against unreasonable searches and seizures, to have warrants issued only on probable cause, a jury of your peers, to be informed of accusations, and so on. You will then on the other side see the rights granted to victims are ``none.''
Well, one has to look back and say, how did this happen? I have looked back, and how it happened is very interesting. Our Founding Fathers, when they included the rights of the accused in the Constitution, did not think to include the rights of crime victims. Then again in 1789 there were not 9 million victims of violent crimes every year. As a matter of fact, there were not much more than 4 million people in all of our colonies. In fact, there are more victims of violent crime each year, by far, than there were people in the country when the Constitution was written.
Additionally, the way the criminal justice system worked then, victims did not need a guarantee of these rights. In America, up to the late 18th century and well into the 19th century, the concept of the public prosecutor did not exist. Victims could and did commence criminal cases themselves, by hiring a sheriff to arrest the defendant and then initiating a private prosecution. The core rights in our amendment--to notice, to attend, to be heard--were inherently made available to the victim.
As Juan Cardenas, writing in the Harvard Journal of Law and Public Policy, observed:
At trial, generally, there were no lawyers for either the prosecution or the defense. Victims of crime simply acted as their own counsel, although wealthier crime victims often hired a prosecutor.
Gradually, public prosecution replaced the system of private prosecution. With the explosive growth of crime in this country in recent years--the rate of violent crime has more than quadrupled in the last 35 years--it became easier and easier for the victim to be left out of the process.
Another scholar noted:
With the establishment of the prosecutor, the conditions for the general alienation of the victim from the legal process further increase. The victim is deprived of his ability to determine the course of a case and is deprived of the ability to gain restitution from the proceedings. Under such conditions, the incentives to report crime and to cooperate with the prosecution diminish. As the importance of the prosecution increases, the role of the victim is transformed from principal actor to a resource that may be used at the prosecutor's discretion.
So there was no need to guarantee those rights in 1789, and, as we all know, the Constitution protects people from government rather than providing most people with certain basic rights. But the criminal justice system has changed dramatically since then and the prevalence of crime has changed dramatically. So we believe that the need and circumstances both combine to restore balance to the criminal justice system by guaranteeing the rights of violent crime victims in the United States.
I am very proud to have 12 coauthors on the Democratic side for this constitutional amendment, and I am particularly proud to have the support of Senator Biden of Delaware. Senator Biden of Delaware was the chairman of the Judiciary Committee, I say to the Senator from Arizona, when I came on that committee back in 1992 and was very helpful to me in learning the ropes of the committee. I have great respect for him. So it was very significant to me when we worked with him, made certain compromises in the amendment, and gained his support.
Mr. KYL. Might I just interrupt the Senator to also note that, as supporters of the amendment, we have the current chairman of the Judiciary Committee, Senator Hatch, and also, as I indicated earlier, the chairman of the House Judiciary Committee, Representative Hyde. So this amendment certainly has the support of the people who have been in the leadership of the committee as well as the current leadership of the committee.
Mrs. FEINSTEIN. That is right. And I am delighted the Senator is in the Chamber, because many people have said about this amendment,
``Well, why isn't Federal law enough?'' And if the Senator will recall, we both voted for the Federal clarification law in the case of Oklahoma City that would give victims the right to be notified, to be present in the courtroom, and to make a statement. And even after we clarified the law, the Federal judge held that if a victim was present, that victim could not make a statement. So this again is, I think, an additional rationale for this constitutional amendment.
I do want to point out the valuable support of Professor Laurence Tribe of the Harvard Law School, and I would like to just briefly quote portions of his testimony last year before the House hearing on the amendment.
The rights in question--rights of crime victims not to be victimized yet again, through the processes by which Government bodies and officials prosecute, punish, and release the accused or convicted offender--are indisputably basic human rights against government, rights that any civilized society of justice would aspire to protect and strive never to violate.
Our Constitution's central concerns involve protecting the rights of individuals to participate in all those governmental processes that directly and immediately involve those individuals and affect their lives in some focused and particular way . . . The parallel rights of victims to participate in these proceedings are no less basic, even though they find no parallel recognition in the explicit text of the Constitution of the United States.
The fact that the States and Congress, within their respective jurisdictions, already have ample affirmative authority to enact rules protecting these rights is . . . not a reason for opposing the amendment altogether . . . The problem, rather, is that such rules are likely, as experience to date sadly shows, to provide too little real protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia, or any mention of an accused's rights regardless of whether those rights are genuinely threatened.
So, in a sense, this is all the heart of our argument. Today, the accused, the defendant, has 15 specific rights in the Constitution.
The victim of a violent crime, or any other crime, has no rights in the Constitution. Consequently, there is no protected, no basic floor of rights across this Nation. Each State varies. And when one of these rights conflicts with a right guaranteed to a victim by a State constitutional amendment, the Federal Constitution will always prevail. We believe very strongly that 15 rights should be balanced by the 7 rights that we would provide to victims under this constitutional amendment.
``The right to receive notice of the proceedings.'' What could be more basic? Somebody assaults you, somebody has raped you, somebody has robbed you--at least you receive a notice to the hearing.
``The right to attend the trial, and any other public proceeding at which the defendant is present.''
``The right to be heard at certain stages in the proceeding: The release of the offender; acceptance of a plea bargain; and sentencing.
``The right to be notified of the offender's release or escape.''
This is something for me which goes back to the 1974 case of a woman having to call to plead to know when her husband's murderer and her own attacker would be released, and because she does not have that information to this day guaranteed to her, to this day she lives in anonymity. She has changed her name and she has changed her place of residence because she believes one day he will get out and one day he will come after her. No American should have to live that way. That is a basic right we provide in this constitutional amendment.
``The right to an order of restitution, albeit $1, presented by a judge,'' which is significant to every victim. We had interested victims testify to this. Senator Kyl, I am sure, will remember how meaningful and important just the simple act of restitution was to them.
``To have the safety of the victim considered in determining a release from custody.'' These are, in essence, the basic rights that we would provide to begin to balance this scale of justice throughout time. The only way it can be done is by adding a constitutional amendment to the U.S. Constitution.
I, once again, thank Senator Kyl. It has been a great pleasure for me. I hope we will have the time to debate this fully on the floor and have a vote. I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Madam President, let me just add some additional thanks to those that Senator Feinstein has indicated here. Before I do, I note the illustrative chart that Senator Feinstein has been referring to refers to the rights of the defendants there. I think it is instructive that for those who say we should not be providing victims' rights by amending the U.S. Constitution, it is very instructive that most of those rights for defendants were added by amendment to the U.S. Constitution. They were not embodied in the original text of the Constitution. So, as times changed and as we determined that rights needed to be added, we did that for the defendants. Now, as Senator Feinstein has pointed out, it is time to add some coequal rights for victims of violent crime.
There are some additional people I think we would be remiss in not thanking at this time. Laurence Tribe certainly was mentioned by Senator Feinstein; Professor Paul Cassell at the University of Utah was equally helpful to us, in drafting language changes.
Mrs. FEINSTEIN. If the Senator will yield for just one moment?
Mr. KYL. Yes, of course.
Mrs. FEINSTEIN. On Paul Cassell, I think the Senator will remember, in the Judiciary Committee he had very compelling testimony and he submitted a brief which he had written particularly on this. I found it very, very compelling. I would like to refer to it in the text of our remarks, so people who might be interested would go back and read that brief.
Mr. KYL. I thank Senator Feinstein. I might add, anyone interested in obtaining more information about what we are doing, and in getting information about the specific provisions, the testimony of the witnesses who answered a lot of the questions that, frankly, our colleagues had, they can contact us. We can provide them transcripts of the hearings, very erudite writings of the people like Laurence Tribe and Paul Cassell who have been working for a long period of time and have so much to contribute, as well as information from people at the Department of Justice and others.
I would also like to thank Steve Twist, an attorney in Arizona, who has spent thousands of hours pro bono, a lawyer who has spent much of his career in advancing the cause of victims' rights and who, frankly, was one of my mentors in learning about this subject and who has also helped us throughout this process.
Also, there are two particular brilliant lawyers on our staff who deserve a lot of credit, Neil Quinter, a member of Senator Feinstein's staff with her today, and Stephen Higgins, a member of my staff; both lawyers who have spent far more than the usual amount of time on a piece of legislation, working this, because not only is it a very interesting legal challenge but also a personal commitment on their parts as much as it is for us.
I indicated we would probably thank a lot of people at another time. Certainly the victims' rights groups and representatives who have been so important in advancing this cause at the grassroots level. But I thought it important, at least at this time as we wind up this session, to note the people who have, professionally, been so helpful to us. We will be working on this over the next 2 or 3 months as we prepare for the next legislative session.
I will allow Senator Feinstein to close. I am pleased to announce that while we have not been able to get this amendment to the floor for consideration by our colleagues today, or this year, I am quite optimistic we will be able to do that early in the next session of the Senate. I think the additional time we take to allow everyone to have their say, to ask the questions they need to ask, that will allow this to come at a time when we can have a full debate, that that will permit us to adopt this amendment next session and send it to the States for ratification.
Again, I thank Senator Feinstein for her wonderful cooperation and inspiration on this amendment.
Mrs. FEINSTEIN. If the Senator will yield on one point, I would like to add to those thanks, and thank him for being so generous. I would like to add Roberta Roper of the National Victims Constitutional Amendment Network, who worked with Steve Twist so actively; David Beatty of the National Victims Center; and John Stein and Marlene Young of the National Organization for Victim Assistance.
If I might say this: Some people have pooh-poohed--maybe pooh-poohed is not a good senatorial word--let me say denigrated this concept. As one who sat on 5,000 cases, sentencing them, setting sentences and granting paroles for 6 years of my life, I can tell you that I believe this constitutional amendment will make more of a difference in the criminal justice system than virtually anything else that could be done. I think it is extraordinarily important. I know the Senator joins me in this, and I hope we will be able to have that full debate early on in the next Congress.
Mr. KYL. Madam President, it seems like there is always one more thing we want to say on this important subject. Again, we cannot possibly thank everyone here today, but one of the organizations--now that Senator Feinstein mentions a couple of other people--Mothers Against Drunk Driving have been enormously helpful at the grassroots, working with our colleagues gaining cosponsorships. I would be remiss if I did not mention them.
Again, we will have many more opportunities to discuss this. I urge anyone who has questions about it to be in touch with us. But it is certainly an effort that I am going to be pleased to work on in the next session.
Mr. Bumpers addressed the Chair.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. BUMPERS. What is the parliamentary situation?
The PRESIDING OFFICER. We are in morning business.
Mr. BUMPERS. Is there any particular order, Madam President?
The PRESIDING OFFICER. The Senator has the right to speak.
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