[Congressional Record Volume 150, Number 53 (Thursday, April 22, 2004)]
[Senate]
[Pages S4260-S4280]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SCOTT CAMPBELL, STEPHANIE ROPER, WENDY PRESTON, LOUARNA GILLIS, AND
NILA LYNN CRIME VICTIMS' RIGHTS ACT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of S. 2329, which the clerk will report.
The bill clerk read as follows:
A bill (S. 2329) to protect crime victims' rights.
The PRESIDING OFFICER. Under the previous order, each of the
following Senators control 30 minutes: Senators Kyl, Hatch, Leahy, and
Feinstein.
The Senator from California is recognized.
[[Page S4261]]
Mr. REID. Will the Senator yield for a parliamentary inquiry?
Mrs. FEINSTEIN. Absolutely.
Mr. REID. Following the use or yielding back of the time, the Chair
just announced we will vote on this measure; is that true?
The PRESIDING OFFICER. That is correct.
Mrs. FEINSTEIN. Mr. President, 8 years ago the Senator from Arizona
asked me if I would join with him in a pursuit to give victims basic
rights under the Constitution of the United States. It was something I
knew a little bit about and I was delighted to do it. What I didn't
know a lot about was the drafting of a constitutional amendment and how
difficult it was. The next 8 years actually proved to be one of the
most rewarding times of my Senate experience.
First, I thank the Senator from Arizona for his collegiality, for the
ease with which we have been able to work together, and for his
leadership on this issue, which has been absolutely 100 percent
unrelenting.
In a time of increasing partisan separation in this body, the
friendship, the collegiality, and the leadership has been so
appreciated by me. It has been one of the bright spots in my Senate
career. I want him to know how much I appreciate it.
I also thank victims, about 30 or 40 of whom are present in the
gallery. These are victims who have had terrible things happen to them,
but rather than sink back into the depths of despair, have decided they
would fight for something so that anyone who had similar things happen
to them could have a part in the criminal justice system. Particularly,
I would like to acknowledge a few of those victims.
The first is Colleen Campbell. Colleen Campbell has lost two members
of her family as a product of murder. Senator Kyl, in his remarks, will
make that clear. She has become an ardent supporter of our efforts, and
a small pin that Senator Kyl and I are wearing today is the pin which
represents a group called ``Force 100.'' These are victims who have
been asking Congress to take this action. The pin depicts an angel
holding a checkered flag. Her brother, Mickey Thompson, who was
murdered, was a race car driver, and therefore the checkered flag. Her
son, Scott Campbell, was also murdered. Colleen, a brilliant leader and
a wonderful woman, has lost two members of her family--her son and her
brother--to murder.
The other was Roberta Roper. Roberta is one of the first people I
met. She hails from Maryland. Again, Senator Kyl will say more about
the circumstances of that crime.
The third is Steve Twist, who has represented the victims with
integrity and steadfastness over these past 8 years, to try to get for
them as much as could be possible in the recognition of their rights.
Essentially, bottom line, what we have found after numerous Judiciary
Committee subcommittee hearings, committee hearings, markups, putting
the victims' rights constitutional amendment out on the Senate floor in
a prior session, taking it down because we didn't have the votes,
beginning anew in this session, going through the processes in
committee, and recognizing that we didn't have the 67 votes necessary
for a constitutional amendment--both Senator Kyl and I, as well as the
victims and their advocates, decided that we should compromise. There
are Members of this body who very much want a statute. There are
Members of this body who very much want a constitutional amendment. We
have drafted a statute which we believe is broad and encompassing,
which provides enforcement rights for victims, provides funding for the
Department of Justice victims' rights programs, for legal clinics, for
enforcement to carry out this law federally and also to spread the word
to local and State jurisdictions to enact similar laws.
We basically provide a set of eight rights:
The right to be reasonably protected from the accused; the right to
reasonable, accurate, and timely notice of public proceedings so that
you know what is happening as well as notice if the accused is released
or escapes from custody--
I can't tell you how many victims who may have testified against
their assailant live in dread of the fact that an assailant will be
released, they won't know it, they won't be able to protect themselves,
and the assailant will come after them. That is not theory. It has
happened over and over again. There are cases of that, with which I am
intimately, unfortunately, knowledgeable--
The right to be present at public proceedings, not to be barred from
a court hearing, not to be barred by a public proceeding involving a
plea agreement;
The right to be reasonably heard at critical steps in the process,
those involving release, plea, or sentencing; the right to confer with
the prosecutor;
The right to full and timely restitution, as provided by law;
The right to proceedings free from unreasonable delay;
And the right to be treated with fairness and with respect for the
victim's dignity and privacy.
At one time the system of criminal justice in the United States of
America provided these rights. Victims had rights until about the mid-
19th century, the 1850s, when the concept of the public prosecutor was
developed in our Nation. Up to that time, victims brought cases.
Victims hired lawyers. Victims even hired sheriffs to prosecute cases.
That changed in the mid-19th century, and in that change the victim
became left out of the process.
Nowhere was the need for this legislation made more clear than during
the trials over the Oklahoma City bombing.
Because we got involved, the Senate and the House, because victims
were not being given the rights afforded to them by prior legislation,
victims then went to a district court of appeals and victims were then
subsequently still told that they had no standing.
A brief account of the trial in the Oklahoma City bombing case
illustrates this point:
During pre-trial conference in the case against Timothy McVeigh, the
District Court issued a ruling to preclude any victim who wished to
provide victim impact testimony at sentencing from observing any
proceeding in the case.
In a hearing to reconsider the issue of excluding victim witnesses,
the trial court denied the victims' motion asserting standing to
present their claims and denied the motion for reconsideration.
Three months later in February 1997, the Tenth Circuit Court of
Appeals, rejected, without oral argument, the victims' claims on
jurisdictional grounds finding they had no ``legally protected
interest'' to be present at the trial and had suffered no ``injury in
fact.''
Congress reacted the next month by overwhelmingly passing the
Victims' Rights Clarification Act of 1997, which provided that watching
a trial does not constitute grounds for denying the chance to provide a
victim impact statement at sentencing. President Clinton signed the
bill into law on March 20, 1997.
When the victims filed a motion with the District Court seeking a
hearing to assert their rights under the new law, the District Court
concluded ``any motions raising constitutional questions about this
legislation would be premature and would present issues that are not
now ripe for decision.''
The court then entered a new order on victim-impact witness
sequestration, and refused to grant the victims a hearing on the
application of the new law, stating that its ruling rendered the
request ``moot.''
I believe the result would be different if the bill we are
considering today was law then. The victims and the families would have
had standing, and would have been able to avail themselves of the
mandamus proceeding to get a timely ruling on the merits from the Court
of Appeals. Perhaps that would not have been necessary--the District
Court judge, armed with the standing provision of this bill, perhaps
would have reached a different result during the trial.
We have written a bill that we believe is broad. We have written a
bill that provides an enforcement remedy; namely, the writ of mandamus.
This part of the bill is what makes this legislation so important,
and different from earlier legislation: It provides mechanisms to
enforce the set of rights provided to victims of crime.
These mechanisms fall into four categories:
A direction to our courts that they ``shall ensure that the crime
victim is afforded the rights described in the law.''
[[Page S4262]]
A direction to the Attorney General of the United States to take
steps to ensure that our Federal prosecutors ``make their best
efforts'' to see that crime victims are aware of, and can exercise
these rights.
A specific statement that the victim of a crime, or their
representative, may assert these rights; the result is that, for the
first time victims will have clear standing to ask our courts to
enforce their rights.
And a new use of a very old procedure, the writ of mandamus. This
provision will establish a procedure where a crime victim can, in
essence, immediately appeal a denial of their rights by a trial court
to the court of appeals, which must rule ``forthwith.'' Simply put, the
mandamus procedure allows an appellate court to take timely action to
ensure that the trial court follows the rule of law set out in this
statute.
These procedures, taken together, will ensure that the rights defined
in the first section are not simply words on paper, but are meaningful
and functional.
The bill also has two separate resource provisions, which together
will authorize the appropriation of $76 million over the next five
years to ensure that the federal government assist crime victims in
asserting these rights, and to encourage states to do the same: The
bill authorizes a total of $51 million over five years for crime victim
assistance grants administered by the Department of Justice to
establish and maintain legal assistance programs throughout the nation.
These institutions are key to the success of this legislation, for
this is how victims' rights will be really asserted and defended--by
lawyers, standing up in court, and explaining to judges and prosecutors
what the law means, and how it applies in the case at hand. Rights and
remedies need articulation to work, and this money will help make that
happen.
These grants, championed by my colleague Senator Leahy, provide a
total of $25 million over five years for a specific, and critical,
purpose: to ``develop and implement'' the type of notification systems
that take full advantage of modern technology.
Computers, linked to sophisticated telephone or automatic mailing
systems, can help us ensure that the right to notice, set out in the
first section of this bill, is not simply abstract, but is made real by
a notification system that can provide ``accurate, and timely'' notice
to victims' of crime and their families.
This act, of course, binds only the federal system, but is designed
to affect the states also. First it is hoped that states will look to
this law as a model and incorporate it into their own systems. This law
encourages that by allowing both types of grants--legal assistance and
victim notification--to be provided to state entities, and for use in
state systems, where the state has in place ``laws substantially
equivalent'' to this act.
Never before have these three critical components, rights, remedies
and resources, been brought together. It has been said ``a right
without a remedy is no right at all,'' and this law would couple
victims' rights with victims' remedies in a way that has never been
done before in the federal system. I believe that taken together we
have a formula for success, and this law will work, and hopefully
become the model for our States.
So why is the law needed?
Senator Kyl and I have been working on this issue for the past 8
years. We offer this legislation because the scales of justice are out
of balance--while criminal defendants have an array of rights under
law, crime victims have few meaningful rights.
In case after case we found victims, and their families, were
ignored, cast aside, and treated as non-participants in a critical
event in their lives. They were kept in the dark by prosecutors to busy
to care enough, by judges focused on defendant's rights, and by a court
system that simply did not have a place for them.
The result was terrible--often the experience of the criminal justice
system left crime victims and their families victimized yet again.
Let me be clear. I am not talking about the necessary emotional and
psychological difficulties which are almost inevitable in our adversary
system. Cross examination can be hard. The legal system sometimes must
seem complex and irrational to those who do not work in it. Sometimes
judges and juries make decisions that victims of crime do not like. But
that is not the problem that this law addresses.
That problem is one of process and fairness. The rights I have spoken
about are basic, and do not come at the expense of defendant's rights.
Boiled down, they involve the simple right to know what is going on,
to participate in the process where the information that victim's and
their families can provide may be material and relevant, and the right
to be safe from violence.
I mentioned earlier the dramatic disparity between the rights of
defendants in our constitution and laws, and the rights of crime
victims and their families. My point is to illustrate that our
government, and our criminal justice system, can and should care about
both the rights of accused and the rights of victims. That is what this
law addresses.
Some have said that current law is adequate. For instance, the Victim
of Crime Act of 1984 sets out rights for victims--in fact the bill
before us restates many of those rights. But prior laws did not have
the critical combination of rights and remedies that we now offer.
In fact, a number of victims' rights laws have been passed:
1982, the Victim and Witness Protection Act, mentioned before, which
provided for victim restitution and the use of victim impact statements
at sentencing in federal cases;
1984, the Victims of Crime Act, which encouraged the States to
maintain programs that serve victims of crime, and established a Crime
Victims' Fund, which now matches up to 60 percent of the money paid by
States for victim compensation awards;
1990, the Victims' Rights and Restitution Act, which increased
funding for victim compensation and assistance, and codified a victims'
Bill of Rights in the federal justice system;
1994, the Violence Against Women Act, which authorized over $1.6
billion over six years to assist victims of violence and prevent
violence against women and children;
1996, the Mandatory Victims Restitution Act, which required courts to
order restitution when sentencing defendants for certain offenses;
1996, the Justice for Victims of Terrorism Act, which appropriated
funds to assist and compensate victims of terrorism and mass violence;
And 1997, the Victim Rights Clarification Act, which reversed a
presumption against crime victims observing any part of the trial
proceedings if they were likely to testify during the sentencing
hearing, an issue which developed during the Oklahoma City bombing
case. Specifically, this legislation prohibited courts from (1)
excluding a victim from the trial on the ground that he or she might be
called to provide a victim impact statement at sentencing, and (2)
excluding a victim impact statement on the ground that the victim had
observed the trial.
All of these laws represent a step in the right direction. But they
are not enough. They don't really work to protect victims' many had
hoped. Why is this? I believe it because they fail to provide an
effective procedure for victims to assert standing and vindicate their
rights. The bill before us builds on these earlier attempts, and goes
one very important step farther--linking rights to remedies, and, I
hope, fixing the problem with these earlier laws.
Some have asked--why proceed with a statute, rather than a
Consitutional amendment? Why a law and not a constitutional amendment?
Senator Kyl and I have been working for many years towards a
constitutional amendment to establish these rights. I have always
believed that amending the Constitution is the best way to ensure
victims' rights are protected in the criminal justice process. But many
have disagreed, arguing that we should try, once again, a legislative
approach.
It is clear to me that passage of a Constitutional amendment is
impossible at this time. If we tried, and failed, it could be years
before we could try again. Victims of crime have waited years for
progress, and a compromise approach, resulting in the bill now under
consideration, will result in meaningful progress.
[[Page S4263]]
Will it work? I hope so. The bill before us is a new and bolder
approach, than has ever been tried before in our Federal system.
The standing provision, coupled with the mandamus provision, may have
the desired effect. This will be a test, and I, for one, will be
watching it closely.
I think for both Senator Kyl, and now for Senator Hatch, the
distinguished chairman of the Judiciary Committee, and Senator Leahy,
the distinguished ranking member, who join us as major cosponsors of
this bill, that we will follow this bill carefully and we will see
whether the enforcement rights contained in this bill are adequate. If
not, you can be sure as the Sun will rise tomorrow, we will be back
with a constitutional amendment.
This bill is named after some of the victims. Both Senator Kyl and I
briefly want to state the story of the victims after whom the bill is
named. I would like to tell the Senate a little bit about Louarna
Gillis, who was 22 years old when she was slain on January 17, 1979, as
part of a gang initiation. Her murderer wanted to enter the world of
narcotics as part of the Mexican Mafia and was told the quickest way to
do so was to murder the daughter of a Los Angeles Police Department
officer. Can you believe it? It is true.
Louarna Gillis was targeted by the killer. He knew her in high
school. That was the reason he targeted her. The murderer picked her up
a few blocks from her home, drove her to an alley in East Los Angeles
where he shot her in the head as she sat in the car. He pushed her into
the alley and fired additional shots into her back.
Louarna's murderer was apprehended 6 months later. He had a long
history of violence, including felony convictions.
Louarna's family was not notified of the arraignment, nor were they
notified of other critical proceedings in this case. Her family's
rights were largely ignored. The first trial resulted in a hung jury,
11 for first-degree murder, 1 not guilty. Louarna's father, John
Gillis, was not allowed in the courtroom.
At the second trial, the murderer pled guilty to second-degree murder
to avoid the death penalty. He was sentenced to 17 years to life.
Parole for Louarna's murderer has successfully been blocked by her
family to this day. He will be eligible for parole again in the next 6
to 8 months. Louarna's father, a former homicide detective with LAPD,
had just left an intelligence assignment working against street gangs
and the Mexican Mafia at the time of her murder. Can you imagine?
Mr. Gillis was later appointed by President George W. Bush as the
Director of the Justice Department's Office for Victims of Crime. He
testified before Congress on July 17, 2002. I said:
I know firsthand the personal, financial, and emotional
devastation that violent crime exacts on its victims. As a
survivor of a homicide victim, I testify . . . with the
unique advantage of understanding the plight that victims and
their families face in the criminal justice system . . . When
a person is victimized by crime, he or she is thrust into a
whole new world in which the State's or the government's
needs take priority.
This is the most devastating time in a person's life, when
they have lost a loved one to homicide or violent crime; they
need protection.
They need to let the court know how this crime has impacted
their lives, because it will have a long-lasting, traumatic
impact in their lives. It's important that they have the
opportunity to say something to defend their loved one.
This terrible story took place in my home State of California. This
bill will help fathers like Mr. Gillis: he would be notified of key
proceedings, and be able to participate in a meaningful way.
I would like to tell you about Nila Ruth Lynn. Here is her picture.
She was 69 years old. She was murdered at a homeowners association
meeting on April 19, 2000, when an angry man stormed into the meeting
and announced: ``I'm going to kill you.''
He was unhappy with the way the association had trimmed the bushes in
his yard the previous month. Nila and another woman were killed and
several other men were injured during the rampage. She died on the
floor in the arms of her husband Duane. They had been married 49 years
and 9 months. Nila left behind Duane and six children. The money the
children had been saving for a 50th wedding anniversary gift was
instead used to pay for her casket.
Duane Lynn suffered through long delays and continuances in this
case. Despite clear State constitutional and statutory rights, Duane
was not allowed to make a sentencing recommendation for his wife's
murderer. Nila's killer was sentenced to death. Duane wanted the
defendant to be sentenced to life imprisonment without the possibility
of parole, rather than deal with the continuing appeals involving the
death sentence.
The U.S. Supreme Court has denied its petition for a review of the
Arizona Supreme Court's refusal to protect the right. He testified
before the Senate Judiciary Committee on April 8. Here is what he said:
We, as a family of the victim, which was my wife, my love,
the person I still expect to walk through my front door every
day--she was a real person, not just a name and a number on a
document. We could say nothing about the consequences of that
man who took all this away from me. You have no idea what
this feels like. The evil done by a murderer inflicts
tragedy, and that is bad enough. But injuries inflicted by
our legal system are even harder to take. I felt kicked
around and ignored by the very system the government has in
place to protect law-abiding citizens.
This is not the way criminal justice should be practiced in the
United States of America. The time has come to give victims of crime
the right to participate in the system, the right to notice of a public
hearing, the right to be present at that public proceeding, the right
to make a statement when appropriate, the right to have restitution, if
ordered by a judge, the right to know when your assailant or attacker
is released from prison, and the right to be treated by our prosecutors
and by our criminal justice system with respect and dignity. That is
not too much for the Congress of the United States to strive
energetically to achieve for the 22 million victims in this country.
It is with great pleasure that over the years I have worked with
Senator Kyl to achieve this. Once again, I cannot thank him too much.
I thank the Chair. I yield the remainder of my time to the
distinguished Senator from Arizona.
The PRESIDING OFFICER (Mrs. Dole). The Senator from Arizona.
Mr. KYL. Madam President, it isn't always possible for us to schedule
matters in the Senate in a convenient way. I am aware Senator Feinstein
must leave to attend another meeting. It is my hope she will able to be
here before we vote.
While she is still here, I must say I share her sentiment that some
of the most gratifying work I have done in the Senate has been my work
with Senator Feinstein and her good staff in putting together a
constitutional amendment and working hard to try to get it passed and
preparing for the hearings--speaking with the victims, meeting with the
Justice Department--literally hundreds of hours of time we have spent
together working on this issue. It has helped to foster a bond of trust
and friendship between us that I think could be used as a template for
our colleagues in this body to work together in a bipartisan way.
I can never thank Senator Feinstein enough for her work on this
amendment. I know the many victims who are here in the gallery share
that sentiment.
This legislation would not be before us today without Senator
Feinstein. That is simply a fact. For all of the hard work we have put
in with her cooperation and her commitment to this, I thank Senator
Feinstein deeply. She knows that bond of trust will continue to exist
between us.
Mrs. FEINSTEIN. Madam President, I thank the Senator. I do appreciate
those words. They mean a great deal to me.
If I might, I ask unanimous consent to add the Senator from Maryland,
Senator Mikulski, as a cosponsor of the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Madam President, I would like to retain the remainder
of my time.
Mr. KYL. Madam President, I ask unanimous consent that Senators
Nickles and Inhofe be added as original cosponsors of the legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S4264]]
Mr. KYL. Madam President, I join Senator Feinstein in supporting S.
2329, which is the statutory version of the constitutional amendment we
have prepared and about which Senator Feinstein has spoken.
The legislation, as I will describe in a moment, will attempt to
accomplish as much as possible the same goals the constitutional
amendment which has been pending before us would have accomplished.
But before I discuss the details of that, there are several people I
would like to thank. In addition to Senator Feinstein--again it is
impossible to express my appreciation enough for all of the hard work
she put into this effort. We simply couldn't be here, because in order
to get things passed in the Senate it is critical there be a bipartisan
consensus, especially so for something that requires a supermajority.
Without Democrats and Republicans working together, we would have never
gotten to this point. Certainly Senator Feinstein was largely
responsible for the work on the Democratic side of the aisle.
I appreciate all of my colleagues' understanding and support on this
as well.
Senator Frist, who is willing to trust us in scheduling this for time
on the floor--and there is very little time to take up matters, as the
Presiding Officer knows--understood this was a very important
commitment we had made to the victims of crime. During Crime Victims'
Rights Month was the time to try to accomplish this. I appreciate his
support.
I appreciate the support of Senator Hatch who throughout the years
has never stood in the way but always lent us a hand in setting up a
hearing and getting a time and a room for markup on the constitutional
amendment and supporting its passage.
Again, it is not easy to get a constitutional amendment through even
the Judiciary Committee, let alone to get it adopted. But Senator Hatch
was supportive of that effort. I very much appreciate his cosponsorship
of the statutory version of this amendment, as well as the support of
Senator Leahy.
I think I would be remiss if I didn't make the point that the first
cosponsors of this legislation were Senator Feinstein, myself, and
Senators Hatch and Leahy, chairman and ranking member of the Judiciary
Committee.
Obviously this legislation has very strong support. We anticipate it
will pass overwhelmingly and will be quickly sent to the House for
action there, and hopefully to the President, who I am confident will
be supportive of it and will sign it.
Let me at this point thank some of the victims' rights organizations.
Again, they were responsible for bringing the issue to our attention
and for providing a lot of the information we needed to be able to make
the cases and for, frankly, the moral support to keep going. When
Senator Feinstein and I would get discouraged, after meeting with
victims' rights groups we were no longer discouraged; we were even more
committed to pursue this head on. Some of them are headed by remarkable
people. There is a whole page of groups I will thank.
Specifically, I thank Mothers Against Drunk Driving, the National
Organization for Victim Assistance, Parents of Murdered Children, and
Force 100, and especially Colleen Campbell for her leadership of Force
100. Senator Feinstein has already spoken of Colleen Campbell, and this
pin in memory of Mickey Thompson speaks volumes about her leadership of
this effort.
The fact this is Crime Victims' Rights Month and week I think is
important. President Reagan actually had the first recognition of crime
victims in a week that was designated for that purpose.
I think it is important at this time we especially recognize the
victims of crime all over America; that with this year's memorial of
victims' rights, America's values will be vindicated to some extent
with the passage of this legislation.
It is especially poignant we would be waiting at this time to
recognize these rights of victims of crime. Indeed, it is right to take
up this issue. The right to fairness for crime victims and the right to
notice and presence and participation are deeply rooted concepts in the
United States of America. This country is all about fair play and
giving power to the powerless in our society. It is about recognizing
the values of liberty of the individuals against encroachments of the
Government.
Fair play for crime victims, meaningful participation of crime
victims in the justice system, protection against a government that
would take from a crime victim the dignity of due process--these are
consistent with the most basic values of due process in our society.
I was involved in Arizona issues for victims of crime even before I
ever ran for the U.S. House of Representatives, so this was to some
extent a cause for me before I became a public official. It was after I
became a public official and people really came to me with these
stories that I realized I had an opportunity to do more than the things
I had done before. I have come to see the need for these protections as
critical for our country.
While engaged in all of the other important activities, at bottom, it
is a country about individuals who have inherent rights recognized and
given to us by God. That is the basis for the creation of this country.
Human dignity and the right that all people are made in God's image is
such an important part of the foundation of our country that we would
be remiss if we did not recognize that concept, that value, especially
for those who have been victimized in our society because we could not
as a government provide adequate protection for them.
I came to realize in many cases these victims were being victimized a
second time because while we were asking them sometimes to come into
court and testify against the perpetrators of the crime so they could
be incarcerated or dealt with in an appropriate way for the further
protection of society, we were not helping these victims at all. They
were suffering through the trauma of the victimization and then being
thrown into a system which they did not understand, which nobody was
helping them with, and which literally prevented them from
participation in any meaningful way. I came to realize there were
literally millions of people out there being denied these basic rights,
being victimized by our criminal justice system.
Let me mention two circumstances, but we will discuss all of the
rights in a moment. The one circumstance that seemed to be the most
frequent is: My mother was murdered, my daughter was murdered--whatever
the situation--and I could not attend the trial. That is what our
system says today.
While there are statutes in States and even some State constitutional
provisions that purportedly guarantee a victim will not be denied
access to the courtroom, it is still the case today that the victims,
the victims' families, cannot even go into the courtroom. The defendant
is there, the defendant's family is there seated in a reserved row
seats, but the victim and the victim's family cannot be present. That
is fundamentally wrong. We are not talking even about them saying
anything. Obviously, everyone in the courtroom has to behave. The judge
can throw anybody out if they do not behave or if they express emotions
or try to communicate with the jury. That is not the issue.
They could not attend sometimes because the defendant's lawyer would
say: It would be prejudicial to my client if the victims are seen in
the courtroom. This was one of the circumstances that I could not
believe our criminal justice system was imposing. It is one of those
things that is fixed in this statute.
The other circumstance--and there is an especially telling, emotional
case in Arizona I became familiar with which induced me to pursue this
with all the vigor I could--is the circumstance where a crime has been
committed, the perpetrator has been convicted and is in prison or jail,
but unbeknown to the victim and the victim's family, the individual
gets out of jail. The individual escapes, has some kind of a parole
hearing or in some other way is able to leave before the sentence is
up, and the victims are not even notified, let alone given an
opportunity to appear before that parole board and say: Wait a minute,
this person has a 15-year sentence and you are letting him out after 8
years. Let me tell you what he did to me.
[[Page S4265]]
Not to go into detail but to finish that story, in one of the Arizona
cases with which I am familiar, the woman having been brutally raped
and slashed and left to die recovered. Her perpetrator was convicted
and put into prison. He had a parole hearing and the parole board
decided to release him prematurely. She got no notice of that. She got
no opportunity to be present.
By not quite coincidence but enormous alertness and compassion on the
part of an individual in the Governor's office at the time routinely
reading through the notices of the parole board, a staff person saw
this and again almost coincidentally thought, Wait a minute, I don't
think that is right under our law. He tracked down this individual who
had by then moved to California and asked her if she would like an
opportunity to appear before another parole board hearing if that could
be arranged. She said yes. The parole board agreed to revisit the issue
in a subsequent hearing and she testified. She told her story. After
she told her story, the parole board reversed its opinion.
I asked her later: Were you afraid he would come after you if he were
released? She said: No. My victimization was random. I was trying to
hitchhike. I should never have done it.
He--and, by the way, his wife--picked her up and she was then
brutalized as I described it. She said: It was random. I don't think he
would come after me again. What I was concerned about was knowing the
nature of the kind of individual that commits this kind of crime, he
would do it again to somebody else. I didn't want him to have that
opportunity to hurt somebody else like he hurt me.
That tells you about the motivation of these victims of crime who are
willing, despite the hurt that it causes them, to participate in the
criminal justice system--not just for themselves because they get
nothing out of it--because they know what it is like and they want to
prevent that harm to others.
Those are the kind of people whose portraits are behind me and who
Senator Feinstein was talking about. That is why we are trying to do
something about righting this wrong, about balancing the scales of
justice. Rightly, defendants in this country are protected better than
in any country in the world through constitutional amendments that give
them rights. We are not trying to take one single right away from any
defendant. That would be wrong under our system. But we do think it is
time to balance the scales of justice. That was the motivation for
Senator Feinstein and me.
Let me talk about some of these individuals. Senator Feinstein talked
about Duane Lynn. Duane is from Arizona. I will not repeat the entire
story, but he enjoyed the Navy as a young man. He performed in the
military. He had a successful career as a highway patrolman upholding
the laws of the State of Arizona. He and his wife Nila literally fell
in love as teenagers and had been married 49 years and 9 months, just 3
months shy of their 50th anniversary when she was brutally murdered as
Senator Feinstein talked about. They had left their home to attend this
homeowners' meeting and just happened to be in the wrong place at the
wrong time because the murderer, who was a disgruntled and enraged
former resident of the community, burst into the room saying, I am
going to kill you, and he started shooting.
As I said, Duane and Nila had been married not quite 50 years when
she was brutally murdered. In anticipation of the golden anniversary of
their parents, the Lynn children had secretly been saving money to
throw a surprise anniversary party, and that money was used to pay for
Nila's casket.
It is at this point that Duane's journey through the legal system
really started. As Senator Feinstein recounted, he did not really
understand what it meant to participate in the judicial system at that
time but at least understood that he would have some voice in what
happened.
Under the Arizona law and constitution, he had a right, for example,
to make a recommendation to the judge when the judge sentenced the
perpetrator. But despite having that right in the Arizona
Constitution--and, by the way, Arizona judges are pretty good about
enforcing these rights--he was denied the right to even appear at the
time of sentencing to tell the judge the sentence he thought the
perpetrator should get.
He lost an appeal to the Arizona Supreme Court and a petition for
certiorari to the U.S. Supreme Court. They all told him his rights were
unenforceable because for him to speak would violate the defendant's
eighth amendment rights against cruel and unusual punishment.
Now, that is one of the reasons that Senator Feinstein and I believed
that a constitutional amendment was necessary, because as long as the
defendant's rights are always asserted as Federal constitutional
rights, a mere statutory right, such as we are creating today, is going
to be subservient to that. It will be very difficult for victims to win
in cases where the defendant's right is asserted under the U.S.
Constitution.
Even as a State constitutional right, Duane Lynn was denied the right
to speak because the court perceived that the Federal eighth amendment
superseded the Arizona State Constitution. So we may still have
problems, even with the adoption of a statute here. But Senator
Feinstein and I are committed to moving the cause forward, to see
whether it is possible to make statutes work, so that we do not need a
Federal constitutional amendment. If, as it turns out, we do, then we
will revisit the issue, as she said. Hopefully, we will not need to do
that.
Just a final I think paradoxical or ironic ending in the Duane Lynn
matter. He wanted to speak at the time of sentencing, not to urge the
court to impose the death sentence but to impose life without parole.
That recommendation was denied because, as I said, the court held that
the defendant's rights outweighed his rights.
Let me talk about some of the other victims. I just briefly want to
mention Louarna Gillis, because John Gillis, her father, who was a Los
Angeles police officer at the time, is now a very important person in
our Government in protecting victims' rights because he heads up the
Office for Victims of Crime in the Department of Justice.
One of the reasons the Attorney General and the President wanted him
in that position is because he felt firsthand the sting of being a
crime victim when his daughter was killed, picked out at random by a
gang member because the gang member, to be initiated in the gang, had
to kill the child of a cop. She just happened to be a child of a cop
and she was killed.
John could not be here today, but his wife Patsy is in attendance. I
commend her for her support of this effort as well.
Their family has suffered further tragedy in the very recent death of
their only other child, their son John. So it reminds us that it is
important not only for people to have rights as victims of crime, but
to recognize that these very people are the people who are willing to
take up the cause here to right this injustice.
By John Gillis' efforts, he literally became the person in charge of
this issue in our Government. He is doing an incredibly great job. Part
of this legislation is to give him some additional responsibility and a
little bit more in the way of resources to see to it that our Federal
Government, through the Department of Justice, the Attorney General,
and the Office for Victims of Crime, can continue to support the effort
of crime victims. I applaud John Gillis very much and appreciate his
wife Patsy being with us today.
Let me mention three other people, because this legislation is named
for five people--the two I mentioned and then the other three I will
mention. Let me discuss each of them.
Roberta Roper is also in attendance. There is nobody who has pursued
the cause for victims' rights more strongly than Roberta Roper. She has
made numerous trips to Washington. She has testified before the
Judiciary Committee in support of the constitutional amendment. She has
given us incredible advice and strength. What she did, after her
victimization, when her daughter Stephanie was murdered at the age of
22, was to start a foundation in her daughter's name, and that
Stephanie Roper Foundation has been a tremendous asset in pursuing the
cause of victims around the country.
[[Page S4266]]
Her daughter, on April 3, 1982, was kidnapped and raped, tortured and
dismembered by two men. The killers had just come upon her when
Stephanie's car had been disabled. They had kidnapped her and over a
period of 5 hours had repeatedly tortured her. She tried to escape but
was caught and killed in a most brutal manner.
Her parents were not even notified of the many continuances that were
granted in this case. They were excluded from the courtroom for the
entire first trial that occurred. They could not even go into the
courtroom. In 1982, the defense convinced the court that the victims
would be emotional, irrelevant, and probable cause for a reversal of an
appeal. The court agreed and, therefore, denied Vince and Roberta Roper
the right to be a voice for their daughter.
That is one of the things that will be corrected by this legislation.
We hope a statutory correction will serve to be sufficient.
Roberta Roper is in attendance, and I thank her from the bottom of my
heart. She and Collene Campbell--who I will mention next--have been two
of the real troopers in this battle.
I also want to say, with regard to Collene Campbell, when Senator
Feinstein discussed the death of her son Scott, it is unfortunately the
case in many of these situations that more than once people are
victimized. Collene and Gary Campbell have been victimized twice.
Collene's brother was killed as well and that has been discussed as
well.
One of the killers of their son Scott was released from prison. By
the way, the circumstances of Scott's murder were especially gruesome.
He met an individual who was going to fly him to North Dakota, and
somewhere between Los Angeles and Catalina Island, Scott Campbell was
killed. His body was literally thrown out of the airplane into the
ocean and has never been located.
His parents were not permitted to enter the courtroom during the
trials for the men who murdered their son. They were not even notified
of a district court of appeals hearing. When one of the killers was
released, as I said, the Campbell family was not notified. They only
learned of the developments through the newspaper.
You can argue that a defendant might be prejudiced in certain
situations by victims having certain rights, but to treat victims this
way is not to treat them with the fairness and dignity any American
deserves under our values as a nation. Even when these rights exist in
statute, when they are not observed, it is time for the Congress to
act. That is why we act here, so that no one else will have to suffer
through this kind of unfair treatment.
Scott Campbell is shown in this picture. I mentioned Nila Lynn
before, as shown in this picture. Roberta Roper's daughter Stephanie is
this beautiful young lady shown in this picture right here. As I said,
her mother is with us today.
I would also like to mention Robert Preston. In the case of Bob
Preston's 22-year-old daughter, Wendy--the beautiful young lady shown
in this picture right here--she was murdered in his home on June 23,
1977. She was killed when a man broke into the home to steal money to
buy drugs. Her body was found 6 days later. Wendy's murderer was
arrested and charged with first-degree murder. Her parents were told
that the State of Florida was the victim in the case and they would be
notified if and when they were called as witnesses. That was it.
After nearly 6 years, the murderer was allowed to plead to a second-
degree murder charge, and he was sentenced to life in prison. In 1987,
the Florida Supreme Court overturned the killer's conviction, and in
the decision also held that the victims had no rights. This is the kind
of example that needs to be brought to light so Americans can
appreciate that it is time for Congress to act.
This is Wendy Preston, yet another example of victims being treated
unfairly.
There are a lot of other cases we could talk about. Wendy Preston and
Stephanie Roper, Scott Campbell, Mickey Thompson, Nila Lynn, and
Louarna Gillis are the best of America. We owe them our best. Our best
is to ensure the families of future victims will not suffer through the
same indignity their families have had to endure.
That is why Senator Feinstein and I began the effort to try to
persuade our colleagues a constitutional amendment was necessary to
protect these rights, because the defendant's right was always
constitutional. Unless we had an equal constitutional right, there was
no chance in a conflict the court would ever afford the victim an equal
right. That is why we still have reservations about a statutory remedy.
But a lot of our colleagues have said, try a statutory remedy and
let's see if by bringing these situations to light, by providing
incentives for States to follow the Federal example, by embodying these
same rights that were in the constitutional proposal in a statute and
giving the victims a right to sue, a remedy, a mandamus remedy, let's
see if that can work.
After 8 years of work on the Federal constitutional amendment,
supported by President Bush and the Attorney General, we were able to
schedule, after we passed the bill through the Judiciary Committee,
that constitutional amendment for floor action today. Knowing we would
not have the 67 votes to pass it, we decided it was time to get
something tangible in statute to protect the rights of victims, and
accompanying it could be a modest appropriation of money to help
actually support these victims in court when that was necessary and
called for. We believed despite the potential that it would not serve
adequately, it was time to try something, to be successful, and to at
least move the ball forward.
As Senator Leahy said in a press conference we had earlier: The
Judiciary Committee of the Senate will provide very strong oversight of
implementation of this statute so we will know if it is not working. If
it does not work, we will be able to come back and pursue the
constitutional remedy. But we consulted with the victims' rights groups
that have been most active in support of this. They concurred it was
time to pursue the statutory remedy, if we could get some assurance we
would be successful in that pursuit and that it would not be simply a
fool's errand.
Through the significant help of an individual who I am sure all would
acknowledge has been the national leader of this effort, Steve Twist, a
lawyer from Phoenix, AZ, communicating with the various victims' rights
groups, the consensus was reached it was time for us to convert the
constitutional proposal into a statute. This occurred within the last
48 hours. Through the cooperation of Senator Leahy, Senator Hatch,
staff, and several other Senators, but most importantly because of the
very hard work done by Senator Feinstein's staff and mine, they were
able to literally convert these rights in the constitutional proposal
into the statutory proposal for submission. That is what is before us
today and what we will be voting on.
These are the rights that are set forth in the new statute: That the
victim would be reasonably protected from the accused; afforded
reasonable, accurate, and timely notice of any public proceedings
involving the crime or any release or escape of the accused; included
in public proceedings; ensured proceedings are free from unreasonable
delay; that they could confer with the attorney for the government in
the case; that they would be given a voice to be heard at any public
proceeding involving release or plea or sentencing.
I ask unanimous consent to take time from the time under the control
of Senator Feinstein.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. I noted in a rather inaccurate Washington Post editorial of
yesterday that somehow victims would have a right to speak to the jury.
That is what the Washington Post thought. They were very wrong, as they
were in other comments in the editorial. There is nothing in here about
anything like that. It is only during the time of a release, like the
parole hearing I talked about earlier, or sentencing or pleading there
would be an opportunity to speak.
They would have a right to full and timely restitution in appropriate
cases, and the right to be treated fairly, with respect for their
dignity and privacy. Most importantly, they would be granted the right
to enforce these rights. They would have legal standing to enforce
their rights in court with the appropriate writ procedure to be able to
take the court's decision to the higher court. That is one of the
problems with existing Federal law which
[[Page S4267]]
the Tenth Circuit Court of Appeals noted did not grant the victims the
standing to sue. So that had to be corrected here.
Finally, we authorized an appropriation of funds to assure the proper
oversight of these rights is exercised, that moneys would be made
available to enhance the victim notification system, managed by the
Department of Justice's Office for Victims of Crime, and the resources
additionally to develop state-of-the-art systems for notifying crime
victims of important states of development.
To pursue that a moment, all courts notify attorneys for the
defendant, the prosecutor's office, and it is a relatively simple
matter to add another name and telephone number or address to that
list. That is what we are talking about here. It is now being done
electronically. It is very easy. So the notice to victims of crime is
not something that should be seen as an impediment.
I would like to conclude by thanking some people. Since I know
Senator Feinstein did have to attend another meeting, let me thank some
folks. Before I do that, I ask unanimous consent to add Senators Lott
and Nickles as original cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. As soon as Senator Leahy is here, I will relinquish the
floor to him.
I do want to thank President Bush and Attorney General Ashcroft; the
Office for Victims of Crime Director John Gillis and the administration
for their help; Colleen Campbell and her husband Gary; Roberta Roper;
Bob Preston; Duane Lynn; Earlene Eason from Indiana, whose son
Christopher was murdered; Sally Goelzer from Arizona, whose brother was
murdered; Myssey Hartley from Arkansas, whose brother was murdered; Dee
Engles, also from Arkansas, a family member murdered; the National
Organization for Victim Assistance, especially Beth Rossman, president,
Marlene Young, executive director, and John Stein, deputy director, who
has been a tremendous help; the National Organization of Parents of
Murdered Children, Nancy Ruhe-Munch, executive director; Mothers
Against Drunk Driving, Wendy Hamilton, president, and Stephanie
Manning; Professor Douglas Beloof, director of the National Crime
Victim Law Institute, one of the entities integral to ensuring these
rights are enforced--he has done a tremendous job in Oregon in setting
up the programs and the lawyers who can defend victims' rights--
Attorney Meg Garvin, lead staff attorney at NCVLI; Attorney General
Jane Brady and the National Association of Attorneys General--this has
been a bipartisan effort and almost every attorney general in the
country has signed on; the National District Attorneys Association; the
Fraternal Order of Police, strongly in support of what we are doing;
the International Association of Chiefs of Police; the National
Restaurant Association; U.S. Chamber of Commerce; Maricopa County
attorney Rick Romely and county attorney Barbara LaWall in Arizona, who
have helped me a lot in this effort; District Attorney Josh Marquis;
the Arizona Voice for Crime Victims.
On Senator Hatch's staff, I thank Grace Becker, and on Senator
Cornyn's staff, Jim Ho. On Senator Feinstein's staff, I can't thank
enough Steve Cash and David Hantman who have been tremendously helpful
in providing great advice and counsel, particularly in the last 3 or 4
days, helping us to convert the amendment to a statutory provision and
in working on the Democratic side to make this a truly bipartisan
process.
Without their assistance, we would not have the statute before the
body either.
I have a couple legal interns, Tom Stack and Kevin Wilson, who
provided tremendous help to me, and finally I wish to thank my chief
person on my staff, Stephen Higgins and I mentioned Steve Twist.
All of these organizations and individuals have been of tremendous
help in getting to this point and ensuring we will be able to get this
statutory provision passed and sent over to the House for action.
Madam President, I am going to conclude with a couple of points. As
soon as Senator Leahy arrives, I am going to relinquish the floor to
him because Senator Feinstein has the remainder of the time, and I
advise colleagues, if anyone wishes to speak, they should do so right
away because I suspect at the conclusion of Senator Leahy's remarks and
anything Senator Hatch and Senator Feinstein wish to say, we will
proceed to the final passage vote.
The act before us, in addition to setting forth the rights and
providing a remedy for the victims of crime, has an authorization of
funding. Let me describe that authorization.
In the first year, fiscal year 2005, $16.3 million will be available
to the U.S. Attorney's Victims Witness Office for the Victims of Crime
Office in the Department of Justice; $300,000 is for the Office of
Victims of Crime to administer these new rights; $7 million to the
Office of Victims of Crime for the National Crime Victim Law Institute
to provide grants and assistance to lawyers to help victims of crime in
court. It is the only entity in the country that provides lawyers for
victims in criminal cases, and it will provide for two new regional
offices and nine specific clinics. Finally, borrowing a provision from
a bill Senator Leahy had earlier, there is $5 million for grants to
States to develop and implement state-of-the-art victim notification
systems.
In the following 4 years, there will be each year authorized an
appropriation of $26.5 million generally to the same entities and
offices to ensure that these programs are carried out, that victims
will have the support they need, and that the notice that is guaranteed
in the legislation will be provided. Those are the authorizations for
the funding. That is a description of the legislation.
I will close by again referring to the people who have driven this
effort, the people who represent the families and who are themselves
victims of crime, who did not simply retreat into a shell following the
tragedy that befell them but who were willing to muster the courage and
the strength to do something about the issue, not necessarily so that
they could receive any particular kind of vindication, but so future
victims would not have to suffer through the same kind of problems and
the same indignities they did.
This is the real spirit of great people, of leaders, and it is the
spirit of America. I commend all of these victims for the leadership
role they have played in being willing to step out in very difficult
circumstances to prod those of us in the legislative body to move this
process forward and to get this legislation adopted. They are the ones
who deserve the primary thanks today.
The victory, when we pass this legislation, will be largely a victory
for them and all of the future victims who will never have to suffer
the same kind of indignities that they did.
Mr. President, as the sponsor of this bill, I would like to enter
into a colloquy with the Senator from California. She is the primary
cosponsor of this bill. After extensive consultation with our
colleagues, we have drafted a bill with a broad bipartisan consensus.
It is not the intent of this bill to limit any laws in favor of crime
victims that may currently exist, whether these laws are statutory,
regulatory, or found in case law. I ask Senator Feinstein if she
agrees.
Mrs. FEINSTEIN. Yes, it is not our intent to restrict victims' rights
or accommodations found in other laws. I would like to turn to the bill
itself and address the first section, (a)(1), the right of the crime
victim to be reasonably protected. Of course, the Government cannot
protect the crime victim in all circumstances. However, where
reasonable, the crime victim should be provided accommodations such as
a secure waiting area, away from the defendant before and after and
during breaks in the proceedings.
Mr. KYL. I would like to address the notice provisions of section 2,
(a)(2). The notice provisions are important because if a victim fails
to receive notice of a public proceeding in the criminal case at which
the victim's right could otherwise have been exercised, that right has
effectively been denied. Public proceedings include both trial level
and appellate level court proceedings. It does not make sense to enact
victims' rights that are rendered useless because the victim never knew
of the proceeding at which the right had to be asserted. Simply put, a
failure to provide notice of proceedings at which a right can be
asserted is equivalent to a violation of the right itself.
[[Page S4268]]
Equally important to this right to notice of public proceedings
contained in this subsection is the right to notice of the escape or
release of the accused. This provision helps to protect crime victims
by notifying them that the accused is out on the streets.
For these rights to notice to be effective, notice must be
sufficiently given in advance of a proceeding to give the crime victim
the opportunity to arrange his or her affairs in order to be able to
attend that proceeding and any scheduling of proceedings should take
into account the victim's schedule to facilitate effective notice.
Restrictions on public proceedings are in 28 CFR Sec. 50.9, and it is
not the intent here today to alter the meaning of that provision.
I ask Senator Feinstein, if she can comment on her understanding of
section (a)(2)?
Mrs. FEINSTEIN. My understanding of this subsection is the same the
Senator's. Too often crime victims have been unable to exercise their
rights because they were not informed of the proceedings. Pleas and
sentencings have all too frequently occurred without the victim ever
knowing that they were taking place. Victims are the persons who are
directly harmed by the crime and they have a stake in the criminal
process because of that harm. Their lives are significantly altered by
the crime and they have to live with the consequences for the rest of
their lives. To deny them the opportunity to know of and be present at
proceedings is counter to the fundamental principles of this country.
It is simply wrong. Moreover, victim safety requires that notice of the
release or escape of an accused from custody be made in a timely manner
to allow the victim to make informed choices about his or her own
safety. This provision ensures that takes place.
I would like to turn to section 2, (a)(3) of the bill, which provides
that the crime victim has the right not to be excluded from any public
proceedings. This language was drafted in a way to ensure that the
government would not be responsible for paying for the victim's travel
and lodging to a place where they could attend the proceedings.
In all other respects, this section is intended to grant victims the
right to attend and be present throughout all public proceedings.
This right is limited in two respects. First, the right is limited to
public proceedings, thus grand jury proceedings are excluded from the
right. Second, the Government or the defendant can request, and the
court can order, judicial proceedings to be closed under existing laws.
This provision is not intended to alter those laws or their procedures
in any way. I ask the Senator is that is his understanding of this
section.
Mr. KYL. Yes. That it is my understanding as well. There may be
organized crime cases or cases involving national security that require
procedures that necessarily deny a crime victim the right not to be
excluded that would otherwise be provided under this section. This is
as it should be. National security matters and organized crime cases
are especially challenging, and there are times when there is a vital
need for closed proceedings. In such cases, the proceedings are not
intended to be interpreted as ``public proceedings'' under this bill.
In this regard, it is not our intent to alter 28 CFR Sec. 50.9 in any
respect.
Despite these limitations, this bill allows crime victims, in the
vast majority of cases, to attend the hearings and trial of the case
involving their victimization. This is so important because crime
victims share an interest with the government in seeing that justice is
done in a criminal case and this interest supports the idea that
victims should not be excluded from public criminal proceedings,
whether these are pretrial, trial, or post-trial proceedings.
This right of crime victims not to be excluded from the proceedings
provides a foundation for the next section, section 2, (a)(4), which
provides victims the right to reasonably be heard at any public
proceeding involving release, plea, or sentencing. This provision is
intended to allow crime victims to directly address the court in
person. It is not necessary for the victim to obtain the permission of
either party to do so. This right is a right independent of the
Government or the defendant that allows the victim to address the
court. To the extent the victim has the right to independently address
the court, the victim acts as an independent participant in the
proceedings. When a victim invokes this right during plea and
sentencing proceedings, it is intended that the he or she be allowed to
provide all three types of victim impact--the character of the victim,
the impact of the crime on the victim, the victims' family and the
community, and sentencing recommendations. Of course, the victim may
use a lawyer, at their own expense, to assist in the exercise of this
right. This bill does not provide victims with a right to counsel but
recognizes that a victim may enlist counsel on their own.
It is not the intent of the term ``reasonably'' in the phrase ``to be
reasonably heard'' to provide any excuse for denying a victim the right
to appear in person and directly address the court. Indeed, the very
purpose of this section is to allow the victim to appear personally and
directly address the court. This section would fail in its intent if
courts determined that written, rather than oral communication, could
generally satisfy this right. On the other hand, the term
``reasonably'' is meant to allow for alternative methods of
communicating a victim's views to the court when the victim is unable
to attend the proceedings. Such circumstances might arise, for example,
if the victim is incarcerated on unrelated matters at the time of the
proceedings or if a victim cannot afford to travel to a courthouse. In
such cases, communication by the victim to the court is permitted by
other reasonable means. Is this the understanding of the Senator of
this provision?
Mrs. FEINSTEIN. Yes. That is my understanding as well. The victim of
crime, or their counsel, should be able to provide any information, as
well as their opinion, directly to the court concerning the release,
plea, or sentencing of the accused. This bill intends for this right to
be heard to be an independent right of the victim, and thus cannot
prevent the victim from being heard.
It is important that the ``reasonably be heard'' language not be an
excuse for minimizing the victim's opportunity to be heard. Only if it
is not practical for the victim to speak in person or if the victim
wishes to be heard by the court in a different fashion should this
provision mean anything other than an in-person right to be heard.
Of course, in providing victim information or opinion it is important
that the victim be able to confer with the prosecutor concerning a
variety of matters and proceedings. Section 2, (a)(5) provides a right
to confer with the attorney for the Government in the case. This right
is intended to be expansive. For example, the victim has the right to
confer with the Government concerning any critical stage or disposition
of the case. The right, however, is not limited to these examples. I
ask the Senator if he concurs in this intent.
Mr. KYL. Yes. The intent of this section is just as the Senator says.
This right to confer does not give the crime victim any right to direct
the prosecution. Prosecutors should consider it part of their
profession to be available to consult with crime victims about concerns
the victims may have which are pertinent to the case, case proceedings
or dispositions. Under this provision, victims are able to confer with
the Government's attorney about proceedings after charging.
I would like to turn now to the section on restitution, section 2,
(a)(6). This section provides the right to full and timely restitution
as provided in law. This right, together with the other rights in the
act to be heard and confer with the Government's attorney in this act,
means that existing restitution laws will be more effective.
I am interested in the Senator's views of this restitution provision.
Mrs. FEINSTEIN. I thank the Senator. I join his comments.
I would like to move on to section 2, (a)(7), which provides crime
victims with a right to proceedings free from unreasonable delay. This
provision does not curtail the Government's need for reasonable time to
organize and prosecute its case. Nor is the provision intended to
infringe on the defendant's due process right to prepare a defense.
[[Page S4269]]
Too often, however, delays in criminal proceedings occur for the mere
convenience of the parties and those delays reach beyond the time
needed for defendant's due process or the Government's need to prepare.
The result of such delays is that victims cannot begin to put the crime
behind them and they continue to be victimized. It is not right to hold
crime victims under the stress and pressure of future court proceedings
merely because it is convenient for the parties or the court.
This provision should be interpreted so that any decision to continue
a criminal case should include reasonable consideration of the rights
under this section.
I am eager to hear the Senator's view on this.
Mr. KYL. I concur in the Senator's comments. I would add that the
delays in criminal proceedings are among the most chronic problems
faced by victims. Whatever peace of mind a victim might achieve after a
crime is too often inexcusably postponed by unreasonable delays in the
criminal case. A central reason for these rights is to force a change
in a criminal justice culture which has failed to focus on the
legitimate interests of crime victims, a new focus on limiting
unreasonable delays in the criminal process to accommodate the victim
is a positive start.
I would like to turn to section 2, (a)(8). This provision contains a
number of rights. The broad rights articulated in this section are
meant to be rights themselves and are not intended to just be
aspirational. One of these rights is the right to be treated with
fairness. Of course, fairness includes the notion of due process. Too
often victims of crime experience a secondary victimization at the
hands of the criminal justice system. This provision is intended to
direct Government agencies and employees, whether they are in executive
or judiciary branches, to treat victims of crime with the respect they
deserve.
Does the Senator agree?
Mrs. FEINSTEIN. Yes.
It is not the intent of this bill that its significance be whittled
down or marginalized by the courts or the executive branch. This
legislation is meant to correct, not continue, the legacy of the poor
treatment of crime victims in the criminal process. This legislation is
meant to ensure that cases like the McVeigh case, where victims of the
Oklahoma City bombing were effectively denied the right to attend the
trial and to avoid federal appeals courts from determining, as the
Tenth Circuit Court of Appeals did, that victims had no standing to
seek review of their right to attend the trial under the former
victims' law that this bill replaces.
I would also like to comment on section 2, (b), which directs courts
to ensure that the rights in this law be afforded and to record, on the
record, any reason for denying relief of an assertion of a crime
victim. This provision is critical because it is in the courts of this
country that these rights will be asserted and it is the courts that
will be responsible for enforcing them. Further, requiring a court to
provide the reasons for denial of relief is necessary for effective
appeal of such denial.
Is that the understanding of the Senator?
Mr. KYL. Yes, it is.
Turning briefly to section 2, (c), there are several important things
to point out in this subsection. First, where there is a material
conflict between the Government's attorney and the crime victim, this
provision protects crime victims' rights. This means that if Government
lawyers interpret a right differently from a victim, urge a very narrow
interpretation of a right, or do not believe a right should be
asserted, they are in conflict with the victim and this provision
requires that they inform the victim of this and direct the victim to
independent counsel, such as the legal clinics for crime victims
contemplated under this law. This is an important protection for crime
victims because it ensures the independent and individual nature of
their rights. Second, the notice section immediately following limits
the right to notice of release where such notice may endanger the
safety of the person being released. There are cases, particularly in
domestic violence cases, where there is danger posed by an intimate
partner if the intimate partner is released. Such circumstances are not
the norm, even in domestic violence cases as a category of cases. This
exception should not be relied upon as an excuse to avoid notifying
most victims.
Is that the Senator's understanding of this section?
Mrs. FEINSTEIN. Yes.
I would now like to address the enforcement provisions of the bill,
specifically section 2, subsection (d)(1). This provision allows a
crime victim to enter the criminal trial court during proceedings
involving the crime against the victim and assert the rights provided
by this bill. This provision ensures that crime victims have standing
to be heard in trial courts so that they are heard at the very moment
when their rights are at stake and this, in turn, forces the criminal
justice system to be responsive to a victim's rights in a timely way.
Importantly, however, the bill does not allow the defendant in the case
to assert any of the victim's rights to obtain relief. This prohibition
prevents the individual accused of the crime from distorting a right
intended for the benefit of the individual victim into a weapon against
justice.
The provision allows the crime victim's representative and the
attorney for the Government to go into a criminal trial court and
assert the crime victim's rights. The inclusions of representatives and
the Government's attorney in the provision are important for a number
of reasons. First, allowing a representative to assert a crime victim's
rights ensures that where a crime victim is unable to assert the rights
on his or her own for any reason, including incapacity, incompetence,
minority, or death, those rights are not lost. The representative for
the crime victim can assert the rights.
Second, a crime victim may choose to enlist a private attorney to
represent him or her in the criminal case--this provision allows that
attorney to enter an appearance on behalf of the victim in the criminal
trial court and assert the victim's rights. The provision also
recognizes that, at times, the Government's attorney may be best
situated to assert a crime victim's rights either because the crime
victim is not available at a particular point in the trial or because,
at times, the crime victim's interests coincide with those of the
Government and it makes sense for a single person to express those
joined interests. Importantly, however, the provision does not mean
that the Government's attorney has the authority to compromise or co-
opt a victim's right. Nor does the provision mean that by not asserting
a victim's right the Government's attorney has waived that right. The
rights provided in this bill are personal to the individual crime
victim and it is that crime victim that has the final word regarding
which of the specific rights to assert and when. Waiver of any of the
individual rights provided can only happen by the victim's affirmative
waiver of that specific right.
Does all of this correspond with Senator Kyl's understanding of the
bill?
Mr. KYL. Absolutely. The enforcement provision the Senator addressed
is critical to this bill. Without the ability to enforce the rights in
the criminal trial and appellate courts of this country any rights
afforded are, at best, rhetoric. We are far past the point where lip
service to victims' rights is acceptable. The enforcement provisions of
this bill ensure that never again are victim's rights provided in word
but not in reality.
I want to turn to section 2, subsection (d)(2) because it is an
unfortunate reality that in today's world there are crimes that result
in multiple victims. The reality of those situations is that a court
may find that the sheer number of victims is so large that it is
impracticable to accord each victim the rights in this bill. The bill
allows that when the court makes that finding on the record the court
must then fashion a procedure that still gives effect to the bill and
yet takes into account the impracticability. For instance, in the
Oklahoma City bombing case the number of victims was tremendous and
attendance at any one proceeding by all of them was impracticable so
the court fashioned a procedure that allowed victims to attend the
proceedings by close circuit television. This is merely one example.
Another may be to allow victims with a right to speak to be heard in
writing or through
[[Page S4270]]
other methods. Importantly, courts must seek to identify methods that
fit the case before that to ensure that despite numerosity of crime
victims, the rights in this bill are given effect.
Does the Senator agree with this reading of the bill?
Mrs. FEINSTEIN. Absolutely. It is a tragic reality that cases may
involve multiple victims and yet that fact is not grounds for
eviscerating the rights in this bill. Rather, that fact is grounds for
the court to find an alternative procedure to give effect to this bill.
I now want to turn to another critical aspect of enforcement of
victims' rights, section 2, subsection (d)(3). This subsection provides
that a crime victim who is denied any of his or her rights as a crime
victim has standing to appellate review of that denial. Specifically,
the provision allows a crime victim to apply for a writ of mandamus to
the appropriate appellate court. The provision provides that court
shall take the writ and shall order the relief necessary to protect the
crime victim's right. This provision is critical for a couple of
reasons. First, it gives the victim standing to appear before the
appellate courts of this country and ask for review of a possible error
below. Second, while mandamus is generally discretionary, this
provision means that courts must review these cases. Appellate review
of denials of victims' rights is just as important as the initial
assertion of a victim's right. This provision ensures review and
encourages courts to broadly defend the victims' rights.
Mr. President, does Senator Kyl agree?
Mr. KYL. Absolutely. Without the right to seek appellate review and a
guarantee that the appellate court will hear the appeal and order
relief, a victim is left to the mercy of the very trial court that may
have erred. This country's appellate courts are designed to remedy
errors of lower courts and this provision requires them to do so for
victim's rights. For a victim's right to truly be honored, a victim
must be able to assert the rights in trial courts, to then be able to
have denials of those rights reviewed at the appellate level, and to
have the appellate court take the appeal and order relief. By providing
for all of this, this bill ensures that victims' rights will have
meaning.
I would like to turn our attention to section 2, subsection (d)(4)
because that also provides an enforcement mechanism. This section
provides that in any appeal, regardless of the party initiating the
appeal, the government can assert as error the district court's denial
of a crime victim's right. This subsection is important for a couple of
reasons. First, it allows the Government to assert a victim's right on
appeal even when it is the defendant who seeks appeal of his or her
conviction. This ensures that victims' rights are protected throughout
the criminal justice process and that they do not fall by the wayside
during what can often be an extended appeal that the victim is not a
party to.
Is that the Senator's understanding of the bill?
Mrs. FEINSTEIN. Yes.
I would like to turn to the next provision, section 2, subsection
(d)(5). This subsection provides that a failure to afford a right under
the act does not provide grounds for a new trial. This provision
demonstrates that victim's rights are not intended to be, nor are they,
an attack on defendants' protections against double jeopardy. This
provision is not intended to prevent courts from vacating decisions in
nontrial proceedings in which victims' rights were not protected and
ordering those proceedings to be redone. It simply assures that a trial
will not be redone. Thus, defendants' and victims' rights are both
protected.
Is that the Senator's understanding?
Mr. KYL. Yes, it is. We have, over the years, tried to reassure those
that oppose victims' rights that they are not an attempt to undermine
defendants' rights. This provision reiterates that. It is important for
victims' rights to be asserted and protected throughout the criminal
justice process, and for courts to have the authority to redo
proceedings other than the trial such as release hearings, pleas, and
sentencings where victims' rights are abridged, but to not tread upon
defendant's rights against double jeopardy in the process. Victims'
rights are about a fair and balanced criminal justice system--one that
considers defendant's rights as well as victims' rights. This provision
protects that careful balance.
I want to turn to the definitions in the bill, contained in section
2, subsection (e). There are a couple of key points to be made about
the definitions. A ``crime victim'' is defined as a person directly and
proximately harmed as a result of any offense, felony or misdemeanor.
This is an intentionally broad definition because all victims of crime
deserve to have their rights protected, whether or not they are the
victim of the count charged. Additionally, crime victims may, for any
number of reasons, want to employ an attorney to represent them in
court. This definition of crime victim allows crime victims to do that.
It also assures that when, for any reason, crime victims are unable to
assert rights on their own, those rights will still be protected.
Is that the Senator's understanding of the bill as well?
Mrs. FEINSTEIN. It is.
Now I would like to turn to the portion of the bill concerning
administrative compliance with victims' rights, section 2, subsection
(f). The provisions of this subsection are relatively self-explanatory,
but it important to point out that these procedures are completely
separate from and in no way limit the victim's rights in the previous
section.
Is that Senator Kyl's understanding?
Mr. KYL. Yes.
Let me comment briefly on section 4, Reports. Subsection (a) requires
the Administrative Office of the U.S. Courts to report annually the
number of times a right asserted in a criminal case is denied the
relief requested, and the reasons therefore, as well as the number of
times a mandamus action was brought and the result of that mandamus.
Such reporting is the only way we in the Congress and other
interested parties can observe whether reforms we mandate are being
carried out. No one doubts the difficulty of obtaining case-by-case
information of this nature. Yes, this information is critical to
understanding whether Federal statutes really can effectively protect
victims' rights or whether a constitutional amendment is necessary. We
are certain that affected executive and judicial agencies can work
together to implement effective administrative tools to record and
amass this data. We would certainly encourage the National Institute of
Justice to support any needed research to get this system in place.
Is this Senator Feinstein's understanding?
Mrs. FEINSTEIN. Yes.
One final point. Throughout this act, reference is made to the
``accused.'' Would the Senator also agree that it is our intention to
use this word in the broadest sense to include both those charged and
convicted so that the rights we establish apply throughout the criminal
justice system?
Mr. KYL. Yes, that it is my understanding.
Mr. President, I anticipate Senator Leahy's arrival. I suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I see my good friend, the Senator from
Arizona, in the Chamber. I know the distinguished Senator from
California will be joining us shortly. What is the time allocation? I
know the distinguished Senator from Arizona wants to make sure we all
have time, but I was just curious where we are.
The PRESIDING OFFICER. The Senator from Vermont and the Senator from
Utah each have 30 minutes. The Senator from California has 6 minutes 34
seconds.
Mr. LEAHY. I do not anticipate using all my time by any means. I
appreciate the courtesy of the Senator from Arizona who had indicated
earlier that he fit us in because of conflicting schedules that the
Senator from California and I have. Before I even begin, I want to
again thank the distinguished Senators from Arizona and California for
all they have done on this issue.
[[Page S4271]]
This past Sunday, as we all know, marked the start of National Crime
Victims' Rights Week. We set this week aside each year to refocus
attention on the needs and rights of crime victims. One would almost
think we would not have to do that, but as a matter of fact, too often,
the needs of victims are not met, and their rights are not fully
honored. I learned this during my time as a prosecutor. I think all of
us have learned this, from the experiences and some terribly gripping
stories that we have heard from our constituents.
This year, the Senate had been scheduled to mark the occasion of
National Crime Victims' Rights Week by taking up S.J. Res. 1, a
proposed constitutional amendment. It was going to end up being days,
maybe weeks, of debate even though everyone knew that the
constitutional amendment was not going to pass. We went through this
process back in April of the year 2000, during the last Presidential
election year.
I said then, during that earlier debate on the constitutional
amendment, that I have worked long and hard to protect and advance
crime victims' rights, as have many on both sides of the aisle in this
body. As a prosecutor for 8\1/2\ years, I worked day to day, year to
year alongside victims, seeking justice on their behalf. This was back
at a time before people spoke much about victims having rights. I like
to think that my office was a model in this regard, for making sure
that victims were heard.
I have worked on and have led many legislative efforts on behalf of
victims throughout my service in the Senate. One of the most recent of
those efforts was the creation of the September 11 Victim Compensation
Fund. I am grateful to have been able to take part in something that
has brought some relief to so many victims.
But I will never forget the victims I worked with as a prosecutor or
the needs of the new victims minted each day through the crimes
committed against them.
For years, at Christmas time, I received a very poignant letter from
a woman who was the victim of a very serious crime. She told me how she
was doing, how her children were doing.
When I go to the grocery store in Vermont, or I'm walking down the
street, I run into people who were helped during those years and who
had a voice during those years. It is gratifying, but I have to think
about the fact that every single day, there are a whole lot more
crimes, and a whole lot more victims.
I have always believed that victims should be afforded certain basic
protections. I believe victims should be notified when the defendant is
in court or when he is about to be released. I believe victims should
be heard at critical stages of the prosecution. I believe victims are
entitled to restitution from offenders.
In recent years, the debate has never been about whether victims
should be protected. Of course they should. Rather, the debate has been
about how victims should be protected.
I did not think the proposed constitutional amendment was the best
way forward. I still believe that. We all agree, and every witness who
testified before the Judiciary Committee on this issue agreed, that
every right provided by the victims' rights amendment can be, or
already is, protected by State or Federal statutory law.
So we have long had the power to enhance victims' rights through
regular legislation, passed with a simple majority vote, and make an
immediate difference in the lives of crime victims. Legislative
enhancements are more easily enacted, more directly applied and
implemented, and more able to provide specific, effective remedies. In
addition, as Chief Justice Rehnquist and others have pointed out,
statutes are more easily corrected if we find, in hindsight, that they
need correction, clarification, or improvement.
When we pass the Kyl-Feinstein-Hatch-Leahy Victims' Rights Act, we
will take a step that I have long advocated. So I thank and commend the
principal sponsors of S.J. Res. 1, the distinguished Senators from
California and Arizona. We came from both sides on the constitutional
debate, but all of us are deeply committed to the cause of victims'
rights, and that is why we came together on this legislation.
This legislation will provide crime victims in the Federal system
with all the rights and protections that the proposed constitutional
amendment would have provided. In fact, our statute goes further than
the constitutional amendment because it gives the same rights and
protections to all crime victims, not just to the victims of violent
crimes. The elderly woman who is defrauded out of her life savings will
get the same protection from this statute as other crime victims.
This statute, S. 2329, also spells out how victims' rights are to be
enforced, using language that Senator Kennedy and I developed in S.
805, the Crime Victims Assistance Act. In addition to providing victims
with standing to assert their rights in mandamus actions, S. 2329 will
establish an administrative authority in the Department of Justice to
receive and investigate victims' claims of unlawful or inappropriate
action on the part of criminal justice and victims' service providers.
Department of Justice employees who fail to comply with the law
pertaining to the treatment of crime victims could face disciplinary
sanctions, including suspension or termination of employment.
We have incorporated other proposals from S. 805 as well, to help
States implement and enforce their own victims' rights laws. And we
have called for two annual reports, one by the Administrative Office of
the Courts, and the other by the General Accounting Office, to make
sure we get some feedback on how the rights and procedures established
by the statute are working in practice. Over time, we will be able to
modify and fine-tune the statute so that it provides an appropriate
degree of protection for the rights of crime victims.
I have no doubt we are going to pass this law today. I believe the
other body will pass the law, and the President will sign it. Then part
of our duty is going to have to be to follow up to see how it works.
I said to some of the representatives of victims' groups this
morning, keep our feet to the fire. Make sure we follow up. Passage of
this bill will necessitate careful oversight of its implementation by
Congress. If, as I hope, federal judges and prosecutors take victims'
rights seriously, there should be little need for victims to bring
mandamus actions to enforce their rights. But if, for whatever reason,
victims feel that they are not being treated fairly, we may see a wave
of new litigation in the federal courts, with victims and their lawyers
having to insert themselves into criminal cases. We will need to
monitor the situation closely.
I am committed to giving victims real and enforceable rights. But I
am convinced that prosecutors should be capable of protecting
those rights, once we make them clear. In my experience, prosecutors
have victims' interests at heart.
Senator Kennedy and I proposed in the Crime Victims Assistance Act a
limited-standing provision, which applied with respect to the victim's
right to attend and observe the trial, and under which a victim could
assert her right if the prosecutor refused to do so. Passing such a
provision would have allowed us to observe over a period of time
whether direct participation of victims in criminal proceedings has any
unanticipated consequences for the administration of justice.
This Victims' Rights Act proposes a bolder experiment, entitling
victims to assert a panoply of rights, regardless of whether the
prosecution is already asserting the same rights on their behalf. For
example, at the insistence of other sponsors, this bill will enable
victims to bring mandamus actions alleging the denial of their
statutory right ``to be treated with fairness and with respect for the
victim's dignity and privacy,'' which may be difficult claims to
adjudicate.
I note with some regret that S. 2329 picks up language from S.J. Res.
1 denying victims any cause of action for damages in the event that
their rights are violated. Allowing victims to vindicate their rights
through separate proceedings for damages instead of through mandamus
actions in the criminal case could well be a more efficient as well as
a more effective way of ensuring that victims' rights are honored.
Certainly the prospect of being held to account in such proceedings
would provide a powerful incentive to take victims' rights seriously.
But the
[[Page S4272]]
Republican sponsors of the bill did not want to provide for damages.
Similarly, some Republican Senators did not want to allow courts to
appoint attorneys to help crime victims. It is my hope and belief that
victims will seldom need representation, since they already have
powerful advocates in our public prosecutors. Still, it is possible
that a judge would want to appoint an attorney for a victim in an
extraordinary case, as for example if there is a material conflict
between the victim's interests and the interests of the prosecution. By
failing to provide for this possibility, S. 2329 may perpetuate a
system of unequal justice for victims, where the wealthy have the
benefit of counsel, and the poor do not.
There are other provisions that were also, regrettably, left on the
cutting-room floor during negotiations on this bill. First, we dropped
a provision that was in the proposed constitutional amendment, which
would have given victims certain rights in the context of clemency
proceedings. I know Attorney General Ashcroft, when he was a Member of
the Senate, felt strongly that victims should have a voice in these
proceedings. I would welcome the chance to work with him, to have him
provide for that within the Federal system, to do in the Federal system
what he wanted to do while a member of this body.
A second provision that I would have liked to include in the bill
would have authorized funding for a broad range of compliance
authorities to help enforce the rights of crime victims in the state
systems. Senator Kennedy and I proposed such a program in the Crime
Victims Assistance Act, but I was unable to persuade my colleagues to
include it in this bill.
There are a variety of remedies for violations of rights that are
operating at the State level, all of which have strengths and
weaknesses. Some States use more than one approach. Arizona has a non-
statutory ombudsman staff position in the Attorney General's office, to
receive and investigate victim complaints; a victims' legal assistance
project run by a non-profit and the Arizona State University College of
Law, and a system of auditing those who receive grants to implement
victims' rights. Wisconsin uses a State employee to receive and attempt
to resolve victim complaints, as well as a victims' rights board that
can formally receive complaints and seek sanctions for violations.
Alaska has a State Office of Victims' Rights. South Carolina has an
independent victim ombudsman. Connecticut has a State Victim Advocate.
Vermont is exploring various options. We do have a Center for Crime
Victims Services, which advocates informally for victims and is one of
the premier victims' services sites in the country.
Finally, I want to comment on the unusual genesis of this bill, and
the extraordinary procedure that has brought us so swiftly to a vote in
the Senate. As I mentioned earlier, the Senate was scheduled to begin
work this week on the proposed constitutional amendment, S.J. Res. 1.
On Wednesday, the Republican leadership moved to invoke cloture on the
motion to proceed. I would not have opposed this motion. I voted to
proceed to an earlier iteration of this constitutional amendment four
years ago, and I would have been prepared to proceed to it again this
week. Even given the time this would have taken and the expected
outcome, I would not have opposed a debate on the constitutional
amendment.
It was under these circumstances that we had so little opportunity to
work on crafting the crime victims' statute. I would have liked to have
gotten the views of the Office for Victims of Crime and other
components of the Department of Justice, for example. Many victims'
groups and domestic violence organizations opposed the constitutional
amendment, as did many law professors, judges, and prosecutors. I would
have liked to hear their views on this statute. I am personally
concerned that the statute may not adequately address the special
problems raised in domestic violence and abuse situations. If it does
not, then we may need to amend it again.
Given the Republican leadership's insistence on proceeding to the
constitutional amendment today, there was not as much time as I would
have liked to develop the statutory alternative that we vote on today,
and no time to hold hearings on it or improve the bill in Committee.
Fortunately, however, this is to be a statute, not a constitutional
amendment, and it can be modified and improved. We will be able to make
it better as we go along.
I commend my good friend, Senator Feinstein, for mediating this
consensus legislation. I know that she would have preferred to pass a
constitutional amendment. She has made that clear. Nevertheless, she
worked hard to produce a bill that we all can support, showing once
again that she is first and foremost a legislator who wants to get
things done. Due in large part to Senator Feinstein's efforts, we now
have an opportunity to advance the cause of victims' rights with
strong, practical, bipartisan legislation. I have never doubted Senator
Feinstein or Senator Kyl's commitment to victims' rights. I am
delighted that we have come together to advance that common cause.
My friend and the chairman of the Senate Judiciary Committee, Senator
Hatch, is another lead sponsor of this legislation. He and I have
worked together on the Judiciary Committee in this area. He has been a
tireless advocate for the rights of crime victims, and more generally
for fairness in the administration of justice.
I want to thank David Hantman and Steve Cash of Senator Feinstein's
staff; Bruce Artim and Grace Becker of Senator Hatch's staff; Steven
Higgins of Senator Kyl's staff; Robin Toone of Senator Kennedy's staff;
Bob Schiff and Alex Busansky of Senator Feingold's staff; Neil MacBride
and Louisa Terrell of Senator Biden's staff; Chris Kang of Senator
Durbin's staff; Mark Childress and Jennifer Duck of Senator Daschle's
staff; and, most especially the members of my own staff for their hard
work on this bill over the last several days under extraordinary
circumstances and pressures.
I also want to commend and thank the many victims' advocates and
service providers in Vermont and across the country who show their
dedication every day of the year to crime victims. I want to thank
those who work in the area of domestic violence and abuse in
particular. I am thankful for their dedication and grateful for their
advice and insights over the years.
For more than 20 years I have sponsored and championed legislation to
help victims. I have mentioned the recent September 11 Victim
Compensation Fund, and I am also proud of such other advancements on
behalf of victims as a law to provide assistance to victims of
international terrorism, and bills to raise the cap on victims'
assistance and compensation programs and to protect the rights of the
victims of the Oklahoma City bombing. Today's vote provides us the
opportunity to make progress on yet another important measure to
address the needs of victims.
I ask unanimous consent that a letter from the National Center for
Victims of Crime stating strong support for S. 2329 be printed in the
Record as well as, for the sake of completeness, a number of editorials
that appeared on this subject recently.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The National Center for
Victims of Crime,
April 21, 2004.
Hon. Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: The National Center for Victims of
Crime strongly supports the Scott Campbell, Stephanie Roper,
Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims'
Rights Act. This landmark piece of legislation would provide
clear and enforceable legal rights to all direct victims of
crime at the federal level. We are pleased to see a long
overdue recognition that victims of all crime, violent and
nonviolent crime alike, deserve these important rights.
This bill also sets a new standard for federal victims'
rights compliance, giving victims and prosecutors the legal
standing to assert victims' rights; clearly authorizing
victims and the government to seek writs of mandamus to
enforce victims' rights; and calling on the Attorney General
to develop regulations to promote victims' rights through
training, disciplinary sanctions for violations of rights,
and the creation of an office to receive and investigate
complaints.
By making new funding available to jurisdictions with laws
substantially equivalent to those established in this bill,
this bill legislation will promote a strengthening of
victims' rights across the country. By providing funding to
promote victim notification and compliance with victims'
rights at the state
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level, this bill will improve the implementation of victims'
rights nationwide. We urge Congress to go further--to broaden
this funding to support other mechanisms to promote
compliance, such as state-level victim advocates and other
authorities to receive and investigate the complaints of
victims, and not limit funding for enforcement to one method.
This legislation represents a real Congressional commitment
to improve our nation's response to victims of crime. The
National Center for Victims of Crime commends you for your
hard work and dedication to this issue, and we urge your
colleagues to join you in this effort.
Sincerely,
Susan Herman.
____
[From the Washington Times, Apr. 19, 2004]
Amendmentitis
(By Bob Barr)
The circus is back in town. Every 2 years, as we roll
around to another grand Olympics of federal, state and local
elections, the hopper in Congress begins to fill up with
dangerous and unnecessary amendments to our U.S.
Constitution.
Few, if any, are for ``great or extraordinary occasions,''
the bar James Madison set for changing our Founding document.
In fact, most are either one or two things: a cheap ploy to
get votes or an attempt to streamroll through right- or left-
wings social policies--think gun control or marriage--that
have been unable to get any traction through normal channels
of government.
Just this session alone, Congress has seen or will see
votes on the Flag Desecration Amendment, the Victims Rights
Amendment, the Federal Marriage Amendment, even the
Continuity in Government Amendment. Frankly, I would like to
see one last constitutional amendment--the No More Amendments
Amendment.
In the American political system, the Constitution was
meant to operate like people who freeze their credit cards in
a block of ice. That is, when faced with supremely important
and emotional decisions involving things like the censorship
of unpopular ideas or the seizure of firearms, the
Constitution makes us walk to the corner and take a time out.
Specifically, we have to get a two-thirds supermajority in
both chambers of Congress and then tree-quarters of the
States to agree. It is an amazingly onerous process.
The last amendment to the Constitution--the 27th--which set
limits on congressional pay, was initially proposed in the
States' petitions to the first Constitutional Congress in the
1780s but only started to move in the 1990s. It took more
than two centuries to finally earn a spot alongisde free
speech and the right not to self-incriminate.
During the Cold War, Americans of conscience like to brag
we were a Nation of laws, not men. That is, the main
difference between American representative democracy and
Soviet tyranny was that the latter's government did not have
to abide by a piece of yellowing parchment with some petty
clear instructions on what it could or could not do to its
citizens.
And, while we have failed to meet those lofty goals on a
number of important occasions, for the post part, we have
managed to pedal through without too many monumental
abridgements of personal liberty. That is why we are still
here and they went long ago to a nursing home for evil ideas.
However, we risk betraying that proud history in the
political imperative to fiddle with the Constitution. Take,
for instance, the Victims Rights Amendment. Pushed by a a
mixture of Democrats and Republicans feeling the need to
burnish their tough-on-crime badges, the VRA would be a
disaster for basic principles of fairness and dispassion in
our criminal justice system.
It would guarantee victims of crime--a loosely defined term
in the legislation--the ``right'' to notice, to be present
and to speak at an array of judicial proceedings, including
those dealing with bail, trial, sentencing and parole. It
also requires the court to take victims into account in
deciding whether to release prisoners or when to schedule a
trial.
As with many of these amendments, on its face the measure
hits all the right notes. It is tough on crime and soft on
victims. It is bipartisan--as a lawmaker, if you oppose
it, the other side will accuse you of being ``anti-
victim,'' whatever that means. It cost no federal tax
dollars (at least, not directly); states have to foot the
bill. Finally, it makes for a feel-good, ``I supported
such and such'' speech on the campaign trail.
But, as with many of these other amendments, it is
seriously flawed. Foremost among its problems is that it
will, ironically, obstruct justice. In 2000, Beth Wilkinson,
the lead federal prosecutor in the Oklahoma City bombing
case, explained in testimony against the amendment that, had
it been in force, she might not have successfully sent
Timothy McVeigh to death row and Terry Nichols to jail for
life.
Their convictions hinged on the testimony of one Michael
Fortier, who plea bargained to 12 years in federal prison,
for knowing about the impending bombing but not informing
authorities, in exchange for taking the witness stand. Had
the relatives of the 168 people killed in that horrible
tragedy been able to address the courtroom in opposition to
Fortier's plea, it could have sunk the whole case.
In addition to these practical concerns, the VRA also
threatens basic due process protections and objectivity in
the criminal justice system by making it more about vengeance
than justice. We trust our adversarial process--which pits
zealous advocates against one another in front of a judge and
jury--to arrive at the best approximation of the truth in
criminal prosecution, which helps ensure the guilty are
punished and the innocent go free.
However, when one injects the emotion of a murder victim's
family into a bail or a parole hearing, that adversarial
system is thrown directly out of whack. The defense counsel
then faces an onslaught of vindictiveness that cannot be
countered by facts or logic. Justice must remain blindfold to
be effective. Otherwise, we will have vigilante posses
waiting outside with lit torches and nooses tied every time
something really senational goes to trail.
Finally, in an ironic twist that really hammers home the
folly of such constitutional amendments, the vast majority of
states--and the federal government--already have laws on the
books protecting victims and ensuring their interests are not
forgotten as their cases progress through the system.
The bottom line with the Victims Rights Amendment and its
ilk is that the Constitution should not be co-opted as the
tag line for a political attack ad. It is arguable the most
sacred secular document in the history of the world, as it
has kept humanity's strongest democracy healthy long enough
to also make it humanity's oldest democracy.
____
[From the Chicago Tribune Online Edition, Apr. 18, 2004]
A Phony Proposal for Victims' Rights
There is no need to tinker with the Constitution to Guarantee the
rights of victims--our entire judicial system is already set up to do
just that
(By Steve Chapman)
Americans cherish and revere the Constitution. But often
their attitude brings to mind the Broadway show: ``I Love
You, You're Perfect, Now Change.'' It seems that the only
thing many of them like more than the Constitution is the
opportunity to fix its grievous flaws. The latest suggestion
for improvement stems from a belief that it shortchanges the
needs of crime victims.
The entire criminal justice system, of course, could be
seen as a giant apparatus set up to vindicate the interests
of crime victims. Every year in the United States, we arrest
more than 13 million suspects and keep more than 1.4 million
offenders in prison. All those police, prosecutors, judges,
parole officers and prison guards are there mainly to detect,
investigate, prosecute and punish criminals for what they do
to their victims.
But critics say the system often abuses the people it's
supposed to protect. And they insist that the only way to
assure fairness to victims is to enshrine their rights in the
Constitution. President Bush has endorsed the amendment. Sen.
John Kerry has not.
Americans often have a tendency to see a problem and
conclude, ``There oughta be a law.'' In this instance,
though, there is already a multitude of laws. Every state has
passed legislation to protect victims' rights, and at least
33 have such provisions in their state constitutions.
But Sen. Jon Kyl (R-Ariz.), co-sponsor of the amendment,
says these efforts have been a bust. He says one study found
that even in states with strong measures in place, 44 percent
of victims weren't alerted to the sentencing hearing, and
nearly half weren't notified of plea negotiations.
Why don't existing laws do the job? Because, according to
Kyl, ``criminal defendants have a plethora of rights that are
protected by the Constitution that are applied to exclude
victims rights.''
The only way to correct the imbalance is to give victims'
rights equal status.
But where are the constitutional provisions that work
against victims?
Defendants do have a right to a speedy public trial by
jury, to be represented by a lawyer, to avoid self-
incrimination and so on. But nothing in the Constitution
prevents authorities from informing victims of proceedings,
from letting them speak during trials, sentencing and parole
hearings, from altering them when an assailant is about to be
released, or from requiring criminals to pay restitution.
Those are the victims' rights specified in the constitutional
amendment, all of which can be (and often are) safeguarded
without the drastic step of altering the nation's charter.
Supporters complain that some courts have been so eager to
assure the defendant a fair trial that they bar victims from
the courtroom. But that happens only before a victim is
scheduled to testify, and it's simply meant to prevent
victims from tailoring their testimony (intentionally or not)
to match what other witnesses say.
By protecting the truth-seeking function of a trial, the
practice works to the benefit of victims--who, after all,
gain absolutely nothing from sending the wrong person to
jail.
If we want to abolish this custom, despite its virtues, we
don't need an amendment. Duke University law professor Robert
Mosteller says many states allow victims to
[[Page S4274]]
be present throughout a trial even if they are going to
testify. The practice of excluding victims until they
testify, Mosteller notes, ``is generally a matter of
statutory or common law'' and ``rarely even approaches
constitutional significance.'' It was an issue in Timothy
McVeigh's Oklahoma City bombing trial--but in the end, all
victims were allowed to attend even if they were expected to
appear as witnesses.
Victims' rights, it's true, have not always been enforced.
But that's partly because they're a new concept and take time
to be fully implemented. And it's partly because they are
administered by large, fallible government bureaucracies
trying to keep track of a lot of people and information,
sometimes without adequate funds.
Amending the Constitution won't make the bureaucracies less
fallible. The obvious way to do that is to make them pay for
their mistakes by letting victims collect damages when their
rights are ignored. But this proposal explicitly forbids that
remedy. It's all bark and no bite.
Unless, of course, the opponents hope to curtail the
protections we grant to those accused of crimes. The
supporters deny that, but they also decline to include a
section stating that the amendment wouldn't diminish any
existing guarantees.
So maybe the amendment would be an attack on longstanding
constitutional rights, or maybe it would be an ineffectual
piece of symbolism. Either way, we're better off without it.
____
[From the Washington Times, April 20, 2004]
We, the Clutterers . . .
(By Bruce Fein, special to the Washington Times)
The Senate should balk at cluttering the Constitution when
it votes next Friday on a crime victims' rights amendment
[VRA].
To forgo the VRA is not to cherish victims' rights less,
but to venerate the brevity and accessibility of the
Constitution more. Amendments are appropriate only when
flexible and adaptable statutes would be insufficient to
achieve a compelling objective; or, to protect discrete and
insular minorities from political oppression. Neither reason
obtains for the VRA.
Crime victims deserve and evoke legal sympathy. Every state
and the District of Columbia feature statutes that endow
victims with participatory rights in the criminal justice
system. Further, 33 states have amended their state
constitutions by overwhelming majorities to protect crime
victims.
Congress has enacted a cornucopia of victim-friendly
statutes since 1982, including a right to restitution, victim
impact statements, and a victims' Bill of Rights. According
to the latter, federal law enforcement agencies must treat
putative victims with fairness and respect; protect them from
accused offenders; provide them notice of court proceedings;
offer opportunities to attend public sessions under certain
conditions and to confer with government prosecutors; and
transmit information about the conviction, sentencing,
imprisonment, and release of the offender.
A crime victim's authenticity remains in doubt, it should
be remembered, unless and until the accused is convicted.
As I previously testified before the Senate Judiciary
Committee: ``Crime victims have no difficulty in making their
voices heard in the corridors of power; they do not need
protection from the majoritarian political process, in
contrast with criminal defendants whose popularity
characteristically ranks with that of Gen. William Tecumseh
Sherman in Atlanta, Ga.'' A recent vignette from Lake County,
Mich., corroborates the political hazards of slighting crime
victims. In September 2003, a county prosecutor was recalled
by voters angry over a lenient plea bargain that had outraged
the family of a murder victim: a 23- to 50-year sentence for
the killer. The prosecutor's explanation he was seeking to
avoid costly trials on a penurious $200,000 annual budget
proved unavailing.
VRA proponents insist statutory rights are second-class
rights compared with constitutional rights enjoyed by the
accused. Statutes fortified by strong pubic sentiments,
however, command virtual constitutional sanctity. The 1964
Civil Rights Act, the 1965 Voting Rights Act, the National
Labor Relations Act, and the Sherman Antitrust Act are
illustrative. As to the latter, the Supreme Court in United
States vs. Topco Associates [1972] amplified: ``Antitrust
laws in general, and the Sherman Act in particular, are the
Magna Carta of free enterprise.''
Moreover, the elevation of victims' rights from a statutory
to a constitutional plateau does not guarantee greater
effectiveness. The 14th and 15th Amendment rights of blacks,
for instance, slept for 80 years in the chambers of
prosecutors and judges because of public indifference. In any
event, government officers are every bit as bound by oath to
obey statutes as to comply with the Constitution.
VRA crusaders speciously argue victims' constitutional
rights in criminal prosecutions should reasonably mirror
those of the accused. Unlike a putative victim, a criminal
suspect confronts the loss of life, liberty, or property and
a formidable arsenal of government investigatory and
prosecutorial weapons. The victim, moreover, may seek damages
from the defendant, including restitution, in parallel civil
proceedings a la the O.J. Simpson wrongful death judgments.
History has also demonstrated a government propensity to
persecute by overzealous prosecutions. The Declaration of
Independence denounced King George III, ``For transporting us
beyond the seas to be tried for pretended offenses.''
Former Attorney General and Associate Justice of the
Supreme Court, Robert Jackson, worried that prosecutors are
routinely tempted to pick a man to indict for personal or
ideological reasons, and then to scour the books to pin an
offense on him, in lieu of discovering a crime and then
searching for the culprit. To blunt the potential for
vindictive or wrongful convictions, the Constitution endows
defendants with a modest array of rights, for example, proof
beyond a reasonable doubt, jury unanimity, and the right to
counsel. Crime victims, however, can point to no
corresponding history of government oppression. Indeed, they
are the contemporary darlings of state legislatures and
Congress.
The VRA would also vitiate the truth-finding objective of
trials by injecting victim concerns that could undermine the
impartiality and reliability of verdicts. The amendment would
require judges in jury selection, evidentiary rulings, or
jury instructions to ``consider the victim's safety, interest
in avoiding unreasonable delay, and just and timely
restitution from the offender.'' It would permit victims who
intend to testify to avoid sequestration, a customary
requirement to foil the tailoring of witness stories.
Sequestration has been celebrated by an icon in the law of
evidence, however, as ``one of the greatest engines that the
skill of man has ever invented for the detection of liars in
a court of justice.''
Thus, the biblical Apocrypha relates how Daniel exonerated
Susanna of adultery by sequestering two accusing elders and
eliciting conflicting answers as to where the alleged crime
occurred.
Much additional mischief besets the VRA, but their telling
must be forgone as a concession to the shortness of life. The
proposed amendment should be smartly defeated.
____
[From the Washington Post, Apr. 21, 2004]
Wrong on Rights
The Senate is due to take up a constitutional amendment
designed to grant rights in criminal court proceedings to
victims of violent crimes. The last time the proposal arose,
its sponsors, Sens. Jon Kyl (R-Ariz.) and Dianne Feinstein
(D-Calif.), had to yank it back to avoid defeat. But support
for the idea has grown. Nobody likes to oppose crime victims,
and on its face the amendment's promises seem
unobjectionable: ``reasonable and timely notice'' of
proceedings; the right of victims to attend those proceedings
and to speak at sentencing, clemency and parole hearings; and
the right to seek restitution from perpetrators. What harm
can there be in placing victims' rights even with the rights
of the accused?
Quite a lot, actually. For starters, none of the
amendments' terms are defined--including, critically, who
counts as a ``victim.'' Is it limited to immediate relatives
or can extended family members qualify? Nor does the
amendment specify a remedy for violations of victims' rights.
In fact, it specifically says that it does not ``authorize
any claim for damages.'' So it is unclear how exactly a
victim is supposed to take advantage of his rights. The
result will be litigation--a lot of it--as victims seek to
exercise their new constitutional rights and defendants seek
to ensure that victims' rights don't come at the expense of
their own.
The fundamental trouble is that victims' rights, if taken
seriously, will come at the expense of the rights of the
accused. Sometimes a defendant's right to a fair trial cannot
be reconciled with a victim's right to speak to the jury.
Right now, the victims' rights yield in such cases, as they
should. The state, after all, is not seeking to deprive the
victim of liberty or, in the extreme case, life. The rights
of the accused flow out of the jeopardy in which the state
puts them.
Though the criminal justice system's treatment of victims
has improved, it could and should be better. But it would be
a profound error to place such obligations on the same plane
as the Constitution's essential protections against unchecked
government power.
Mr. DeWINE. Mr. President, I rise today in support of the Crime
Victims' Rights Act. As a former county prosecuting attorney, this is
an issue about which I feel very strongly. All too often, our criminal
justice system overlooks the victims of crime in efforts to ensure the
legitimate rights of accused defendants.
Crime victims simply have not been given the equal footing that they
deserve. From start to finish, the legal system sometimes can be a
terrible ordeal for victims--a bureaucratic nightmare that seems to and
in fact many times does go on and on and on.
We substantially protect the rights of defendants, as well we should.
We ensure that they have every reasonable benefit--and that is good--so
as to ensure the acquittal of the innocent. But, in the process, I
believe that many times, we don't give the victims of crime the rights
that they, too, deserve. When I was a county prosecutor in Greene
County, OH in the 1970s I saw too many crime victims--people who
[[Page S4275]]
had already been hurt--hurt a second time by a callous legal system.
That is why I did everything that I could to protect the rights of
those victims. Our bottom line has to be this: To be victimized once by
crime is already once too often. To be victimized yet again by an
uncaring judicial system is totally unacceptable.
Accordingly, I am pleased to cosponsor this bipartisan legislation
that will afford these victims, the fundamental right to participate in
the criminal justice system. It just makes good sense for the innocent
victim of a crime to be given the right to know if his or her assailant
is released or escapes from prison. It is simply fairness to recognize
a crime victim's right to reasonable notice of public proceedings
involving the crime; the right to not be excluded from such public
proceedings; and the right to be heard at the public release, plea,
sentencing, reprieve, and pardon proceedings involving that victim's
assailant. It's about time that we guarantee crime victims their rights
to court decisions that duly consider their safety, their rights to
have the courts avoid unreasonable delay in adjudicating those charged
with harming them, and their rights to just and timely restitution from
their offenders. This legislation is about victims. This legislation is
about working to keep victims safe from further harm. This legislation
is about keeping their concerns at the forefront.
When I was Green County prosecuting attorney, I had seen the victims
of murder and other terrible crimes. I interviewed people who had been
abused, assaulted, and raped. I learned a lot from talking to these
innocent people. I learned that we have to make the crime victim a full
participant--not a forgotten person, not a neglected person--in the
criminal justice system.
That is why I cosponsored this bipartisan legislation. It is designed
to help guarantee that the victims of crime have access to our criminal
justice system. It is time to stop treating the victims like they are
the criminals. Let's move the legitimate concerns of victims toward
center stage in our criminal justice system and finally provide these
innocent victims with the rights they deserve.
Mr. DURBIN. Mr. President, I rise today in support of the Scott
Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn
Crime Victims' Rights Act.
This week is National Crime Victims' Rights Week--a time to recognize
the impact of crime and the rights and needs of victims. In 2002, there
were 23 million criminal victimizations in the United States, and many
of these crime victims feels as if the criminal justice system has
wronged them. These people were innocent victims, but they feel
deprived of the fundamental need to participate in the process of
bringing the accused to justice.
I support crime victims' rights, and I believed that every effort
should be made to ensure that crime victims are not victimized a second
time by the criminal justice system. At the same time, I agree with
James Madison, who wrote that the United States Constitution should be
amended only on ``great and extraordinary occasions,'' and I am
reluctant to amend our Constitution for only the 18th time since the
adoption of the Bills of Rights.
This is why I am proud to be an original cosponsor of the Crime
Victims' Rights Act, which reaches all of the goals that the proposed
constitutional amendment sought to achieve, by providing crime victims
with the same rights, including the following: No. 1, the right to
notice of any public proceeding involving the crime or of any release
or escape of the accused; No. 2 the right not to be excluded from any
such public proceeding; No. 3, the right to be reasonably heard at any
public proceeding involving release, plea, or sentencing; No. 4, the
right to full and timely restitution; and No. 5, the right to
proceedings free from unreasonably delay.
By enacting legislation rather than amending the Constitution, our
approach today also addresses my concerns regarding the rights of the
accused. The premise of criminal justice in America is innocence until
proven guilty, and our Constitution therefore guarantees certain
protections to the accused. These include the Fifth Amendment
protection against double jeopardy, as well as the Sixth Amendment
rights to a speedy trial, the assistance of counsel, and an impartial
jury.
Although these protections for the accused sometimes are painful for
us to give, they are absolutely critical to our criminal justice
system. When the victim and the accused walk into the courtroom, both
are innocent in the eyes of the law, but when the trial begins, it is
the defendant's life and liberty that are at stake.
During the Judiciary Committee debate on the proposed constitutional
amendment regarding victims' rights, I offered an amendment that would
have ensured that the rights of the accused as guaranteed under the
Constitution would not be diminished or denied. However, this language
is unnecessary in the bill we are debating today, because rights
provided in a statute can not supercede those guaranteed by the
Constitution.
For example, I believe this statute would allow courts to protect
defendants from possible violations of due process and to preserve the
accused's right to an impartial jury, by excluding victims from a
public proceeding if the victim is to testify and the court determines
that the victim's testimony would be materially affected if the victim
hears other testimony at trial.
This statutory approach also provides Congress with the flexibility
to modify this legislation if we find it is not perfect.
I would like to commend Senators Feinstein and Kyl for their efforts
to provide rights to crime victims and for introducing this statutory
alternative. I am pleased to join them in this effort.
Mr. KENNEDY. Mr. President, I strongly support this bill to provide
enforceable rights to victims of crime, and I urge the Senate to
approve it.
For too long, our criminal justice system has neglected the hundreds
of thousands of victims of crime whose lives are shattered by violence
or other crime each year. Victims deserve better from our criminal
justice system.
Too often, the current system does not provide adequate relief for
victims of crime. They are not given basic information about their
case--such as notice of a defendant's arrest and bail status, the
schedule of various court proceedings, and the terms of imprisonment.
Victims deserve to know about their case. They deserve to know when
their assailants are being considered for bail or parole or adjustments
of their sentences. They certainly deserve to know when offenders are
released from prison.
Since 1997, Senator Leahy and I have sponsored legislation to provide
enhanced protections for victims of violent or non-violent crimes and
establish an effective way to implement and enforce these protections.
Our legislation is designed to give victims a greater voice in the
prosecution of the criminals who injured them and their families, fill
existing gaps in Federal criminal law, guarantee that victims of crime
receive fair treatment and the respect they deserve, and achieve these
goals in a way that respects the efforts of the States to protect
victims in ways appropriate to each State's unique needs.
I am pleased to join Senator Kyle and Senator Feinstein, who are the
lead sponsors of the proposed Victims' Rights Constitutional Amendment,
in moving forward on victims' rights legislation now. Our bill is
called the ``Scott Campbell, Stephanie Roper, Wendy Preston, Lourana
Gillis and Nila Lynn Crime Victims' Rights Act,'' and is named in honor
of five persons who were victims of crime. Our bill provides victims
with a number of important rights, including the right to receive
notice of public proceedings; to receive notice of the release or
escape of the accused; to attend and be heard at proceedings involving
release, plea, or sentencing; to confer with the government's attorney;
and to receive full and timely restitution as provided by law. The bill
also provides for the enforcement of these rights, by directing
government officials to notify victims of their rights, requiring
courts to grant these rights to victims, and giving standing to both
prosecutors and victims or their legal representatives to assert the
rights at trial and on appeal.
The legislation will protect all victims of crime, including victims
of identity theft, personal property theft, fraud, embezzlement,
vandalism, and other non-violent offenses. The National Center for
Victims of Crime has
[[Page S4276]]
emphasized the great importance of including protections for victims of
non-violent crime. Our legislation does so, and I commend the Center
for its leadership on this important aspect of the issue.
Our Victims' Rights Act also directs the Attorney General to act
within a year to issue regulations to enforce the rights of crime
victims and ensure compliance by all relevant officials. The bill
strengthens victims' rights at the Federal, State, and local levels by
authorizing the use of Federal funds to establish programs to promote
compliance and develop state-of-the-art systems for notifying victims
of important dates and developments in their cases.
Once this bill is enacted into law, we intend to monitor its
implementation by the Justice Department, other law enforcement and
criminal justice agencies, and the courts, so that we can take
appropriate action, if necessary, to ensure that the victims' rights
are protected, and also ensure that the effective functioning of the
law enforcement and criminal justice system is not impaired. I commend
my colleagues for their leadership in making this legislation possible,
and I urge the Senate approve it. We know that victims of crime have
been waiting too long for our action, and hopefully this long-needed
measure is finally on the fast track for enactment into law.
Mr. SMITH. Mr. President, I rise to speak about the Crime Victims'
Rights Act.
America is a country ruled by law and not by individuals. For that
reason, our criminal justice system serves as a beacon of light for
many who live in the shadow of tyranny. Nowhere is this better
demonstrated than those rights of the accused protected by the U.S.
Constitution. A defendant has the right to due process under law, the
right to a speedy trial, the right to counsel, the right against self-
incrimination, the right to confront witnesses as well as a host of
other protections. These constitutional rights aim to protect the
innocent and punish only the guilty. No American should be wrongly
incarcerated and denied the most basic liberties.
While the Constitution provides a panoply of rights for the accused,
it does not guarantee any rights to crime victims. Victims do not have
the right to be present during prosecution. Victims do not have the
right to be informed of the defendant's hearing. They do not have the
right to be heard at sentencing or at parole hearings. Victims have no
rights to restitution or notification even if they may be endangered by
the release of their attacker.
To maintain the integrity of our judicial system, a careful balance
must be struck between the rights of the accused and the rights of
victims. Unfortunately, the scales of justice have been tilted. As a
result, 32 States have enacted constitutional amendments to provide
some protections for victims. Today, I am proud to have joined my
colleagues in sponsoring and voting in favor of the Crime Victims'
Rights Act which would extend rights to victims of federal crimes as
well. Nationally, this sends a clear message to victims that they will
finally be given a voice in the Federal criminal process.
I also want to take this opportunity to recognize the leaders of the
victim's rights movement in my home state. Established in 2000, the
National Crime Victim Law Institute has been committed to the
enforcement and protection of victims' rights in the criminal justice
system. While there has been a flood of legislation at the State level
on victims' rights, there has been a dearth of academic attention paid
to this area of the law. The National Crime Victim Law Institute, at
the Lewis and Clark School, is one of the first academic institutions
to undertake a focused effort to study and enhance the effectiveness of
victim rights laws. The Institute's Executive Director, Doug BeLoof,
has authored Victims in Criminal Procedure, the first casebook to be
published in this area of law.
Along with this important legal scholarship, passage of this
legislation is an important step in the fight to protect victims'
rights. I look forward to President Bush signing this legislation into
law.
Mr. LEAHY. Madam President, I do not see others seeking time so I
reserve the remainder of my time and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so
ordered.
Mr. REID. Mr. President, it is my understanding Senator Leahy still
has time remaining under his control.
The PRESIDING OFFICER. That is correct.
Mr. REID. How much time?
The PRESIDING OFFICER. The Senator has 19.5 minutes.
Mr. REID. Mr. President, using Senator Leahy's time, I will proceed.
The PRESIDING OFFICER. Without objection, it is so ordered.
Patriot Act and Senator Kerry
Mr. REID. Mr. President, during this lull, prior to the vote on this
legislation that has been changed from a constitutional amendment to a
statute, I would like to take a few minutes hopefully to clear some of
the confusion about the record of my colleague, the Senator from
Massachusetts, John Kerry. This relates to the PATRIOT Act.
First of all, everyone should understand John Kerry voted for the
PATRIOT Act. This, of course, is a man who volunteered to fight for our
country in the jungles of Vietnam. He risked his life to keep America
safe. He was wounded on three separate occasions, received two medals
for heroism for his acts above and beyond the call of duty. These were
all in an effort to keep our Nation safe and strong.
Like most of us who voted for the PATRIOT Act, Senator Kerry believed
it gave law enforcement officials essential tools they needed in the
war against terror.
He not only voted for the PATRIOT Act, he actually authored parts of
it. Senator Kerry helped draft the money-laundering provisions of the
PATRIOT Act. He believes that provision should be strengthened to
include nonbank institutions and increase funding for information
gathering and sharing. These provisions have helped choke financial
support to terrorist groups.
When Congress enacted the PATRIOT Act we gave it a sunset clause so
we, the Senate, the Congress, and the American people, could see how it
worked. We understood we were giving the Government unprecedented power
and we would want to come back later and fine-tune the balance between
the power of Government and the personal rights of citizens.
Some parts of the PATRIOT Act will expire in approximately 20 months.
Frankly, with all the important issues and business this Senate has yet
to address, I don't understand why we have had a series of speeches on
the Senate floor about making permanent the PATRIOT Act. It will not
expire, as I have indicated, for 20 more months. At some point we will
have to decide which parts of the PATRIOT Act should be reviewed,
renewed, expanded, or in some way limited in some instances.
Senator Kerry wants to extend more than 95 percent of the provisions
of the PATRIOT Act. That is, so everyone is very clear, Senator Kerry
believes 95 percent of the PATRIOT Act should remain as it is. But
keeping America strong, as Senator Kerry believes, also means
protecting our individual rights and privacy. Keeping America free
means keeping a rein on the power of Government, so Senator Kerry does
support some adjustments to the PATRIOT Act along with a number of
other Senators, including the ``liberals'' Craig and Sununu. I say that
facetiously because Senator Craig and Sununu are anything other than
progressives.
I am also a cosponsor of the amendment Senator Kerry suggests should
make adjustments to this act.
Nobody has ever accused any of these Senators--Senators Craig,
Sununu, or Kerry--of being soft on terrorism. They are resolute in
their commitment to protect our Nation from terror. But they are also
resolute in their commitment to protect our individual rights and our
freedom--just like John Kerry.
Senator Kerry believes we need to improve the PATRIOT Act by making
some changes in the provisions of a
[[Page S4277]]
couple of wiretaps, sneak-and-peek warrants, and the seizure of
business and library records.
He isn't alone. The House of Representatives voted 309-118 to ban
funds for these so-called ``sneak and peek'' searches, which allow
government agents to surreptitiously search the homes of citizens,
without ever notifying them.
Senator Kerry wants to strengthen the Patriot Act in other areas, by
adding new legal and organizational tools to fight terror.
He has been and will be tough on terror, and he will keep America
safe. He knows that the Patriot Act is just one of the many weapons we
need in that fight against terror.
Senator Kerry understands that we need to improve the lines of
communication between different intelligence agencies, and between
federal and local officials. He believes that appropriate state and
local authorities should have immediate access to national terrorist
lists and 24-hour operations center should be created to link local and
federal law enforcement. It is called communication.
Senator Kerry has called for tighter protection of chemical factories
that could be targeted by terrorists. I am a cosponsor of that
legislation. Bowing to the chemical industry, the Bush administration
has opposed common sense measures to improve security of 123 chemical
plants where the EPA says a terrorist attack could kill or injure one
million people. John Kerry knows that we have to do a better job
protecting these potential targets.
Senator Kerry understands that we must give our police, firefighters
and other first responders the equipment and training they need to
respond to terrorist attacks. Right now, they aren't getting everything
they need, and the result could be tragic.
Finally, Senator Kerry knows that we aren't doing everything we
should to keep our seaports safe. Ninety five percent of our trade
outside North America moves by sea, and most of that is concentrated in
a handful of ports. Senator Kerry understands that our economy and our
national security both depend on keeping our ports safe. We need to
develop security standards for our ports, invest in a system of
container security and provide more customs inspectors.
These are common sense measures to protect our homeland. Every day
that we delay, we leave ourselves open to potential acts of terrorism.
I hope my colleagues won't impugn Senator Kerry's commitment to
national security just because he is concerned about safeguarding our
personal rights and privacy.
I understand we don't all agree on the need for measures like ``sneak
and peek'' searches of American citizens or improving security at our
seaports.
Let's debate those differences--but let us never suggest that any
Member of this body is not committed to keeping America strong and
safe.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the
Senator from New Mexico, Senator Domenici, be added as a cosponsor of
the legislation before us.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I will say a few words in conclusion
to my remarks.
I believe the Senator from Arizona, Senator Kyl, will be coming back
to the floor to make a small technical modification to the amendment
since questions have been developed and they can be easily taken care
of. I believe he will do that. Otherwise, I think everyone who is going
to speak on this has spoken.
I would like to end by saying how grateful I am for this day. This is
an important day for many of us who care about victims' rights--I think
every Member of this Senate--because for the first time we have a
strong and comprehensive measure to be able to achieve a compendium of
victims' rights. That compendium will give victims access to the
criminal justice system so they may retain their dignity; so they have
an opportunity to know when there is a trial and be present at the
trial; to make statements if there is a public proceeding with respect
to a plea bargain; to be there to make a statement; to receive
restitution, if offered by a judge; to know when their attacker is
released from jail or prison--not too much, but certain basic,
elemental rights for anyone who has either been the victim of or has
been dramatically affected by a crime.
I am very proud of the work on this. I have worked with Senator Kyl
for a long time, and now with Senators Hatch and Leahy as well.
I thank everybody who has been involved.
I particularly would like to thank my staff, Steven Cash and Dave
Hantman, who over the years I think have grown more determined to get
this job done.
I am hopeful we will have a unanimous vote in this body, that the
bill will be accepted by the House, and we will be able to say to
victims all across this country there is a Federal statute with a
remedy and a method of enforcement that will guarantee the very basic
rights in Federal crimes; and also the funding to be able to go out and
secure some of those same rights under State law.
I thank everybody. I yield the remainder of my time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I thank the distinguished Senator from
California for her excellent work, and also the distinguished Senator
from Arizona for his excellent work on this. They have worked on this
year after year until we have finally reached this point where I
believe we can get a bill through the Congress even though it is almost
impossible to get a constitutional amendment through the Congress on
this very important subject.
I rise today in support of S. 2329, The Crime Victims' Rights Act.
The issue addressed by this legislation--protecting the rights of
victims of crime--is one of utmost importance to the American people.
At the outset, let me commend the efforts of Senators Kyl and
Feinstein, who have worked tirelessly since 1996 to try to get the
crime victims' rights constitutional amendment passed.
No one has worked harder than these two Senators in trying to protect
victims' rights. Over the last 8 years, they have met with countless
victims, listened to their tragic stories, held hearings, drafted and
redrafted constitutional language, and consulted with academics,
outside experts and governmental officials to make sure they got it
just right.
While I know their preference is to pass a constitutional amendment--
and that would have been my preference as well--they have now prudently
opted to pursue a statutory remedy.
I am especially pleased that the ranking minority member of the
Judiciary Committee, Senator Leahy, is joining us in this initiative.
When we last debated victims' rights, it was in April of 2000. There
can be no question that the world has irrevocably changed since then.
Four years ago, many could not truly appreciate what it means to be a
victim of violence. Today, in the post-9/11 era, it is impossible not
to empathize with victims. I am sure that none of us will forget the
image of planes crashing into the World Trade Center. None of us will
forget the image of victims jumping out of windows to avoid the flames
that were creeping up the buildings. None of us will forget the images
of two of the tallest buildings in the world crumbling to the ground
like a house of cards with the victims trapped underneath the rubble.
And none of us will forget the gaping hole in the side of the Pentagon
and the grief of the families of those that died that day.
In that single day, nearly 3,000 victims died in New York City and
Washington, D.C. Yet as horrific as that statistic is, it cannot be
compared to the more than five million violent crimes that are
committed in the United States every year. Yet the victims of these
violent crimes, as well as their families and loved ones, continue to
suffer in silence. Some of them are not able to obtain notice of
criminal proceedings; they are not permitted to remain in the courtroom
while the trial is ongoing regardless of whether they are expected to
be called as a potential government witness. That is why I am an
original cosponsor of S. 2329.
Let me give a couple of examples of why we need this legislation.
On December 2, 1998, Jeffrey Weller, who was only 23 years old, was
murdered by his childhood friend. The
[[Page S4278]]
friend showed up at Jeff's home, where he lived with his new wife of 2
months. While the two men were sitting in a car, the murderer attacked
Jeff with a knife. Jeff managed to get out of the car and run, but was
shot once in the back. The man then shot Jeff again at point-blank
range in the head. Although the defendant was arrested, convicted and
sentenced to 10 years in prison, he was released after serving only 4
years. Jeff's family was denied a restraining order against the killer
and was told to contact local law enforcement if he comes on the
property. In January 2002, the killer kidnapped and murdered Jeff's 5-
year old son and committed suicide. It is for families like the Wellers
that we need to pass this bill--and there are so many. Yet, S. 2329
gives victims the right to be reasonably protected from the accused.
In my home state of Utah, Pam Kouris lost her 11-year old son,
Michael, when he was hit by a car while riding his bicycle. The
negligent driver was a police officer who was under the influence of
pain killers, muscle relaxers and Valium. He ultimately pled guilty but
he was not sentenced until 5\1/2\ years after Michael's death and he
received probation. It is for people like Pam that we are passing this
legislation to protect her right to proceedings free from unreasonable
delay.
In addition to those rights, the bill also establishes other
fundamental rights for victims, including the right to reasonable
notice of public criminal proceedings, the right not to be excluded
from those proceedings, and the right to be heard reasonably when a
court is considering a criminal's release, plea or sentence. The bill
also guarantees victims the right to confer with a Government attorney,
the right to full and timely restitution, the right to proceedings free
from unreasonable delay, and importantly, the right to be treated with
fairness and with respect for the victim's dignity and privacy.
The bill also directs the Department of Justice to promulgate
regulations to enforce these rights and to create an administrative
authority to receive and investigate complaints relating to the
violation of the rights of crime victims. This administrative remedy
creates a framework to quickly enforce victims' rights.
Moreover, the bill provides that victims will have standing to sue in
Federal court if they are wrongly denied these rights. For those who
may be concerned that this bill might lead to new tort causes of
action, let me assure you, that victims are not seeking to sue the
government and get rich. All the victims want is a chance to
participate in the criminal justice process. Accordingly, the bill
states that there will be no cause of action for damages.
Public support for victims' rights protection is very strong. All 50
states have some form of victims' rights measures at a statutory or
court-based level and 33 states have passed state constitutional
amendments to protect victims' rights.
In sum, this bill has strong bipartisan support and I strongly urge
my colleagues on both sides of the aisle to vote for this important
legislation.
It is time to quit playing around and get this done. It is time to do
what is right. The constitutional amendment itself, had we been able to
bring that up, has been criticized because people around here say we
should never amend the Constitution, it is perfect as it is.
One reason some members want to amend the Constitution is to get it
back to where it really was. In other words, we have courts that have
gone way beyond the pale and have amended the Constitution by judicial
fiat. Most of these constitutional amendments, I have found through the
years, have been to get the Constitution back where it really belongs,
away from rogue judges just deciding on their own to amend the
Constitution because they are in a position that some believe, as
Federal judges, is the closest thing to God in this life. Frankly, some
of them take advantage of that.
In the process, we wish we could get back to where the people rule
and where the Constitution was before they changed it by judicial fiat.
There are a number of reasons why judicial fiat has changed the laws
with regard to victims' rights. Frankly, this bill will get us back to
a point where we will be making headway on victims' rights and
protecting the rights of those who have been suffering far too long.
I compliment my two dear friends and colleagues on the Judiciary
Committee and others in this Congress who have worked so hard to see
this come to fruition.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KYL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. I ask unanimous consent Senator Kohl be added as a cosponsor
to the legislation pending.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, notwithstanding the previous order, I ask the
technical amendment which is at the desk be considered and agreed to
and--I withhold on that request for a moment.
The PRESIDING OFFICER. The request is withheld.
Mr. REID. I apologize to my friend from Arizona. It is certainly not
his fault. I told him it had all been cleared. I thought it had.
Senator Feinstein has cleared it; obviously, there are a couple more
people.
Mr. KYL. I withdraw the request until it is clear.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KYL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3047
Mr. KYL. Notwithstanding the previous order, I ask the technical
amendment at the desk be considered and agreed to and the motion to
reconsider be laid upon the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3047) was agreed to, as follows:
On page 7, line 24, strike the first period and insert the
following: ``, subject to appropriation.''.
On page 10, line 20, strike the first period and insert the
following: ``, subject to appropriation.''.
Mr. KYL. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, how much time remains on this matter now
before the Senate?
The PRESIDING OFFICER. The Senator from Utah has 16 minutes, the
Senator from Vermont, 12.
Mr. REID. Mr. President, I yield back the time of the Senator from
Vermont.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, I ask unanimous consent that Senator Shelby
be added as a cosponsor of the legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, on behalf of Senator Hatch, I yield back the
time that he has remaining.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
Mr. KYL. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The bill having been read the third time, the question is, Shall the
bill, as amended, pass?
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Colorado (Mr.
Campbell) and the Senator from Pennsylvania (Mr. Specter) are
necessarily absent.
Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry)
is necessarily absent.
[[Page S4279]]
The PRESIDING OFFICER (Mr. Crapo). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 96, nays 1, as follows:
[Rollcall Vote No. 70 Leg.]
YEAS--96
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Cantwell
Carper
Chafee
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham (FL)
Graham (SC)
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Stabenow
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
Wyden
NAYS--1
Hollings
NOT VOTING--3
Campbell
Kerry
Specter
The bill (S. 2329), as amended, was passed, as follows:
S. 2329
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Scott Campbell, Stephanie
Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime
Victims' Rights Act''.
SEC. 2. CRIME VICTIMS' RIGHTS.
(a) Amendment to Title 18.--Part II of title 18, United
States Code, is amended by adding at the end the following:
``CHAPTER 237--CRIME VICTIMS' RIGHTS
``Sec.
``3771. Crime victims' rights.
``Sec. 3771. Crime victims' rights
``(a) Rights of Crime Victims.--A crime victim has the
following rights:
``(1) The right to be reasonably protected from the
accused.
``(2) The right to reasonable, accurate, and timely notice
of any public proceeding involving the crime or of any
release or escape of the accused.
``(3) The right not to be excluded from any such public
proceeding.
``(4) The right to be reasonably heard at any public
proceeding involving release, plea, or sentencing.
``(5) The right to confer with the attorney for the
Government in the case.
``(6) The right to full and timely restitution as provided
in law.
``(7) The right to proceedings free from unreasonable
delay.
``(8) The right to be treated with fairness and with
respect for the victim's dignity and privacy.
``(b) Rights Afforded.--In any court proceeding involving
an offense against a crime victim, the court shall ensure
that the crime victim is afforded the rights described in
subsection (a). The reasons for any decision denying relief
under this chapter shall be clearly stated on the record.
``(c) Best Efforts To Accord Rights.--
``(1) Government.--Officers and employees of the Department
of Justice and other departments and agencies of the United
States engaged in the detection, investigation, or
prosecution of crime shall make their best efforts to see
that crime victims are notified of, and accorded, the rights
described in subsection (a).
``(2) Conflict.--In the event of any material conflict of
interest between the prosecutor and the crime victim, the
prosecutor shall advise the crime victim of the conflict and
take reasonable steps to direct the crime victim to the
appropriate legal referral, legal assistance, or legal aid
agency.
``(3) Notice.--Notice of release otherwise required
pursuant to this chapter shall not be given if such notice
may endanger the safety of any person.
``(d) Enforcement and Limitations.--
``(1) Rights.--The crime victim, the crime victim's lawful
representative, and the attorney for the Government may
assert the rights established in this chapter. A person
accused of the crime may not obtain any form of relief under
this chapter.
``(2) Multiple crime victims.--In a case where the court
finds that the number of crime victims makes it impracticable
to accord all of the crime victims the rights contained in
this chapter, the court shall fashion a procedure to give
effect to this chapter.
``(3) Writ of mandamus.--If a Federal court denies any
right of a crime victim under this chapter or under the
Federal Rules of Criminal Procedure, the Government or the
crime victim may apply for a writ of mandamus to the
appropriate court of appeals. The court of appeals shall take
up and decide such application forthwith and shall order such
relief as may be necessary to protect the crime victim's
ability to exercise the rights.
``(4) Error.--In any appeal in a criminal case, the
Government may assert as error the district court's denial of
any crime victim's right in the proceeding to which the
appeal relates.
``(5) New trial.--In no case shall a failure to afford a
right under this chapter provide grounds for a new trial.
``(6) No cause of action.--Nothing in this chapter shall be
construed to authorize a cause of action for damages.
``(e) Definitions.--For the purposes of this chapter, the
term `crime victim' means a person directly and proximately
harmed as a result of the commission of a Federal offense. In
the case of a crime victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal guardians
of the crime victim or the representatives of the crime
victim's estate, family members, or any other persons
appointed as suitable by the court, may assume the crime
victim's rights under this chapter, but in no event shall the
defendant be named as such guardian or representative.
``(f) Procedures To Promote Compliance.--
``(1) Regulations.--Not later than 1 year after the date of
enactment of this chapter, the Attorney General of the United
States shall promulgate regulations to enforce the rights of
crime victims and to ensure compliance by responsible
officials with the obligations described in law respecting
crime victims.
``(2) Contents.--The regulations promulgated under
paragraph (1) shall--
``(A) establish an administrative authority within the
Department of Justice to receive and investigate complaints
relating to the provision or violation of the rights of a
crime victim;
``(B) require a course of training for employees and
offices of the Department of Justice that fail to comply with
provisions of Federal law pertaining to the treatment of
crime victims, and otherwise assist such employees and
offices in responding more effectively to the needs of crime
victims;
``(C) contain disciplinary sanctions, including suspension
or termination from employment, for employees of the
Department of Justice who willfully or wantonly fail to
comply with provisions of Federal law pertaining to the
treatment of crime victims; and
``(D) provide that the Attorney General, or the designee of
the Attorney General, shall be the final arbiter of the
complaint, and that there shall be no judicial review of the
final decision of the Attorney General by a complainant.''.
(b) Table of Chapters.--The table of chapters for part II
of title 18, United States Code, is amended by inserting at
the end the following:
``237. Crime victims' rights................................3771''.....
(c) Repeal.--Section 502 of the Victims' Rights and
Restitution Act of 1990 (42 U.S.C. 10606) is repealed.
SEC. 3. INCREASED RESOURCES FOR ENFORCEMENT OF CRIME VICTIMS'
RIGHTS.
(a) Crime Victims Legal Assistance Grants.--The Victims of
Crime Act of 1984 (42 U.S.C. 10601 et seq.) is amended by
inserting after section 1404C the following:
``SEC. 1404D. CRIME VICTIMS LEGAL ASSISTANCE GRANTS.
``(a) In General.--The Director may make grants as provided
in section 1404(c)(1)(A) to State, tribal, and local
prosecutors' offices, law enforcement agencies, courts,
jails, and correctional institutions, and to qualified public
and private entities, to develop, establish, and maintain
programs for the enforcement of crime victims' rights as
provided in law.
``(b) False Claims Act.--Notwithstanding any other
provision of law, amounts collected pursuant to sections 3729
through 3731 of title 31, United States Code (commonly known
as the `False Claims Act'), may be used for grants under this
section, subject to appropriation.''.
(b) Authorization of Appropriations.--In addition to funds
made available under section 1402(d) of the Victims of Crime
Act of 1984, there are authorized to be appropriated to carry
out this Act--
(1) $2,000,000 for fiscal year 2005 and $5,000,000 for each
of fiscal years 2006, 2007, 2008, and 2009 to United States
Attorneys Offices for Victim/Witnesses Assistance Programs;
(2) $2,000,000 for fiscal year 2005 and $5,000,000 in each
of the fiscal years 2006, 2007, 2008, and 2009, to the Office
for Victims of Crime of the Department of Justice for
enhancement of the Victim Notification System;
(3) $300,000 in fiscal year 2005 and $500,000 for each of
the fiscal years 2006, 2007, 2008, and 2009, to the Office
for Victims of Crime of the Department of Justice for staff
to administer the appropriation for the support of the
National Crime Victim Law Institute or other organizations as
designated under paragraph (4);
(4) $7,000,000 for fiscal year 2005 and $11,000,000 for
each of the fiscal years 2006, 2007, 2008, and 2009, to the
Office for Victims of Crime of the Department of Justice, for
the support of--
(A) the National Crime Victim Law Institute and the
establishment and operation of the Institute's programs to
provide counsel
[[Page S4280]]
for victims in criminal cases for the enforcement of crime
victims' rights in Federal jurisdictions, and in States and
tribal governments that have laws substantially equivalent to
the provisions of chapter 237 of title 18, United States
Code; or
(B) other organizations substantially similar to that
organization as determined by the Director of the Office for
Victims of Crime.
(c) Increased Resources To Develop State-of-the-Art Systems
for Notifying Crime Victims of Important Dates and
Developments.--The Victims of Crime Act of 1984 (42 U.S.C.
10601 et seq.) is amended by inserting after section 1404D
the following:
``SEC. 1404E. CRIME VICTIMS NOTIFICATION GRANTS.
``(a) In General.--The Director may make grants as provided
in section 1404(c)(1)(A) to State, tribal, and local
prosecutors' offices, law enforcement agencies, courts,
jails, and correctional institutions, and to qualified public
or private entities, to develop and implement state-of-the-
art systems for notifying victims of crime of important dates
and developments relating to the criminal proceedings at
issue in a timely and efficient manner, provided that the
jurisdiction has laws substantially equivalent to the
provisions of chapter 237 of title 18, United States Code.
``(b) Integration of Systems.--Systems developed and
implemented under this section may be integrated with
existing case management systems operated by the recipient of
the grant.
``(c) Authorization of Appropriations.--In addition to
funds made available under section 1402(d), there are
authorized to be appropriated to carry out this section--
``(1) $5,000,000 for fiscal year 2005; and
``(2) $5,000,000 for each of the fiscal years 2006, 2007,
2008, and 2009.
``(d) False Claims Act.--Notwithstanding any other
provision of law, amounts collected pursuant to sections 3729
through 3731 of title 31, United States Code (commonly known
as the `False Claims Act'), may be used for grants under this
section, subject to appropriation.''.
SEC. 4. REPORTS.
(a) Administrative Office of the United States Courts.--Not
later than 1 year after the date of enactment of this Act and
annually thereafter, the Administrative Office of the United
States Courts, for each Federal court, shall report to
Congress the number of times that a right established in
chapter 237 of title 18, United States Code, is asserted in a
criminal case and the relief requested is denied and, with
respect to each such denial, the reason for such denial, as
well as the number of times a mandamus action is brought
pursuant to chapter 237 of title 18, and the result reached.
(b) General Accounting Office.--
(1) Study.--The Comptroller General shall conduct a study
that evaluates the effect and efficacy of the implementation
of the amendments made by this Act on the treatment of crime
victims in the Federal system.
(2) Report.--Not later than 3 years after the date of
enactment of this Act, the Comptroller General shall prepare
and submit to the appropriate committees a report containing
the results of the study conducted under subsection (a).
Mr. FRIST. Mr. President, I want to take a moment to comment on the
passage today of the Crime Victims' Rights Act. I am gratified by the
overwhelming, bipartisan support for this crucial legislation.
I especially thank the Senator from Arizona, Jon Kyl, and the Senator
from California, Dianne Feinstein, for their labor over the past
several years on behalf of a constitutional amendment, and for their
efforts over the past days to write into Federal law appropriate
protections for victims of crime across the country. Without their
dedication we would not have this victory.
While a constitutional amendment is preferable, this victims' rights
Federal statute represents a significant improvement over the status
quo. It ensures that crime victims have the right to fair treatment in
the criminal justice system. It will give crime victims new legal
standing to enforce their rights in court.
Too often, victims are shut out of the criminal justice process. They
aren't informed of hearings, plea deals, trial dates and sentencing, or
of parole hearings once their attacker is convicted.
The system rightly strives to protect the rights of defendants. But
too often it overlooks the rights of the victims.
Take, for example, the case of Jeanne Brykalski of Knoxville, TN.
Nine years ago, Jeanne lost both of her parents in a double homicide.
It was a Friday night, Jeanne's parents, Lester and Carol Dotts, went
out for dinner. When they returned, they surprised three burglars in
the act of looting their home.
Jeanne's mother was shot seven times, once at point-blank range in
the head. Her father was shot six times, first in the neck and then
repeatedly while he lay crumpled on the floor. The assailants seized
Jeanne's mother's purse. And in a final grisly act, stole her father's
wallet from his back pocket as he lay dying.
Jeanne's parents would have celebrated their 45th anniversary that
summer.
She tells my office:
Something like this you never get over. At first you don't
sleep. You can't sleep, because when you close your eyes,
horrible images flood your mind. When you finally can sleep,
that's when the nightmares come.
Jeanne found out about the first of the three perpetrators' public
hearings on the front page of the local paper. As Jeanne recounts it,
one morning before work, her husband went outside to fetch the paper
from the delivery box. He came back in and tossed it on the kitchen
table, telling her, ``You'll want to read this.''
Says Jeanne:
I saw the headline, and of course had to keep reading. And
then I found out for the first time the gruesome details of
how my parents were murdered. I completely fell apart. And I
still had to go to work that day.
Jeanne says it took a long time for the justice system to acknowledge
her need to be a part of the process. In fact, on three occasions, she
showed up for hearings that she was never told were canceled. The
youngest of the perpetrators was plea bargained without Jeanne and her
husband being informed.
Her experience with the system led her to become a volunteer for the
East Tennessee Victims' Rights Task Force.
Says Jeanne:
All we want is equality and fair play in the courtroom. We
want to be treated with courtesy and respect. I don't think
that's too much to ask for.
Mr. President, nor do I. And that is why I strongly support the Crime
Victims' Rights Act and look forward to getting this bill to the
President's desk.
My home State of Tennessee has a Victims Bill of Rights. It was
passed in November of 1998.
Anna Whalley, clinical coordinator of the Shelby County Crime Victims
Center, tells my office that the law has improved the status of victims
in the Tennessee justice system. Judges are now getting used to seeing
victims in their courtrooms and are making their courtrooms more
comfortable and accommodating.
Because the Tennessee law does not provide funding, however, victims
continue to fall through the cracks. There simply is not enough money
to stay on top of all of the cases and keep victims informed throughout
the judicial process.
The Crime Victims' Rights Act wisely addresses this problem. It
provides legal assistance grants to help local law enforcement agencies
promote victims' rights.
It also authorizes over $97 million over the next 5 years to broadly
carry out the legislation's goals.
Mr. President, we are not all the way there. Our ultimate goal is to
pass a victims' rights constitutional amendment. But this legislation
represents a significant leap forward.
I thank my colleagues for their support today.
As we all agree, victims have rights, too.
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