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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed
(Senate - April 27, 2000)

Text of this article available as: TXT PDF [Pages S2966-S3011] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed Mr. KYL. Mr. President, we are in the process of attempting to work out an arrangement of time for the debate on the pending motion. I ask for all concerned if the Chair will describe the pending business of the Senate. The PRESIDING OFFICER. The question is on the motion to proceed to S.J. Res. 3. Mr. KYL. I thank the Chair. We are in the process of determining just how much time speakers are going to need in order to conclude debate on the motion to proceed. Senator Feinstein and I both have some preliminary remarks we would like to make in connection with that debate as the two chief proponents of the resolution. We understand Senator Leahy and Senator Byrd wish to take some time, and Senator Biden as well a little later on. As soon as we can confirm the amount of time people will need, we will probably propound a unanimous consent request in that regard. Mr. LEAHY. Will the Senator yield? Mr. KYL. I am happy to yield. Mr. LEAHY. Mr. President, I am perfectly willing, from this side, to work with the distinguished Senator from Arizona and the distinguished Senator from California on time. I do not expect an enormous amount of time to be consumed. It has not been announced, but there is a certain sense that there may not be any more rollcall votes this week so a lot of people are probably going to be leaving. I will definitely try to accommodate them. The distinguished Senator from West Virginia does have a statement he wishes to make. I have a statement I wish to make. I am simply trying to protect some others who may want to speak, as I am sure the Senator is on his side. But I will continue to work with the distinguished Senator to cut down this time any way we can. Mr. KYL. We will announce to all Members, if we can work that time arrangement out, just exactly how this will proceed. In the meantime, let me see if I can set the stage so everyone will know where we are in this debate. Then I would like to thank some people and then move on to a colloquy with Senator Feinstein, if I might. Because of the way the Senate works, we have moved back and forth in Senate business. But the pending business is the motion to proceed on S.J. Res. 3; that is, the crime victims' constitutional rights resolution sponsored by Senator Feinstein and myself. We gained cloture earlier this week so we could proceed, and the motion to proceed will certainly be agreed to, if we carry the debate that far. Senator Feinstein and I, however, are of the view that because of various things that have occurred, it is unlikely that a cloture motion, if filed, would be supported by the requisite number of Senators to succeed early next week. Therefore, what we are prepared to do is speak to the issue of the resolution, where we are with respect to the resolution, to thank the many groups and sponsors and other individuals who have been so supportive of this effort, and to seek permission of the Senate, when people have finished their comments, to withdraw the motion to proceed and to move to other business. That merely means a timeout in our efforts to secure passage of this constitutional amendment. We recognize at this point in time that proceeding will simply encourage more Senators to use a great deal of the Senate's time in unproductive speeches that really do not go to the heart of our constitutional amendment but take time away from the Senate's important business. We have no intention of doing that. So we will make some remarks that will set the stage for what we are about to do. But let me begin by noting the tremendous amount of support around the country that has accompanied our effort to bring this measure to the floor of the Senate. I have to begin by thanking two people in particular, Senator Dianne Feinstein and Majority Leader Trent Lott. We could not have brought this amendment, over the course of the last 4 years, to the bipartisan level of support it now enjoys without the ability to work on both sides of the aisle. No one could have carried this matter on the Democratic side more capably than Senator Dianne Feinstein. Before she came to the Senate, she was a passionate advocate for victims of crime. As mayor of San Francisco, she was a proponent of area residents who were victims of crime and carries that passion with her to this debate now. She and I have worked closely with victims' rights advocates to shape the legislation. I might say, while some of our colleagues have suggested there is something wrong with the fact that we have conducted dozens of meetings with the administration, Department of Justice, and many others, and honed this amendment in 63 different drafts, we are very proud that we have included anyone who wanted to talk about this in our circle of friends working to get an amendment that could pass the Senate and that we have carefully taken their suggestions into account, thus accounting for the many different drafts as the 4-year progress of this resolution has brought us to this point. The fact that we have taken their suggestions to heart and continually polished this amendment we think is a strong point. While we were criticized yesterday on the floor for engaging in yet more negotiations that might result in a final, 64th draft, I must say that was largely at the instigation of Senator Feinstein, who said, given the fact the Department of Justice has four concerns still pending with regard to our specific proposal, let's meet with them and see if we can come to closure on those items. Because of her leadership, we were able to come to closure on three of them. We believe we made more than a good faith effort with respect to the fourth, which had to do with the protection of defendants' rights. We were willing to acknowledge that the rights enumerated in this proposal take nothing whatsoever away from defendants' rights. I do not know how more clearly we can say it. That was not acceptable to the Department of Justice. But it is not for want of trying, on the part of Senator Feinstein, that we have been unable to secure the support of the Department of Justice for this amendment. So my first sincere thanks go to the person without whom we would not be at this point, my colleague Senator Feinstein. I also thank Leader Lott. When I went to him with a request for floor time for this amendment, his first response was: You know all the business the Senate has to conduct. Are you sure you want to go forward with this? I said we are absolutely certain. Despite all the other pressing business, he was willing because he, too, believes strongly in this proposal, as a cosponsor, to give us the floor time to try to get this through. It is partially out of concern for his responsibilities as leader that we recognize that to proceed would result in a vote that would not be successful, and therefore, rather than use that precious time, we are prepared to visit privately with our colleagues to further provide education to them about the necessity of this amendment since, clearly, the methodology we have engaged in thus far was not working. We would make strong arguments, but I daresay it didn't appear that anyone was here on the floor listening because when various opponents would come to the floor, they would repeat the same mantra over and over again that we had already addressed. Part of that mantra was, Did you know this amendment is longer than the Bill of Rights? We would patiently restate that is not true, that all of the rights of the defendants in the Constitution are embodied in language of more words than this amendment that embodies the victims' rights and so on. [[Page S2967]] Then that individual would leave the floor, and another individual would come to the floor and repeat the same erroneous information, and we would have to patiently respond to that. Rather than continue that process, we believe it is better that we visit with our colleagues when we are not using this time on the floor and explain all of this to them, with the hope they will then be better able to support us in the future. So I thank Senator Feinstein. We have gone through a lot together on this. There is nobody in this body for whom I have greater respect. Again, I thank Senator Lott, the majority leader, for his support for us as well. The National Victims' Constitutional Amendment Network is one of the really strong victims' rights groups that has backed us throughout this process. Roberta Roper has been involved in that. She was in my office this morning. She was with us yesterday. She has been with us throughout the process, helping us evaluate these various proposals and assisting us. The National Organization for Victim Assistance, known by the acronym NOVA, headed by Marlene Young and John Stein, and all the people on the NOVA board, we are enormously appreciative of their strong support and assistance throughout this effort. They are going to continue to fight for sure. Marsha Kight, whom Senator Feinstein and I have come to know and respect because of her advocacy as someone whose daughter was killed in the Oklahoma City bombing, brought the experience of that trial and the firsthand knowledge of how victims were denied their rights even to attend the trial. She has been an important witness for us before the Judiciary Committee and at various other forums. One of the groups in the country that is most strongly in support, and has provided a lot of grassroots support, is Mothers Against Drunk Driving, or MADD. Also, Students Against Drunk Driving, SADD, a group of younger people, has been helpful. Tom Howarth, Millie Webb, Katherine Prescott, and others have been very helpful to us in that regard. Parents of Murdered Children has been enormously helpful. Rita Goldsmith is from my State of Arizona, from Sedona. We have had tremendous help from legal scholars such as Professor Laurence Tribe, Professor Doug Beloof, and Professor Paul Cassell. I thank them for their enormous help in this effort, including their testimony before the Judiciary Committee. There are many prosecutors. I need to mention a couple from my own State. The two largest counties in Arizona are Maricopa and Pima Counties. Rick Romley, the Republican-elected attorney from Maricopa County, the sixth largest county by population in the country, and Barbara LaWall, a Democratic-elected attorney from Pima County, have been very strong supporters and helpful in our work. Law enforcement has been very well represented by organizations and individuals. From the Law Enforcement Alliance of America, Darlene Hutchinson and Laura Griffith have been helpful. Various attorneys general, such as Delaware Attorney General Jane Brady, Wisconsin Attorney General Jim Doyle, and Kansas Attorney General Carla Stovall. By the way, these are Democrats and Republicans alike. It is a totally bipartisan effort. As a matter of fact, the National Association of Attorneys General--we have a very good letter signed by the vast majority of attorneys general in support of our crime victims' constitutional rights amendment. We also have support from former U.S. Attorneys General: Ed Meese, Bill Barr, and Dick Thornburgh are strongly supportive of our proposal. From a show with which Americans are familiar, ``America's Most Wanted,'' John Walsh has been an early and strong supporter of our proposal. From the Stephanie Roper Foundation--I mentioned Roberta Roper--but Steve Kelly of the Stephanie Roper Foundation has been very helpful. Arizona Voice for Crime Victims; a person who helped Senator Feinstein in the early years, Neil Quinter, a superb former Senate staff member and with whom I visited just this morning, continues his support for this. Matt Lamberti and David Hantman of Senator Feinstein's office; Jason Alberts, Nick Dickinson, and Taylor Nguyen of my office; and, most important, Stephen Higgins of my staff and Steve Twist, an attorney from Arizona, whose support and competence in helping us through this process was, frankly, simply indispensable. Also, I will submit for the Record two things. One is a list of crime victims' rights amendment supporters. This list includes, in addition to those I mentioned, more than half a page of law enforcement organizations. I mention this because there has been some suggestion that law enforcement does not support us: The Federal Law Enforcement Officers Association, Law Enforcement Alliance of America, American Probation and Parole Association, American Correctional Association, the National Criminal Justice Association, the National Organization of Black Law Enforcement Executives, National Troopers Coalition, Concerns of Police Survivors, and on and on. This amendment is strongly supported by prosecutors, law enforcement, legal scholars, attorneys general, Governors, former U.S. Attorneys General, and many more. I ask unanimous consent to print this list of supporters in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Crime Victims' Rights Amendment Supporters public officials 42 cosponsors in the U.S. Senate (29R; 13D). Former Senator Bob Dole. Representative Henry Hyde. Texas Governor George W. Bush. California Governor Gray Davis. Arizona Governor Jane Hull. Former U.S. Attorney General Ed Meese. Former U.S. Attorney General Dick Thornburgh. Former U.S. Attorney General William Barr. The Republican Attorneys General Association. Alabama Attorney General Bill Pryor. Alaska Attorney General Bruce Botelho. Arizona Attorney General Janet Napolitano. California Attorney General Bill Lockyer. Colorado Attorney General Ken Salazar. Connecticut Attorney General Richard Blumenthal. Delaware Attorney General M. Jane Brady. Florida Attorney General Bob Butterworth. Georgia Attorney General Thurbert E. Baker. Hawaii Attorney General Earl Anzai. Idaho Attorney General Alan Lance. Illinois Attorney General Jim Ryan. Indiana Attorney General Karen Freeman-Wilson. Kansas Attorney General Carla Stovall. Kentucky Attorney General Albert Benjamin Chandler III. Maine Attorney General Andrew Ketterer. Maryland Attorney General J. Joseph Curran, Jr. Michigan Attorney General Jennifer Granholm. Minnesota Attorney General Mike Hatch. Mississippi Attorney General Mike Moore. Montana Attorney General Joseph P. Mazurek. Nebraska Attorney General Don Stenberg. New Jersey Attorney General John Farmer. New Mexico Attorney General Patricia Madrid. North Carolina Attorney General Michael F. Easley. Ohio Attorney General Betty D. Montgomery. Oklahoma Attorney General W.A. Drew Edmondson. Oregon Attorney General Hardy Meyers. Pennsylvania Attorney General Mike Fisher. Puerto Rico Attorney General Angel E. Rotger Sabat. South Carolina Attorney General Charlie Condon. South Dakota Attorney General Mark Barnett. Texas Attorney General John Cornyn. Utah Attorney General Jan Graham. Virgin Islands Attorney General Iver A. Stridiron. Virginia Attorney General Mark Earley. Washington Attorney General Christine O. Gregoire. West Virginia Attorney General Darrell V. McGraw, Jr. Wisconsin Attorney General James Doyle. Wyoming Attorney General Gay Woodhouse. Alaska State Legislature. law enforcement Federal Law Enforcement Officers Association. Law Enforcement Alliance of American (LEAA). American Probation and Parole Association (APPA). American Correctional Association (ACA). [[Page S2968]] National Criminal Justice Association (NCJA). National Organization of Black Law Enforcement Executives. Concerns of Police Survivors (COPS). National Troopers' Coalition (NTC). Mothers Against Violence in America (MAVIA). National Association of Crime Victim Compensation Boards (NACVCB). National Center for Missing and Exploited Children (NCMEC). International Union of Police Associations AFL-CIO. Norm Early, former Denver District Attorney. Maricopa County Attorney Rick Romley. Pima County Attorney Barbara Lawall. Shasta County District Attorney McGregor W. Scott. Steve Twist, former chief assistant Attorney General of Arizona. California Police Chiefs Association. California Police Activities League (CALPAL). California Sheriffs' Association. Los Angeles County Sheriff Lee Baca. San Diego County Sheriff William B. Kolender. San Diego Police Chief David Bajarano. Sacramento County Sheriff Lou Blanas. Riverside County Sheriff Larry D. Smith. Chula Vista Police Chief Richard Emerson. El Dorado County Sheriff Hal Barker. Contra Costa County Sheriff Warren E. Rupf. Placer County Sheriff Edward N. Bonner. Redding Police Chief Robert P. Blankenship. Yavapai County Sheriff's Office. Bannock County Prosecutor's Office. Los Angeles County Police Chiefs' Association. victims Mothers Against Drunk Driving (MADD). National Victims' Constitutional Amendment Network (NVCAN) National Organization for Victim Assistance (NOVA) Parents of Murdered Children (POMC) Mothers Against Violence in America (MAVIA). Justice for Murder Victims. Crime Victims United of California. Justice for Homicide Victims. We Are Homicide Survivors. Victims and Friends United. Colorado Organization for Victim Assistance (COVA). Racial Minorities for Victim Justice. Rape Response and Crime Victim Center. Stephanie Roper Foundation. Speak Out for Stephanie (SOS). Pennsylvania Coalition Against Rape (PCAR). Louisiana Foundation Against Sexual Assault. KlaasKids Foundation. Marc Klaas. Victims' Assistance Legal Organization, Inc. (VALOR). Victims Remembered, Inc. Association of Traumatic Stress Specialists. Doris Tate Crime Victims Bureau (DTCVB). Rape Response & Crime Victim Center. John Walsh, host of ``America's Most Wanted''. Marsha Kight, Oklahoma City bombing victim. other supporters Professor Paul Cassell, University of Utah School of Law. Professor Laurence Tribe, Harvard University Law School. Professor Doug Beloof, Northwestern Law School (Lewis and Clark). Professor Bill Pizzi, University of Colorado at Boulder. Professor Jimmy Gurule, Notre Dame Law School. Security on Campus, Inc. International Association for Continuing Education and Training (IACET). Women in Packaging, Inc. American Machine Tool Distributors' Association (AMTDA). Jewish Women International. Neighbors Who Care. National Association of Negro Business & Professional Women's Clubs. Citizens for Law and Order. National Self-Help Clearinghouse. American Horticultural Therapy Association (AHTA). Valley Industry and Commerce Association. Mr. KYL. Mr. President, finally, I ask unanimous consent to print in the Record a series of a dozen or so statements and letters from supporters of the amendment. Included in those, incidentally, is a strong statement of support for our specific amendment by Governor George Bush of the State of Texas. I ask unanimous consent to print these in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Statement by Governor George W. Bush--April 7, 2000 I strongly support passage of the Victims' Rights Amendment. Two years ago, I joined my colleagues on the National Governor's Association in calling for a national Amendment, like the one we have in Texas and 30 other states. For too long, courts and lawyers have focused only on the rights of criminal defendants and not on the rights of innocent victims. We need to make sure that crime victims are not forgotten, that they are treated fairly and with respect in our criminal process. ____ March 14, 2000. Dear Senators Kyl and Feinstein: During our years of service as Attorneys General of the United States, we saw first hand how the criminal justice system must command the respect of all our citizens if it is to be effective. That respect can only be eroded when the system unfairly treats those it is supposed to serve. For victims, the system is neither fair nor just. Despite federal statutes and states constitutional amendments passed to ensure fair treatment of crime victims, in too many courtrooms across the country, crime victims continue to be excluded and silenced; they are neither informed of proceedings nor given a right to be present or heard. We believe the only way to extend the fundamental fairness demanded of our system for crime victims, is to secure their rights in our fundamental law, the U.S. Constitution. That is why we are writing now to express our strong and unqualified support for the constitutional amendment you propose, the Crime Victims' Rights Amendment (S.J. Res. 3). This amendment, once ratified, will restore to our justice system the basic fairness necessary to command the respect of all our people. The rights spelled out in the amendment are simple, yet profound. They are practical and attainable, and they will transform our justice system so that it will truly protect the rights of the law abiding as well as the lawless. Sincerely, William Barr. Edwin Meese III. Richard Thornburgh. ____ Office of the Maricopa County Attorney, Maricopa County, AZ, April 14, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Dear Senator Kyl: As the chief prosecutor for the sixth largest prosecutor's office in the nation, handling over 40,000 felony and delinquency prosecutions each year, I have first hand knowledge of the ramifications of providing constitutional rights for victims. I have been a strong proponent for victims' rights for many years, having served on the Arizona Victim's Bill of Rights Steering Committee that was responsible for the passage of constitutional rights for victims in 1990. I also participated in subsequent legislative ad hoc committees charged with developing the enabling legislation. I strongly support S.J. Res. 3 and your efforts to see constitutional rights for victims become a reality in the United States Constitution. I recently read the Minority views in the Judiciary Committee's Report on S.J. Res. 3. The ``worst case'' examples that were raised were for the most part extreme predictions which we in Arizona have not experienced, notwithstanding our long history with victims' rights. I would like to take this opportunity to address several of the Minority report concerns. Victims' Rights Do Not Result in Substantial Costs To The System-- Providng victims with constitutional rights has not resulted in substantial costs to law enforcement, prosecutors, the courts, corrections or probation departments. My office provides victims' rights services to over 30,000 victims each year and although the ``exact cost'' is difficult to determine, our estimates are that it costs my office approximately $15.00 per victim. While we have experienced an increase in trials, the increase cannot be attributed to our constitution amendment for victim rights. Any such increase has been in response to our mushrooming population and the resulting increase in case filings. The Arizona Court of Appeals and the Arizona Supreme Court have not been besieged with appeals based on victim rights arguments. Victim Rights Do Not Restrict The Discretion Of The Prosecutor-- A victim's right to be heard regarding a plea agreement does not mean a crime victim can veto a judge's final decision. Judges, of course, consider the victim's opinion when determining whether or not to accept a plea agreement, however that opinion is merely one factor among others which contribute to the deliberative process. In Arizona, the victim's right to allocution has not caused our judicial officers to abrogate their responsibility to render a decision free of bias. There is no reason to believe that federal judicial officers will act otherwise when weighing the appropriateness of accepting a negotiated plea. I have implemented a policy in which prosecutors solicit the victim's opinion regarding the final outcome of the prosecution and take the victim's opinion into consideration when neogitating a plea agreement. In this way, the prosecutor considers the victim's wishes, including the harm caused by the crime, throughout the plea negotiation process and pretrial phase of prosecution. Consideration of the victim's views are again but one factor considered by the prosecutor. Our experience has been that my deputies are not inappropriately influenced by emotion. To presuppose otherwise does a disservice to these dedicated public servants who have sworn to strive for equal justice. [[Page S2969]] Prosecutors are responsible for informing victims of the plea agreement and the reasons for the negotiated settlement. It has been our experience that very few victims object to a plea agreement when fully informed of the reasons and benefits of the plea. However, in some instances, after considering the plea and victim's opinion, the judge will reject the plea agreement holding that the interests of justice are not served by the plea. When this happens, although rare in our experience, the court has fulfilled its function as an arbiter not an advocate. Victim Rights Do Not Under Cut The Rights Of The Accused-- Victims desire to see justice, first and foremost. their natural desire to gain justice, is not something to fear. In our experience it has helped our office achieve that goal. While victims have a right to be present throughout the course of trial in Arizona, it has been our experience that defendants and/or the friends and family of the defendants are much more likely than victims to become disruptive during trial. In the rare cases where a victim has been emotionally overwhelmed in court, he or she has either voluntarily left the courtroom to calm down, or is requested to do so upon instruction by the court. In every courtroom in our land, the judge has the responsibility of maintaining order and ensuring that the jury is not influenced by factors other than those presented from the witness box. To assume that the presence of a victim in the courtroom will somehow so prejudice a jury that they would disregard the evidence and return a verdict of guilty predicated and influenced by an individual sitting in the spectator section of the court, presupposes that juries will ignore the instructions of the court to be fair and impartial and to base their decision exclusively on the evidence. To adopt this position, one must conclude that juries will ignore the law. To do so, would be to conclude that our jury system is incapable of justice. Defendants have a constitutional right to a speedy trial. Oftentimes defendants waive this right for strategy advantage--hoping for memories to fade, critical witnesses to relocate, or victims to die. Victims have as much an interest in the timely disposition of the criminal case as do the defendants and need to have equal consideration when a judge considers whether or not to delay the disposition of a case. Federal Constitutional Rights Do Not Infringe On State's Rights-- While those victimized by crime in Arizona are afforded victim rights in state court, that same victim would not be afforded constitutional rights if that offense occurred on federal land, or if an Arizona resident were victimized in a state that does not have constitutional rights. These rights are too important to be left to a patchwork of rights from state to state. Consistency in the application of our laws are paramount if our citizens are to realize the benefit of a judicial system that is balanced between the accused and the interest of society at large. Inconsistency breeds contempt and cynicism. Adoption of a federal constitutional amendment will recognize that there is but one law for all. My office has nearly a decade of experience championing in assisting victims in exercising their state constitutional rights. It would be disingenuous if I were to say that there had been no costs, yet the benefit to the victim, to the citizens of Arizona and our system of justice far outweighs those costs. Our state constitutional amendment has increased cooperation of victims with police and prosecutors. Victims feel more of a part of the criminal justice process. I believe that this has enhanced the ability of law enforcemenet to put criminals behind the bars, and thus has been a factor in the decrease in crime that we have experienced in recent years. The scales of justice must be balanced, providing victims with equal access to the courts, information and a voice in the criminal justice system. Our system of justice is dependent upon the voluntary participation of those who have been harmed by crime--without their participation, our country would see an increase in lawlessness and vigilantism. Balancing the scales of justice by providing for victim rights restores faith in our system without detracting from the rights of those accused. Sincerely, Richard M. Romley, Maricopa County Attorney. ____ National Association of Attorneys General, Washington, DC, April 21, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Hon. Dianne Feinstein, U.S. Senate, Washington, DC. Dear Senators Kyl and Feinstein: We are writing to express our strong and unequivocal support for your efforts to pass S.J. Res. 3, the proposed Crime Victims' Rights Amendment, and send it on to the States for ratification. As Attorneys General from diverse regions and populations in our nation, we continue to see a common denominator in the treatment of crime victims throughout the country. Despite the best intentions of our laws, too often crime victims are still denied basic rights to fair treatment and due process that should be the birthright of every citizen who seeks justice through our courts. We are convinced that statutory protections are not enough; only a federal constitutional amendment will be sufficient to change the culture of our legal system. The rights you propose in S.J. Res. 3 are moderate, fair, and yet profound. They will extend to crime victims a meaningful opportunity to participate in each critical stage of their cases. At the same time, they will not infringe on the fundamental rights of those accused or convicted of offenses. Neither will these rights interfere with the proper functioning of law enforcement. Attorney General Reno spoke for many of us in law enforcement when she noted, ``[T]he President and I have concluded that a victims' rights amendment would benefit not only crime victims but also law enforcement. To operate effectively, the criminal justice system relies on victims to report crimes committed against them, to cooperate with the law enforcement authorities investigating those crimes, and to provide evidence at trial. Victims will be that much more willing to participate in this process if they perceive that we are striving to treat them with respect and to recognize their central place in any prosecution.'' Some have argued that federal constitutional rights for victims will infringe on important principles of federalism. We disagree. Each of our state criminal justice systems accommodates federal rights for defendants. To provide a similar floor of rights for victims is a matter of basic fairness. Please share this letter with your colleagues so that they may know of our strong support for S.J. Res. 3. (Signed by 30 attorneys general.) ____ Statement of Marsha A. Kight, Director, Families and Survivors United, Oklahoma City, OK., March 24, 1999 My daughter, Frankie Merrell, was murdered in the Oklahoma City bombing, and in tribute to her and all the others, I founded Families and Survivors United, which took a leading role in advocating for the victims and survivors before and during the trials which followed. This is now I first came to meet Beth Wilkinson. Having attended every day of the McVeigh trial, I came to regard Beth Wilkinson as the most effective advocate on the prosecution team. More than that, I and others trusted her to bring the victims' perspective into the courtroom, and she lived up to that trust. So I believe that her statement before the Judiciary Committee today is from the heart--that she really believes that if our Victims Rights Amendment were in place, it might have jeopardized a very basic right--the ``right of just conviction of the guilty,'' as she puts it. But she is wrong. As she describes so well, the prosecution team worked hard to earn our trust, and for the great majority of the 2,000-plus of us who were designated victims under the law, we gave them our trust. But on the one tactical issue she says argues against the Amendment, the prosecution team chose not to trust us for the reasons she describes, and in the process, that team broke both our trust and the law. She claims that, had the Amendment been in place, its right for victims to be heard before a plea bargain is accepted might have harmed the prosecution. Specifically the suggestion that might have persuaded the judge to not accept the guilty plea of Michael Fortier--and thus might have jeopardized the eventual conviction of Timothy McVeigh and Terry Nichols. There are three things wrong with this conjecture. First, Michael Fortier's testimony was not critical to either conviction, as several jurors later made clear to me. Second, had the Justice Department taken us into its trust on the usefulness of the Fortier plea, the great majority of us would have reciprocated that trust and encouraged the judge to accept the plea. I think from everything else Beth Wilkinson describes about the trust-building between the prosecution and the victims confirms this belief. We were not blind sheep, willing to accept everything the prosecutors said was so--we were, most of the time, informed citizens who were persuaded by the prosectuors' reasoning. Beth Wilkinson as much as admits this when she notes that the victims overwhelmingly asked for a provable and sustainable case against the guilty. And third, the prosecution team's mistrust of us over the Fortier plea agreement was so great that it chose not to notify us over the hearing in which the plea was offered, and it chose not to confer with any of us beforehand about the plea--both of which were in violation of existing federal law. So when Beth Wilkinson says that statutory reform will meet our just demands, we must ask, what happened to the statutes already on the books? I am increasingly persuaded that the most formidable enemy of crime victims' aspirations for getting justice under our Constitution are criminal justice officials--even well- meaning ones like Beth Wilkinson--who believe that only government lawyers know best. Her testimony is in fact Exhibit A in the case for the Amendment because it is the voice of a superior government extending handouts as an act of grace, not protecting legitimate rights of a free people. She says that the ``concerns'' of the victims must be balanced with the ``need for a just trial,'' as though these important values were somehow in conflict, and that only the government knows how to achieve this goal. I cannot tell you how these words hurt me; they confirm my worst fears about the treatment of victims in our justice system and [[Page S2970]] how nothing will change without constitutional rights. It is painfully obvious to me that she thinks of us as mere meddlers who must be kept out of this important government business for fear that we might break something. Beth Wilkinson may believe that she ``grew to understand my grief first hand,'' but clearly she does not. For me and so many of our families our grief was profoundly extended when our government minimized and discounted our interests by refusing to consult with us about this important development early in the case. For example, consider the point Beth Wilkinson makes about grand jury secrecy. She says, ``Due to the secrecy rules of the grand jury, we could not explain to the victims why Fortier's plea and cooperation was important to the prosecution of Timothy McVeigh and Terry Nichols.'' Under existing federal law, however, courts are authorized to enter appropriate orders allowing for the disclosure of grand jury information in advance of a court proceeding. It apparently did not even occur to her then, nor does it today, to have sought such a court order for disclosure. Nor is clear that such an order would even have been necessary, as surely there would have been ways to explain the circumstances to the victims without going confidential grand jury matters. Perhaps most disturbing of all to me is Beth Wilkinson's assertion that the Victims Rights Clarification Act of 1997 ``worked--no victims were precluded from testifying.'' In fact, I was precluded from testifying in the sentencing phase of the trial. As she is well aware, I very much wanted to be a penalty phase witness. But because of my philosophical beliefs in opposition to capital punishment, I was not allowed by the government prosecutors to testify. Clearly the statute did not work for me. In addition, a number of victims lost their right to attend the trial of Timothy McVeigh because of legal uncertainties about the status of victims' rights. As I testified before the Senate Judiciary Committee in 1997, Judge Matsch rejected a motion made by a number of us to issue a final ruling upholding the new law as McVeigh's trial began. His reluctance led the prosecution team (including Beth Wilkinson) to tell us that, if we wanted to give an impact statement at the penalty phase, we should seriously consider not attending the trial. Some of the victims on the prosecution's penalty phase list followed this pointed suggestion and forfeited their supposedly protected right to attend McVeigh's trial. Our lawyers also sought further clarification from the judge (unsuccessfully), but had to do so without further help from the prosecution team. The prosecutors were apparently concerned about pressing this point further because the judge might become irritated. Beth Wilkinson urges the Congress to ``consider statutory alternatives to protect the rights of victims.'' While she says that she opposes the Victim's Rights Amendment in its ``current form,'' the context of this statement makes it clear that she opposes any constitutional rights for crime victims. She concludes with the following prescription: ``We must educate prosecutors, law enforcement and judges about the impact of crimes so that they better understand the importance of addressing victims' rights from the outset.'' But the truth is that there will be no real rights to address, as my experience makes clear, unless those rights are enshrined in the United States Constitution. Only then will victim's rights be meaningful and enforceable. Mr. KYL. Mr. President, I am going to make some concluding remarks about why we believe so strongly in this amendment, how we intend to pursue the amendment, and why supporters of this amendment should take heart about how far we have come in this process and not at all be dispirited by the fact that there will not be a final vote on the amendment at this time. I will make those comments after Senator Feinstein has had an opportunity to make some comments that I know she strongly wishes to make. Mr. SCHUMER. Mr. President, will the Senator yield? Mr. KYL. Yes. Mr. SCHUMER. Mr. President, I asked the Senator to yield for two quick requests. I forgot to do this yesterday. I mentioned a letter from the Judicial Conference on this amendment. I ask unanimous consent to print this letter in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Committee on Criminal Law of the Judicial Conference of the United States, Greenville, SC, April 17, 2000. Hon. Charles E. Schumer, U.S. Senate, Hart Senate Office Building, Washington, DC. Re: S.J. Res. 3, the Victims' Rights Amendment Dear Senator Schumer: Thank you for your letter requesting the views of the Judicial Conference of the United States regarding S.J. Res. 3, the Victims' Rights Amendment to the Constitution. On behalf of the Judicial Conference, I appreciate the opportunity to have its viewpoint considered as the Senate takes up this important legislation. In March of 1997, the Judicial Conference resolved to take no position at that time on the enactment of a victims' rights constitutional amendment. However, if the Congress decides to affirmatively act in this area, the Judicial Conference strongly prefers a statutory approach as opposed to a constitutional amendment. A statutory approach would allow all participants in the federal criminal justice system to gain experience with the principles involved without taking the unusual step of amending our nation's fundamental legal charter, with its concomitant application to the various state systems. Many of the principles contemplated in S.J. Res. 3 represent a significant change in our criminal justice system, literally realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated. The rights and protections heretofore afforded to citizens under the Constitution were largely part of the fabric of the law well-known and understood by the Founding Fathers, while many of the concepts in the victims' rights area are largely untested, at least in the federal system. It could take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process. A statutory approach would also vitiate the potential specter of significant federal court involvement in the operations of the state criminal justice systems under a victims' rights constitutional amendment. Finally, a statutory approach is more certain and immediate, an advantage to victims. Conversely, an amendment potentially would not be effective for many years, awaiting the ponderous and uncertain ratification process required under Article V. While S.J. Res. 3 appears to have less potential adverse impact on the federal judiciary than some previous amendment proposals, there remain a number of fundamental concerns: classes of crimes and victims to which the amendment will apply Under S.J. Res. 3, the proposed amendment will apply to any person who is a ``victim of a crime of violence, as these terms may be defined by law.'' It is not clear from the proposed amendment whether these terms are to be defined by Congress, the states or through case law. The term ``crime of violence,'' which is commonly utilized in legal parlance, has many meanings under state and federal law. Thus, it is unclear as to which specific crimes this provision would actually apply. This problem is magnified by the fact that this provision applies to misdemeanor cases, the number of which is particularly large in the state courts. Failure to provide a clear and practical definition of this term may well result in protracted and unnecessary litigation that will likely take years and great expense to resolve. Closely associated with this issue is the question of what classes of persons will qualify as a ``victim.'' We note that the proposed amendment includes no definition of victim. This leaves many fundamental questions unanswered, including: Must a person suffer direct physical harm to qualify as a victim? Is it sufficient if the person has suffered pecuniary loss alone? What if the person is alleging solely emotional harm? Is that enough to qualify him or her as a victim? Are family members of a person injured by a crime also victims? Suppose that a defendant is accused of committing a series of ten violent armed robberies. Due to evidence strength and efficiency considerations, the prosecutor sends only six of those cases to the grand jury. Are the other four injured persons victims under the proposed amendment? Suppose an agreement is reached whereby the defendant agrees to plead guilty to just one of the cases. Are the other nine injured persons victims under these circumstances? Will the answer affect a prosecutor's ability to obtain plea agreements from defendants? Extending the definition of victim to those who claim emotional harm from criminal offenses dramatically exacerbates the potential impact of this proposal. The number of persons who could claim to be emotionally harmed by significant, well-publicized crimes could be quite large. Moreover, substantial litigation could result from the requirement of restitution, especially in cases involving non-economic injury. Finally, cases involving large numbers of victims, particularly victims of terrorist acts, are particularly troubling. Providing the rights [[Page S2971]] enumerated in the proposed amendment to large numbers of victims could overwhelm the criminal justice system's ability to perform its primary function of adjudicating guilt or innocence and punishing the guilty. enforcement The proposed amendment states that nothing ``in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling.'' Unlike some previously introduced victims' rights constitutional amendment proposals, S.J. Res. 3 does not stipulate that a victim has no grounds to challenge a charging decision. This addition would be a significant and valid limitation. Allowing victims to challenge a prosecutor's charging decision could result in significant operational problems. We suggest that Congress also consider modifying the proposed amendment to prohibit a victim from challenging a ``negotiated plea.'' Permitting the challenge of a proposed plea interferes with the prosecutor's ability to obtain convictions of defendants whose successful prosecution may rest on the cooperation of another defendant. Guilty pleas are sometimes also negotiated because the prosecution witnesses are, for various reasons, not as strong as they appear to be on paper. Also, the sheer volume of cases would generally overwhelm any prosecutor's office and the courts unless the vast majority were settled. Permitting challenge to a prosecutor's judgment regarding an accepted plea could lead inadvertently to a failure to secure a conviction. The significance of this issue should not be underestimated. federalism The matter of victim enforcement raises significant federalism concerns. While the proposed amendment includes provisions that bar monetary damages as a remedy, it appears that victims may be able to seek injunctive relief against state officials for violation of their new constitutional rights. Such claims, almost inevitably filed in federal courts, could cause significant federal court supervision of state criminal justice systems for the purpose of enforcing the amendment. These conflicts between federal courts and state governments would be avoided by a statutory approach to victims' rights. administration of justice exception S.J. Res. 3 permits Congress to create exceptions to the proposed amendment ``when necessary to achieve a compelling interest.'' While this is a very valid and useful provision, Congress should carefully consider the need for a further exception based on adverse impact on the administration of justice. Inevitably, courts will handle cases where the rights of victims collide with the functional administration of justice. Such cases might fall into two general categories. The first category relates to the very real practicalities of the administration of justice. One example would be an action involving exceptionally large numbers of possible victims wishing to attend the proceedings and overwhelming any available courtroom or other suitable location. A similar problem would be encountered if large numbers of victims wished to exercise their rights to allocution at sentencing, unduly prolonging the proceedings and pushing back other cases that need to be heard. The second category of cases are those in which the rights of victims, exercised under certain circumstances, may have a substantive effect upon the rights of defendants or others, impairing due process or the right to a fair trial. An example of such a case would be if a victim wished to both attend the trial and testify at the guilt phase, even though the trial judge had ordered all witnesses sequestered. This could impair the fundamental integrity of the trial. Congress should consider modifying the proposed amendment to allow a judge, while recognizing the rights of the victims to the extent practicable, to provide for exceptions in individual cases when required for the orderly administration of justice. Congress may also wish to consider modifying the proposed amendment to additionally allow Congress to statutorily enact exceptions in ``aid of the administration of justice.'' At the very least, Congress should provide an exception permitting the sequestration from trial proceedings of a victim who will appear as a witness at the guilt phase of the trial. This could be accomplished through a general provision in the proposed amendment stating that the victim's rights should not ``interfere with the constitutional rights, including due process rights, of the person accused of committing the crime.'' It could also be accomplished through a more narrow provision, similar to that in the Wisconsin Constitution, by the addition of a phrase allowing sequestration when ``necessary to a fair trial for the defendant.'' Another approach, similar to that taken under the Constitution of Florida, would add a phrase allowing sequestration ``to protect overriding interests that may be prejudiced by the presence of the victim.'' speedy trial considerations The proposed amendment includes a victim's right to ``consideration of the interest of the victim that any trial be free from unreasonable delay.'' Determining the meaning of this phrase and how it interacts with existing speedy trial provisions should be a fertile source of diversionary litigation. In federal court, the sixth amendment right to a speedy trial and the Speedy Trial Act, see 18 U.S.C. Sec. Sec. 3161- 3173, not only guarantee the defendant's right to a speedy trial, but also recognize the public's, and therefore the victim's, interest in swift justice. However, the Speedy Trial Act also recognizes several legitimate bases to postpone trial, including plea negotiations. See 18 U.S.C. Sec. 3161. This mechanism is an integral part of the criminal justice system, balancing the desirability of a speedy trial with the realistic requirements of a fair proceeding. How is this right to consideration of the interest of the victim that any trial be free from unreasonable delay to be enforced? Will the victim have a right to seek relief from unreasonable delay? A motion to move the case faster would require a collateral hearing to determine the extent of the delay and whether it is unreasonable. The victim would then be in an adversarial position to the prosecutor and perhaps to the presiding judge. Would another judge be required to make the determination? Would a federal judge be asked to pass judgment on the efficiency of a state court? With ever increasing criminal dockets and limited prosecutorial and judicial resources, victims in several cases on the same docket, insisting upon speedier proceedings, could potentially cause severe internal conflicts within units of the same court. notice It is important that the responsibility for providing notice of proceedings and of the release or escape of a defendant be appropriately allocated to the prosecution, law enforcement agencies, or corrections agencies as is the law and practice in virtually all the states providing for victims' rights. Many of the rights under the proposed amendment must attach long before a defendant is formally charged in court. The judiciary would not have access to much of the information necessary to provide the required notice. It has neither the personnel nor resources to provide such notice to large numbers of victims or to provide the specialized types of victim assistance that is available from the first line of contact that victims have with the criminal justice system. The situation is likely no better--and possibly worse--in the state courts. Once again, I thank you for the opportunity to express the views of the Judicial Conference on this important issue. If you have any questions regarding the matters discussed herein, please do not hesitate to contact me. I may be reached at 864/233-7081. If you prefer, your staff may contact Dan Cunningham, Legislative Counsel at the Administrative Office of the U.S. Courts. He may be reached at 202/502-1700. Sincerely yours, William W. Wilkins, Jr. Mr. SCHUMER. Mr. President, second, I thank both Senator Kyl and Senator Feinstein for the passion, the erudition, the conviction, and for the cause. It is, obviously, wise to delay this. I know we may be back for another day. Maybe we can all come together. I plead with them to consider a proposal of making this a Kyl-Feinstein statute, as opposed to a Kyl-Feinstein constitutional amendment, where I think it might get close to unanimous support on the floor. I thought the debate we were having and may well continue to have, at least to my young years in the Senate, was one of the best times of the Senate, where we each talked about the issue with our concerns, our intelligence, and our passions. We tried to meet the issue head on. I thank both the Senator from Arizona and the Senator from California for their good work on this and hope we can come together on some sort of compromise on an issue about which we all care so much. Mr. KYL. Mr. President, I reiterate what I said yesterday, and that is, the best part of the debate we had was the debate with Senator Schumer whose approach to this was serious and intelligent. He asked the best questions. I believe we answered them, but we did not come to agreement. Of course, we will be working with him in the future on this matter and, hopefully, persuade him that a constitutional amendment is the best way to go. The debate we had among Senator Feinstein, Senator Schumer, and myself I thought was the highlight of this debate. I appreciate his remarks. I yield to Senator Feinstein for comments I know she wants to make. Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from Arizona. I also thank the Senator from New York, and I thank you, Mr. President, for allowing me to proceed. I begin by thanking the Senator from Arizona. Mr. President, I say to Jon Kyl, working with him on this amendment has truly been one of the highlights of my 7 years in the Senate. He has worked with credibility and with integrity. He has been fulsome in his sharing of detail. We have gone shoulder to shoulder through virtually every rung of this, through 4 years of discussions, of conferences, of hearings, of 800 pages of testimony, some 35 witnesses. [[Page S2972]] I agree with everything he said about the inclusive nature of the process. I must tell Senator Kyl how much I admire him. We worked together on the Technology and Terrorism Subcommittee of the Judiciary Committee. I saw it there. I have never seen it with another Senator as pronounced as it was in these past 4 years in the work on this issue. I believe a friendship has developed in the process, one which means a great deal to me. His leadership has been superb, and there is certainly nothing either one of us has done for the misunderstanding out there still about what we are trying to do and the importance of it. We will come back another day; there is no question in my mind about that. I cannot thank him enough. From the bottom of my heart, I thank Senator Kyl for his credibility, his intelligence, his integrity. He did his party proud. I am very happy to be a colleague of his and a friend as well. Before I get into my remarks, I also echo the thanks Senator Kyl provided to a whole host of victims, literally tens of thousands of them, to 37 State attorneys general, to many Governors, to all those across both party lines who support this and understand it. I particularly thank three legal scholars who were with us every step of the way. I thank Larry Tribe, a professor of constitutional law at Harvard University, for his testimony, for the phone calls, for the advice he has provided and for the statements he has made. I also thank one of the primary legal scholars in this country who has been a victims' rights representative, legal counsel--just a wonderful human being I have also gotten to know--and that is Professor Paul Cassell, professor of law at the University of Utah. I would be remiss if I did not thank Steve Twist on behalf of both Senator Kyl and myself. There are few people who have been as ardent in the cause as Steve Twist has been, with his knowledge, with his expertise, with his representation of victims throughout this entire process. I know that none of

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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed
(Senate - April 27, 2000)

Text of this article available as: TXT PDF [Pages S2966-S3011] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed Mr. KYL. Mr. President, we are in the process of attempting to work out an arrangement of time for the debate on the pending motion. I ask for all concerned if the Chair will describe the pending business of the Senate. The PRESIDING OFFICER. The question is on the motion to proceed to S.J. Res. 3. Mr. KYL. I thank the Chair. We are in the process of determining just how much time speakers are going to need in order to conclude debate on the motion to proceed. Senator Feinstein and I both have some preliminary remarks we would like to make in connection with that debate as the two chief proponents of the resolution. We understand Senator Leahy and Senator Byrd wish to take some time, and Senator Biden as well a little later on. As soon as we can confirm the amount of time people will need, we will probably propound a unanimous consent request in that regard. Mr. LEAHY. Will the Senator yield? Mr. KYL. I am happy to yield. Mr. LEAHY. Mr. President, I am perfectly willing, from this side, to work with the distinguished Senator from Arizona and the distinguished Senator from California on time. I do not expect an enormous amount of time to be consumed. It has not been announced, but there is a certain sense that there may not be any more rollcall votes this week so a lot of people are probably going to be leaving. I will definitely try to accommodate them. The distinguished Senator from West Virginia does have a statement he wishes to make. I have a statement I wish to make. I am simply trying to protect some others who may want to speak, as I am sure the Senator is on his side. But I will continue to work with the distinguished Senator to cut down this time any way we can. Mr. KYL. We will announce to all Members, if we can work that time arrangement out, just exactly how this will proceed. In the meantime, let me see if I can set the stage so everyone will know where we are in this debate. Then I would like to thank some people and then move on to a colloquy with Senator Feinstein, if I might. Because of the way the Senate works, we have moved back and forth in Senate business. But the pending business is the motion to proceed on S.J. Res. 3; that is, the crime victims' constitutional rights resolution sponsored by Senator Feinstein and myself. We gained cloture earlier this week so we could proceed, and the motion to proceed will certainly be agreed to, if we carry the debate that far. Senator Feinstein and I, however, are of the view that because of various things that have occurred, it is unlikely that a cloture motion, if filed, would be supported by the requisite number of Senators to succeed early next week. Therefore, what we are prepared to do is speak to the issue of the resolution, where we are with respect to the resolution, to thank the many groups and sponsors and other individuals who have been so supportive of this effort, and to seek permission of the Senate, when people have finished their comments, to withdraw the motion to proceed and to move to other business. That merely means a timeout in our efforts to secure passage of this constitutional amendment. We recognize at this point in time that proceeding will simply encourage more Senators to use a great deal of the Senate's time in unproductive speeches that really do not go to the heart of our constitutional amendment but take time away from the Senate's important business. We have no intention of doing that. So we will make some remarks that will set the stage for what we are about to do. But let me begin by noting the tremendous amount of support around the country that has accompanied our effort to bring this measure to the floor of the Senate. I have to begin by thanking two people in particular, Senator Dianne Feinstein and Majority Leader Trent Lott. We could not have brought this amendment, over the course of the last 4 years, to the bipartisan level of support it now enjoys without the ability to work on both sides of the aisle. No one could have carried this matter on the Democratic side more capably than Senator Dianne Feinstein. Before she came to the Senate, she was a passionate advocate for victims of crime. As mayor of San Francisco, she was a proponent of area residents who were victims of crime and carries that passion with her to this debate now. She and I have worked closely with victims' rights advocates to shape the legislation. I might say, while some of our colleagues have suggested there is something wrong with the fact that we have conducted dozens of meetings with the administration, Department of Justice, and many others, and honed this amendment in 63 different drafts, we are very proud that we have included anyone who wanted to talk about this in our circle of friends working to get an amendment that could pass the Senate and that we have carefully taken their suggestions into account, thus accounting for the many different drafts as the 4-year progress of this resolution has brought us to this point. The fact that we have taken their suggestions to heart and continually polished this amendment we think is a strong point. While we were criticized yesterday on the floor for engaging in yet more negotiations that might result in a final, 64th draft, I must say that was largely at the instigation of Senator Feinstein, who said, given the fact the Department of Justice has four concerns still pending with regard to our specific proposal, let's meet with them and see if we can come to closure on those items. Because of her leadership, we were able to come to closure on three of them. We believe we made more than a good faith effort with respect to the fourth, which had to do with the protection of defendants' rights. We were willing to acknowledge that the rights enumerated in this proposal take nothing whatsoever away from defendants' rights. I do not know how more clearly we can say it. That was not acceptable to the Department of Justice. But it is not for want of trying, on the part of Senator Feinstein, that we have been unable to secure the support of the Department of Justice for this amendment. So my first sincere thanks go to the person without whom we would not be at this point, my colleague Senator Feinstein. I also thank Leader Lott. When I went to him with a request for floor time for this amendment, his first response was: You know all the business the Senate has to conduct. Are you sure you want to go forward with this? I said we are absolutely certain. Despite all the other pressing business, he was willing because he, too, believes strongly in this proposal, as a cosponsor, to give us the floor time to try to get this through. It is partially out of concern for his responsibilities as leader that we recognize that to proceed would result in a vote that would not be successful, and therefore, rather than use that precious time, we are prepared to visit privately with our colleagues to further provide education to them about the necessity of this amendment since, clearly, the methodology we have engaged in thus far was not working. We would make strong arguments, but I daresay it didn't appear that anyone was here on the floor listening because when various opponents would come to the floor, they would repeat the same mantra over and over again that we had already addressed. Part of that mantra was, Did you know this amendment is longer than the Bill of Rights? We would patiently restate that is not true, that all of the rights of the defendants in the Constitution are embodied in language of more words than this amendment that embodies the victims' rights and so on. [[Page S2967]] Then that individual would leave the floor, and another individual would come to the floor and repeat the same erroneous information, and we would have to patiently respond to that. Rather than continue that process, we believe it is better that we visit with our colleagues when we are not using this time on the floor and explain all of this to them, with the hope they will then be better able to support us in the future. So I thank Senator Feinstein. We have gone through a lot together on this. There is nobody in this body for whom I have greater respect. Again, I thank Senator Lott, the majority leader, for his support for us as well. The National Victims' Constitutional Amendment Network is one of the really strong victims' rights groups that has backed us throughout this process. Roberta Roper has been involved in that. She was in my office this morning. She was with us yesterday. She has been with us throughout the process, helping us evaluate these various proposals and assisting us. The National Organization for Victim Assistance, known by the acronym NOVA, headed by Marlene Young and John Stein, and all the people on the NOVA board, we are enormously appreciative of their strong support and assistance throughout this effort. They are going to continue to fight for sure. Marsha Kight, whom Senator Feinstein and I have come to know and respect because of her advocacy as someone whose daughter was killed in the Oklahoma City bombing, brought the experience of that trial and the firsthand knowledge of how victims were denied their rights even to attend the trial. She has been an important witness for us before the Judiciary Committee and at various other forums. One of the groups in the country that is most strongly in support, and has provided a lot of grassroots support, is Mothers Against Drunk Driving, or MADD. Also, Students Against Drunk Driving, SADD, a group of younger people, has been helpful. Tom Howarth, Millie Webb, Katherine Prescott, and others have been very helpful to us in that regard. Parents of Murdered Children has been enormously helpful. Rita Goldsmith is from my State of Arizona, from Sedona. We have had tremendous help from legal scholars such as Professor Laurence Tribe, Professor Doug Beloof, and Professor Paul Cassell. I thank them for their enormous help in this effort, including their testimony before the Judiciary Committee. There are many prosecutors. I need to mention a couple from my own State. The two largest counties in Arizona are Maricopa and Pima Counties. Rick Romley, the Republican-elected attorney from Maricopa County, the sixth largest county by population in the country, and Barbara LaWall, a Democratic-elected attorney from Pima County, have been very strong supporters and helpful in our work. Law enforcement has been very well represented by organizations and individuals. From the Law Enforcement Alliance of America, Darlene Hutchinson and Laura Griffith have been helpful. Various attorneys general, such as Delaware Attorney General Jane Brady, Wisconsin Attorney General Jim Doyle, and Kansas Attorney General Carla Stovall. By the way, these are Democrats and Republicans alike. It is a totally bipartisan effort. As a matter of fact, the National Association of Attorneys General--we have a very good letter signed by the vast majority of attorneys general in support of our crime victims' constitutional rights amendment. We also have support from former U.S. Attorneys General: Ed Meese, Bill Barr, and Dick Thornburgh are strongly supportive of our proposal. From a show with which Americans are familiar, ``America's Most Wanted,'' John Walsh has been an early and strong supporter of our proposal. From the Stephanie Roper Foundation--I mentioned Roberta Roper--but Steve Kelly of the Stephanie Roper Foundation has been very helpful. Arizona Voice for Crime Victims; a person who helped Senator Feinstein in the early years, Neil Quinter, a superb former Senate staff member and with whom I visited just this morning, continues his support for this. Matt Lamberti and David Hantman of Senator Feinstein's office; Jason Alberts, Nick Dickinson, and Taylor Nguyen of my office; and, most important, Stephen Higgins of my staff and Steve Twist, an attorney from Arizona, whose support and competence in helping us through this process was, frankly, simply indispensable. Also, I will submit for the Record two things. One is a list of crime victims' rights amendment supporters. This list includes, in addition to those I mentioned, more than half a page of law enforcement organizations. I mention this because there has been some suggestion that law enforcement does not support us: The Federal Law Enforcement Officers Association, Law Enforcement Alliance of America, American Probation and Parole Association, American Correctional Association, the National Criminal Justice Association, the National Organization of Black Law Enforcement Executives, National Troopers Coalition, Concerns of Police Survivors, and on and on. This amendment is strongly supported by prosecutors, law enforcement, legal scholars, attorneys general, Governors, former U.S. Attorneys General, and many more. I ask unanimous consent to print this list of supporters in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Crime Victims' Rights Amendment Supporters public officials 42 cosponsors in the U.S. Senate (29R; 13D). Former Senator Bob Dole. Representative Henry Hyde. Texas Governor George W. Bush. California Governor Gray Davis. Arizona Governor Jane Hull. Former U.S. Attorney General Ed Meese. Former U.S. Attorney General Dick Thornburgh. Former U.S. Attorney General William Barr. The Republican Attorneys General Association. Alabama Attorney General Bill Pryor. Alaska Attorney General Bruce Botelho. Arizona Attorney General Janet Napolitano. California Attorney General Bill Lockyer. Colorado Attorney General Ken Salazar. Connecticut Attorney General Richard Blumenthal. Delaware Attorney General M. Jane Brady. Florida Attorney General Bob Butterworth. Georgia Attorney General Thurbert E. Baker. Hawaii Attorney General Earl Anzai. Idaho Attorney General Alan Lance. Illinois Attorney General Jim Ryan. Indiana Attorney General Karen Freeman-Wilson. Kansas Attorney General Carla Stovall. Kentucky Attorney General Albert Benjamin Chandler III. Maine Attorney General Andrew Ketterer. Maryland Attorney General J. Joseph Curran, Jr. Michigan Attorney General Jennifer Granholm. Minnesota Attorney General Mike Hatch. Mississippi Attorney General Mike Moore. Montana Attorney General Joseph P. Mazurek. Nebraska Attorney General Don Stenberg. New Jersey Attorney General John Farmer. New Mexico Attorney General Patricia Madrid. North Carolina Attorney General Michael F. Easley. Ohio Attorney General Betty D. Montgomery. Oklahoma Attorney General W.A. Drew Edmondson. Oregon Attorney General Hardy Meyers. Pennsylvania Attorney General Mike Fisher. Puerto Rico Attorney General Angel E. Rotger Sabat. South Carolina Attorney General Charlie Condon. South Dakota Attorney General Mark Barnett. Texas Attorney General John Cornyn. Utah Attorney General Jan Graham. Virgin Islands Attorney General Iver A. Stridiron. Virginia Attorney General Mark Earley. Washington Attorney General Christine O. Gregoire. West Virginia Attorney General Darrell V. McGraw, Jr. Wisconsin Attorney General James Doyle. Wyoming Attorney General Gay Woodhouse. Alaska State Legislature. law enforcement Federal Law Enforcement Officers Association. Law Enforcement Alliance of American (LEAA). American Probation and Parole Association (APPA). American Correctional Association (ACA). [[Page S2968]] National Criminal Justice Association (NCJA). National Organization of Black Law Enforcement Executives. Concerns of Police Survivors (COPS). National Troopers' Coalition (NTC). Mothers Against Violence in America (MAVIA). National Association of Crime Victim Compensation Boards (NACVCB). National Center for Missing and Exploited Children (NCMEC). International Union of Police Associations AFL-CIO. Norm Early, former Denver District Attorney. Maricopa County Attorney Rick Romley. Pima County Attorney Barbara Lawall. Shasta County District Attorney McGregor W. Scott. Steve Twist, former chief assistant Attorney General of Arizona. California Police Chiefs Association. California Police Activities League (CALPAL). California Sheriffs' Association. Los Angeles County Sheriff Lee Baca. San Diego County Sheriff William B. Kolender. San Diego Police Chief David Bajarano. Sacramento County Sheriff Lou Blanas. Riverside County Sheriff Larry D. Smith. Chula Vista Police Chief Richard Emerson. El Dorado County Sheriff Hal Barker. Contra Costa County Sheriff Warren E. Rupf. Placer County Sheriff Edward N. Bonner. Redding Police Chief Robert P. Blankenship. Yavapai County Sheriff's Office. Bannock County Prosecutor's Office. Los Angeles County Police Chiefs' Association. victims Mothers Against Drunk Driving (MADD). National Victims' Constitutional Amendment Network (NVCAN) National Organization for Victim Assistance (NOVA) Parents of Murdered Children (POMC) Mothers Against Violence in America (MAVIA). Justice for Murder Victims. Crime Victims United of California. Justice for Homicide Victims. We Are Homicide Survivors. Victims and Friends United. Colorado Organization for Victim Assistance (COVA). Racial Minorities for Victim Justice. Rape Response and Crime Victim Center. Stephanie Roper Foundation. Speak Out for Stephanie (SOS). Pennsylvania Coalition Against Rape (PCAR). Louisiana Foundation Against Sexual Assault. KlaasKids Foundation. Marc Klaas. Victims' Assistance Legal Organization, Inc. (VALOR). Victims Remembered, Inc. Association of Traumatic Stress Specialists. Doris Tate Crime Victims Bureau (DTCVB). Rape Response & Crime Victim Center. John Walsh, host of ``America's Most Wanted''. Marsha Kight, Oklahoma City bombing victim. other supporters Professor Paul Cassell, University of Utah School of Law. Professor Laurence Tribe, Harvard University Law School. Professor Doug Beloof, Northwestern Law School (Lewis and Clark). Professor Bill Pizzi, University of Colorado at Boulder. Professor Jimmy Gurule, Notre Dame Law School. Security on Campus, Inc. International Association for Continuing Education and Training (IACET). Women in Packaging, Inc. American Machine Tool Distributors' Association (AMTDA). Jewish Women International. Neighbors Who Care. National Association of Negro Business & Professional Women's Clubs. Citizens for Law and Order. National Self-Help Clearinghouse. American Horticultural Therapy Association (AHTA). Valley Industry and Commerce Association. Mr. KYL. Mr. President, finally, I ask unanimous consent to print in the Record a series of a dozen or so statements and letters from supporters of the amendment. Included in those, incidentally, is a strong statement of support for our specific amendment by Governor George Bush of the State of Texas. I ask unanimous consent to print these in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Statement by Governor George W. Bush--April 7, 2000 I strongly support passage of the Victims' Rights Amendment. Two years ago, I joined my colleagues on the National Governor's Association in calling for a national Amendment, like the one we have in Texas and 30 other states. For too long, courts and lawyers have focused only on the rights of criminal defendants and not on the rights of innocent victims. We need to make sure that crime victims are not forgotten, that they are treated fairly and with respect in our criminal process. ____ March 14, 2000. Dear Senators Kyl and Feinstein: During our years of service as Attorneys General of the United States, we saw first hand how the criminal justice system must command the respect of all our citizens if it is to be effective. That respect can only be eroded when the system unfairly treats those it is supposed to serve. For victims, the system is neither fair nor just. Despite federal statutes and states constitutional amendments passed to ensure fair treatment of crime victims, in too many courtrooms across the country, crime victims continue to be excluded and silenced; they are neither informed of proceedings nor given a right to be present or heard. We believe the only way to extend the fundamental fairness demanded of our system for crime victims, is to secure their rights in our fundamental law, the U.S. Constitution. That is why we are writing now to express our strong and unqualified support for the constitutional amendment you propose, the Crime Victims' Rights Amendment (S.J. Res. 3). This amendment, once ratified, will restore to our justice system the basic fairness necessary to command the respect of all our people. The rights spelled out in the amendment are simple, yet profound. They are practical and attainable, and they will transform our justice system so that it will truly protect the rights of the law abiding as well as the lawless. Sincerely, William Barr. Edwin Meese III. Richard Thornburgh. ____ Office of the Maricopa County Attorney, Maricopa County, AZ, April 14, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Dear Senator Kyl: As the chief prosecutor for the sixth largest prosecutor's office in the nation, handling over 40,000 felony and delinquency prosecutions each year, I have first hand knowledge of the ramifications of providing constitutional rights for victims. I have been a strong proponent for victims' rights for many years, having served on the Arizona Victim's Bill of Rights Steering Committee that was responsible for the passage of constitutional rights for victims in 1990. I also participated in subsequent legislative ad hoc committees charged with developing the enabling legislation. I strongly support S.J. Res. 3 and your efforts to see constitutional rights for victims become a reality in the United States Constitution. I recently read the Minority views in the Judiciary Committee's Report on S.J. Res. 3. The ``worst case'' examples that were raised were for the most part extreme predictions which we in Arizona have not experienced, notwithstanding our long history with victims' rights. I would like to take this opportunity to address several of the Minority report concerns. Victims' Rights Do Not Result in Substantial Costs To The System-- Providng victims with constitutional rights has not resulted in substantial costs to law enforcement, prosecutors, the courts, corrections or probation departments. My office provides victims' rights services to over 30,000 victims each year and although the ``exact cost'' is difficult to determine, our estimates are that it costs my office approximately $15.00 per victim. While we have experienced an increase in trials, the increase cannot be attributed to our constitution amendment for victim rights. Any such increase has been in response to our mushrooming population and the resulting increase in case filings. The Arizona Court of Appeals and the Arizona Supreme Court have not been besieged with appeals based on victim rights arguments. Victim Rights Do Not Restrict The Discretion Of The Prosecutor-- A victim's right to be heard regarding a plea agreement does not mean a crime victim can veto a judge's final decision. Judges, of course, consider the victim's opinion when determining whether or not to accept a plea agreement, however that opinion is merely one factor among others which contribute to the deliberative process. In Arizona, the victim's right to allocution has not caused our judicial officers to abrogate their responsibility to render a decision free of bias. There is no reason to believe that federal judicial officers will act otherwise when weighing the appropriateness of accepting a negotiated plea. I have implemented a policy in which prosecutors solicit the victim's opinion regarding the final outcome of the prosecution and take the victim's opinion into consideration when neogitating a plea agreement. In this way, the prosecutor considers the victim's wishes, including the harm caused by the crime, throughout the plea negotiation process and pretrial phase of prosecution. Consideration of the victim's views are again but one factor considered by the prosecutor. Our experience has been that my deputies are not inappropriately influenced by emotion. To presuppose otherwise does a disservice to these dedicated public servants who have sworn to strive for equal justice. [[Page S2969]] Prosecutors are responsible for informing victims of the plea agreement and the reasons for the negotiated settlement. It has been our experience that very few victims object to a plea agreement when fully informed of the reasons and benefits of the plea. However, in some instances, after considering the plea and victim's opinion, the judge will reject the plea agreement holding that the interests of justice are not served by the plea. When this happens, although rare in our experience, the court has fulfilled its function as an arbiter not an advocate. Victim Rights Do Not Under Cut The Rights Of The Accused-- Victims desire to see justice, first and foremost. their natural desire to gain justice, is not something to fear. In our experience it has helped our office achieve that goal. While victims have a right to be present throughout the course of trial in Arizona, it has been our experience that defendants and/or the friends and family of the defendants are much more likely than victims to become disruptive during trial. In the rare cases where a victim has been emotionally overwhelmed in court, he or she has either voluntarily left the courtroom to calm down, or is requested to do so upon instruction by the court. In every courtroom in our land, the judge has the responsibility of maintaining order and ensuring that the jury is not influenced by factors other than those presented from the witness box. To assume that the presence of a victim in the courtroom will somehow so prejudice a jury that they would disregard the evidence and return a verdict of guilty predicated and influenced by an individual sitting in the spectator section of the court, presupposes that juries will ignore the instructions of the court to be fair and impartial and to base their decision exclusively on the evidence. To adopt this position, one must conclude that juries will ignore the law. To do so, would be to conclude that our jury system is incapable of justice. Defendants have a constitutional right to a speedy trial. Oftentimes defendants waive this right for strategy advantage--hoping for memories to fade, critical witnesses to relocate, or victims to die. Victims have as much an interest in the timely disposition of the criminal case as do the defendants and need to have equal consideration when a judge considers whether or not to delay the disposition of a case. Federal Constitutional Rights Do Not Infringe On State's Rights-- While those victimized by crime in Arizona are afforded victim rights in state court, that same victim would not be afforded constitutional rights if that offense occurred on federal land, or if an Arizona resident were victimized in a state that does not have constitutional rights. These rights are too important to be left to a patchwork of rights from state to state. Consistency in the application of our laws are paramount if our citizens are to realize the benefit of a judicial system that is balanced between the accused and the interest of society at large. Inconsistency breeds contempt and cynicism. Adoption of a federal constitutional amendment will recognize that there is but one law for all. My office has nearly a decade of experience championing in assisting victims in exercising their state constitutional rights. It would be disingenuous if I were to say that there had been no costs, yet the benefit to the victim, to the citizens of Arizona and our system of justice far outweighs those costs. Our state constitutional amendment has increased cooperation of victims with police and prosecutors. Victims feel more of a part of the criminal justice process. I believe that this has enhanced the ability of law enforcemenet to put criminals behind the bars, and thus has been a factor in the decrease in crime that we have experienced in recent years. The scales of justice must be balanced, providing victims with equal access to the courts, information and a voice in the criminal justice system. Our system of justice is dependent upon the voluntary participation of those who have been harmed by crime--without their participation, our country would see an increase in lawlessness and vigilantism. Balancing the scales of justice by providing for victim rights restores faith in our system without detracting from the rights of those accused. Sincerely, Richard M. Romley, Maricopa County Attorney. ____ National Association of Attorneys General, Washington, DC, April 21, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Hon. Dianne Feinstein, U.S. Senate, Washington, DC. Dear Senators Kyl and Feinstein: We are writing to express our strong and unequivocal support for your efforts to pass S.J. Res. 3, the proposed Crime Victims' Rights Amendment, and send it on to the States for ratification. As Attorneys General from diverse regions and populations in our nation, we continue to see a common denominator in the treatment of crime victims throughout the country. Despite the best intentions of our laws, too often crime victims are still denied basic rights to fair treatment and due process that should be the birthright of every citizen who seeks justice through our courts. We are convinced that statutory protections are not enough; only a federal constitutional amendment will be sufficient to change the culture of our legal system. The rights you propose in S.J. Res. 3 are moderate, fair, and yet profound. They will extend to crime victims a meaningful opportunity to participate in each critical stage of their cases. At the same time, they will not infringe on the fundamental rights of those accused or convicted of offenses. Neither will these rights interfere with the proper functioning of law enforcement. Attorney General Reno spoke for many of us in law enforcement when she noted, ``[T]he President and I have concluded that a victims' rights amendment would benefit not only crime victims but also law enforcement. To operate effectively, the criminal justice system relies on victims to report crimes committed against them, to cooperate with the law enforcement authorities investigating those crimes, and to provide evidence at trial. Victims will be that much more willing to participate in this process if they perceive that we are striving to treat them with respect and to recognize their central place in any prosecution.'' Some have argued that federal constitutional rights for victims will infringe on important principles of federalism. We disagree. Each of our state criminal justice systems accommodates federal rights for defendants. To provide a similar floor of rights for victims is a matter of basic fairness. Please share this letter with your colleagues so that they may know of our strong support for S.J. Res. 3. (Signed by 30 attorneys general.) ____ Statement of Marsha A. Kight, Director, Families and Survivors United, Oklahoma City, OK., March 24, 1999 My daughter, Frankie Merrell, was murdered in the Oklahoma City bombing, and in tribute to her and all the others, I founded Families and Survivors United, which took a leading role in advocating for the victims and survivors before and during the trials which followed. This is now I first came to meet Beth Wilkinson. Having attended every day of the McVeigh trial, I came to regard Beth Wilkinson as the most effective advocate on the prosecution team. More than that, I and others trusted her to bring the victims' perspective into the courtroom, and she lived up to that trust. So I believe that her statement before the Judiciary Committee today is from the heart--that she really believes that if our Victims Rights Amendment were in place, it might have jeopardized a very basic right--the ``right of just conviction of the guilty,'' as she puts it. But she is wrong. As she describes so well, the prosecution team worked hard to earn our trust, and for the great majority of the 2,000-plus of us who were designated victims under the law, we gave them our trust. But on the one tactical issue she says argues against the Amendment, the prosecution team chose not to trust us for the reasons she describes, and in the process, that team broke both our trust and the law. She claims that, had the Amendment been in place, its right for victims to be heard before a plea bargain is accepted might have harmed the prosecution. Specifically the suggestion that might have persuaded the judge to not accept the guilty plea of Michael Fortier--and thus might have jeopardized the eventual conviction of Timothy McVeigh and Terry Nichols. There are three things wrong with this conjecture. First, Michael Fortier's testimony was not critical to either conviction, as several jurors later made clear to me. Second, had the Justice Department taken us into its trust on the usefulness of the Fortier plea, the great majority of us would have reciprocated that trust and encouraged the judge to accept the plea. I think from everything else Beth Wilkinson describes about the trust-building between the prosecution and the victims confirms this belief. We were not blind sheep, willing to accept everything the prosecutors said was so--we were, most of the time, informed citizens who were persuaded by the prosectuors' reasoning. Beth Wilkinson as much as admits this when she notes that the victims overwhelmingly asked for a provable and sustainable case against the guilty. And third, the prosecution team's mistrust of us over the Fortier plea agreement was so great that it chose not to notify us over the hearing in which the plea was offered, and it chose not to confer with any of us beforehand about the plea--both of which were in violation of existing federal law. So when Beth Wilkinson says that statutory reform will meet our just demands, we must ask, what happened to the statutes already on the books? I am increasingly persuaded that the most formidable enemy of crime victims' aspirations for getting justice under our Constitution are criminal justice officials--even well- meaning ones like Beth Wilkinson--who believe that only government lawyers know best. Her testimony is in fact Exhibit A in the case for the Amendment because it is the voice of a superior government extending handouts as an act of grace, not protecting legitimate rights of a free people. She says that the ``concerns'' of the victims must be balanced with the ``need for a just trial,'' as though these important values were somehow in conflict, and that only the government knows how to achieve this goal. I cannot tell you how these words hurt me; they confirm my worst fears about the treatment of victims in our justice system and [[Page S2970]] how nothing will change without constitutional rights. It is painfully obvious to me that she thinks of us as mere meddlers who must be kept out of this important government business for fear that we might break something. Beth Wilkinson may believe that she ``grew to understand my grief first hand,'' but clearly she does not. For me and so many of our families our grief was profoundly extended when our government minimized and discounted our interests by refusing to consult with us about this important development early in the case. For example, consider the point Beth Wilkinson makes about grand jury secrecy. She says, ``Due to the secrecy rules of the grand jury, we could not explain to the victims why Fortier's plea and cooperation was important to the prosecution of Timothy McVeigh and Terry Nichols.'' Under existing federal law, however, courts are authorized to enter appropriate orders allowing for the disclosure of grand jury information in advance of a court proceeding. It apparently did not even occur to her then, nor does it today, to have sought such a court order for disclosure. Nor is clear that such an order would even have been necessary, as surely there would have been ways to explain the circumstances to the victims without going confidential grand jury matters. Perhaps most disturbing of all to me is Beth Wilkinson's assertion that the Victims Rights Clarification Act of 1997 ``worked--no victims were precluded from testifying.'' In fact, I was precluded from testifying in the sentencing phase of the trial. As she is well aware, I very much wanted to be a penalty phase witness. But because of my philosophical beliefs in opposition to capital punishment, I was not allowed by the government prosecutors to testify. Clearly the statute did not work for me. In addition, a number of victims lost their right to attend the trial of Timothy McVeigh because of legal uncertainties about the status of victims' rights. As I testified before the Senate Judiciary Committee in 1997, Judge Matsch rejected a motion made by a number of us to issue a final ruling upholding the new law as McVeigh's trial began. His reluctance led the prosecution team (including Beth Wilkinson) to tell us that, if we wanted to give an impact statement at the penalty phase, we should seriously consider not attending the trial. Some of the victims on the prosecution's penalty phase list followed this pointed suggestion and forfeited their supposedly protected right to attend McVeigh's trial. Our lawyers also sought further clarification from the judge (unsuccessfully), but had to do so without further help from the prosecution team. The prosecutors were apparently concerned about pressing this point further because the judge might become irritated. Beth Wilkinson urges the Congress to ``consider statutory alternatives to protect the rights of victims.'' While she says that she opposes the Victim's Rights Amendment in its ``current form,'' the context of this statement makes it clear that she opposes any constitutional rights for crime victims. She concludes with the following prescription: ``We must educate prosecutors, law enforcement and judges about the impact of crimes so that they better understand the importance of addressing victims' rights from the outset.'' But the truth is that there will be no real rights to address, as my experience makes clear, unless those rights are enshrined in the United States Constitution. Only then will victim's rights be meaningful and enforceable. Mr. KYL. Mr. President, I am going to make some concluding remarks about why we believe so strongly in this amendment, how we intend to pursue the amendment, and why supporters of this amendment should take heart about how far we have come in this process and not at all be dispirited by the fact that there will not be a final vote on the amendment at this time. I will make those comments after Senator Feinstein has had an opportunity to make some comments that I know she strongly wishes to make. Mr. SCHUMER. Mr. President, will the Senator yield? Mr. KYL. Yes. Mr. SCHUMER. Mr. President, I asked the Senator to yield for two quick requests. I forgot to do this yesterday. I mentioned a letter from the Judicial Conference on this amendment. I ask unanimous consent to print this letter in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Committee on Criminal Law of the Judicial Conference of the United States, Greenville, SC, April 17, 2000. Hon. Charles E. Schumer, U.S. Senate, Hart Senate Office Building, Washington, DC. Re: S.J. Res. 3, the Victims' Rights Amendment Dear Senator Schumer: Thank you for your letter requesting the views of the Judicial Conference of the United States regarding S.J. Res. 3, the Victims' Rights Amendment to the Constitution. On behalf of the Judicial Conference, I appreciate the opportunity to have its viewpoint considered as the Senate takes up this important legislation. In March of 1997, the Judicial Conference resolved to take no position at that time on the enactment of a victims' rights constitutional amendment. However, if the Congress decides to affirmatively act in this area, the Judicial Conference strongly prefers a statutory approach as opposed to a constitutional amendment. A statutory approach would allow all participants in the federal criminal justice system to gain experience with the principles involved without taking the unusual step of amending our nation's fundamental legal charter, with its concomitant application to the various state systems. Many of the principles contemplated in S.J. Res. 3 represent a significant change in our criminal justice system, literally realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated. The rights and protections heretofore afforded to citizens under the Constitution were largely part of the fabric of the law well-known and understood by the Founding Fathers, while many of the concepts in the victims' rights area are largely untested, at least in the federal system. It could take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process. A statutory approach would also vitiate the potential specter of significant federal court involvement in the operations of the state criminal justice systems under a victims' rights constitutional amendment. Finally, a statutory approach is more certain and immediate, an advantage to victims. Conversely, an amendment potentially would not be effective for many years, awaiting the ponderous and uncertain ratification process required under Article V. While S.J. Res. 3 appears to have less potential adverse impact on the federal judiciary than some previous amendment proposals, there remain a number of fundamental concerns: classes of crimes and victims to which the amendment will apply Under S.J. Res. 3, the proposed amendment will apply to any person who is a ``victim of a crime of violence, as these terms may be defined by law.'' It is not clear from the proposed amendment whether these terms are to be defined by Congress, the states or through case law. The term ``crime of violence,'' which is commonly utilized in legal parlance, has many meanings under state and federal law. Thus, it is unclear as to which specific crimes this provision would actually apply. This problem is magnified by the fact that this provision applies to misdemeanor cases, the number of which is particularly large in the state courts. Failure to provide a clear and practical definition of this term may well result in protracted and unnecessary litigation that will likely take years and great expense to resolve. Closely associated with this issue is the question of what classes of persons will qualify as a ``victim.'' We note that the proposed amendment includes no definition of victim. This leaves many fundamental questions unanswered, including: Must a person suffer direct physical harm to qualify as a victim? Is it sufficient if the person has suffered pecuniary loss alone? What if the person is alleging solely emotional harm? Is that enough to qualify him or her as a victim? Are family members of a person injured by a crime also victims? Suppose that a defendant is accused of committing a series of ten violent armed robberies. Due to evidence strength and efficiency considerations, the prosecutor sends only six of those cases to the grand jury. Are the other four injured persons victims under the proposed amendment? Suppose an agreement is reached whereby the defendant agrees to plead guilty to just one of the cases. Are the other nine injured persons victims under these circumstances? Will the answer affect a prosecutor's ability to obtain plea agreements from defendants? Extending the definition of victim to those who claim emotional harm from criminal offenses dramatically exacerbates the potential impact of this proposal. The number of persons who could claim to be emotionally harmed by significant, well-publicized crimes could be quite large. Moreover, substantial litigation could result from the requirement of restitution, especially in cases involving non-economic injury. Finally, cases involving large numbers of victims, particularly victims of terrorist acts, are particularly troubling. Providing the rights [[Page S2971]] enumerated in the proposed amendment to large numbers of victims could overwhelm the criminal justice system's ability to perform its primary function of adjudicating guilt or innocence and punishing the guilty. enforcement The proposed amendment states that nothing ``in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling.'' Unlike some previously introduced victims' rights constitutional amendment proposals, S.J. Res. 3 does not stipulate that a victim has no grounds to challenge a charging decision. This addition would be a significant and valid limitation. Allowing victims to challenge a prosecutor's charging decision could result in significant operational problems. We suggest that Congress also consider modifying the proposed amendment to prohibit a victim from challenging a ``negotiated plea.'' Permitting the challenge of a proposed plea interferes with the prosecutor's ability to obtain convictions of defendants whose successful prosecution may rest on the cooperation of another defendant. Guilty pleas are sometimes also negotiated because the prosecution witnesses are, for various reasons, not as strong as they appear to be on paper. Also, the sheer volume of cases would generally overwhelm any prosecutor's office and the courts unless the vast majority were settled. Permitting challenge to a prosecutor's judgment regarding an accepted plea could lead inadvertently to a failure to secure a conviction. The significance of this issue should not be underestimated. federalism The matter of victim enforcement raises significant federalism concerns. While the proposed amendment includes provisions that bar monetary damages as a remedy, it appears that victims may be able to seek injunctive relief against state officials for violation of their new constitutional rights. Such claims, almost inevitably filed in federal courts, could cause significant federal court supervision of state criminal justice systems for the purpose of enforcing the amendment. These conflicts between federal courts and state governments would be avoided by a statutory approach to victims' rights. administration of justice exception S.J. Res. 3 permits Congress to create exceptions to the proposed amendment ``when necessary to achieve a compelling interest.'' While this is a very valid and useful provision, Congress should carefully consider the need for a further exception based on adverse impact on the administration of justice. Inevitably, courts will handle cases where the rights of victims collide with the functional administration of justice. Such cases might fall into two general categories. The first category relates to the very real practicalities of the administration of justice. One example would be an action involving exceptionally large numbers of possible victims wishing to attend the proceedings and overwhelming any available courtroom or other suitable location. A similar problem would be encountered if large numbers of victims wished to exercise their rights to allocution at sentencing, unduly prolonging the proceedings and pushing back other cases that need to be heard. The second category of cases are those in which the rights of victims, exercised under certain circumstances, may have a substantive effect upon the rights of defendants or others, impairing due process or the right to a fair trial. An example of such a case would be if a victim wished to both attend the trial and testify at the guilt phase, even though the trial judge had ordered all witnesses sequestered. This could impair the fundamental integrity of the trial. Congress should consider modifying the proposed amendment to allow a judge, while recognizing the rights of the victims to the extent practicable, to provide for exceptions in individual cases when required for the orderly administration of justice. Congress may also wish to consider modifying the proposed amendment to additionally allow Congress to statutorily enact exceptions in ``aid of the administration of justice.'' At the very least, Congress should provide an exception permitting the sequestration from trial proceedings of a victim who will appear as a witness at the guilt phase of the trial. This could be accomplished through a general provision in the proposed amendment stating that the victim's rights should not ``interfere with the constitutional rights, including due process rights, of the person accused of committing the crime.'' It could also be accomplished through a more narrow provision, similar to that in the Wisconsin Constitution, by the addition of a phrase allowing sequestration when ``necessary to a fair trial for the defendant.'' Another approach, similar to that taken under the Constitution of Florida, would add a phrase allowing sequestration ``to protect overriding interests that may be prejudiced by the presence of the victim.'' speedy trial considerations The proposed amendment includes a victim's right to ``consideration of the interest of the victim that any trial be free from unreasonable delay.'' Determining the meaning of this phrase and how it interacts with existing speedy trial provisions should be a fertile source of diversionary litigation. In federal court, the sixth amendment right to a speedy trial and the Speedy Trial Act, see 18 U.S.C. Sec. Sec. 3161- 3173, not only guarantee the defendant's right to a speedy trial, but also recognize the public's, and therefore the victim's, interest in swift justice. However, the Speedy Trial Act also recognizes several legitimate bases to postpone trial, including plea negotiations. See 18 U.S.C. Sec. 3161. This mechanism is an integral part of the criminal justice system, balancing the desirability of a speedy trial with the realistic requirements of a fair proceeding. How is this right to consideration of the interest of the victim that any trial be free from unreasonable delay to be enforced? Will the victim have a right to seek relief from unreasonable delay? A motion to move the case faster would require a collateral hearing to determine the extent of the delay and whether it is unreasonable. The victim would then be in an adversarial position to the prosecutor and perhaps to the presiding judge. Would another judge be required to make the determination? Would a federal judge be asked to pass judgment on the efficiency of a state court? With ever increasing criminal dockets and limited prosecutorial and judicial resources, victims in several cases on the same docket, insisting upon speedier proceedings, could potentially cause severe internal conflicts within units of the same court. notice It is important that the responsibility for providing notice of proceedings and of the release or escape of a defendant be appropriately allocated to the prosecution, law enforcement agencies, or corrections agencies as is the law and practice in virtually all the states providing for victims' rights. Many of the rights under the proposed amendment must attach long before a defendant is formally charged in court. The judiciary would not have access to much of the information necessary to provide the required notice. It has neither the personnel nor resources to provide such notice to large numbers of victims or to provide the specialized types of victim assistance that is available from the first line of contact that victims have with the criminal justice system. The situation is likely no better--and possibly worse--in the state courts. Once again, I thank you for the opportunity to express the views of the Judicial Conference on this important issue. If you have any questions regarding the matters discussed herein, please do not hesitate to contact me. I may be reached at 864/233-7081. If you prefer, your staff may contact Dan Cunningham, Legislative Counsel at the Administrative Office of the U.S. Courts. He may be reached at 202/502-1700. Sincerely yours, William W. Wilkins, Jr. Mr. SCHUMER. Mr. President, second, I thank both Senator Kyl and Senator Feinstein for the passion, the erudition, the conviction, and for the cause. It is, obviously, wise to delay this. I know we may be back for another day. Maybe we can all come together. I plead with them to consider a proposal of making this a Kyl-Feinstein statute, as opposed to a Kyl-Feinstein constitutional amendment, where I think it might get close to unanimous support on the floor. I thought the debate we were having and may well continue to have, at least to my young years in the Senate, was one of the best times of the Senate, where we each talked about the issue with our concerns, our intelligence, and our passions. We tried to meet the issue head on. I thank both the Senator from Arizona and the Senator from California for their good work on this and hope we can come together on some sort of compromise on an issue about which we all care so much. Mr. KYL. Mr. President, I reiterate what I said yesterday, and that is, the best part of the debate we had was the debate with Senator Schumer whose approach to this was serious and intelligent. He asked the best questions. I believe we answered them, but we did not come to agreement. Of course, we will be working with him in the future on this matter and, hopefully, persuade him that a constitutional amendment is the best way to go. The debate we had among Senator Feinstein, Senator Schumer, and myself I thought was the highlight of this debate. I appreciate his remarks. I yield to Senator Feinstein for comments I know she wants to make. Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from Arizona. I also thank the Senator from New York, and I thank you, Mr. President, for allowing me to proceed. I begin by thanking the Senator from Arizona. Mr. President, I say to Jon Kyl, working with him on this amendment has truly been one of the highlights of my 7 years in the Senate. He has worked with credibility and with integrity. He has been fulsome in his sharing of detail. We have gone shoulder to shoulder through virtually every rung of this, through 4 years of discussions, of conferences, of hearings, of 800 pages of testimony, some 35 witnesses. [[Page S2972]] I agree with everything he said about the inclusive nature of the process. I must tell Senator Kyl how much I admire him. We worked together on the Technology and Terrorism Subcommittee of the Judiciary Committee. I saw it there. I have never seen it with another Senator as pronounced as it was in these past 4 years in the work on this issue. I believe a friendship has developed in the process, one which means a great deal to me. His leadership has been superb, and there is certainly nothing either one of us has done for the misunderstanding out there still about what we are trying to do and the importance of it. We will come back another day; there is no question in my mind about that. I cannot thank him enough. From the bottom of my heart, I thank Senator Kyl for his credibility, his intelligence, his integrity. He did his party proud. I am very happy to be a colleague of his and a friend as well. Before I get into my remarks, I also echo the thanks Senator Kyl provided to a whole host of victims, literally tens of thousands of them, to 37 State attorneys general, to many Governors, to all those across both party lines who support this and understand it. I particularly thank three legal scholars who were with us every step of the way. I thank Larry Tribe, a professor of constitutional law at Harvard University, for his testimony, for the phone calls, for the advice he has provided and for the statements he has made. I also thank one of the primary legal scholars in this country who has been a victims' rights representative, legal counsel--just a wonderful human being I have also gotten to know--and that is Professor Paul Cassell, professor of law at the University of Utah. I would be remiss if I did not thank Steve Twist on behalf of both Senator Kyl and myself. There are few people who have been as ardent in the cause as Steve Twist has been, with his knowledge, with his expertise, with his representation of victims throughout this entire process. I know th

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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed
(Senate - April 27, 2000)

Text of this article available as: TXT PDF [Pages S2966-S3011] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed Mr. KYL. Mr. President, we are in the process of attempting to work out an arrangement of time for the debate on the pending motion. I ask for all concerned if the Chair will describe the pending business of the Senate. The PRESIDING OFFICER. The question is on the motion to proceed to S.J. Res. 3. Mr. KYL. I thank the Chair. We are in the process of determining just how much time speakers are going to need in order to conclude debate on the motion to proceed. Senator Feinstein and I both have some preliminary remarks we would like to make in connection with that debate as the two chief proponents of the resolution. We understand Senator Leahy and Senator Byrd wish to take some time, and Senator Biden as well a little later on. As soon as we can confirm the amount of time people will need, we will probably propound a unanimous consent request in that regard. Mr. LEAHY. Will the Senator yield? Mr. KYL. I am happy to yield. Mr. LEAHY. Mr. President, I am perfectly willing, from this side, to work with the distinguished Senator from Arizona and the distinguished Senator from California on time. I do not expect an enormous amount of time to be consumed. It has not been announced, but there is a certain sense that there may not be any more rollcall votes this week so a lot of people are probably going to be leaving. I will definitely try to accommodate them. The distinguished Senator from West Virginia does have a statement he wishes to make. I have a statement I wish to make. I am simply trying to protect some others who may want to speak, as I am sure the Senator is on his side. But I will continue to work with the distinguished Senator to cut down this time any way we can. Mr. KYL. We will announce to all Members, if we can work that time arrangement out, just exactly how this will proceed. In the meantime, let me see if I can set the stage so everyone will know where we are in this debate. Then I would like to thank some people and then move on to a colloquy with Senator Feinstein, if I might. Because of the way the Senate works, we have moved back and forth in Senate business. But the pending business is the motion to proceed on S.J. Res. 3; that is, the crime victims' constitutional rights resolution sponsored by Senator Feinstein and myself. We gained cloture earlier this week so we could proceed, and the motion to proceed will certainly be agreed to, if we carry the debate that far. Senator Feinstein and I, however, are of the view that because of various things that have occurred, it is unlikely that a cloture motion, if filed, would be supported by the requisite number of Senators to succeed early next week. Therefore, what we are prepared to do is speak to the issue of the resolution, where we are with respect to the resolution, to thank the many groups and sponsors and other individuals who have been so supportive of this effort, and to seek permission of the Senate, when people have finished their comments, to withdraw the motion to proceed and to move to other business. That merely means a timeout in our efforts to secure passage of this constitutional amendment. We recognize at this point in time that proceeding will simply encourage more Senators to use a great deal of the Senate's time in unproductive speeches that really do not go to the heart of our constitutional amendment but take time away from the Senate's important business. We have no intention of doing that. So we will make some remarks that will set the stage for what we are about to do. But let me begin by noting the tremendous amount of support around the country that has accompanied our effort to bring this measure to the floor of the Senate. I have to begin by thanking two people in particular, Senator Dianne Feinstein and Majority Leader Trent Lott. We could not have brought this amendment, over the course of the last 4 years, to the bipartisan level of support it now enjoys without the ability to work on both sides of the aisle. No one could have carried this matter on the Democratic side more capably than Senator Dianne Feinstein. Before she came to the Senate, she was a passionate advocate for victims of crime. As mayor of San Francisco, she was a proponent of area residents who were victims of crime and carries that passion with her to this debate now. She and I have worked closely with victims' rights advocates to shape the legislation. I might say, while some of our colleagues have suggested there is something wrong with the fact that we have conducted dozens of meetings with the administration, Department of Justice, and many others, and honed this amendment in 63 different drafts, we are very proud that we have included anyone who wanted to talk about this in our circle of friends working to get an amendment that could pass the Senate and that we have carefully taken their suggestions into account, thus accounting for the many different drafts as the 4-year progress of this resolution has brought us to this point. The fact that we have taken their suggestions to heart and continually polished this amendment we think is a strong point. While we were criticized yesterday on the floor for engaging in yet more negotiations that might result in a final, 64th draft, I must say that was largely at the instigation of Senator Feinstein, who said, given the fact the Department of Justice has four concerns still pending with regard to our specific proposal, let's meet with them and see if we can come to closure on those items. Because of her leadership, we were able to come to closure on three of them. We believe we made more than a good faith effort with respect to the fourth, which had to do with the protection of defendants' rights. We were willing to acknowledge that the rights enumerated in this proposal take nothing whatsoever away from defendants' rights. I do not know how more clearly we can say it. That was not acceptable to the Department of Justice. But it is not for want of trying, on the part of Senator Feinstein, that we have been unable to secure the support of the Department of Justice for this amendment. So my first sincere thanks go to the person without whom we would not be at this point, my colleague Senator Feinstein. I also thank Leader Lott. When I went to him with a request for floor time for this amendment, his first response was: You know all the business the Senate has to conduct. Are you sure you want to go forward with this? I said we are absolutely certain. Despite all the other pressing business, he was willing because he, too, believes strongly in this proposal, as a cosponsor, to give us the floor time to try to get this through. It is partially out of concern for his responsibilities as leader that we recognize that to proceed would result in a vote that would not be successful, and therefore, rather than use that precious time, we are prepared to visit privately with our colleagues to further provide education to them about the necessity of this amendment since, clearly, the methodology we have engaged in thus far was not working. We would make strong arguments, but I daresay it didn't appear that anyone was here on the floor listening because when various opponents would come to the floor, they would repeat the same mantra over and over again that we had already addressed. Part of that mantra was, Did you know this amendment is longer than the Bill of Rights? We would patiently restate that is not true, that all of the rights of the defendants in the Constitution are embodied in language of more words than this amendment that embodies the victims' rights and so on. [[Page S2967]] Then that individual would leave the floor, and another individual would come to the floor and repeat the same erroneous information, and we would have to patiently respond to that. Rather than continue that process, we believe it is better that we visit with our colleagues when we are not using this time on the floor and explain all of this to them, with the hope they will then be better able to support us in the future. So I thank Senator Feinstein. We have gone through a lot together on this. There is nobody in this body for whom I have greater respect. Again, I thank Senator Lott, the majority leader, for his support for us as well. The National Victims' Constitutional Amendment Network is one of the really strong victims' rights groups that has backed us throughout this process. Roberta Roper has been involved in that. She was in my office this morning. She was with us yesterday. She has been with us throughout the process, helping us evaluate these various proposals and assisting us. The National Organization for Victim Assistance, known by the acronym NOVA, headed by Marlene Young and John Stein, and all the people on the NOVA board, we are enormously appreciative of their strong support and assistance throughout this effort. They are going to continue to fight for sure. Marsha Kight, whom Senator Feinstein and I have come to know and respect because of her advocacy as someone whose daughter was killed in the Oklahoma City bombing, brought the experience of that trial and the firsthand knowledge of how victims were denied their rights even to attend the trial. She has been an important witness for us before the Judiciary Committee and at various other forums. One of the groups in the country that is most strongly in support, and has provided a lot of grassroots support, is Mothers Against Drunk Driving, or MADD. Also, Students Against Drunk Driving, SADD, a group of younger people, has been helpful. Tom Howarth, Millie Webb, Katherine Prescott, and others have been very helpful to us in that regard. Parents of Murdered Children has been enormously helpful. Rita Goldsmith is from my State of Arizona, from Sedona. We have had tremendous help from legal scholars such as Professor Laurence Tribe, Professor Doug Beloof, and Professor Paul Cassell. I thank them for their enormous help in this effort, including their testimony before the Judiciary Committee. There are many prosecutors. I need to mention a couple from my own State. The two largest counties in Arizona are Maricopa and Pima Counties. Rick Romley, the Republican-elected attorney from Maricopa County, the sixth largest county by population in the country, and Barbara LaWall, a Democratic-elected attorney from Pima County, have been very strong supporters and helpful in our work. Law enforcement has been very well represented by organizations and individuals. From the Law Enforcement Alliance of America, Darlene Hutchinson and Laura Griffith have been helpful. Various attorneys general, such as Delaware Attorney General Jane Brady, Wisconsin Attorney General Jim Doyle, and Kansas Attorney General Carla Stovall. By the way, these are Democrats and Republicans alike. It is a totally bipartisan effort. As a matter of fact, the National Association of Attorneys General--we have a very good letter signed by the vast majority of attorneys general in support of our crime victims' constitutional rights amendment. We also have support from former U.S. Attorneys General: Ed Meese, Bill Barr, and Dick Thornburgh are strongly supportive of our proposal. From a show with which Americans are familiar, ``America's Most Wanted,'' John Walsh has been an early and strong supporter of our proposal. From the Stephanie Roper Foundation--I mentioned Roberta Roper--but Steve Kelly of the Stephanie Roper Foundation has been very helpful. Arizona Voice for Crime Victims; a person who helped Senator Feinstein in the early years, Neil Quinter, a superb former Senate staff member and with whom I visited just this morning, continues his support for this. Matt Lamberti and David Hantman of Senator Feinstein's office; Jason Alberts, Nick Dickinson, and Taylor Nguyen of my office; and, most important, Stephen Higgins of my staff and Steve Twist, an attorney from Arizona, whose support and competence in helping us through this process was, frankly, simply indispensable. Also, I will submit for the Record two things. One is a list of crime victims' rights amendment supporters. This list includes, in addition to those I mentioned, more than half a page of law enforcement organizations. I mention this because there has been some suggestion that law enforcement does not support us: The Federal Law Enforcement Officers Association, Law Enforcement Alliance of America, American Probation and Parole Association, American Correctional Association, the National Criminal Justice Association, the National Organization of Black Law Enforcement Executives, National Troopers Coalition, Concerns of Police Survivors, and on and on. This amendment is strongly supported by prosecutors, law enforcement, legal scholars, attorneys general, Governors, former U.S. Attorneys General, and many more. I ask unanimous consent to print this list of supporters in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Crime Victims' Rights Amendment Supporters public officials 42 cosponsors in the U.S. Senate (29R; 13D). Former Senator Bob Dole. Representative Henry Hyde. Texas Governor George W. Bush. California Governor Gray Davis. Arizona Governor Jane Hull. Former U.S. Attorney General Ed Meese. Former U.S. Attorney General Dick Thornburgh. Former U.S. Attorney General William Barr. The Republican Attorneys General Association. Alabama Attorney General Bill Pryor. Alaska Attorney General Bruce Botelho. Arizona Attorney General Janet Napolitano. California Attorney General Bill Lockyer. Colorado Attorney General Ken Salazar. Connecticut Attorney General Richard Blumenthal. Delaware Attorney General M. Jane Brady. Florida Attorney General Bob Butterworth. Georgia Attorney General Thurbert E. Baker. Hawaii Attorney General Earl Anzai. Idaho Attorney General Alan Lance. Illinois Attorney General Jim Ryan. Indiana Attorney General Karen Freeman-Wilson. Kansas Attorney General Carla Stovall. Kentucky Attorney General Albert Benjamin Chandler III. Maine Attorney General Andrew Ketterer. Maryland Attorney General J. Joseph Curran, Jr. Michigan Attorney General Jennifer Granholm. Minnesota Attorney General Mike Hatch. Mississippi Attorney General Mike Moore. Montana Attorney General Joseph P. Mazurek. Nebraska Attorney General Don Stenberg. New Jersey Attorney General John Farmer. New Mexico Attorney General Patricia Madrid. North Carolina Attorney General Michael F. Easley. Ohio Attorney General Betty D. Montgomery. Oklahoma Attorney General W.A. Drew Edmondson. Oregon Attorney General Hardy Meyers. Pennsylvania Attorney General Mike Fisher. Puerto Rico Attorney General Angel E. Rotger Sabat. South Carolina Attorney General Charlie Condon. South Dakota Attorney General Mark Barnett. Texas Attorney General John Cornyn. Utah Attorney General Jan Graham. Virgin Islands Attorney General Iver A. Stridiron. Virginia Attorney General Mark Earley. Washington Attorney General Christine O. Gregoire. West Virginia Attorney General Darrell V. McGraw, Jr. Wisconsin Attorney General James Doyle. Wyoming Attorney General Gay Woodhouse. Alaska State Legislature. law enforcement Federal Law Enforcement Officers Association. Law Enforcement Alliance of American (LEAA). American Probation and Parole Association (APPA). American Correctional Association (ACA). [[Page S2968]] National Criminal Justice Association (NCJA). National Organization of Black Law Enforcement Executives. Concerns of Police Survivors (COPS). National Troopers' Coalition (NTC). Mothers Against Violence in America (MAVIA). National Association of Crime Victim Compensation Boards (NACVCB). National Center for Missing and Exploited Children (NCMEC). International Union of Police Associations AFL-CIO. Norm Early, former Denver District Attorney. Maricopa County Attorney Rick Romley. Pima County Attorney Barbara Lawall. Shasta County District Attorney McGregor W. Scott. Steve Twist, former chief assistant Attorney General of Arizona. California Police Chiefs Association. California Police Activities League (CALPAL). California Sheriffs' Association. Los Angeles County Sheriff Lee Baca. San Diego County Sheriff William B. Kolender. San Diego Police Chief David Bajarano. Sacramento County Sheriff Lou Blanas. Riverside County Sheriff Larry D. Smith. Chula Vista Police Chief Richard Emerson. El Dorado County Sheriff Hal Barker. Contra Costa County Sheriff Warren E. Rupf. Placer County Sheriff Edward N. Bonner. Redding Police Chief Robert P. Blankenship. Yavapai County Sheriff's Office. Bannock County Prosecutor's Office. Los Angeles County Police Chiefs' Association. victims Mothers Against Drunk Driving (MADD). National Victims' Constitutional Amendment Network (NVCAN) National Organization for Victim Assistance (NOVA) Parents of Murdered Children (POMC) Mothers Against Violence in America (MAVIA). Justice for Murder Victims. Crime Victims United of California. Justice for Homicide Victims. We Are Homicide Survivors. Victims and Friends United. Colorado Organization for Victim Assistance (COVA). Racial Minorities for Victim Justice. Rape Response and Crime Victim Center. Stephanie Roper Foundation. Speak Out for Stephanie (SOS). Pennsylvania Coalition Against Rape (PCAR). Louisiana Foundation Against Sexual Assault. KlaasKids Foundation. Marc Klaas. Victims' Assistance Legal Organization, Inc. (VALOR). Victims Remembered, Inc. Association of Traumatic Stress Specialists. Doris Tate Crime Victims Bureau (DTCVB). Rape Response & Crime Victim Center. John Walsh, host of ``America's Most Wanted''. Marsha Kight, Oklahoma City bombing victim. other supporters Professor Paul Cassell, University of Utah School of Law. Professor Laurence Tribe, Harvard University Law School. Professor Doug Beloof, Northwestern Law School (Lewis and Clark). Professor Bill Pizzi, University of Colorado at Boulder. Professor Jimmy Gurule, Notre Dame Law School. Security on Campus, Inc. International Association for Continuing Education and Training (IACET). Women in Packaging, Inc. American Machine Tool Distributors' Association (AMTDA). Jewish Women International. Neighbors Who Care. National Association of Negro Business & Professional Women's Clubs. Citizens for Law and Order. National Self-Help Clearinghouse. American Horticultural Therapy Association (AHTA). Valley Industry and Commerce Association. Mr. KYL. Mr. President, finally, I ask unanimous consent to print in the Record a series of a dozen or so statements and letters from supporters of the amendment. Included in those, incidentally, is a strong statement of support for our specific amendment by Governor George Bush of the State of Texas. I ask unanimous consent to print these in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Statement by Governor George W. Bush--April 7, 2000 I strongly support passage of the Victims' Rights Amendment. Two years ago, I joined my colleagues on the National Governor's Association in calling for a national Amendment, like the one we have in Texas and 30 other states. For too long, courts and lawyers have focused only on the rights of criminal defendants and not on the rights of innocent victims. We need to make sure that crime victims are not forgotten, that they are treated fairly and with respect in our criminal process. ____ March 14, 2000. Dear Senators Kyl and Feinstein: During our years of service as Attorneys General of the United States, we saw first hand how the criminal justice system must command the respect of all our citizens if it is to be effective. That respect can only be eroded when the system unfairly treats those it is supposed to serve. For victims, the system is neither fair nor just. Despite federal statutes and states constitutional amendments passed to ensure fair treatment of crime victims, in too many courtrooms across the country, crime victims continue to be excluded and silenced; they are neither informed of proceedings nor given a right to be present or heard. We believe the only way to extend the fundamental fairness demanded of our system for crime victims, is to secure their rights in our fundamental law, the U.S. Constitution. That is why we are writing now to express our strong and unqualified support for the constitutional amendment you propose, the Crime Victims' Rights Amendment (S.J. Res. 3). This amendment, once ratified, will restore to our justice system the basic fairness necessary to command the respect of all our people. The rights spelled out in the amendment are simple, yet profound. They are practical and attainable, and they will transform our justice system so that it will truly protect the rights of the law abiding as well as the lawless. Sincerely, William Barr. Edwin Meese III. Richard Thornburgh. ____ Office of the Maricopa County Attorney, Maricopa County, AZ, April 14, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Dear Senator Kyl: As the chief prosecutor for the sixth largest prosecutor's office in the nation, handling over 40,000 felony and delinquency prosecutions each year, I have first hand knowledge of the ramifications of providing constitutional rights for victims. I have been a strong proponent for victims' rights for many years, having served on the Arizona Victim's Bill of Rights Steering Committee that was responsible for the passage of constitutional rights for victims in 1990. I also participated in subsequent legislative ad hoc committees charged with developing the enabling legislation. I strongly support S.J. Res. 3 and your efforts to see constitutional rights for victims become a reality in the United States Constitution. I recently read the Minority views in the Judiciary Committee's Report on S.J. Res. 3. The ``worst case'' examples that were raised were for the most part extreme predictions which we in Arizona have not experienced, notwithstanding our long history with victims' rights. I would like to take this opportunity to address several of the Minority report concerns. Victims' Rights Do Not Result in Substantial Costs To The System-- Providng victims with constitutional rights has not resulted in substantial costs to law enforcement, prosecutors, the courts, corrections or probation departments. My office provides victims' rights services to over 30,000 victims each year and although the ``exact cost'' is difficult to determine, our estimates are that it costs my office approximately $15.00 per victim. While we have experienced an increase in trials, the increase cannot be attributed to our constitution amendment for victim rights. Any such increase has been in response to our mushrooming population and the resulting increase in case filings. The Arizona Court of Appeals and the Arizona Supreme Court have not been besieged with appeals based on victim rights arguments. Victim Rights Do Not Restrict The Discretion Of The Prosecutor-- A victim's right to be heard regarding a plea agreement does not mean a crime victim can veto a judge's final decision. Judges, of course, consider the victim's opinion when determining whether or not to accept a plea agreement, however that opinion is merely one factor among others which contribute to the deliberative process. In Arizona, the victim's right to allocution has not caused our judicial officers to abrogate their responsibility to render a decision free of bias. There is no reason to believe that federal judicial officers will act otherwise when weighing the appropriateness of accepting a negotiated plea. I have implemented a policy in which prosecutors solicit the victim's opinion regarding the final outcome of the prosecution and take the victim's opinion into consideration when neogitating a plea agreement. In this way, the prosecutor considers the victim's wishes, including the harm caused by the crime, throughout the plea negotiation process and pretrial phase of prosecution. Consideration of the victim's views are again but one factor considered by the prosecutor. Our experience has been that my deputies are not inappropriately influenced by emotion. To presuppose otherwise does a disservice to these dedicated public servants who have sworn to strive for equal justice. [[Page S2969]] Prosecutors are responsible for informing victims of the plea agreement and the reasons for the negotiated settlement. It has been our experience that very few victims object to a plea agreement when fully informed of the reasons and benefits of the plea. However, in some instances, after considering the plea and victim's opinion, the judge will reject the plea agreement holding that the interests of justice are not served by the plea. When this happens, although rare in our experience, the court has fulfilled its function as an arbiter not an advocate. Victim Rights Do Not Under Cut The Rights Of The Accused-- Victims desire to see justice, first and foremost. their natural desire to gain justice, is not something to fear. In our experience it has helped our office achieve that goal. While victims have a right to be present throughout the course of trial in Arizona, it has been our experience that defendants and/or the friends and family of the defendants are much more likely than victims to become disruptive during trial. In the rare cases where a victim has been emotionally overwhelmed in court, he or she has either voluntarily left the courtroom to calm down, or is requested to do so upon instruction by the court. In every courtroom in our land, the judge has the responsibility of maintaining order and ensuring that the jury is not influenced by factors other than those presented from the witness box. To assume that the presence of a victim in the courtroom will somehow so prejudice a jury that they would disregard the evidence and return a verdict of guilty predicated and influenced by an individual sitting in the spectator section of the court, presupposes that juries will ignore the instructions of the court to be fair and impartial and to base their decision exclusively on the evidence. To adopt this position, one must conclude that juries will ignore the law. To do so, would be to conclude that our jury system is incapable of justice. Defendants have a constitutional right to a speedy trial. Oftentimes defendants waive this right for strategy advantage--hoping for memories to fade, critical witnesses to relocate, or victims to die. Victims have as much an interest in the timely disposition of the criminal case as do the defendants and need to have equal consideration when a judge considers whether or not to delay the disposition of a case. Federal Constitutional Rights Do Not Infringe On State's Rights-- While those victimized by crime in Arizona are afforded victim rights in state court, that same victim would not be afforded constitutional rights if that offense occurred on federal land, or if an Arizona resident were victimized in a state that does not have constitutional rights. These rights are too important to be left to a patchwork of rights from state to state. Consistency in the application of our laws are paramount if our citizens are to realize the benefit of a judicial system that is balanced between the accused and the interest of society at large. Inconsistency breeds contempt and cynicism. Adoption of a federal constitutional amendment will recognize that there is but one law for all. My office has nearly a decade of experience championing in assisting victims in exercising their state constitutional rights. It would be disingenuous if I were to say that there had been no costs, yet the benefit to the victim, to the citizens of Arizona and our system of justice far outweighs those costs. Our state constitutional amendment has increased cooperation of victims with police and prosecutors. Victims feel more of a part of the criminal justice process. I believe that this has enhanced the ability of law enforcemenet to put criminals behind the bars, and thus has been a factor in the decrease in crime that we have experienced in recent years. The scales of justice must be balanced, providing victims with equal access to the courts, information and a voice in the criminal justice system. Our system of justice is dependent upon the voluntary participation of those who have been harmed by crime--without their participation, our country would see an increase in lawlessness and vigilantism. Balancing the scales of justice by providing for victim rights restores faith in our system without detracting from the rights of those accused. Sincerely, Richard M. Romley, Maricopa County Attorney. ____ National Association of Attorneys General, Washington, DC, April 21, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Hon. Dianne Feinstein, U.S. Senate, Washington, DC. Dear Senators Kyl and Feinstein: We are writing to express our strong and unequivocal support for your efforts to pass S.J. Res. 3, the proposed Crime Victims' Rights Amendment, and send it on to the States for ratification. As Attorneys General from diverse regions and populations in our nation, we continue to see a common denominator in the treatment of crime victims throughout the country. Despite the best intentions of our laws, too often crime victims are still denied basic rights to fair treatment and due process that should be the birthright of every citizen who seeks justice through our courts. We are convinced that statutory protections are not enough; only a federal constitutional amendment will be sufficient to change the culture of our legal system. The rights you propose in S.J. Res. 3 are moderate, fair, and yet profound. They will extend to crime victims a meaningful opportunity to participate in each critical stage of their cases. At the same time, they will not infringe on the fundamental rights of those accused or convicted of offenses. Neither will these rights interfere with the proper functioning of law enforcement. Attorney General Reno spoke for many of us in law enforcement when she noted, ``[T]he President and I have concluded that a victims' rights amendment would benefit not only crime victims but also law enforcement. To operate effectively, the criminal justice system relies on victims to report crimes committed against them, to cooperate with the law enforcement authorities investigating those crimes, and to provide evidence at trial. Victims will be that much more willing to participate in this process if they perceive that we are striving to treat them with respect and to recognize their central place in any prosecution.'' Some have argued that federal constitutional rights for victims will infringe on important principles of federalism. We disagree. Each of our state criminal justice systems accommodates federal rights for defendants. To provide a similar floor of rights for victims is a matter of basic fairness. Please share this letter with your colleagues so that they may know of our strong support for S.J. Res. 3. (Signed by 30 attorneys general.) ____ Statement of Marsha A. Kight, Director, Families and Survivors United, Oklahoma City, OK., March 24, 1999 My daughter, Frankie Merrell, was murdered in the Oklahoma City bombing, and in tribute to her and all the others, I founded Families and Survivors United, which took a leading role in advocating for the victims and survivors before and during the trials which followed. This is now I first came to meet Beth Wilkinson. Having attended every day of the McVeigh trial, I came to regard Beth Wilkinson as the most effective advocate on the prosecution team. More than that, I and others trusted her to bring the victims' perspective into the courtroom, and she lived up to that trust. So I believe that her statement before the Judiciary Committee today is from the heart--that she really believes that if our Victims Rights Amendment were in place, it might have jeopardized a very basic right--the ``right of just conviction of the guilty,'' as she puts it. But she is wrong. As she describes so well, the prosecution team worked hard to earn our trust, and for the great majority of the 2,000-plus of us who were designated victims under the law, we gave them our trust. But on the one tactical issue she says argues against the Amendment, the prosecution team chose not to trust us for the reasons she describes, and in the process, that team broke both our trust and the law. She claims that, had the Amendment been in place, its right for victims to be heard before a plea bargain is accepted might have harmed the prosecution. Specifically the suggestion that might have persuaded the judge to not accept the guilty plea of Michael Fortier--and thus might have jeopardized the eventual conviction of Timothy McVeigh and Terry Nichols. There are three things wrong with this conjecture. First, Michael Fortier's testimony was not critical to either conviction, as several jurors later made clear to me. Second, had the Justice Department taken us into its trust on the usefulness of the Fortier plea, the great majority of us would have reciprocated that trust and encouraged the judge to accept the plea. I think from everything else Beth Wilkinson describes about the trust-building between the prosecution and the victims confirms this belief. We were not blind sheep, willing to accept everything the prosecutors said was so--we were, most of the time, informed citizens who were persuaded by the prosectuors' reasoning. Beth Wilkinson as much as admits this when she notes that the victims overwhelmingly asked for a provable and sustainable case against the guilty. And third, the prosecution team's mistrust of us over the Fortier plea agreement was so great that it chose not to notify us over the hearing in which the plea was offered, and it chose not to confer with any of us beforehand about the plea--both of which were in violation of existing federal law. So when Beth Wilkinson says that statutory reform will meet our just demands, we must ask, what happened to the statutes already on the books? I am increasingly persuaded that the most formidable enemy of crime victims' aspirations for getting justice under our Constitution are criminal justice officials--even well- meaning ones like Beth Wilkinson--who believe that only government lawyers know best. Her testimony is in fact Exhibit A in the case for the Amendment because it is the voice of a superior government extending handouts as an act of grace, not protecting legitimate rights of a free people. She says that the ``concerns'' of the victims must be balanced with the ``need for a just trial,'' as though these important values were somehow in conflict, and that only the government knows how to achieve this goal. I cannot tell you how these words hurt me; they confirm my worst fears about the treatment of victims in our justice system and [[Page S2970]] how nothing will change without constitutional rights. It is painfully obvious to me that she thinks of us as mere meddlers who must be kept out of this important government business for fear that we might break something. Beth Wilkinson may believe that she ``grew to understand my grief first hand,'' but clearly she does not. For me and so many of our families our grief was profoundly extended when our government minimized and discounted our interests by refusing to consult with us about this important development early in the case. For example, consider the point Beth Wilkinson makes about grand jury secrecy. She says, ``Due to the secrecy rules of the grand jury, we could not explain to the victims why Fortier's plea and cooperation was important to the prosecution of Timothy McVeigh and Terry Nichols.'' Under existing federal law, however, courts are authorized to enter appropriate orders allowing for the disclosure of grand jury information in advance of a court proceeding. It apparently did not even occur to her then, nor does it today, to have sought such a court order for disclosure. Nor is clear that such an order would even have been necessary, as surely there would have been ways to explain the circumstances to the victims without going confidential grand jury matters. Perhaps most disturbing of all to me is Beth Wilkinson's assertion that the Victims Rights Clarification Act of 1997 ``worked--no victims were precluded from testifying.'' In fact, I was precluded from testifying in the sentencing phase of the trial. As she is well aware, I very much wanted to be a penalty phase witness. But because of my philosophical beliefs in opposition to capital punishment, I was not allowed by the government prosecutors to testify. Clearly the statute did not work for me. In addition, a number of victims lost their right to attend the trial of Timothy McVeigh because of legal uncertainties about the status of victims' rights. As I testified before the Senate Judiciary Committee in 1997, Judge Matsch rejected a motion made by a number of us to issue a final ruling upholding the new law as McVeigh's trial began. His reluctance led the prosecution team (including Beth Wilkinson) to tell us that, if we wanted to give an impact statement at the penalty phase, we should seriously consider not attending the trial. Some of the victims on the prosecution's penalty phase list followed this pointed suggestion and forfeited their supposedly protected right to attend McVeigh's trial. Our lawyers also sought further clarification from the judge (unsuccessfully), but had to do so without further help from the prosecution team. The prosecutors were apparently concerned about pressing this point further because the judge might become irritated. Beth Wilkinson urges the Congress to ``consider statutory alternatives to protect the rights of victims.'' While she says that she opposes the Victim's Rights Amendment in its ``current form,'' the context of this statement makes it clear that she opposes any constitutional rights for crime victims. She concludes with the following prescription: ``We must educate prosecutors, law enforcement and judges about the impact of crimes so that they better understand the importance of addressing victims' rights from the outset.'' But the truth is that there will be no real rights to address, as my experience makes clear, unless those rights are enshrined in the United States Constitution. Only then will victim's rights be meaningful and enforceable. Mr. KYL. Mr. President, I am going to make some concluding remarks about why we believe so strongly in this amendment, how we intend to pursue the amendment, and why supporters of this amendment should take heart about how far we have come in this process and not at all be dispirited by the fact that there will not be a final vote on the amendment at this time. I will make those comments after Senator Feinstein has had an opportunity to make some comments that I know she strongly wishes to make. Mr. SCHUMER. Mr. President, will the Senator yield? Mr. KYL. Yes. Mr. SCHUMER. Mr. President, I asked the Senator to yield for two quick requests. I forgot to do this yesterday. I mentioned a letter from the Judicial Conference on this amendment. I ask unanimous consent to print this letter in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Committee on Criminal Law of the Judicial Conference of the United States, Greenville, SC, April 17, 2000. Hon. Charles E. Schumer, U.S. Senate, Hart Senate Office Building, Washington, DC. Re: S.J. Res. 3, the Victims' Rights Amendment Dear Senator Schumer: Thank you for your letter requesting the views of the Judicial Conference of the United States regarding S.J. Res. 3, the Victims' Rights Amendment to the Constitution. On behalf of the Judicial Conference, I appreciate the opportunity to have its viewpoint considered as the Senate takes up this important legislation. In March of 1997, the Judicial Conference resolved to take no position at that time on the enactment of a victims' rights constitutional amendment. However, if the Congress decides to affirmatively act in this area, the Judicial Conference strongly prefers a statutory approach as opposed to a constitutional amendment. A statutory approach would allow all participants in the federal criminal justice system to gain experience with the principles involved without taking the unusual step of amending our nation's fundamental legal charter, with its concomitant application to the various state systems. Many of the principles contemplated in S.J. Res. 3 represent a significant change in our criminal justice system, literally realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated. The rights and protections heretofore afforded to citizens under the Constitution were largely part of the fabric of the law well-known and understood by the Founding Fathers, while many of the concepts in the victims' rights area are largely untested, at least in the federal system. It could take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process. A statutory approach would also vitiate the potential specter of significant federal court involvement in the operations of the state criminal justice systems under a victims' rights constitutional amendment. Finally, a statutory approach is more certain and immediate, an advantage to victims. Conversely, an amendment potentially would not be effective for many years, awaiting the ponderous and uncertain ratification process required under Article V. While S.J. Res. 3 appears to have less potential adverse impact on the federal judiciary than some previous amendment proposals, there remain a number of fundamental concerns: classes of crimes and victims to which the amendment will apply Under S.J. Res. 3, the proposed amendment will apply to any person who is a ``victim of a crime of violence, as these terms may be defined by law.'' It is not clear from the proposed amendment whether these terms are to be defined by Congress, the states or through case law. The term ``crime of violence,'' which is commonly utilized in legal parlance, has many meanings under state and federal law. Thus, it is unclear as to which specific crimes this provision would actually apply. This problem is magnified by the fact that this provision applies to misdemeanor cases, the number of which is particularly large in the state courts. Failure to provide a clear and practical definition of this term may well result in protracted and unnecessary litigation that will likely take years and great expense to resolve. Closely associated with this issue is the question of what classes of persons will qualify as a ``victim.'' We note that the proposed amendment includes no definition of victim. This leaves many fundamental questions unanswered, including: Must a person suffer direct physical harm to qualify as a victim? Is it sufficient if the person has suffered pecuniary loss alone? What if the person is alleging solely emotional harm? Is that enough to qualify him or her as a victim? Are family members of a person injured by a crime also victims? Suppose that a defendant is accused of committing a series of ten violent armed robberies. Due to evidence strength and efficiency considerations, the prosecutor sends only six of those cases to the grand jury. Are the other four injured persons victims under the proposed amendment? Suppose an agreement is reached whereby the defendant agrees to plead guilty to just one of the cases. Are the other nine injured persons victims under these circumstances? Will the answer affect a prosecutor's ability to obtain plea agreements from defendants? Extending the definition of victim to those who claim emotional harm from criminal offenses dramatically exacerbates the potential impact of this proposal. The number of persons who could claim to be emotionally harmed by significant, well-publicized crimes could be quite large. Moreover, substantial litigation could result from the requirement of restitution, especially in cases involving non-economic injury. Finally, cases involving large numbers of victims, particularly victims of terrorist acts, are particularly troubling. Providing the rights [[Page S2971]] enumerated in the proposed amendment to large numbers of victims could overwhelm the criminal justice system's ability to perform its primary function of adjudicating guilt or innocence and punishing the guilty. enforcement The proposed amendment states that nothing ``in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling.'' Unlike some previously introduced victims' rights constitutional amendment proposals, S.J. Res. 3 does not stipulate that a victim has no grounds to challenge a charging decision. This addition would be a significant and valid limitation. Allowing victims to challenge a prosecutor's charging decision could result in significant operational problems. We suggest that Congress also consider modifying the proposed amendment to prohibit a victim from challenging a ``negotiated plea.'' Permitting the challenge of a proposed plea interferes with the prosecutor's ability to obtain convictions of defendants whose successful prosecution may rest on the cooperation of another defendant. Guilty pleas are sometimes also negotiated because the prosecution witnesses are, for various reasons, not as strong as they appear to be on paper. Also, the sheer volume of cases would generally overwhelm any prosecutor's office and the courts unless the vast majority were settled. Permitting challenge to a prosecutor's judgment regarding an accepted plea could lead inadvertently to a failure to secure a conviction. The significance of this issue should not be underestimated. federalism The matter of victim enforcement raises significant federalism concerns. While the proposed amendment includes provisions that bar monetary damages as a remedy, it appears that victims may be able to seek injunctive relief against state officials for violation of their new constitutional rights. Such claims, almost inevitably filed in federal courts, could cause significant federal court supervision of state criminal justice systems for the purpose of enforcing the amendment. These conflicts between federal courts and state governments would be avoided by a statutory approach to victims' rights. administration of justice exception S.J. Res. 3 permits Congress to create exceptions to the proposed amendment ``when necessary to achieve a compelling interest.'' While this is a very valid and useful provision, Congress should carefully consider the need for a further exception based on adverse impact on the administration of justice. Inevitably, courts will handle cases where the rights of victims collide with the functional administration of justice. Such cases might fall into two general categories. The first category relates to the very real practicalities of the administration of justice. One example would be an action involving exceptionally large numbers of possible victims wishing to attend the proceedings and overwhelming any available courtroom or other suitable location. A similar problem would be encountered if large numbers of victims wished to exercise their rights to allocution at sentencing, unduly prolonging the proceedings and pushing back other cases that need to be heard. The second category of cases are those in which the rights of victims, exercised under certain circumstances, may have a substantive effect upon the rights of defendants or others, impairing due process or the right to a fair trial. An example of such a case would be if a victim wished to both attend the trial and testify at the guilt phase, even though the trial judge had ordered all witnesses sequestered. This could impair the fundamental integrity of the trial. Congress should consider modifying the proposed amendment to allow a judge, while recognizing the rights of the victims to the extent practicable, to provide for exceptions in individual cases when required for the orderly administration of justice. Congress may also wish to consider modifying the proposed amendment to additionally allow Congress to statutorily enact exceptions in ``aid of the administration of justice.'' At the very least, Congress should provide an exception permitting the sequestration from trial proceedings of a victim who will appear as a witness at the guilt phase of the trial. This could be accomplished through a general provision in the proposed amendment stating that the victim's rights should not ``interfere with the constitutional rights, including due process rights, of the person accused of committing the crime.'' It could also be accomplished through a more narrow provision, similar to that in the Wisconsin Constitution, by the addition of a phrase allowing sequestration when ``necessary to a fair trial for the defendant.'' Another approach, similar to that taken under the Constitution of Florida, would add a phrase allowing sequestration ``to protect overriding interests that may be prejudiced by the presence of the victim.'' speedy trial considerations The proposed amendment includes a victim's right to ``consideration of the interest of the victim that any trial be free from unreasonable delay.'' Determining the meaning of this phrase and how it interacts with existing speedy trial provisions should be a fertile source of diversionary litigation. In federal court, the sixth amendment right to a speedy trial and the Speedy Trial Act, see 18 U.S.C. Sec. Sec. 3161- 3173, not only guarantee the defendant's right to a speedy trial, but also recognize the public's, and therefore the victim's, interest in swift justice. However, the Speedy Trial Act also recognizes several legitimate bases to postpone trial, including plea negotiations. See 18 U.S.C. Sec. 3161. This mechanism is an integral part of the criminal justice system, balancing the desirability of a speedy trial with the realistic requirements of a fair proceeding. How is this right to consideration of the interest of the victim that any trial be free from unreasonable delay to be enforced? Will the victim have a right to seek relief from unreasonable delay? A motion to move the case faster would require a collateral hearing to determine the extent of the delay and whether it is unreasonable. The victim would then be in an adversarial position to the prosecutor and perhaps to the presiding judge. Would another judge be required to make the determination? Would a federal judge be asked to pass judgment on the efficiency of a state court? With ever increasing criminal dockets and limited prosecutorial and judicial resources, victims in several cases on the same docket, insisting upon speedier proceedings, could potentially cause severe internal conflicts within units of the same court. notice It is important that the responsibility for providing notice of proceedings and of the release or escape of a defendant be appropriately allocated to the prosecution, law enforcement agencies, or corrections agencies as is the law and practice in virtually all the states providing for victims' rights. Many of the rights under the proposed amendment must attach long before a defendant is formally charged in court. The judiciary would not have access to much of the information necessary to provide the required notice. It has neither the personnel nor resources to provide such notice to large numbers of victims or to provide the specialized types of victim assistance that is available from the first line of contact that victims have with the criminal justice system. The situation is likely no better--and possibly worse--in the state courts. Once again, I thank you for the opportunity to express the views of the Judicial Conference on this important issue. If you have any questions regarding the matters discussed herein, please do not hesitate to contact me. I may be reached at 864/233-7081. If you prefer, your staff may contact Dan Cunningham, Legislative Counsel at the Administrative Office of the U.S. Courts. He may be reached at 202/502-1700. Sincerely yours, William W. Wilkins, Jr. Mr. SCHUMER. Mr. President, second, I thank both Senator Kyl and Senator Feinstein for the passion, the erudition, the conviction, and for the cause. It is, obviously, wise to delay this. I know we may be back for another day. Maybe we can all come together. I plead with them to consider a proposal of making this a Kyl-Feinstein statute, as opposed to a Kyl-Feinstein constitutional amendment, where I think it might get close to unanimous support on the floor. I thought the debate we were having and may well continue to have, at least to my young years in the Senate, was one of the best times of the Senate, where we each talked about the issue with our concerns, our intelligence, and our passions. We tried to meet the issue head on. I thank both the Senator from Arizona and the Senator from California for their good work on this and hope we can come together on some sort of compromise on an issue about which we all care so much. Mr. KYL. Mr. President, I reiterate what I said yesterday, and that is, the best part of the debate we had was the debate with Senator Schumer whose approach to this was serious and intelligent. He asked the best questions. I believe we answered them, but we did not come to agreement. Of course, we will be working with him in the future on this matter and, hopefully, persuade him that a constitutional amendment is the best way to go. The debate we had among Senator Feinstein, Senator Schumer, and myself I thought was the highlight of this debate. I appreciate his remarks. I yield to Senator Feinstein for comments I know she wants to make. Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from Arizona. I also thank the Senator from New York, and I thank you, Mr. President, for allowing me to proceed. I begin by thanking the Senator from Arizona. Mr. President, I say to Jon Kyl, working with him on this amendment has truly been one of the highlights of my 7 years in the Senate. He has worked with credibility and with integrity. He has been fulsome in his sharing of detail. We have gone shoulder to shoulder through virtually every rung of this, through 4 years of discussions, of conferences, of hearings, of 800 pages of testimony, some 35 witnesses. [[Page S2972]] I agree with everything he said about the inclusive nature of the process. I must tell Senator Kyl how much I admire him. We worked together on the Technology and Terrorism Subcommittee of the Judiciary Committee. I saw it there. I have never seen it with another Senator as pronounced as it was in these past 4 years in the work on this issue. I believe a friendship has developed in the process, one which means a great deal to me. His leadership has been superb, and there is certainly nothing either one of us has done for the misunderstanding out there still about what we are trying to do and the importance of it. We will come back another day; there is no question in my mind about that. I cannot thank him enough. From the bottom of my heart, I thank Senator Kyl for his credibility, his intelligence, his integrity. He did his party proud. I am very happy to be a colleague of his and a friend as well. Before I get into my remarks, I also echo the thanks Senator Kyl provided to a whole host of victims, literally tens of thousands of them, to 37 State attorneys general, to many Governors, to all those across both party lines who support this and understand it. I particularly thank three legal scholars who were with us every step of the way. I thank Larry Tribe, a professor of constitutional law at Harvard University, for his testimony, for the phone calls, for the advice he has provided and for the statements he has made. I also thank one of the primary legal scholars in this country who has been a victims' rights representative, legal counsel--just a wonderful human being I have also gotten to know--and that is Professor Paul Cassell, professor of law at the University of Utah. I would be remiss if I did not thank Steve Twist on behalf of both Senator Kyl and myself. There are few people who have been as ardent in the cause as Steve Twist has been, with his knowledge, with his expertise, with his representation of victims throughout this entire process. I know that none of

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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed
(Senate - April 27, 2000)

Text of this article available as: TXT PDF [Pages S2966-S3011] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed Mr. KYL. Mr. President, we are in the process of attempting to work out an arrangement of time for the debate on the pending motion. I ask for all concerned if the Chair will describe the pending business of the Senate. The PRESIDING OFFICER. The question is on the motion to proceed to S.J. Res. 3. Mr. KYL. I thank the Chair. We are in the process of determining just how much time speakers are going to need in order to conclude debate on the motion to proceed. Senator Feinstein and I both have some preliminary remarks we would like to make in connection with that debate as the two chief proponents of the resolution. We understand Senator Leahy and Senator Byrd wish to take some time, and Senator Biden as well a little later on. As soon as we can confirm the amount of time people will need, we will probably propound a unanimous consent request in that regard. Mr. LEAHY. Will the Senator yield? Mr. KYL. I am happy to yield. Mr. LEAHY. Mr. President, I am perfectly willing, from this side, to work with the distinguished Senator from Arizona and the distinguished Senator from California on time. I do not expect an enormous amount of time to be consumed. It has not been announced, but there is a certain sense that there may not be any more rollcall votes this week so a lot of people are probably going to be leaving. I will definitely try to accommodate them. The distinguished Senator from West Virginia does have a statement he wishes to make. I have a statement I wish to make. I am simply trying to protect some others who may want to speak, as I am sure the Senator is on his side. But I will continue to work with the distinguished Senator to cut down this time any way we can. Mr. KYL. We will announce to all Members, if we can work that time arrangement out, just exactly how this will proceed. In the meantime, let me see if I can set the stage so everyone will know where we are in this debate. Then I would like to thank some people and then move on to a colloquy with Senator Feinstein, if I might. Because of the way the Senate works, we have moved back and forth in Senate business. But the pending business is the motion to proceed on S.J. Res. 3; that is, the crime victims' constitutional rights resolution sponsored by Senator Feinstein and myself. We gained cloture earlier this week so we could proceed, and the motion to proceed will certainly be agreed to, if we carry the debate that far. Senator Feinstein and I, however, are of the view that because of various things that have occurred, it is unlikely that a cloture motion, if filed, would be supported by the requisite number of Senators to succeed early next week. Therefore, what we are prepared to do is speak to the issue of the resolution, where we are with respect to the resolution, to thank the many groups and sponsors and other individuals who have been so supportive of this effort, and to seek permission of the Senate, when people have finished their comments, to withdraw the motion to proceed and to move to other business. That merely means a timeout in our efforts to secure passage of this constitutional amendment. We recognize at this point in time that proceeding will simply encourage more Senators to use a great deal of the Senate's time in unproductive speeches that really do not go to the heart of our constitutional amendment but take time away from the Senate's important business. We have no intention of doing that. So we will make some remarks that will set the stage for what we are about to do. But let me begin by noting the tremendous amount of support around the country that has accompanied our effort to bring this measure to the floor of the Senate. I have to begin by thanking two people in particular, Senator Dianne Feinstein and Majority Leader Trent Lott. We could not have brought this amendment, over the course of the last 4 years, to the bipartisan level of support it now enjoys without the ability to work on both sides of the aisle. No one could have carried this matter on the Democratic side more capably than Senator Dianne Feinstein. Before she came to the Senate, she was a passionate advocate for victims of crime. As mayor of San Francisco, she was a proponent of area residents who were victims of crime and carries that passion with her to this debate now. She and I have worked closely with victims' rights advocates to shape the legislation. I might say, while some of our colleagues have suggested there is something wrong with the fact that we have conducted dozens of meetings with the administration, Department of Justice, and many others, and honed this amendment in 63 different drafts, we are very proud that we have included anyone who wanted to talk about this in our circle of friends working to get an amendment that could pass the Senate and that we have carefully taken their suggestions into account, thus accounting for the many different drafts as the 4-year progress of this resolution has brought us to this point. The fact that we have taken their suggestions to heart and continually polished this amendment we think is a strong point. While we were criticized yesterday on the floor for engaging in yet more negotiations that might result in a final, 64th draft, I must say that was largely at the instigation of Senator Feinstein, who said, given the fact the Department of Justice has four concerns still pending with regard to our specific proposal, let's meet with them and see if we can come to closure on those items. Because of her leadership, we were able to come to closure on three of them. We believe we made more than a good faith effort with respect to the fourth, which had to do with the protection of defendants' rights. We were willing to acknowledge that the rights enumerated in this proposal take nothing whatsoever away from defendants' rights. I do not know how more clearly we can say it. That was not acceptable to the Department of Justice. But it is not for want of trying, on the part of Senator Feinstein, that we have been unable to secure the support of the Department of Justice for this amendment. So my first sincere thanks go to the person without whom we would not be at this point, my colleague Senator Feinstein. I also thank Leader Lott. When I went to him with a request for floor time for this amendment, his first response was: You know all the business the Senate has to conduct. Are you sure you want to go forward with this? I said we are absolutely certain. Despite all the other pressing business, he was willing because he, too, believes strongly in this proposal, as a cosponsor, to give us the floor time to try to get this through. It is partially out of concern for his responsibilities as leader that we recognize that to proceed would result in a vote that would not be successful, and therefore, rather than use that precious time, we are prepared to visit privately with our colleagues to further provide education to them about the necessity of this amendment since, clearly, the methodology we have engaged in thus far was not working. We would make strong arguments, but I daresay it didn't appear that anyone was here on the floor listening because when various opponents would come to the floor, they would repeat the same mantra over and over again that we had already addressed. Part of that mantra was, Did you know this amendment is longer than the Bill of Rights? We would patiently restate that is not true, that all of the rights of the defendants in the Constitution are embodied in language of more words than this amendment that embodies the victims' rights and so on. [[Page S2967]] Then that individual would leave the floor, and another individual would come to the floor and repeat the same erroneous information, and we would have to patiently respond to that. Rather than continue that process, we believe it is better that we visit with our colleagues when we are not using this time on the floor and explain all of this to them, with the hope they will then be better able to support us in the future. So I thank Senator Feinstein. We have gone through a lot together on this. There is nobody in this body for whom I have greater respect. Again, I thank Senator Lott, the majority leader, for his support for us as well. The National Victims' Constitutional Amendment Network is one of the really strong victims' rights groups that has backed us throughout this process. Roberta Roper has been involved in that. She was in my office this morning. She was with us yesterday. She has been with us throughout the process, helping us evaluate these various proposals and assisting us. The National Organization for Victim Assistance, known by the acronym NOVA, headed by Marlene Young and John Stein, and all the people on the NOVA board, we are enormously appreciative of their strong support and assistance throughout this effort. They are going to continue to fight for sure. Marsha Kight, whom Senator Feinstein and I have come to know and respect because of her advocacy as someone whose daughter was killed in the Oklahoma City bombing, brought the experience of that trial and the firsthand knowledge of how victims were denied their rights even to attend the trial. She has been an important witness for us before the Judiciary Committee and at various other forums. One of the groups in the country that is most strongly in support, and has provided a lot of grassroots support, is Mothers Against Drunk Driving, or MADD. Also, Students Against Drunk Driving, SADD, a group of younger people, has been helpful. Tom Howarth, Millie Webb, Katherine Prescott, and others have been very helpful to us in that regard. Parents of Murdered Children has been enormously helpful. Rita Goldsmith is from my State of Arizona, from Sedona. We have had tremendous help from legal scholars such as Professor Laurence Tribe, Professor Doug Beloof, and Professor Paul Cassell. I thank them for their enormous help in this effort, including their testimony before the Judiciary Committee. There are many prosecutors. I need to mention a couple from my own State. The two largest counties in Arizona are Maricopa and Pima Counties. Rick Romley, the Republican-elected attorney from Maricopa County, the sixth largest county by population in the country, and Barbara LaWall, a Democratic-elected attorney from Pima County, have been very strong supporters and helpful in our work. Law enforcement has been very well represented by organizations and individuals. From the Law Enforcement Alliance of America, Darlene Hutchinson and Laura Griffith have been helpful. Various attorneys general, such as Delaware Attorney General Jane Brady, Wisconsin Attorney General Jim Doyle, and Kansas Attorney General Carla Stovall. By the way, these are Democrats and Republicans alike. It is a totally bipartisan effort. As a matter of fact, the National Association of Attorneys General--we have a very good letter signed by the vast majority of attorneys general in support of our crime victims' constitutional rights amendment. We also have support from former U.S. Attorneys General: Ed Meese, Bill Barr, and Dick Thornburgh are strongly supportive of our proposal. From a show with which Americans are familiar, ``America's Most Wanted,'' John Walsh has been an early and strong supporter of our proposal. From the Stephanie Roper Foundation--I mentioned Roberta Roper--but Steve Kelly of the Stephanie Roper Foundation has been very helpful. Arizona Voice for Crime Victims; a person who helped Senator Feinstein in the early years, Neil Quinter, a superb former Senate staff member and with whom I visited just this morning, continues his support for this. Matt Lamberti and David Hantman of Senator Feinstein's office; Jason Alberts, Nick Dickinson, and Taylor Nguyen of my office; and, most important, Stephen Higgins of my staff and Steve Twist, an attorney from Arizona, whose support and competence in helping us through this process was, frankly, simply indispensable. Also, I will submit for the Record two things. One is a list of crime victims' rights amendment supporters. This list includes, in addition to those I mentioned, more than half a page of law enforcement organizations. I mention this because there has been some suggestion that law enforcement does not support us: The Federal Law Enforcement Officers Association, Law Enforcement Alliance of America, American Probation and Parole Association, American Correctional Association, the National Criminal Justice Association, the National Organization of Black Law Enforcement Executives, National Troopers Coalition, Concerns of Police Survivors, and on and on. This amendment is strongly supported by prosecutors, law enforcement, legal scholars, attorneys general, Governors, former U.S. Attorneys General, and many more. I ask unanimous consent to print this list of supporters in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Crime Victims' Rights Amendment Supporters public officials 42 cosponsors in the U.S. Senate (29R; 13D). Former Senator Bob Dole. Representative Henry Hyde. Texas Governor George W. Bush. California Governor Gray Davis. Arizona Governor Jane Hull. Former U.S. Attorney General Ed Meese. Former U.S. Attorney General Dick Thornburgh. Former U.S. Attorney General William Barr. The Republican Attorneys General Association. Alabama Attorney General Bill Pryor. Alaska Attorney General Bruce Botelho. Arizona Attorney General Janet Napolitano. California Attorney General Bill Lockyer. Colorado Attorney General Ken Salazar. Connecticut Attorney General Richard Blumenthal. Delaware Attorney General M. Jane Brady. Florida Attorney General Bob Butterworth. Georgia Attorney General Thurbert E. Baker. Hawaii Attorney General Earl Anzai. Idaho Attorney General Alan Lance. Illinois Attorney General Jim Ryan. Indiana Attorney General Karen Freeman-Wilson. Kansas Attorney General Carla Stovall. Kentucky Attorney General Albert Benjamin Chandler III. Maine Attorney General Andrew Ketterer. Maryland Attorney General J. Joseph Curran, Jr. Michigan Attorney General Jennifer Granholm. Minnesota Attorney General Mike Hatch. Mississippi Attorney General Mike Moore. Montana Attorney General Joseph P. Mazurek. Nebraska Attorney General Don Stenberg. New Jersey Attorney General John Farmer. New Mexico Attorney General Patricia Madrid. North Carolina Attorney General Michael F. Easley. Ohio Attorney General Betty D. Montgomery. Oklahoma Attorney General W.A. Drew Edmondson. Oregon Attorney General Hardy Meyers. Pennsylvania Attorney General Mike Fisher. Puerto Rico Attorney General Angel E. Rotger Sabat. South Carolina Attorney General Charlie Condon. South Dakota Attorney General Mark Barnett. Texas Attorney General John Cornyn. Utah Attorney General Jan Graham. Virgin Islands Attorney General Iver A. Stridiron. Virginia Attorney General Mark Earley. Washington Attorney General Christine O. Gregoire. West Virginia Attorney General Darrell V. McGraw, Jr. Wisconsin Attorney General James Doyle. Wyoming Attorney General Gay Woodhouse. Alaska State Legislature. law enforcement Federal Law Enforcement Officers Association. Law Enforcement Alliance of American (LEAA). American Probation and Parole Association (APPA). American Correctional Association (ACA). [[Page S2968]] National Criminal Justice Association (NCJA). National Organization of Black Law Enforcement Executives. Concerns of Police Survivors (COPS). National Troopers' Coalition (NTC). Mothers Against Violence in America (MAVIA). National Association of Crime Victim Compensation Boards (NACVCB). National Center for Missing and Exploited Children (NCMEC). International Union of Police Associations AFL-CIO. Norm Early, former Denver District Attorney. Maricopa County Attorney Rick Romley. Pima County Attorney Barbara Lawall. Shasta County District Attorney McGregor W. Scott. Steve Twist, former chief assistant Attorney General of Arizona. California Police Chiefs Association. California Police Activities League (CALPAL). California Sheriffs' Association. Los Angeles County Sheriff Lee Baca. San Diego County Sheriff William B. Kolender. San Diego Police Chief David Bajarano. Sacramento County Sheriff Lou Blanas. Riverside County Sheriff Larry D. Smith. Chula Vista Police Chief Richard Emerson. El Dorado County Sheriff Hal Barker. Contra Costa County Sheriff Warren E. Rupf. Placer County Sheriff Edward N. Bonner. Redding Police Chief Robert P. Blankenship. Yavapai County Sheriff's Office. Bannock County Prosecutor's Office. Los Angeles County Police Chiefs' Association. victims Mothers Against Drunk Driving (MADD). National Victims' Constitutional Amendment Network (NVCAN) National Organization for Victim Assistance (NOVA) Parents of Murdered Children (POMC) Mothers Against Violence in America (MAVIA). Justice for Murder Victims. Crime Victims United of California. Justice for Homicide Victims. We Are Homicide Survivors. Victims and Friends United. Colorado Organization for Victim Assistance (COVA). Racial Minorities for Victim Justice. Rape Response and Crime Victim Center. Stephanie Roper Foundation. Speak Out for Stephanie (SOS). Pennsylvania Coalition Against Rape (PCAR). Louisiana Foundation Against Sexual Assault. KlaasKids Foundation. Marc Klaas. Victims' Assistance Legal Organization, Inc. (VALOR). Victims Remembered, Inc. Association of Traumatic Stress Specialists. Doris Tate Crime Victims Bureau (DTCVB). Rape Response & Crime Victim Center. John Walsh, host of ``America's Most Wanted''. Marsha Kight, Oklahoma City bombing victim. other supporters Professor Paul Cassell, University of Utah School of Law. Professor Laurence Tribe, Harvard University Law School. Professor Doug Beloof, Northwestern Law School (Lewis and Clark). Professor Bill Pizzi, University of Colorado at Boulder. Professor Jimmy Gurule, Notre Dame Law School. Security on Campus, Inc. International Association for Continuing Education and Training (IACET). Women in Packaging, Inc. American Machine Tool Distributors' Association (AMTDA). Jewish Women International. Neighbors Who Care. National Association of Negro Business & Professional Women's Clubs. Citizens for Law and Order. National Self-Help Clearinghouse. American Horticultural Therapy Association (AHTA). Valley Industry and Commerce Association. Mr. KYL. Mr. President, finally, I ask unanimous consent to print in the Record a series of a dozen or so statements and letters from supporters of the amendment. Included in those, incidentally, is a strong statement of support for our specific amendment by Governor George Bush of the State of Texas. I ask unanimous consent to print these in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Statement by Governor George W. Bush--April 7, 2000 I strongly support passage of the Victims' Rights Amendment. Two years ago, I joined my colleagues on the National Governor's Association in calling for a national Amendment, like the one we have in Texas and 30 other states. For too long, courts and lawyers have focused only on the rights of criminal defendants and not on the rights of innocent victims. We need to make sure that crime victims are not forgotten, that they are treated fairly and with respect in our criminal process. ____ March 14, 2000. Dear Senators Kyl and Feinstein: During our years of service as Attorneys General of the United States, we saw first hand how the criminal justice system must command the respect of all our citizens if it is to be effective. That respect can only be eroded when the system unfairly treats those it is supposed to serve. For victims, the system is neither fair nor just. Despite federal statutes and states constitutional amendments passed to ensure fair treatment of crime victims, in too many courtrooms across the country, crime victims continue to be excluded and silenced; they are neither informed of proceedings nor given a right to be present or heard. We believe the only way to extend the fundamental fairness demanded of our system for crime victims, is to secure their rights in our fundamental law, the U.S. Constitution. That is why we are writing now to express our strong and unqualified support for the constitutional amendment you propose, the Crime Victims' Rights Amendment (S.J. Res. 3). This amendment, once ratified, will restore to our justice system the basic fairness necessary to command the respect of all our people. The rights spelled out in the amendment are simple, yet profound. They are practical and attainable, and they will transform our justice system so that it will truly protect the rights of the law abiding as well as the lawless. Sincerely, William Barr. Edwin Meese III. Richard Thornburgh. ____ Office of the Maricopa County Attorney, Maricopa County, AZ, April 14, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Dear Senator Kyl: As the chief prosecutor for the sixth largest prosecutor's office in the nation, handling over 40,000 felony and delinquency prosecutions each year, I have first hand knowledge of the ramifications of providing constitutional rights for victims. I have been a strong proponent for victims' rights for many years, having served on the Arizona Victim's Bill of Rights Steering Committee that was responsible for the passage of constitutional rights for victims in 1990. I also participated in subsequent legislative ad hoc committees charged with developing the enabling legislation. I strongly support S.J. Res. 3 and your efforts to see constitutional rights for victims become a reality in the United States Constitution. I recently read the Minority views in the Judiciary Committee's Report on S.J. Res. 3. The ``worst case'' examples that were raised were for the most part extreme predictions which we in Arizona have not experienced, notwithstanding our long history with victims' rights. I would like to take this opportunity to address several of the Minority report concerns. Victims' Rights Do Not Result in Substantial Costs To The System-- Providng victims with constitutional rights has not resulted in substantial costs to law enforcement, prosecutors, the courts, corrections or probation departments. My office provides victims' rights services to over 30,000 victims each year and although the ``exact cost'' is difficult to determine, our estimates are that it costs my office approximately $15.00 per victim. While we have experienced an increase in trials, the increase cannot be attributed to our constitution amendment for victim rights. Any such increase has been in response to our mushrooming population and the resulting increase in case filings. The Arizona Court of Appeals and the Arizona Supreme Court have not been besieged with appeals based on victim rights arguments. Victim Rights Do Not Restrict The Discretion Of The Prosecutor-- A victim's right to be heard regarding a plea agreement does not mean a crime victim can veto a judge's final decision. Judges, of course, consider the victim's opinion when determining whether or not to accept a plea agreement, however that opinion is merely one factor among others which contribute to the deliberative process. In Arizona, the victim's right to allocution has not caused our judicial officers to abrogate their responsibility to render a decision free of bias. There is no reason to believe that federal judicial officers will act otherwise when weighing the appropriateness of accepting a negotiated plea. I have implemented a policy in which prosecutors solicit the victim's opinion regarding the final outcome of the prosecution and take the victim's opinion into consideration when neogitating a plea agreement. In this way, the prosecutor considers the victim's wishes, including the harm caused by the crime, throughout the plea negotiation process and pretrial phase of prosecution. Consideration of the victim's views are again but one factor considered by the prosecutor. Our experience has been that my deputies are not inappropriately influenced by emotion. To presuppose otherwise does a disservice to these dedicated public servants who have sworn to strive for equal justice. [[Page S2969]] Prosecutors are responsible for informing victims of the plea agreement and the reasons for the negotiated settlement. It has been our experience that very few victims object to a plea agreement when fully informed of the reasons and benefits of the plea. However, in some instances, after considering the plea and victim's opinion, the judge will reject the plea agreement holding that the interests of justice are not served by the plea. When this happens, although rare in our experience, the court has fulfilled its function as an arbiter not an advocate. Victim Rights Do Not Under Cut The Rights Of The Accused-- Victims desire to see justice, first and foremost. their natural desire to gain justice, is not something to fear. In our experience it has helped our office achieve that goal. While victims have a right to be present throughout the course of trial in Arizona, it has been our experience that defendants and/or the friends and family of the defendants are much more likely than victims to become disruptive during trial. In the rare cases where a victim has been emotionally overwhelmed in court, he or she has either voluntarily left the courtroom to calm down, or is requested to do so upon instruction by the court. In every courtroom in our land, the judge has the responsibility of maintaining order and ensuring that the jury is not influenced by factors other than those presented from the witness box. To assume that the presence of a victim in the courtroom will somehow so prejudice a jury that they would disregard the evidence and return a verdict of guilty predicated and influenced by an individual sitting in the spectator section of the court, presupposes that juries will ignore the instructions of the court to be fair and impartial and to base their decision exclusively on the evidence. To adopt this position, one must conclude that juries will ignore the law. To do so, would be to conclude that our jury system is incapable of justice. Defendants have a constitutional right to a speedy trial. Oftentimes defendants waive this right for strategy advantage--hoping for memories to fade, critical witnesses to relocate, or victims to die. Victims have as much an interest in the timely disposition of the criminal case as do the defendants and need to have equal consideration when a judge considers whether or not to delay the disposition of a case. Federal Constitutional Rights Do Not Infringe On State's Rights-- While those victimized by crime in Arizona are afforded victim rights in state court, that same victim would not be afforded constitutional rights if that offense occurred on federal land, or if an Arizona resident were victimized in a state that does not have constitutional rights. These rights are too important to be left to a patchwork of rights from state to state. Consistency in the application of our laws are paramount if our citizens are to realize the benefit of a judicial system that is balanced between the accused and the interest of society at large. Inconsistency breeds contempt and cynicism. Adoption of a federal constitutional amendment will recognize that there is but one law for all. My office has nearly a decade of experience championing in assisting victims in exercising their state constitutional rights. It would be disingenuous if I were to say that there had been no costs, yet the benefit to the victim, to the citizens of Arizona and our system of justice far outweighs those costs. Our state constitutional amendment has increased cooperation of victims with police and prosecutors. Victims feel more of a part of the criminal justice process. I believe that this has enhanced the ability of law enforcemenet to put criminals behind the bars, and thus has been a factor in the decrease in crime that we have experienced in recent years. The scales of justice must be balanced, providing victims with equal access to the courts, information and a voice in the criminal justice system. Our system of justice is dependent upon the voluntary participation of those who have been harmed by crime--without their participation, our country would see an increase in lawlessness and vigilantism. Balancing the scales of justice by providing for victim rights restores faith in our system without detracting from the rights of those accused. Sincerely, Richard M. Romley, Maricopa County Attorney. ____ National Association of Attorneys General, Washington, DC, April 21, 2000. Hon. Jon Kyl, U.S. Senate, Washington, DC. Hon. Dianne Feinstein, U.S. Senate, Washington, DC. Dear Senators Kyl and Feinstein: We are writing to express our strong and unequivocal support for your efforts to pass S.J. Res. 3, the proposed Crime Victims' Rights Amendment, and send it on to the States for ratification. As Attorneys General from diverse regions and populations in our nation, we continue to see a common denominator in the treatment of crime victims throughout the country. Despite the best intentions of our laws, too often crime victims are still denied basic rights to fair treatment and due process that should be the birthright of every citizen who seeks justice through our courts. We are convinced that statutory protections are not enough; only a federal constitutional amendment will be sufficient to change the culture of our legal system. The rights you propose in S.J. Res. 3 are moderate, fair, and yet profound. They will extend to crime victims a meaningful opportunity to participate in each critical stage of their cases. At the same time, they will not infringe on the fundamental rights of those accused or convicted of offenses. Neither will these rights interfere with the proper functioning of law enforcement. Attorney General Reno spoke for many of us in law enforcement when she noted, ``[T]he President and I have concluded that a victims' rights amendment would benefit not only crime victims but also law enforcement. To operate effectively, the criminal justice system relies on victims to report crimes committed against them, to cooperate with the law enforcement authorities investigating those crimes, and to provide evidence at trial. Victims will be that much more willing to participate in this process if they perceive that we are striving to treat them with respect and to recognize their central place in any prosecution.'' Some have argued that federal constitutional rights for victims will infringe on important principles of federalism. We disagree. Each of our state criminal justice systems accommodates federal rights for defendants. To provide a similar floor of rights for victims is a matter of basic fairness. Please share this letter with your colleagues so that they may know of our strong support for S.J. Res. 3. (Signed by 30 attorneys general.) ____ Statement of Marsha A. Kight, Director, Families and Survivors United, Oklahoma City, OK., March 24, 1999 My daughter, Frankie Merrell, was murdered in the Oklahoma City bombing, and in tribute to her and all the others, I founded Families and Survivors United, which took a leading role in advocating for the victims and survivors before and during the trials which followed. This is now I first came to meet Beth Wilkinson. Having attended every day of the McVeigh trial, I came to regard Beth Wilkinson as the most effective advocate on the prosecution team. More than that, I and others trusted her to bring the victims' perspective into the courtroom, and she lived up to that trust. So I believe that her statement before the Judiciary Committee today is from the heart--that she really believes that if our Victims Rights Amendment were in place, it might have jeopardized a very basic right--the ``right of just conviction of the guilty,'' as she puts it. But she is wrong. As she describes so well, the prosecution team worked hard to earn our trust, and for the great majority of the 2,000-plus of us who were designated victims under the law, we gave them our trust. But on the one tactical issue she says argues against the Amendment, the prosecution team chose not to trust us for the reasons she describes, and in the process, that team broke both our trust and the law. She claims that, had the Amendment been in place, its right for victims to be heard before a plea bargain is accepted might have harmed the prosecution. Specifically the suggestion that might have persuaded the judge to not accept the guilty plea of Michael Fortier--and thus might have jeopardized the eventual conviction of Timothy McVeigh and Terry Nichols. There are three things wrong with this conjecture. First, Michael Fortier's testimony was not critical to either conviction, as several jurors later made clear to me. Second, had the Justice Department taken us into its trust on the usefulness of the Fortier plea, the great majority of us would have reciprocated that trust and encouraged the judge to accept the plea. I think from everything else Beth Wilkinson describes about the trust-building between the prosecution and the victims confirms this belief. We were not blind sheep, willing to accept everything the prosecutors said was so--we were, most of the time, informed citizens who were persuaded by the prosectuors' reasoning. Beth Wilkinson as much as admits this when she notes that the victims overwhelmingly asked for a provable and sustainable case against the guilty. And third, the prosecution team's mistrust of us over the Fortier plea agreement was so great that it chose not to notify us over the hearing in which the plea was offered, and it chose not to confer with any of us beforehand about the plea--both of which were in violation of existing federal law. So when Beth Wilkinson says that statutory reform will meet our just demands, we must ask, what happened to the statutes already on the books? I am increasingly persuaded that the most formidable enemy of crime victims' aspirations for getting justice under our Constitution are criminal justice officials--even well- meaning ones like Beth Wilkinson--who believe that only government lawyers know best. Her testimony is in fact Exhibit A in the case for the Amendment because it is the voice of a superior government extending handouts as an act of grace, not protecting legitimate rights of a free people. She says that the ``concerns'' of the victims must be balanced with the ``need for a just trial,'' as though these important values were somehow in conflict, and that only the government knows how to achieve this goal. I cannot tell you how these words hurt me; they confirm my worst fears about the treatment of victims in our justice system and [[Page S2970]] how nothing will change without constitutional rights. It is painfully obvious to me that she thinks of us as mere meddlers who must be kept out of this important government business for fear that we might break something. Beth Wilkinson may believe that she ``grew to understand my grief first hand,'' but clearly she does not. For me and so many of our families our grief was profoundly extended when our government minimized and discounted our interests by refusing to consult with us about this important development early in the case. For example, consider the point Beth Wilkinson makes about grand jury secrecy. She says, ``Due to the secrecy rules of the grand jury, we could not explain to the victims why Fortier's plea and cooperation was important to the prosecution of Timothy McVeigh and Terry Nichols.'' Under existing federal law, however, courts are authorized to enter appropriate orders allowing for the disclosure of grand jury information in advance of a court proceeding. It apparently did not even occur to her then, nor does it today, to have sought such a court order for disclosure. Nor is clear that such an order would even have been necessary, as surely there would have been ways to explain the circumstances to the victims without going confidential grand jury matters. Perhaps most disturbing of all to me is Beth Wilkinson's assertion that the Victims Rights Clarification Act of 1997 ``worked--no victims were precluded from testifying.'' In fact, I was precluded from testifying in the sentencing phase of the trial. As she is well aware, I very much wanted to be a penalty phase witness. But because of my philosophical beliefs in opposition to capital punishment, I was not allowed by the government prosecutors to testify. Clearly the statute did not work for me. In addition, a number of victims lost their right to attend the trial of Timothy McVeigh because of legal uncertainties about the status of victims' rights. As I testified before the Senate Judiciary Committee in 1997, Judge Matsch rejected a motion made by a number of us to issue a final ruling upholding the new law as McVeigh's trial began. His reluctance led the prosecution team (including Beth Wilkinson) to tell us that, if we wanted to give an impact statement at the penalty phase, we should seriously consider not attending the trial. Some of the victims on the prosecution's penalty phase list followed this pointed suggestion and forfeited their supposedly protected right to attend McVeigh's trial. Our lawyers also sought further clarification from the judge (unsuccessfully), but had to do so without further help from the prosecution team. The prosecutors were apparently concerned about pressing this point further because the judge might become irritated. Beth Wilkinson urges the Congress to ``consider statutory alternatives to protect the rights of victims.'' While she says that she opposes the Victim's Rights Amendment in its ``current form,'' the context of this statement makes it clear that she opposes any constitutional rights for crime victims. She concludes with the following prescription: ``We must educate prosecutors, law enforcement and judges about the impact of crimes so that they better understand the importance of addressing victims' rights from the outset.'' But the truth is that there will be no real rights to address, as my experience makes clear, unless those rights are enshrined in the United States Constitution. Only then will victim's rights be meaningful and enforceable. Mr. KYL. Mr. President, I am going to make some concluding remarks about why we believe so strongly in this amendment, how we intend to pursue the amendment, and why supporters of this amendment should take heart about how far we have come in this process and not at all be dispirited by the fact that there will not be a final vote on the amendment at this time. I will make those comments after Senator Feinstein has had an opportunity to make some comments that I know she strongly wishes to make. Mr. SCHUMER. Mr. President, will the Senator yield? Mr. KYL. Yes. Mr. SCHUMER. Mr. President, I asked the Senator to yield for two quick requests. I forgot to do this yesterday. I mentioned a letter from the Judicial Conference on this amendment. I ask unanimous consent to print this letter in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Committee on Criminal Law of the Judicial Conference of the United States, Greenville, SC, April 17, 2000. Hon. Charles E. Schumer, U.S. Senate, Hart Senate Office Building, Washington, DC. Re: S.J. Res. 3, the Victims' Rights Amendment Dear Senator Schumer: Thank you for your letter requesting the views of the Judicial Conference of the United States regarding S.J. Res. 3, the Victims' Rights Amendment to the Constitution. On behalf of the Judicial Conference, I appreciate the opportunity to have its viewpoint considered as the Senate takes up this important legislation. In March of 1997, the Judicial Conference resolved to take no position at that time on the enactment of a victims' rights constitutional amendment. However, if the Congress decides to affirmatively act in this area, the Judicial Conference strongly prefers a statutory approach as opposed to a constitutional amendment. A statutory approach would allow all participants in the federal criminal justice system to gain experience with the principles involved without taking the unusual step of amending our nation's fundamental legal charter, with its concomitant application to the various state systems. Many of the principles contemplated in S.J. Res. 3 represent a significant change in our criminal justice system, literally realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated. The rights and protections heretofore afforded to citizens under the Constitution were largely part of the fabric of the law well-known and understood by the Founding Fathers, while many of the concepts in the victims' rights area are largely untested, at least in the federal system. It could take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process. A statutory approach would also vitiate the potential specter of significant federal court involvement in the operations of the state criminal justice systems under a victims' rights constitutional amendment. Finally, a statutory approach is more certain and immediate, an advantage to victims. Conversely, an amendment potentially would not be effective for many years, awaiting the ponderous and uncertain ratification process required under Article V. While S.J. Res. 3 appears to have less potential adverse impact on the federal judiciary than some previous amendment proposals, there remain a number of fundamental concerns: classes of crimes and victims to which the amendment will apply Under S.J. Res. 3, the proposed amendment will apply to any person who is a ``victim of a crime of violence, as these terms may be defined by law.'' It is not clear from the proposed amendment whether these terms are to be defined by Congress, the states or through case law. The term ``crime of violence,'' which is commonly utilized in legal parlance, has many meanings under state and federal law. Thus, it is unclear as to which specific crimes this provision would actually apply. This problem is magnified by the fact that this provision applies to misdemeanor cases, the number of which is particularly large in the state courts. Failure to provide a clear and practical definition of this term may well result in protracted and unnecessary litigation that will likely take years and great expense to resolve. Closely associated with this issue is the question of what classes of persons will qualify as a ``victim.'' We note that the proposed amendment includes no definition of victim. This leaves many fundamental questions unanswered, including: Must a person suffer direct physical harm to qualify as a victim? Is it sufficient if the person has suffered pecuniary loss alone? What if the person is alleging solely emotional harm? Is that enough to qualify him or her as a victim? Are family members of a person injured by a crime also victims? Suppose that a defendant is accused of committing a series of ten violent armed robberies. Due to evidence strength and efficiency considerations, the prosecutor sends only six of those cases to the grand jury. Are the other four injured persons victims under the proposed amendment? Suppose an agreement is reached whereby the defendant agrees to plead guilty to just one of the cases. Are the other nine injured persons victims under these circumstances? Will the answer affect a prosecutor's ability to obtain plea agreements from defendants? Extending the definition of victim to those who claim emotional harm from criminal offenses dramatically exacerbates the potential impact of this proposal. The number of persons who could claim to be emotionally harmed by significant, well-publicized crimes could be quite large. Moreover, substantial litigation could result from the requirement of restitution, especially in cases involving non-economic injury. Finally, cases involving large numbers of victims, particularly victims of terrorist acts, are particularly troubling. Providing the rights [[Page S2971]] enumerated in the proposed amendment to large numbers of victims could overwhelm the criminal justice system's ability to perform its primary function of adjudicating guilt or innocence and punishing the guilty. enforcement The proposed amendment states that nothing ``in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling.'' Unlike some previously introduced victims' rights constitutional amendment proposals, S.J. Res. 3 does not stipulate that a victim has no grounds to challenge a charging decision. This addition would be a significant and valid limitation. Allowing victims to challenge a prosecutor's charging decision could result in significant operational problems. We suggest that Congress also consider modifying the proposed amendment to prohibit a victim from challenging a ``negotiated plea.'' Permitting the challenge of a proposed plea interferes with the prosecutor's ability to obtain convictions of defendants whose successful prosecution may rest on the cooperation of another defendant. Guilty pleas are sometimes also negotiated because the prosecution witnesses are, for various reasons, not as strong as they appear to be on paper. Also, the sheer volume of cases would generally overwhelm any prosecutor's office and the courts unless the vast majority were settled. Permitting challenge to a prosecutor's judgment regarding an accepted plea could lead inadvertently to a failure to secure a conviction. The significance of this issue should not be underestimated. federalism The matter of victim enforcement raises significant federalism concerns. While the proposed amendment includes provisions that bar monetary damages as a remedy, it appears that victims may be able to seek injunctive relief against state officials for violation of their new constitutional rights. Such claims, almost inevitably filed in federal courts, could cause significant federal court supervision of state criminal justice systems for the purpose of enforcing the amendment. These conflicts between federal courts and state governments would be avoided by a statutory approach to victims' rights. administration of justice exception S.J. Res. 3 permits Congress to create exceptions to the proposed amendment ``when necessary to achieve a compelling interest.'' While this is a very valid and useful provision, Congress should carefully consider the need for a further exception based on adverse impact on the administration of justice. Inevitably, courts will handle cases where the rights of victims collide with the functional administration of justice. Such cases might fall into two general categories. The first category relates to the very real practicalities of the administration of justice. One example would be an action involving exceptionally large numbers of possible victims wishing to attend the proceedings and overwhelming any available courtroom or other suitable location. A similar problem would be encountered if large numbers of victims wished to exercise their rights to allocution at sentencing, unduly prolonging the proceedings and pushing back other cases that need to be heard. The second category of cases are those in which the rights of victims, exercised under certain circumstances, may have a substantive effect upon the rights of defendants or others, impairing due process or the right to a fair trial. An example of such a case would be if a victim wished to both attend the trial and testify at the guilt phase, even though the trial judge had ordered all witnesses sequestered. This could impair the fundamental integrity of the trial. Congress should consider modifying the proposed amendment to allow a judge, while recognizing the rights of the victims to the extent practicable, to provide for exceptions in individual cases when required for the orderly administration of justice. Congress may also wish to consider modifying the proposed amendment to additionally allow Congress to statutorily enact exceptions in ``aid of the administration of justice.'' At the very least, Congress should provide an exception permitting the sequestration from trial proceedings of a victim who will appear as a witness at the guilt phase of the trial. This could be accomplished through a general provision in the proposed amendment stating that the victim's rights should not ``interfere with the constitutional rights, including due process rights, of the person accused of committing the crime.'' It could also be accomplished through a more narrow provision, similar to that in the Wisconsin Constitution, by the addition of a phrase allowing sequestration when ``necessary to a fair trial for the defendant.'' Another approach, similar to that taken under the Constitution of Florida, would add a phrase allowing sequestration ``to protect overriding interests that may be prejudiced by the presence of the victim.'' speedy trial considerations The proposed amendment includes a victim's right to ``consideration of the interest of the victim that any trial be free from unreasonable delay.'' Determining the meaning of this phrase and how it interacts with existing speedy trial provisions should be a fertile source of diversionary litigation. In federal court, the sixth amendment right to a speedy trial and the Speedy Trial Act, see 18 U.S.C. Sec. Sec. 3161- 3173, not only guarantee the defendant's right to a speedy trial, but also recognize the public's, and therefore the victim's, interest in swift justice. However, the Speedy Trial Act also recognizes several legitimate bases to postpone trial, including plea negotiations. See 18 U.S.C. Sec. 3161. This mechanism is an integral part of the criminal justice system, balancing the desirability of a speedy trial with the realistic requirements of a fair proceeding. How is this right to consideration of the interest of the victim that any trial be free from unreasonable delay to be enforced? Will the victim have a right to seek relief from unreasonable delay? A motion to move the case faster would require a collateral hearing to determine the extent of the delay and whether it is unreasonable. The victim would then be in an adversarial position to the prosecutor and perhaps to the presiding judge. Would another judge be required to make the determination? Would a federal judge be asked to pass judgment on the efficiency of a state court? With ever increasing criminal dockets and limited prosecutorial and judicial resources, victims in several cases on the same docket, insisting upon speedier proceedings, could potentially cause severe internal conflicts within units of the same court. notice It is important that the responsibility for providing notice of proceedings and of the release or escape of a defendant be appropriately allocated to the prosecution, law enforcement agencies, or corrections agencies as is the law and practice in virtually all the states providing for victims' rights. Many of the rights under the proposed amendment must attach long before a defendant is formally charged in court. The judiciary would not have access to much of the information necessary to provide the required notice. It has neither the personnel nor resources to provide such notice to large numbers of victims or to provide the specialized types of victim assistance that is available from the first line of contact that victims have with the criminal justice system. The situation is likely no better--and possibly worse--in the state courts. Once again, I thank you for the opportunity to express the views of the Judicial Conference on this important issue. If you have any questions regarding the matters discussed herein, please do not hesitate to contact me. I may be reached at 864/233-7081. If you prefer, your staff may contact Dan Cunningham, Legislative Counsel at the Administrative Office of the U.S. Courts. He may be reached at 202/502-1700. Sincerely yours, William W. Wilkins, Jr. Mr. SCHUMER. Mr. President, second, I thank both Senator Kyl and Senator Feinstein for the passion, the erudition, the conviction, and for the cause. It is, obviously, wise to delay this. I know we may be back for another day. Maybe we can all come together. I plead with them to consider a proposal of making this a Kyl-Feinstein statute, as opposed to a Kyl-Feinstein constitutional amendment, where I think it might get close to unanimous support on the floor. I thought the debate we were having and may well continue to have, at least to my young years in the Senate, was one of the best times of the Senate, where we each talked about the issue with our concerns, our intelligence, and our passions. We tried to meet the issue head on. I thank both the Senator from Arizona and the Senator from California for their good work on this and hope we can come together on some sort of compromise on an issue about which we all care so much. Mr. KYL. Mr. President, I reiterate what I said yesterday, and that is, the best part of the debate we had was the debate with Senator Schumer whose approach to this was serious and intelligent. He asked the best questions. I believe we answered them, but we did not come to agreement. Of course, we will be working with him in the future on this matter and, hopefully, persuade him that a constitutional amendment is the best way to go. The debate we had among Senator Feinstein, Senator Schumer, and myself I thought was the highlight of this debate. I appreciate his remarks. I yield to Senator Feinstein for comments I know she wants to make. Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from Arizona. I also thank the Senator from New York, and I thank you, Mr. President, for allowing me to proceed. I begin by thanking the Senator from Arizona. Mr. President, I say to Jon Kyl, working with him on this amendment has truly been one of the highlights of my 7 years in the Senate. He has worked with credibility and with integrity. He has been fulsome in his sharing of detail. We have gone shoulder to shoulder through virtually every rung of this, through 4 years of discussions, of conferences, of hearings, of 800 pages of testimony, some 35 witnesses. [[Page S2972]] I agree with everything he said about the inclusive nature of the process. I must tell Senator Kyl how much I admire him. We worked together on the Technology and Terrorism Subcommittee of the Judiciary Committee. I saw it there. I have never seen it with another Senator as pronounced as it was in these past 4 years in the work on this issue. I believe a friendship has developed in the process, one which means a great deal to me. His leadership has been superb, and there is certainly nothing either one of us has done for the misunderstanding out there still about what we are trying to do and the importance of it. We will come back another day; there is no question in my mind about that. I cannot thank him enough. From the bottom of my heart, I thank Senator Kyl for his credibility, his intelligence, his integrity. He did his party proud. I am very happy to be a colleague of his and a friend as well. Before I get into my remarks, I also echo the thanks Senator Kyl provided to a whole host of victims, literally tens of thousands of them, to 37 State attorneys general, to many Governors, to all those across both party lines who support this and understand it. I particularly thank three legal scholars who were with us every step of the way. I thank Larry Tribe, a professor of constitutional law at Harvard University, for his testimony, for the phone calls, for the advice he has provided and for the statements he has made. I also thank one of the primary legal scholars in this country who has been a victims' rights representative, legal counsel--just a wonderful human being I have also gotten to know--and that is Professor Paul Cassell, professor of law at the University of Utah. I would be remiss if I did not thank Steve Twist on behalf of both Senator Kyl and myself. There are few people who have been as ardent in the cause as Steve Twist has been, with his knowledge, with his expertise, with his representation of victims throughout this entire process. I know th