Statement of Senator Dianne Feinstein
on the Crime Victims' Rights Amendment
July 17, 2002

Washington, DC - The Senate Judiciary Subcommittee on the Constitution today held a hearing on a constitutional amendment sponsored by Senators Dianne Feinstein (D-Calif.) and Jon Kyl (R-AZ) that gives protections to victims of violent crimes.

President George W. Bush and Attorney General John Ashcroft endorsed the amendment at Justice Department ceremony in April. At the ceremony, President Bush said the amendment was "written with care" and "strikes the right balance." The following is the prepared text of Senator Feinstein's statement:

"Last year, the Senate debated a proposed constitutional amendment drafted by Senator Kyl and me to protect the rights of victims of violent crime. The amendment had been reported out of the Senate Judiciary Committee on a strong bipartisan vote of 12 to 5. After 82 senators voted to proceed to consideration of the amendment, there was a vigorous debate on the floor of the Senate.

Some senators raised concerns about the amendment, saying that it was too long or that it read too much like a statute. Ultimately, in the face of a threatened filibuster, Senators Kyl and I decided to withdraw the amendment. We then hunkered down with constitutional experts such Professor Larry Tribe of Harvard Law School to see if we could revise the amendment to meet senators' concerns. We also worked with constitutional experts at the Department of Justice and the White House.

And we have now come up with a new and improved draft of the amendment. This new amendment provides many of the same rights as the old amendment. Specifically, the amendment would give crime victims the rights to be notified, present, and heard at critical stages throughout their case. It would ensure that their views are considered and they are treated fairly. It would ensure that their interest in a speedy resolution of the case, safety, and claims for restitution are not ignored. And it would do so in a way that would not abridge the rights of defendants or offenders, or otherwise disrupt the delicate balance of our Constitution.

There are many reasons why we need a constitutional amendment.

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

To level the playing field, crime victims need rights in the U.S. Constitution. In the event of a conflict between a victim's and a defendant's rights, the court will be able to balance those rights and determine which party has the most compelling argument.

Second, a constitutional amendment will fix the patchwork of victims' rights laws. Eighteen states lack state constitutional victims' rights amendments. And the 32 existing state victims' rights amendments differ from each other. Also, virtually every state has statutory protections for victims, but these vary considerably across the country. Only a federal constitutional amendment can ensure a uniform national floor for victims' rights.

Third, a constitutional amendment will restore rights that existed when the Constitution was written. It is a little 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 99 percent of victims of violent crime. We should acknowledge that federal statutes have been tried and found wanting. It is time for us to amend the U.S. Constitution.

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

Mr. President, there is strong and wide support for a constitutional amendment. I am pleased that President Bush and Attorney General Ashcroft have endorsed the amendment. I greatly appreciate their support.

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

Moreover, in the last Congress, the Victims' Rights Amendment was cosponsored by a bipartisan group of 41 Senators. I have spoken to many of my colleagues about the amendment we introduce today and I am hopeful that it will receive even more support in this Congress. In addition:

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

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

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

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