Senate Judiciary Committee Approves Kyl/Feinstein Crime Victims' Rights
Constitutional Amendment
September 4, 2003

Washington, DC - The Senate Judiciary Committee today approved a constitutional amendment sponsored by Senators Jon Kyl (R-AZ) and Dianne Feinstein (D-Calif.) that would guarantee victims of violent crime the rights to be notified, present, and heard at critical stages throughout their case in criminal proceedings.

Specifically, the amendment would guarantee that victims of violent crime shall have: the right to reasonable and timely notice of any public proceeding involving the crime and of any release or escape of the accused; the right not to be excluded from public criminal proceedings relating to the crime committed against them; the right to be reasonably heard at such public proceedings, including pleas, sentencings, reprieves, and pardon proceedings; and the right to decisions in proceedings that consider the victim's safety, interest in avoiding unreasonable delay, and just and timely claims to restitution from the offender. The following is the prepared text of Senator Feinstein's statement:

"Today's action is one small step forward for victims' rights in what is a long and difficult road. This amendment will rise and fall on the floor of the House and the Senate based on victims weighing-in in support. Sixty-seven votes are difficult to obtain. We have worked hard over many years on this measure. Now the Senate must hear strongly from the victims across this great nation.

This amendment would give crime victims the rights to be notified, present, and heard at critical stages throughout their case. It would ensure that their views are considered and they are treated fairly. It would ensure that their interest in a speedy resolution of the case, safety, and claims for restitution are not ignored. And it would do so in a way that would not abridge the rights of defendants or offenders, or otherwise disrupt the delicate balance of our Constitution.

The amendment currently has 24 cosponsors, including a majority of the members of this subcommittee. It has also been endorsed by President Bush and by Attorney General Ashcroft.

There are many reasons why we need a constitutional amendment. First, a constitutional amendment will balance the scales of justice. Currently, while criminal defendants have almost two dozen separate constitutional rights-fifteen of them provided by amendments to the U.S. Constitution-there is not a single word in the Constitution about crime victims. These rights trump the statutory and state constitutional rights of crime victims because the U.S. Constitution is the supreme law of the land. To level the playing field, crime victims need rights in the U.S. Constitution.

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

Second, a constitutional amendment will fix the patchwork of victims' rights laws. Seventeen states lack state constitutional victims' rights amendments. And the 33 existing state victims' rights amendments differ from each other. Also, virtually every state has statutory protections for victims, but these vary considerably across the country. Only a federal constitutional amendment can ensure a uniform national floor for victims' rights.

Third, a constitutional amendment will restore rights that existed when the Constitution was written. It is a little known fact that at the time the Constitution was drafted, it was standard practice for victims-not public prosecutors-to prosecute criminal cases. Because victims were parties to most criminal cases, they enjoyed the basic rights to notice, to be present, and be heard. Hence, it is not surprising that the Constitution does not mention victims. Now, of course, it is extremely rare for a victim to undertake a criminal prosecution. Thus, victims have none of the basic procedural rights they used to enjoy. Victims should receive some of the modest notice and participation rights they enjoyed at the time that the Constitution was drafted.

Fourth, a constitutional amendment is necessary because mere state law is insufficient. State victims' rights laws lacking the force of federal constitutional law are often given short shrift. A Justice Department-sponsored study and other studies have found that, even in states with strong legal protections for victims' rights, many victims are denied those rights. The studies have also found that statutes are insufficient to guarantee victims' rights. Only a federal constitutional amendment can ensure that crime victims receive the rights they are due.

Fifth, a constitutional amendment is necessary because federal statutory law is insufficient. The leading statutory alternative to the Victims' Rights Amendment would only directly cover certain violent crimes prosecuted in federal court. Thus, it would slight more than 98 percent of victims of violent crime. We should acknowledge that federal statutes have been tried and found wanting. It is time for us to amend the U.S. Constitution.

The Oklahoma City bombing case offers another reason why we need a constitutional amendment. This case shows how even the strongest federal statute is too weak to protect victims in the face of a defendant's constitutional rights.

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

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

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

That statute further states that federal government officers and employees 'engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that victims of crime are accorded the[se] rights.' The law also provides that '[t]his section does not create a cause of action or defense in favor of any person arising out of the failure to accord to a victim the[se] rights.'

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

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

The judge denied the motion. The victims were then given until the lunchbreak to decide whether to watch the proceedings or remain eligible to testify at a sentencing hearing. In the hour that they had, some of the victims opted to watch the proceedings; others decided to leave to remain eligible to testify at the sentencing hearing.

Subsequently, the Justice Department asked the court to reconsider its order in light of the 1990 Victims' Bill of Rights. Bombing victims then filed their own motion to raise their rights under the Victims' Bill of Rights. The court denied both motions. With regard to the victims' motion, the judge held that the victims lacked standing.

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

The victims and DOJ separately appealed to the Court of Appeals for the 10^th Circuit. That court ruled that the victims lacked standing under Article III of the Constitution because they had no 'legally protected interest' to be present at trial and thus had suffered no 'injury in fact' from their exclusion.

The victims and DOJ then asked the entire 10^th Circuit to review that decision. Forty-nine members of Congress, all 6 attorneys general in the 10^th Circuit, and many of the leading crime victims' organizations filed briefs in support of the victims. All to no avail.

The Victims' Clarification Act of 1997 was then introduced in Congress. That act provided that watching a trial does not constitute grounds for denying victims the chance to provide an impact statement. This bill passed the House 414 to 13 and the Senate by unanimous consent. Two days later, President Clinton signed it into law, explaining that 'when someone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in.'

The victims then filed a motion asserting a right to attend the trial under the new law. However, the judge declined to apply the law as written. He concluded that 'any motions raising constitutional questions about this legislation would be premature and would present questions issues that are not now ripe for decision.'

Moreover, he held that it could address issues of possible prejudicial impact from attending the trial by interviewing the witnesses after the trial. The judge also refused to grant the victims a hearing on the application of the new law, concluding that his ruling rendered their request 'moot.' The victims then faced a painful decision: watch the trial or preserve their right to testify at the sentencing hearing. Many victims gave up their right to watch the trial as a result.

A constitutional amendment would help ensure that victims of a domestic terrorist attack such as the Oklahoma City bombing have standing and that their arguments for a right to be present are not dismissed as 'unripe.' A constitutional amendment would give victims of violent crime an unambiguous right to watch a trial and still testify at sentencing.

There is strong and wide support for a constitutional amendment. As I mentioned, President Bush and Attorney General Ashcroft have endorsed the amendment. I greatly appreciate their support. And I am also pleased that both former President Clinton and former Vice President Gore have all expressed support for a constitutional amendment on victims' rights.

In addition:

• Both the Democratic and Republican Party Platforms call for a victims' rights amendment.
• Governors in 49 out of 50 states have called for an amendment.
• Four former U.S. Attorneys General, including Attorney General Reno, support an amendment. Attorney General Ashcroft supports an amendment.
• Forty-two state attorneys general support an amendment
  

Major national victims' rights groups-including Parents of Murdered Children, Mothers Against Drunk Driving (MADD), and the National Organization for Victim Assistance-support the amendment. Many law enforcement groups, including the National Association of Police Organizations, the International Association of Chiefs of Police, the International Union of Police Associations AFL-CIO, and the Federal Law Enforcement Officers Association, support an amendment. Constitutional scholars such as Harvard Law School Professor Larry Tribe support an amendment.

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

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