Member of Congress

Dianne Feinstein

Role: Former Senator
State: CA
Party: Democrat

Speeches

TRADE AND DEVELOPMENT ACT OF 2000--CONFERENCE REPORT--Resumed2000-05-10

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the Senator from Minnesota for his spirited comments and also for his support of having two Capitol Police officers at each entry. I want him to know, as the ranking member on the Legislative Branch Appropriations Subcommittee, I am fully supportive of that request. I believe the chairman, Senator Bennett, is as well. Because he approached me with a big smile and I very much like it when the Senator from Texas smiles rather than frowns, I ask unanimous consent to amend my unanimous consent agreement to permit him to speak for 4 minutes and that I retain my right to the floor.

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TRADE AND DEVELOPMENT ACT OF 2000--CONFERENCE REPORT--Continued2000-05-10

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to address the conference report on the African Growth and Opportunity Act and to express my deep disappointment that the conference decided to strip out of the report the amendment which has been spoken about on this floor which addresses HIV/AIDS in sub-Saharan Africa. This is an amendment I offered with the Senator from Wisconsin, Mr. Feingold. This amendment was accepted by the Senate, and it was intended to provide African countries experiencing an HIV/AIDS crisis with the ability to institute measures consistent with the World Trade Organization intellectual property rules that are designed to ensure the distribution of pharmaceuticals and medical technology to afflicted populations. We offered this amendment because we believed the act inadvertently threatened to undermine the fight against HIV/AIDS in Africa. Our amendment was a simple, commonsense approach consistent with international law to fix this oversight. I believe the action of the conference in stripping this amendment was unconscionable. I found it especially disappointing because my office and staff had been working with the chairman of the Finance Committee, Mr. Roth, to develop compromise language that met our concerns and would be acceptable to the conference. Chairman Roth negotiated in good faith, and he and the other Senate conferees--Mr. Moynihan, Mr. Biden, and Mr. Baucus--wanted to do the right thing. Unfortunately, as I understand it, because of the way in which the House and Senate Republican leadership dealt with this conference, the majority leader and the Speaker, as I have been told, decided my amendment was to be eliminated and presented a take-it-or- leave-it offer to the conferees. The conference was never really even given a chance to address this issue. Perhaps they did not understand the full impact of what is happening in Africa, and in these remarks I hope to make both the extent and the nature of the AIDS crisis better known. I say this as someone who supports the legislation. I voted in favor of it. I believe the underlying principles of this legislation--opening up new possibilities for economic engagement and trade between the United States and the countries of sub-Saharan Africa--are good ones. I know the countries of this region want to receive the benefits of the bill which will assist their economic development and promote democracy in the region. I said in earlier remarks the problem is that the way things are going, there will not be an Africa left for this bill to help. I think people underestimate the impact of that statement. What I hope to do in these remarks is talk about the scope of the problem, give specific country reports, talk about the economic, social, and political impact of HIV/AIDS in sub-Saharan Africa, the need for affordable access to pharmaceuticals, what compulsory licensing and parallel importing is, and why the Feinstein-Feingold amendment is necessary. I want to talk about drug companies' revenues from these drugs and what else is to be done. But before I do so, I acknowledge the fact that this morning the White House has signed an Executive order to carry out the provisions of the Feinstein-Feingold amendment. At this point, I will read into the Record the following letter, dated May 10: I am pleased to inform you that today I will sign an Executive Order that is intended to help make HIV/AIDS- related drugs and medical technologies more accessible and affordable in beneficiary sub-Saharan African countries. The Executive Order, which is based in large part on your work in connection with the proposed Trade and Development Act of 2000, formalizes U.S. government policy in this area. It also directs other steps to be taken to address the spread of HIV and AIDS in Africa, one of the worse health crises the world faces. As you know, the worldwide HIV/AIDS epidemic has taken a terrible toll in terms of human suffering. Nowhere has the suffering been as great as in Africa, where over 5,500 people per day are dying from AIDS. Approximately 34 million people in sub-Saharan Africa have been infected, and, of those infected, approximately 11.5 million have died. These deaths represent more than 80 percent of the total HIV/AIDS- related deaths worldwide. To help those countries most affected by HIV/AIDS fight this terrible disease, the Executive Order directs the U.S. Government to refrain from seeking, through negotiation or otherwise, the revocation or revision of any law or policy imposed by a beneficiary sub-Saharan government that promotes access to HIV/AIDS pharmaceuticals and medical technologies. This order will give sub-Saharan governments the flexibility to bring life saving drugs and medical technologies to affected populations. At the same time, the order ensures that fundamental intellectual property rights of U.S. businesses and inventors are protected by requiring sub- Saharan governments to provide adequate and effective intellectual property protection consistent with World Trade Organization rules. In this way, the order strikes a proper balance between the need to enable sub-Saharan governments to increase access to HIV/AIDS pharmaceuticals and medical technologies and the need to ensure that intellectual property is protected. I know that you preferred that this policy be included in the Conference Report on the Trade and Development Act of 2000, as did I. However, through this Executive Order, the policy this Administration has pursued with your support will be implemented by the U.S. Government. The Executive Order will encourage beneficiary sub-Saharan African countries to build a better infrastructure to fight diseases like HIV/AIDS as they build better lives for their people. At the same time, the Trade and Development Act of 2000 will strengthen African economies, enhance African democracy, and expand U.S.-African trade. Together, these steps will enable the United States to forge closer ties with our African allies, broaden export opportunities for our workers and businesses, and promote our values around the world. Thank you for your leadership on this critically important issue. Sincerely, Bill Clinton. Mr. President, I ask unanimous consent that following my remarks, the Executive order itself be printed in the Record.

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Introductory Statement on S. 25252000-05-09

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, on any given day in the United States 80 people are killed by gun violence, 12 of them children. Seeking to bring an end to this senseless violence, supporters of sensible gun laws are coming together this Mothers' Day from all over the country to participate in the Million Mom March and say to Congress: ``Enough is Enough.'' We share a common purpose: The passage of sensible gun laws that will hopefully help save lives. This common goal includes moving forward with the four, common-sense gun measures passed by this body almost a full year ago--trigger locks, closing the gun show loophole, banning the importation of large capacity ammunition magazines, and banning juvenile possession of assault weapons. And beyond those four common sense measures, the mothers flooding into Washington are calling for legislation to license gun owners and keep track of guns. Earlier today, I stood with some of those moms, with Donna Dees- Thomases, the head of the Million Mom March, with Chief Ramsey of the District of Columbia Police Department, with representatives of Handgun Control and the Coalition to Stop Gun Violence, and with several of my colleagues to announce the introduction of a bill to take the next step in the fight to keep guns out of the hands of criminals and juveniles. And so I now rise to introduce the ``Firearm Licensing and Record of Sale Act of 2000,'' which I believe represents a common-sense approach to guns and gun violence in America. I am pleased to be joined in this effort by Senators Frank Lautenberg, Barbara Boxer and Charles Schumer. And I am pleased that Representative Marty Meehan from Massachusetts will soon be introducing this legislation in the House. I know that this will be an uphill battle, and I don't expect this bill to pass overnight. But it is my hope that in the coming months, more of our colleagues in both Houses will join us and help us to move this bill forward until we succeed. Mr. President, in this country, when you want to hunt, you get a hunting license; when you want to fish, you get a fishing license. But when you want to buy a gun, no license is necessary. That makes no sense. We register cars and license drivers. We register pesticides and license exterminators. We register animal carriers and researchers, we register gambling devices. And we register a whole host of other goods and activities--even ``international expositions,'' believe it or not, must be registered with the Bureau of International Expositions! But when it comes to guns and gun owners--no license and no registration, despite the loss of more than 32,000 lives a year from gun violence. To this end, I have worked with law enforcement officials and other experts in drafting the bill we are introducing today. Upon enactment of this legislation, anyone purchasing a handgun or semi-automatic weapon that takes detachable ammunition magazines will be required to have a license. Shotguns and a large number of common hunting guns are not covered by the requirements of this bill. Current owners of these weapons will have up to 10 years to obtain a license. The bill sets up a federal system, but allows states to opt out if they adopt a system at least as effective as the federal program. Under this bill, anyone wishing to obtain a firearm license will need to go to a federally licensed firearms dealer. There are currently more than 100,000 such dealers across the country--to put that in some perspective, there are four times more gun dealers in America than there are McDonald's restaurants in the entire world. Operating the federal licensing system through these licensed dealers will minimize the burden on those wishing to obtain a license. If a state opts-out of the federal program, an individual will go to a State-designated entity, like a local sheriff, local police department, or even Department of Motor Vehicles. It will all depend on where the state feels is best. Either way, the purchaser will then need to: Provide information as to date and place of birth and name and address; Submit a thumb print; Submit a current photograph; Sign, under penalty of perjury, that all of the submitted information is true and that the applicant is qualified under federal law to possess a firearm; Pass a written firearms safety test, requiring knowledge of the safe storage and handling of firearms, the legal responsibilities of firearm ownership, and other factors as determined by the state or federal authority; Sign a pledge to keep any firearm safely stored and out of the hands of juveniles (this pledge will be backed up by criminal penalties of up to three years in jail for anyone failing to do so); Undergo state and federal background checks. Licenses will be renewable every five years, and can be revoked at any time if the licensee becomes disqualified under federal law from owning or possessing a gun. And the fee for a license cannot exceed $25. Once the bill takes effect, all future sales and transfers of firearms falling within the scope of the bill will have to be recorded through a federally licensed firearms dealer, with an accompanying NICS background check. That way, law enforcement agencies will have easier access to information leading to the arrest of persons who use guns in crime. The bill covers both handguns and other guns that are semi-automatic and can accept detachable magazines. The legislation covers handguns because statistically, these guns are used in more crimes than any other. In fact, approximately 85 percent of all firearm homicides involve a handgun. And the legislation also covers semi-automatic firearms that can accept detachable magazines, because these are the kind of assault weapons that have the potential to destroy the largest number of lives in the shortest period of time. A gun that can take a detachable magazine can also take a large capacity magazine. Combine that with semi-automatic, rapid fire, and you have a deadly combination--as we have seen time and again in recent years. Put simply, this legislation will cover those firearms that represent the greatest threat to the safety of innocent men, women and children in this nation. Common hunting rifles, shotguns and other firearms that cannot accept detachable magazines will remain exempt. This represents a compromise between those who would rather not have this bill at all, and those of us who believe that universal coverage of all firearms would be appropriate. Penalties will vary depending on the severity of the violation. But in no case will gun owners face jail time simply because they forgot to get a license: Those who fail to get a license will face fines of between $500 (for a first offense) and $5,000 for subsequent offenses. Failing to report a change of address or the loss of a firearm will also result in penalties between $500 and $5,000, because this system works best for law enforcement when the perpetrators of gun crime can be quickly traced and arrested; Dealers who fail to maintain adequate records will face up to 2 years in prison--dealers know their responsibilities, and this will give law enforcement the tools necessary to root out bad dealers and prevent the straw purchases and other violations of law that allow criminals easy access to a continuing flow of guns; And adults who recklessly or knowingly allow a child access to a firearm face up to three years in prison if the child uses the gun to kill or seriously injure another person. In this way, the bill truly puts a new sense of responsibility onto gun owners in America. Mr. President, law enforcement in California tells me that a licensing and record of sale system like the one I am introducing today will help law enforcement, upon recovery of a firearm used in crime, to track the gun down to the person who sold it, and then to the person who bought it. And this legislation also sets in place a method through which we can better attempt to ensure that gun owners are responsible and trained in the use and care of their dangerous possessions. We have tried to minimize the burden of this bill at every turn: The licensing process will take place through federally licensed firearms dealers--as I mentioned earlier, there are currently more than 100,000 in this country; The fee for a license will be only $25; Current gun owners will have ten years to get a license, and guns now in homes will not have to be registered. Future gun transfers will simply be recorded by licensed dealers--as they are now--and a system will be put in place to allow the quick tracing of guns used in crime. Gun owners themselves will not have to register their old guns or send any paperwork to the government. Mr. President, this nation is awash in guns--there are more than 200 million of them in the United States. The problem of gun violence is not going away, and accidental deaths from firearms rob us of countless innocents each year. Too many lives are lost every year simply because gun owners do not know how to use or store their firearms--particularly around children. In fact, according to a study released early last year, in 1996 alone there were more than 1,100 unintentional shooting deaths and more than 18,000 firearm suicides--many of which might have been prevented if the person intent on suicide did not have easy access to a gun owned by somebody else. It is my hope that the provisions of this bill, particularly with regard to child access prevention, will begin the process of making it harder for children and others to gain easy access to firearms. I know that this bill will not pass overnight. We have a long process of education ahead of us. But the American people are with us. The facts are with us. And common sense is with us. I thank the Senate for its consideration of this measure, and I look forward to working with each of my colleagues to move this bill forward in the coming months.

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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS2000-05-09

Mrs. FEINSTEIN

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REAUTHORIZATION OF THE ELEMENTARY AND SECONDARY EDUCATION ACT2000-05-09

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, the Senate's consideration of elementary and secondary education policy offers us an opportunity to begin to institute some fundamental reforms of American public education. I fervently hope that the Senate does just that. I hope we will send to the President promptly a bill that brings about real change. In the past week, we have debated several approaches and today we will debate another. First, let me say that federal education funding is only 6 percent of total spending for elementary and secondary education. So in terms of dollars, the federal role is small. Public education spending and policy are largely set by local and state governments and that is the way it should be. Nevertheless, federal dollars can and should leverage other dollars and in writing legislation to revamp federal education policy, we have the opportunity to stimulate some real reforms. Why do we need reform? The numbers tell us a sad story. American students lag behind their international counterparts in many ways. American twelfth grade math students are outperformed by students from 21 other countries, scoring higher than students from only two countries, Cyprus and South Africa. Three-quarters of our school children cannot compose a well- organized, coherent essay. U.S. eighth graders score below the international average of 41 other countries in math. U.S. twelfth graders score among the lowest of 21 countries in both math and science general knowledge. Three-quarters of employers say that recent high school graduates do not have the skills they need to succeed on the job. Forty-six percent of college professors say entering students do not have the skills to succeed in college, according to a February Public Agenda poll. These statistics speak for themselves. Our schools are failing many of our youngsters. It is not the students' fault. It is our fault. We need major change. Our changing economy, particularly in my state, poses huge challenges for public education. Our young people must be able to compete not just nationally, but in the world because the economy today is a global economy. Here are a few examples: Our state's economy has moved away from manufacturing toward more higher-skilled, service and technology jobs. Since 1980, employment has increased in California by nearly 28 percent, but growth in the traditional fields, such as manufacturing, has been only six percent. Jobs in the ``new economy,'' fields such as services and trade, have jumped nearly 60 percent. California employers say job applicants lack basic skills. High tech CEOs come to Washington and ask us to increase visas so they can bring in skilled employees from overseas because they cannot find qualified employees in our state. Nationally, over the next 10 years, computer systems analyst jobs will grow by 94 percent; computer support specialists, by 102 percent; computer engineers, 108 percent. Jobs for the non-college educated are stagnating. Our economic strength is in large part dependent on how well we prepare our youngsters. And today, sadly, we are not preparing them very well by most measures. California's public schools have gone from being among the best to some of the worst. California has 5.8 million students, more students in public school than 36 states have in total population! California has 30 percent of the nation's school-age immigrant children. We have 41 percent (1.4 million) of the nation's students with limited English proficiency. We've gone from near the top rank in per pupil spending (we were 5th in the nation in 1965) to near the bottom. California ranks 46th today. In the 1960s California invested 20 percent above the national average per student in K-12 education. Today, California averages 20 percent below the national average. We have low test scores, crowded classrooms, uncredentialed teachers, teacher shortages, growing enrollments, decrepit buildings. Let's look at how California's students perform academically: In fourth grade math, 11 percent of students score at or above proficiency levels--11 percent In fourth grade reading, 20 percent. California ranks 32nd out of 36 states in the percent of eighth graders scoring at or above ``proficient'' on reading. For fourth grade readers, we rank 36 out of 39 states in reading. California ranks 34th out of 40 states in the percent of eighth graders scoring at or above ``proficient'' on science. California ranks 37th among the states in the high school graduation rate. Forty-eight percent of freshman students enrolling in the California's State University system need remedial math and English. California's students lag behind students from other states. Only about 40 to 45 percent of the state's students score at or above the national median, on the Stanford 9 reading and math tests. These are dismal, disappointing and disturbing statistics. What does this mean for California's future, when our high school graduates cannot read, write, multiply, divide or add, find China on a map, fill out an employment application or read a bus schedule? These are not abstract facts. These are real examples of the weaknesses in our education system. The Center for the Continuing Study of the California Economy--a highly respected think tank--put it quite bluntly: ``Ranking in the bottom 20 percent of all states is simply not compatible with meeting the requirements of industries which will lead California in a world economy.'' In addition to low academic performance, we have a virtual litany of other problems: California has one of the highest student-teacher ratios in the nation, even though we are reducing class sizes in the early grades. We will need 300,000 new teachers by 2010. Currently, 11 percent or 30,000 of our 285,000 teachers are on emergency credentials. We're 50th in computers per child and 43rd in schools with Internet access. We need to add about 327 new schools over the next 3 years just to keep pace with projected growth. We need $22 billion to build and repair schools and $10 billion to install instructional technology, according to the National Education Association report that just came out on May 3. Two million California children go to school today in 86,000 portable classrooms. Our Head Start programs serve only 13 percent of eligible children. We have 40 percent of the nation's immigrants. We have 41 percent of the nation's limited English proficient students. Some of our schools have 50 languages spoken. These challenges will be exacerbated multi-fold. California has nearly 34 million people today, with schools, and roads, and other infrastructure that were built when the population was 16 million. And our population is projected to increase to almost 50 million over the next 25 years. California's school enrollment rate between now and 2007 will be triple the national rate. But California's education system cannot be fixed with just bricks, mortar and electrical wiring. The problems are much, much deeper than that. The bottom line is this: tinkering around the edges of a failing system is not meaningful change. Nothing short of a major restructuring will turn around our schools. The condition of public education in California troubles me greatly because this is an area of human endeavor that is critical to the future of our state. California's public school system can be turned around. It will be painful. It will not be easy. But it can be done. And we have to start. So the question is, what should we do. In my view, we should base our efforts on two key principles: performance and accountability. The success of our schools must be measured, not by what we put into our classrooms, but what comes out. There several core elements of education reform: That basic achievement levels be set for students for every grade in all core subjects. These standards should be phased in over a period of years, and measured at key levels, such as 4th, 6th, and 10th grades. That social promotion of students be ended. Promotion from one grade level to the next should be based on measured levels of achievement-- period. Intensive intervention programs must be provided for those who fall short and who need extra help. Extra, intervention or remedial programs must accompany the end of social promotion because clearly, retention should not replace the ending of social promotion. That standards be set to measure a school's achievement. That class size be reduced and phased in over 10 years. That school size be reduced. Educators tell us that elementary schools should be limited to 450 students. That the length of both the school day and the school year be increased, thereby increasing both instructional time for students as well as instructional development time for teachers. In most states, the school year is 180 days. In other industrialized nations, students spend more time in the classroom, and teachers have more time for instructional development each year. For example, in Korea the school year is 220 days. In Japan it is 220. In Israel it is 216, and in Great Britain, 190. That public school choice be increased. And that teacher training and pay be improved, to elevate teaching to a respected and competitive position. I have proposed, for example, master teachers who mentor and coach other teachers, especially those in their first year in the classroom and who get salaries commensurate with that role. Today, I intend to vote for Senator Lieberman's reform proposal because I believe it takes a fresh approach to federal education policy and will bring us ``more bang'' for our education bucks by linking real reforms to federal dollars. Here is what the Lieberman amendment does. It does three things. First, it takes almost 50 current, disparate federal education programs and consolidates them into five performance-based grants: educating disadvantaged children; improving teacher quality; teaching English to non-English-speaking children; expanding pubic school choice; and supporting high performance initiatives. Second, the amendment increases authorized funding levels: educating disadvantaged children (Title I), a 50 percent increase, from $7.9 billion to $12 billion; teacher training, a 100 percent increase from $620 million to $1.6 billion; teaching English to non-English-speaking children, a 250 percent increase, from $380 million to $1 billion; public school choice, from $145 million to $300 million; high performance initiatives, a new infusion of $2.7 billion. Third, instead of the funds just going out the door without ever knowing any results, the Lieberman amendment requires for each of the five areas, that states demonstrate improvement. How does it do that? Accountability. The amendment has several important elements. It requires states to have content and performance standards in at least English language arts, math and science. It requires states to define ``adequate yearly progress'' (AYP) and requires 90 percent of school districts to meet AYP, and within school districts, 90 percent of schools to meet AYP. It requires school districts to identify failing schools and after two years and requires those schools to develop an improvement plan. Every school district must have a system of corrective action for failing schools. The amendment gives states three years to implement their own accountability systems; requires states to sanction districts that do not meet their annual performance targets; cuts administrative funds if states do not meet objectives; authorizes funds to correct low- performing schools. For Title I, each state must develop plans to ensure that all children are proficient in math and reading within 10 years. Each states must set performance goals for increasing overall academic achievement and for closing the gap between high- and low-income students, minority and non-minority students, limited English proficient children and non-LEP students. On teachers, it requires that states have all teachers fully qualified by 2005. It preserves the class size reduction program. For non- or limited English-speaking children, it requires states to develop standards for measuring English proficiency, to set performance goals and to require school districts to make adequate yearly progress in core academic subjects. On public school choice, it requires states to hold charter and non- traditional schools accountable to the same content and performance standards as any other public school. It allows students in failing schools to transfer to another public school. It requires states to have annual performance goals and a plan for holding local districts accountable. It rewards districts that meet or exceed their performance goals. If states do not show improvement in three years, they lose administrative funding. States must also hold school districts accountable and have sanctions for low performance. I believe that this amendment represents a comprehensive, constructive approach to real school reform. In addition, the amendment increases authorized funding for elementary and secondary education by $35 billion. But it doesn't just add money, it better targets funds to those truly educationally disadvantaged children, such as poor students and limited English proficient students. According to tables prepared by the Congressional Research Service, California would see increases in Title I, in teacher training, in programs for limited English proficient children and innovative high performance grants. Some may see it as tough. Some may see it as a too different. But we have gotten to the point where we need to look at different ways. As doctors say about an antibiotic, it must be (1) targeted; (2) of sufficient duration and (3) of sufficient dose. That is what this amendment is. By clearly linking federal dollars to results, we can begin to put in place some real steps toward improving student achievement and making public education produce real results. My goal is not to be harsh, to ``dish out'' requirements, sanctions and penalties. Our schools are overwhelmed. Our teachers are overwhelmed. They are often asked to do the impossible. But our few federal dollars--6 percent of total education spending-- can and should be used to produce results. That is what this amendment does and that is why I support it. I want to thank Senator Lieberman for including in his amendment two of my initiatives: one is on master teachers and the other is on use of Title I funds. In Title II of the bill, the title providing funds to strengthen teacher training, Senator Lieberman has added a master teacher section so that school districts can use these funds to establish master teacher programs. Under the language, a master teacher would be an experienced teacher, one who has been teaching at least five years, and who assists other (particularly new) teachers in improving their skills. I have proposed creating master teacher programs because I believe these ``senior teachers'' could enhance the profession of teaching and encourage people to stay in the classroom, as well as help the newer teachers ``learn the ropes.'' School districts could use these funds to, for example, increase teachers' salaries and that too could keep them in the classroom instead of moving to an administrative job or to private industry. In California, teachers' salaries average $44,585 which is $4,000 higher than the U.S. average. But the schools cannot compete with private industry without some help. I believe starting master teachers should earn at least $65,000 a year so that we can begin to reward excellence and dedication and keep our teachers in the classroom. These programs have proven to work in Rochester and Cincinnati and I believe other areas should be given the resources to try them too. I am also grateful that Senator Lieberman has included language I suggested to clarify and refine how Title I funds can be used. The goal of this amendment is to better focus Title I on improving students' academic achievement. Under current law, there is little direction and no restrictions on how Title I funds can be used. Under this amendment, Title I funds would have to be used for services directly related to instruction, including extending instruction beyond the normal school day and year; purchasing books and other materials; and instructional interventions to improve student achievement. Funds could not be used, for example, for paying utility bills, janitorial services, constructing facilities, and buying food and refreshments. This amendment is needed because when my staff checked with a number of California schools, we learned that Title I funds have been used for virtually everything, from clerical assistants to payroll administration, from college counseling to coaching, from school yard duty personnel to school psychologists. Alan Bersin, Superintendent of the San Diego Public Schools, found that Title I funds have been used to pay for everything from playground supervisors and field trips to nurses and counselors. Many of these are no doubt worthy expenditures. But we have to realize that Title I cannot do everything. With limited federal dollars, I believe we should focus those dollars on what counts-- helping students learn and helping teachers teach. Activities unrelated to instruction will have to be funded from other sources. This debate is about the future of our nation. We must ask some fundamental questions about our schools. Seventeen years ago, the nation's attention was jolted by a report titled A Nation at Risk. In April 1983, the Reagan Administration's Education Secretary, Terrell Bell, told the nation that we faced a fundamental crisis in the quality of American elementary and secondary education. The report said: Our nation is at risk. If an unfriendly foreign power had attempted to impose on America the mediocre educational performance that exists today, we might well have viewed it as an act of war. The report cited declines in student achievement and called for strengthening graduation requirements, teacher preparation and establishing standards and accountability. Today, we still face mediocrity in our schools. While there are always exceptions and clearly there are many excellent teachers and many outstanding schools, we can do better. To those who say we cannot afford to spend more on education, I say we cannot afford to fail our children. Our children do not choose to be illiterate or uneducated. It is our responsibility and we must face up to it. If we have failed, it is because as a society we have become complacent and have had low expectations. So we do whatever it takes, no matter how painful, to fix a system that is not only failing our children, but hurting our children. If we are not willing to make the commitment to provide our children a first-class education, we are failing as a society. What can be more important that giving our children a strong start, a knowledge base and a set of skills that make them happy, productive and fulfilled citizens? I truly believe, if we expect our children to achieve, we must make it clear that we expect and support achievement in every way. That is why I support this amendment.

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RICHARD B. HARVEY2000-05-08

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I honor Dr. Richard B. Harvey, Distinguished Service Professor of Political Science on the occasion of his retirement from Whittier College. Over the span of four decades, Dr. Harvey has also served as Assistant Dean, Dean of Academic Affairs and Chair of the Political Science Department of Whittier College. In addition to his academic pursuits, Dr. Harvey is the accomplished author of The Dynamics of California Government and Politics, a well known textbook in its sixth edition, Earl Warren, Governor of California, and a number of articles and book reviews. He is also a radio commentator, delivering political analysis of election results. His educational leadership has inspired countless young students to pursue civic opportunities. Dr. Harvey's Politics Outside the Classroom course exposed students various powerhouses in the Los Angeles and Sacramento areas. Students met and discussed California politics with some of the state's most influential political officials, learning more about the practical world of politics than a textbook or lecture can offer. Dr. Harvey's dedication to educating students and his belief in the significance of the political process are worthy of recognition. He earned a B.A. degree from Occidental College, and M.A. and Ph.D. degrees from the University of California, Los Angeles. Mr. President, I ask my colleagues to join me in wishing Dr. Richard Harvey best wishes on his retirement and in all of his future endeavors. His dedication and commitment to teaching California politics for over forty years has set an example that will be emulated for years to come.

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IMPORTANCE OF PRIVATE PROSECUTIONS2000-05-02

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, last week, during the debate on a proposed constitutional amendment to protect the rights of crime victims, Senator Leahy made several lengthy statements challenging some of the facts set forth by supporters of the amendment, including myself. We responded to many of those arguments at the time--and, I believe, refuted them. I do want not burden the record now by repeating all our contentions or making new ones. However, there is one argument that the Senator from Vermont made during the waning hours of debate on the amendment that I find particularly troubling. It involves the role of victims in criminal proceedings at the time our Constitution was written. Because I believe the Senator's comments contradict the clear weight of American history, I feel compelled to respond. Here is the argument Senator Leahy disputes: At the time the Constitution was written, the bulk of prosecutions were by private individuals. Typically, a crime was committed and then the victim initiated and then pursued that criminal case. Because victims were parties to most criminal cases, they enjoyed the basic rights to notice, to be present, and to be heard under regular court rules. Given the fact that victims already had basic rights in criminal proceedings, it is perhaps understandable that the Framers of our Constitution did not think to provide victims with protection in our national charter. The Senator from Vermont tried to rebut this argument. Citing an encyclopedia article and a couple of law review articles, he claimed that, by the time of the Constitutional Convention, public prosecution was ``standard'' and private prosecution had largely disappeared. Because Senator Leahy's comments suggest that some confusion about this issue lingers among my colleagues, I would now like to provide some additional evidence demonstrating that private prosecutions had not only not largely disappeared in the late 18th century but in fact were the norm. First, it is important to concede one point: some public prosecutors did exist at the time of the framing of the Constitution. Certainly, by then, the office of public prosecutor had been established in some of the colonies--such as Connecticut, Vermont, and Virginia. But just because some public prosecutors existed in the late 18th century does not mean that they played a major role or that public prosecution had supplanted private prosecution. In fact, criminal prosecution in 18th century English and colonial courts consisted primarily of private suits by victims. Such prosecutions continued in many States throughout much of the 19th century. Thus, contrary to Senator Leahy's suggestion that a ``system of public prosecutions'' was ``standard'' at the time of the framing of the Constitution, the evidence is clear that private individuals-- victims--initiated and pursued the bulk of prosecutions before, during, and for some time after the Constitution Convention. Let's look, for example, at the research of one scholar, Professor Allen Steinberg, who spent a decade sifting through dusty criminal court records in Philadelphia and wrote a book about his findings. Based on a detailed review of court docket books and other evidence, Professor Steinberg determined that private prosecutions continued in that city through most of the 19th century. In Professor Steinberg's words, by the mid-19th Century, ``private prosecution had become central to the city's system of criminal law enforcement, so entrenched that it would prove difficult to dislodge. . . .'' Of course, Philadelphia was the city where the Constitution was debated, drafted, and adopted. And for decades it was our new nation's most populous city--and its cultural and legal capital as well. It is difficult to reconcile the assertion that a ``system of public prosecutions'' was ``standard'' at the time of the Constitution Convention with historical research showing that, in the same city where the Convention was held, private prosecutions--inherited from English common law--continued to be ``standard'' through the mid-19th century. It is not surprising that the Senator from Vermont would conclude that public prosecution had replaced private prosecution by the late 18th century. A cursory exam of historical documents might lead to such a conclusion, for the simple reason that documents regarding public prosecutors and public prosecutions (what few there were) are easier to find than documents regarding private prosecutions. As Stephanie Dangel has explained in the Yale Law Journal: [e]arly studies concentrating on legislation naturally over-emphasized the importance of the public prosecutor, since a private prosecution system inherited from the common law would not appear in legislation. Examinations of prosecutorial practice were cursory and thus skewed. The most readily accessible information relating to criminal prosecutions predictably concerned the exceptional, well publicized cases involving public prosecutors, not the vast majority of mundane cases, involving scant paperwork and handled through the simple procedures of private prosecution . . . Dangel has summed up recent historical research into the nature of prosecution in the decades leading up to the framing of the Constitution as follows: First, private individuals, not government officials, conducted the bulk of prosecution. Second, the primary work of attorneys general and district attorneys consisted on non- prosecutorial duties, with their prosecutorial discretion limited to ending, rather than initiating or conducting, prosecutions. Regarding the prevalence of private prosecution in the colonies, Dangel noted: Seventeenth and eighteenth century English common law viewed a crime as a wrong inflicted upon the victims not as an act against the state. An aggrieved victim, or interested party, would initiate prosecution. After investigation and approval by a justice of the peace and grand jury, a private individual would conduct the prosecution, sometimes with the assistance of counsel. . . . Private parties retained ultimate control, often settling even after grand juries returned indictments. Contemporaneous sources confirm the relative insignificance of public prosecutions in the colonial criminal system. Only five of the first thirteen constitutions mention a state attorney general, and only Connecticut mentions the local prosecutor. Secondary references are similarly rare. Finally, the earliest judicial decision voicing disapproval of private prosecution did not appear until 1849. No decision affirming public prosecutors' virtually unreviewable discretion appeared before 1883. The historical evidence is clear: Because victims were parties to most criminal prosecutions in the late 18th century, they had basic rights to notice, to be present, and to participate in the proceedings under regular court rules. Today, victims are not parties to criminal prosecutions, and they are often denied these basic rights. Thus, a constitutional victims' rights amendment would restore some of the rights that victims enjoyed at the time the Framers drafted the Constitution and Bill of Rights. If this historical evidence about prosecutions in the colonies is not enough, I would repeat a point Senator Leahy made himself last week: that in England, any crime victim had the right to initiate and conduct criminal proceedings all the way up to the middle of the 19th century. As we know from Senator Byrd's enlightening remarks last week, many of the rights and liberties of our Constitution--such as those for criminal defendants--have their roots in English history and the English constitution. Given the fact, then, that virtually all the protections for criminal defendants in the Bill of Rights have English antecedents--including habeas corpus, trial by jury, due process, prohibition against excessive fines, and so on--it is hardly a stretch to think that the lack of rights for crime victims in the Bill of Rights would reflect an English antecedent as well: the long-established right of victims to prosecute crimes themselves. Let me be clear: I do not support a return to the old system of private prosecution. My only point is that we can cogently explain why the Framers did not include a single word on behalf of crime victims in the Constitution. And, given the relatively recent development in the United States of a system of 100% public prosecution, we can offer strong reasons to restore basic rights for victims in our criminal justice system. Just so there is no more confusion on this point, let us return to Professor Allen Steinberg, a legal historian who researched and wrote a 326-page book on prosecutions in 19th century Philadelphia--the most in-depth study of private prosecution in the United States. Did Professor Steinberg find that public prosecution was ``standard'' in Philadelphia even decades after the Constitution and Bill of Rights were adopted, as Senator Leahy suggests? No. In fact, he found that victims directly prosecuted crimes in Philadelphia until at least 1875. The fact that Professor Steinberg's research is on Philadelphia is undeniably important. Not only did the Framers live in Philadelphia while debating and drafting the Constitution, but many had resided there earlier as well. For example, James Madison--sometimes called the Father of our Constitution--was not only a delegate at the Philadelphia Convention, he served in the Continental Congress in Philadelphia from March 1780 through December 1783. I have little doubt that Madison knew that the bulk of criminal prosecutions in Philadelphia consisted of private prosecutions. Here is what Professor Steinberg writes about private prosecutions in Philadelphia: [T]he criminal law did have a central place in the everyday social life of mid-nineteenth-century Philadelphia. Private prosecution--one citizen taking another to court without the intervention of the police--was the basis of law enforcement in Philadelphia and an anchor of its legal culture, and this had been so since colonial times . . . Well past mid- century, private prosecution remained popular among a broad spectrum of ordinary Philadelphians. Familiar and frequent, it was rooted in a complex political and legal structure that linked political parties, courthouses, saloons and other centers of popular culture, real crime and dangerous disorder, and ordinary disputes and transgressions of everyday life . . . Through the process of private prosecution, the criminal courts of Philadelphia developed a distinctive set of practices and a culture that was remarkably resilient in the face of constant official hostility and massive social change. . . . He continues: Private prosecution refers to the system by which private citizens brought criminal cases to the attention of court officials, initiated the process of prosecution, and retained considerable control over the ultimate disposition of cases-- especially when compared with the two main executive authorities of criminal justice, the police and the public prosecutor . . . Private prosecution . . . [was] firmly rooted in Philadelphia's colonial past. [It was an] example[] of the creative American adaptation of the English common law. By the seventeenth century, private prosecution was a fundamental part of English common law. Most criminal cases in England proceeded under the control of a private prosecutor, usually a relatively elite person, and often through a private society established for that purpose. Professor Steinberg concludes that before the second half of the 19th Century, private prosecutions were the ``dominant'' mode of criminal justice in Philadelphia. He explains how this system worked: When a person wanted to initiate a criminal prosecution, he or she went off to the nearest alderman's office, complained, and usually secured a warrant for the arrest of the accused. After the alderman's constable escorted the defendant to the office, the alderman conducted a formal hearing, and the process was underway. Most often, private prosecutors charged their adversaries with assault and battery, larceny, or some form of disorderly conduct. Well before 1850, aldermen and litigants established patterns of case disposition that would last through most of the century. Most criminal cases were fully disposed of by the alderman . . . Professor Steinberg also notes that: [m]uch of the time, people used the criminal law in their private affairs in order to combat a perceived injustice or to assert basic rights they felt were violated. There was no better example of this than battered wives. Women regularly brought charges against men for assault . . .. Most often, . . . the batterer was punished in some manner . . . . And what of the public prosecutor? Contrary to Senator Leahy's suggestion that public prosecutors had consolidated control over prosecutions by the late 18th century, Professor Steinberg found that-- even by the mid-19th Century--the Philadelphia public prosecutor did little more than act as a clerk to victims who were pursuing private prosecutions. Here is what Professor Steinberg found: One of the major reasons for the weakness of the court officials was the limited power of the public prosecutor. Most discretion was exercised by the magistrates and private parties, some by the grand and petit juries, and little by anyone else. As late as the mid-1860s, for example, jurists agreed that, despite their importance on the streets, the police had no role in ordinary criminal procedure. More importantly, the same was basically true for the district attorney. In an 1863 outline of criminal procedure, Judge Joseph Allison did not mention the police and gave no discretionary role to the district attorney in the ``usual and ordinary mode of procedure.'' . . . . The discretion of the private parties in criminal cases was not checked by the public prosecutor. Instead, the public prosecutor in most cases adopted a stance of passive neutrality. He was essentially a clerk, organizing the court calendar and presenting cases to grand and petit juries. Most of the time, he was either superseded by a private attorney or simply let the private prosecutor and his witnesses take the stand and state their case. And the dominance of private prosecutions was certainly not unique to Philadelphia. Other legal historians who have sifted through court records have reached similar conclusions to Professor Steinberg. In a 1995 article in the American Journal of Legal History, for example, Robert Ireland concluded that ``By 1820 most states had established local public prosecutors. . . . Yet, because of deficiencies in the office of public prosecutor, privately funded prosecutors constituted a significant element of the state criminal justice system throughout the nineteenth century.'' In a 1967 article in the New York University Law Review, William E. Nelson found that private prosecution was commonplace in a typical Massachusetts county between 1760 and 1810. Criminal trials, he writes, were ``in reality contests between subjects rather than contests between government and subject.'' And the list goes on: other scholars who have acknowledged the prevalence of private prosecution in the American colonies and fledgling United States include Richard Gasjins (Connecticut), Michael S. Hindus (Massachusetts and South Carolina), William M. Lloyd, Jr. (Pennsylvania), and Edwin Surrency (Philadelphia). Indeed, William F. McDonald notes in the American Criminal Law Review that a system of private prosecution was preferred by many around the time of the American Revolution because of a fear of tyranny associated with government prosecutors and because it was less expensive. In the face of this overwhelming historical evidence that the bulk of prosecutions at the time of the Constitutional Convention were private, the Senator from Vermont suggested instead that public prosecutions were ``standard.'' He relied on several sources for that conclusion: a four-page article in a legal encyclopedia and a few law review article quotes, one lacking citation and the rest citing the same four-page encyclopedia article. Of particular importance seems to be a quotation from an article in the Rutgers Law Review that asserted that ``[b]y the time of the Revolution, public prosecution in America was standard, and private prosecution, in effect, was gone.'' But reading closer, one finds that the support for this statement was none other than a statement in the oft-cited four-page encyclopedia article that ``by the time of the American Revolution, each colony had established some form of public prosecution. . . .'' Again, however, we have seen that the mere existence of ``some form of public prosecution'' at the time of the American Revolution does not mean that public prosecution was ``standard.'' And it certainly does not mean that public prosecutors handled the bulk of prosecutions or had much a prosecutorial role. They did not. Rather, the weight of historical evidence on this subject--a subject which has been extensively researched and reviewed by some of our country's most distinguished legal historians and other scholars--suggests that private prosecutions were dominant. Mr. President, I am glad to have the chance to correct the historical record on this point. I have the utmost respect for my distinguished colleague from Vermont and I thank him for his thoughtful remarks on the history of prosecution in this country. However, I believe that my main point stands: we need to restore rights that crime victims enjoyed at the time the Framers drafted the Constitution and Bill of Rights.

View in Record

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion To Proceed--Resumed2000-04-27

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the Senator. I think the analogy is actually a very good one. I know defendants' rights are extraordinarily privileged, and well they should be. Senator Kyl and I have discussed this. We believe that our amendment does not collide, and we understand how victims feel. I think one of the points is that throughout all of this we have communicated with victims groups. We have been their advocates. We have tried to march to the sound of their drum. The tragedy for me, today, is that we are so close that, if we could bridge that one gap, getting the support of the Justice Department, the President's support, the Vice President's support, perhaps we might, on our side, pick up some votes. That one inability to reach this kind of consensus within the timeframe we have, in view of the feelings of our colleagues, is really the necessity of what we are doing here this afternoon. But I think at this stage there is an impasse. Does my colleague agree?

Mrs. FEINSTEIN. Of course that is right. I think the Senator from Arizona said it very well.

Mrs. FEINSTEIN. I thank the Chair. I yield the floor.

Mrs. FEINSTEIN. One of the unfortunate aspects of the debate in these hallowed Halls is the fact that many have chosen to ignore the fact that this amendment would actually help poor minority communities beset by crime. It would give victims in these communities rights our criminal justice system often deny them through bureaucratic neglect and casual racism. Among the many supporters of the amendment, for example, is a group called Racial Minorities for Victim Justice. This group includes Norm Early, the former district attorney of Denver, CO, and the founding president of the National Black Prosecutors' Association. It includes Joseph Myers, executive director of the National Indian Justice Center; David Osborne, an Asian American who is assistant secretary of the State in California; Azim Khamisa; Christine Lopez; Steven Njemanze. The group includes minority victims such as Teresa Baker, whose rights were denied after her son was coldbloodedly murdered in Maryland; Clementine Garfield, whose two teenage sons were shot in Detroit; Sarah Fletcher, whose husband Reginald, son Ricky, daughter Crystal, and unborn granddaughter were all murdered. They wrote me an eight-page letter laying out their thoughts about the amendment. I will read some of that letter. The undersigned are founding members of Racial Minorities for Victim Justice which strongly support Senate Joint Resolution 3, the Crime Victims' Rights Constitutional Amendment. We are aware that some groups that seek conscientiously to speak for the interests of racial minorities have expressed opposition to your proposed amendment. We claim some understanding of the fundamental concerns that guide their position--concerns we share--but we also believe that they have reached the wrong conclusion on this issue. To put it in the simplest terms, no one in our society stands to benefit more from the adoption of the Victims' Rights Amendment than people of color--for it is our people that suffer the highest rates of victimization in the Nation. Let us start with some common ground on which the great majority of racial minorities stand in this country. Historically, we have had deep suspicions of the agencies of criminal justice. Speaking specifically of the African American experience, it was the agents of criminal justice who were the enforcers of the Fugitive Slave Act and all the Jim Crow laws--often with lawless brutality. While we are proud of recent progress to end this pattern of bigotry in the administration of justice--proud because African Americans and other minorities have led the way in reforming these practices--we are not so naive as to believe that our criminal justice system has grown altogether color- blind. More than most Americans, we believe criminal justice has become too fearful of people of color, too punitive toward minority offenders, with too few opportunities for their treatment and rehabilitation. This is where we share common ground with most members of the minority communities in America. What we cannot understand, however, is why some in those communities have concluded that one way to bring justice agencies into harmony with our higher ideals is to deny the victims of crime any effective and enforceable rights. To us, that makes no sense. We do nothing to improve the fair treatment of minority defendants by impeding the fair treatment of minority victims. I couldn't agree with that more. They go on to say: Leaders of America's criminal defense bar have testified frequently and heatedly against passage of the Crime Victims' Rights Amendment, citing amorphous dangers to defendants' rights and liberties. And how many cases did they cite where their millions of clients had run afoul of some overzealous, unfair and harmful interpretation of a crime victim's rights already provided in State Constitutions? Two hundred? Twenty? Two? Not even one! It is important to understand that victims' rights statutes echoing those in the proposed Amendment are to be found on the books of every state--buttressed by constitutional amendments in 32 of them. While compliance with those laws is woefully spotty (more on that below) it is fair to estimate that in hundreds of thousands of cases, the victims rights were fully implemented, giving rise to not one single appeal as to the fairness of the application of those laws. In our opinion, people of color should be especially outraged at these disproportionate deprivations of our legal and human rights, for it is our minority communities who disproportionately suffer the pain of criminal victimization. I agree with that very much. There is perhaps none but, at most, very few minority victims of violent crime who can afford the counsel to process their rights under State constitutions, under State laws, or under the patchwork of laws to protect victims across this Nation at this time. Every time, if they do, they will eventually lose because the rights of the defendants or the accused are deeply embedded in the heart of this great Constitution. They will find that, in effect, as they press a case in court, they have no standing under the Constitution of the United States. That is what this is all about, to give victims standing in the Constitution of the United States. No case demonstrated that more clearly than the Oklahoma City bombing case. As we sum up, I will quickly refresh why that is the case. We had passed two statutes--one in 1990--which allowed victims to watch the trial and testify at sentencing. The Victims of Crime Bill of Rights, a 1990 law, passed by the House, passed by the Senate, and signed by the President, references 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 the trial. In spite of that statute, the court denied the prosecutors' request. The victims made a similar request, and the court denied that request, holding that victims lacked standing to raise their rights under that statute. The prosecutors and the victims were not satisfied. They both had good attorneys, Washington attorneys, Paul Cassell, distinguished attorneys. They appealed that to the Court of Appeals of the Tenth Circuit. As Professor Cassell, one of the lawyers put it: Three months later, a panel of the Tenth Circuit rejected-- without oral argument--both the victims' and the United States' claims on jurisdictional grounds. With respect to the victims' challenges, the court concluded that the victims lacked ``standing'' under Article III of the Constitution because they had no ``legally protected interest'' to be present at the trial and consequently had suffered no ``injury in fact'' from their exclusion. The Tenth Circuit also found that victims had no right to attend the trial under any First Amendment right of access. Finally, the Tenth Circuit rejected, on jurisdictional grounds, the appeal and mandamus petition filed by the United States. Efforts by both the victims and the Department to obtain a rehearing were unsuccessful, even with the support of separate briefs urging rehearing from 49 members of Congress, all six Attorneys General in the Tenth Circuit, and some of the leading victims groups in the nation. We heard about that. We responded with alacrity. The House passed the Victims' Rights Clarification Act of 1997. That statute said, notwithstanding any statute, any rule or other provision of law, a U.S. district court shall not order any victim of an offense excluded from the trial of a defendant accused of that offense because such victim may, during the sentencing hearing, testify as the effect of the offense on the victim and the victim's family or as to any other factor for which notice is required. That is clear. We cleared it up. We gave them standing by law, passed by the House, passed by the Senate, signed by the President of the United States. But the district court then said that this statute might be unconstitutional and postponed a decision until after the trial. So the judge paid no attention to the House of Representatives, the Senate of the United States, or to the signature of the President of the United States. This is why we press this cause today. This is why we do not believe that a statute will ever be adequate to give victims basic rights. Push sort of comes to shove. There is an old expression called ``carrying water on both shoulders.'' It is sometimes a way that people feel, in our business--that they can appease a group by saying, oh, something else will do. This case, to me, is irrevocable evidence that the challenge of making a statute work is extraordinarily difficult to give any minority or impoverished victim any meaningful right in real life. So we intend to continue to press this case. I want to ask the distinguished Senator from Arizona now that he has heard the outline of what happened--some people have criticized me, I think, because I have used this case over and over again, but it is the only clearly definable case we have following the passage of two laws passed by our bodies to make a judgment--and, true, we are making that judgment just on the Tenth Circuit Court--nonetheless, does the Senator not believe it is an applicable judgment to add to this to confirm the fact that a statute probably won't work in this situation?

Mrs. FEINSTEIN. Mr. President, I extend my deepest thanks to Professor Tribe for his letter and for his support. We will certainly be consulting both he and Professor Cassell again and come back to fight again another day. I want to say something to the victims who have been so heartrending in this process. Those of us who are political come to grips with the sophisticated lobbying around this place. One of the things I have seen in the people whom we represent is they are real people. They have been maimed, they have been harmed, they have been hurt, and with this--I have seen this in the past when I was active in the criminal justice system--victims almost become catatonic. They almost become unable to go out and do the lobbying that is necessary to move something such as this. I want them to know how much we identify with their cause, how much we intend to continue to pursue this cause. It is a just cause. It is a cause that deserves remedy and recognition in the Constitution of the United States. It is a cause where, once victims have these rights, they lost them. This Congress--the other body and our body--should provide these rights again. I am hopeful that in the coming years, we will be able to continue our work on this. Perhaps we will be able to solve this one dilemma of the balancing. It is interesting; anytime one reads a statement by the President or by the Attorney General, it mentions the balancing of these rights. Yet when we write something in the Constitution which, in effect, would provide for this, it brings out the criminal defense bar; it brings out the liberal scholars; it brings out people who say: You can't do this. You can't give victims these rights. The cause is just that they have these rights. A statute, we believe, will be unable to provide them, but as to their standing in the Constitution, there is a time and there is a place, I predict, when that standing will happen and take place.

Mrs. FEINSTEIN. Mr. President, I also am buoyed by the prospects. As we go through this more and more, I understand more and more what is happening behind the scenes. I do want to enter into the record this latest letter from Professor Larry Tribe. Senator Kyl will be interested in one quote. He says deep into his letter: I can count on the fingers of one hand the number of ostensibly ``liberal'' lawyers and scholars who do not look askance when they learn of my support for this amendment. Friends who otherwise respect me and admire my work have a difficult time, it seems, assimilating the notion that a liberal champion of defendants' rights--something I think I have been all my life--should take seriously the idea that the victims of violent crime actually have ``rights'' that the Constitution should compel government to take seriously and to treat with respect, rather than merely being the unfortunate--well, victims--of criminal predations that the state is charged with combating, in a system where the only ``rights'' worth naming and treating as such of course belong to those unfortunate enough to find themselves on the wrong end of the machinery of criminal justice. With all respect, I do not share that perspective. Rather, I regard its deeply ingrained nature as the principal argument for the conclusion that statutory measures will never fully suffice. Mr. President, I ask unanimous consent to print Professor Tribe's letter in the Record.

Mrs. FEINSTEIN. I thank the distinguished Senator from Arizona. I thank the Chair. Let me briefly summarize. I sincerely believe that the only way to afford victims of violent crime standing under the Constitution to be able to assert a right that is provided is by amendment to the Constitution. I don't use my judgment. This is the judgment of the most distinguished legal scholars. I know there are strong forces at work in this in front of the scenes and behind the scenes. I know there are some people who believe what we are trying to do is weaken defendants' rights. That is simply not correct. Defendants' rights, as I see them, are basically rights that do not come into collision with the rights we would afford the victims. They are totally different rights. If there is a collision, our view is that the judge then provides the balancing mechanism. This gives the victim a standing in law to assert the right that, in a sense, can't be trusted. This issue goes down--let me be very candid--on one phrase. That one phrase is the addition of language that would say nothing in this Constitution would abridge the right of a defendant as provided by this Constitution. That is a paraphrase of what it is. The Department of Justice insists on that language. We will not get administration support, I believe, without that language. The victims movement believes they would not have sufficient standing in these rights to really assert them in a meaningful way unless they were able to be balanced against the rights of the defendant. The question I wanted to ask my friend and colleague, Senator Kyl, is I think our challenge in proceeding may be how we could reconcile this with the very real concern of victims that they once and for all-- albeit for a limited right but nonetheless real rights--have standing for those rights in a court of law.

Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from Arizona. I also thank the Senator from New York, and I thank you, Mr. President, for allowing me to proceed. I begin by thanking the Senator from Arizona. Mr. President, I say to Jon Kyl, working with him on this amendment has truly been one of the highlights of my 7 years in the Senate. He has worked with credibility and with integrity. He has been fulsome in his sharing of detail. We have gone shoulder to shoulder through virtually every rung of this, through 4 years of discussions, of conferences, of hearings, of 800 pages of testimony, some 35 witnesses. I agree with everything he said about the inclusive nature of the process. I must tell Senator Kyl how much I admire him. We worked together on the Technology and Terrorism Subcommittee of the Judiciary Committee. I saw it there. I have never seen it with another Senator as pronounced as it was in these past 4 years in the work on this issue. I believe a friendship has developed in the process, one which means a great deal to me. His leadership has been superb, and there is certainly nothing either one of us has done for the misunderstanding out there still about what we are trying to do and the importance of it. We will come back another day; there is no question in my mind about that. I cannot thank him enough. From the bottom of my heart, I thank Senator Kyl for his credibility, his intelligence, his integrity. He did his party proud. I am very happy to be a colleague of his and a friend as well. Before I get into my remarks, I also echo the thanks Senator Kyl provided to a whole host of victims, literally tens of thousands of them, to 37 State attorneys general, to many Governors, to all those across both party lines who support this and understand it. I particularly thank three legal scholars who were with us every step of the way. I thank Larry Tribe, a professor of constitutional law at Harvard University, for his testimony, for the phone calls, for the advice he has provided and for the statements he has made. I also thank one of the primary legal scholars in this country who has been a victims' rights representative, legal counsel--just a wonderful human being I have also gotten to know--and that is Professor Paul Cassell, professor of law at the University of Utah. I would be remiss if I did not thank Steve Twist on behalf of both Senator Kyl and myself. There are few people who have been as ardent in the cause as Steve Twist has been, with his knowledge, with his expertise, with his representation of victims throughout this entire process. I know that none of the three above-mentioned individuals is going to go away. We have them as part of this enormous victims coalition. We will come back, and we will fight again another day. But today, Mr. President, I rise with a sad heart because we must postpone our battle for a crime victims' rights constitutional amendment. This is a fight that actually began 18 years ago when the President's Task Force on Victims of Crime recommended an amendment to the Constitution of the United States which would address victims' rights. This isn't a new idea. It has been around. There is a track record to show why it is necessary. As I said, Senator Kyl and I introduced that amendment 4 years ago. We have worked long and hard. I think enough has been said about that. What is unbelievable to me is that we have also been criticized for the hard work we have put into this amendment over the past 4 years. Senators have come to the floor and told us that the fact that we put our amendment through so many drafts and consulted so many interested parties shows that our amendment does not deserve to be in the Constitution of the United States. Yet, in fact, drafting an amendment to the Constitution of the United States requires an uncanny kind of precision. Because this isn't 1791 when the Bill of Rights was written, or 1789 when the Constitution was adopted, there has been a whole panoply of case law and interpretations that have come throughout the ages that makes the drafting of a constitutional amendment such as this one very difficult. However, I believe we have developed a document that will, in fact, stand the test of time. What we have tried to do, in essence, is very simple. I would like to show a chart, once again. We have tried to take the Constitution, which provides 15 specific rights to the accused, and no rights to victims of violent crimes--with a scale of justice which we believe is weighted in a certain way to exempt victims from the administration of criminal justice--and give victims some status and standing in the administration of criminal justice, so that the scale of justice would not be so badly tilted but would look something like this other chart where the accused would have certain basic rights, and victims would have certain basic, although limited, rights: The right to notice when a trial takes place; the right not to be excluded from a public proceeding; the right to be heard at that proceeding, if present; the right to submit a statement in writing; the right to notice of the release or the escape of an attacker; the right to consideration for the assurance of a speedy trial; the right to an order of restitution; and the right to consideration of their safety in determining any conditional release of an attacker--simple, basic rights of status and standing. We have heard much about the fact that this should not be in the Constitution. There has been much talk on the floor about James Madison and other framers. Senators have suggested that our forefathers would not support the amendment. I tried to point out why our forefathers did not have reason to consider the amendment because when both the Constitution and the Bill of Rights were written, victims had a role in the process. Up until 1850, victims had a role in the process. But it was with the development of the public prosecutors, when victims were no longer in the courtroom, that they became summarily excluded from the process. I point out that if we look back in history, I find my views very commensurate with those of Thomas Jefferson. He was not among those who wrote the Constitution, but he thought deeply about the Constitution and how and when we should amend it. He was also the inspiration for our Bill of Rights, a document actually drafted by James Madison. In 1816, 25 years after the Bill of Rights became the law of the land, Thomas Jefferson wrote to Samuel Kercheval, stating his views on amending the Constitution. I think it is important that the Record reflect these views. He said: I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times. Similarly, 13 years earlier, he said in a letter to Wilson Nicholas: Let us go on perfecting the Constitution by adding by way of amendment, those forms which time and trial show are still wanting. I believe very deeply that time and trial show that our amendment is still wanting and should be adopted. I ask unanimous consent to have printed in the Record, in recognition of the widespread support we have received, letters from virtually every law enforcement agency and every crime victims group.

Mrs. FEINSTEIN. If I may, I think the Senator has summarized it very well. I retain the remainder of my time and yield the floor. I know there are some other distinguished Senators who wish to come to the floor and speak.

Mrs. FEINSTEIN. Mr. President, will the Senator yield for a moment?

Mrs. FEINSTEIN. I thank the Senator for that comment. I would like to follow up with something. My staff has handed me a letter from Professor Tribe dated today. It is on this point. I think it adds some additional very distinguished credibility to what the Senator is saying. It says: I am writing to address one consideration in particular that is highlighted by the proposed Crime Victims Assistance Act, S. 934, whose sponsors--many of whom are my good friends--evidently hope that by this Federal statute they obviate the need for the proposed constitutional amendment. I favor S. 934's enactment, at least in principle. I assume that closer study of the detailed provision than I have been able to undertake would disclose ways in which it might be improved. But minor technical flaws, or even design defects in the contemplated statute would be beside the point and are not my focus. After all, detailed problems with the statute's terms could be cured by redrafting and would not in themselves explain why only an amendment to the Constitution could meet the need for fuller national protection of victims' rights. Then he goes on to say this--and I am skipping some: The mere brandishment of the banners of defendants' rights or of prosecutorial needs too often suffices to push the needs and interests of victims--to be notified, to observe, to be heard, to have their views considered, to achieve closure, and to be compensated if possible--into the background. Rather than creatively and determinedly seeking ways to protect victims' rights in ways that manage fully to respect the genuine rights, privileges, and needs both of the accuser and the accused, state and local officials are understandably but unfortunately tempted to relegate victims and their rights to second-class status or to shelf them altogether, as merely hortatory and aspirational provisions of law enacted with something much stronger and more operational in mind. He essentially goes on to say again why a statute won't work. He says: The argument is flawed first, because it fails entirely to come to terms with the basic reasons, set forth above, that merely statutory measures would be unable to combat the deeply rooted attitudinal problems confronting victims and their claims of right; and second, because insofar as it assumes broad congressional power to act under Section 5 of the Fourteenth Amendment, it is simply ignorant of the series of decisions in the 1990s and reaching into 2000, beginning with the invalidation of the Religious Freedom Restoration Act and continuing with the invalidation of provisions of the Patent Reform Act and the Age Discrimination Employment Act, in which the modern Supreme Court has dramatically curtailed the legislative authority of Congress to use its Section 5 power to protect interests that Congress, but not yet the Court, is prepared to recognize as constitutional rights, or even to protect Court-recognized constitutional rights in circumstances, or by means, not shown in the legislative record to be ``necessary.'' What Professor Tribe at this stage is adding to this is that any statute passed by us does not take into consideration the courts striking down of the Religion Freedom Restoration Act, the Patent Reform Act, the Age Discrimination and Employment Act. He is saying that the authority of Congress is now more limited to use its section 5 power to protect interests that we think are valid. The striking down of these bills, in effect, makes the constitutionality of anything that we might pass by way of a Federal statute extraordinarily vulnerable. I think this is new information which we have not had a chance to analyze and consider which may enable us to come back and fight another day.

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AFRICAN GROWTH AND OPPORTUNITY ACT2000-04-27

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank my colleague. We will count on him.

Mrs. FEINSTEIN. Mr. President, I thank my cosponsor, the distinguished Senator from Wisconsin, for those words. I want him to know, I want the Senate to know, and I want the House to know how important this amendment is. It is so important that both of us are willing to filibuster a conference report. I think it is only fair to send that signal loudly and clearly. The reason I do so is because I was the mayor of the first city with AIDS. I spent 9 years as mayor understanding what AIDS can do and how it can spread and understanding the importance not only of prevention of AIDS, which is all important, but also of being able to treat an AIDS-infected population adequately. Let me say something about the AIDS pandemic now sweeping across sub- Saharan Africa. Sub-Saharan Africa has been far more severely effected by AIDS than any other part of the world. The bottom line of all of this is, there will not be an Africa left for an African trade initiative unless this amendment is part of that initiative. The United Nations reports that 23.3 million--not thousand, million-- adults and children are infected with the HIV virus in Africa. Africa has about 10 percent of the world's population, but it has 70 percent of the total number of infected people in the world. Worldwide, about 5.6 million new infections will occur this year, with an estimated 3.8 million in sub-Saharan Africa alone. Every single day, 11,000 people are infected in sub-Saharan Africa. That is 1 every 8 seconds. All told, over 34 million people in Africa--the population of California--have been infected with HIV since the pandemic began. An estimated 13.7 million Africans have lost their lives to AIDS, including 2.2 million who died in 1998. It is enormous, and it is hidden because of the cultural taboos that surround it. Each day, AIDS buries 5,500 men, women, and children. By 2005, if policies do not change, the daily death toll will reach 13,000--double what it is now--with nearly 5 million AIDS deaths in 2005 alone, in sub-Saharan Africa. The overall rate of infection among adults in sub-Saharan Africa is 8 percent, compared with a 1.1-percent infection rate worldwide. In some countries of southern Africa, 20 percent to 30 percent of the entire adult population is infected. AIDS has cut life expectancy by 4 years in Nigeria, 18 years in Kenya, and 26 years in Zimbabwe. Imagine, AIDS cutting life expectancy by 26 years. That is the case in Zimbabwe today. AIDS is devastating Africa. It is affecting infant and child mortality rates, reversing the declines that have been occurring in many countries during the 1970s and 1980s. Over 30 percent of all children born to HIV-infected mothers in sub-Saharan Africa will themselves become HIV infected. There are many explanations why this pandemic is sweeping across sub- Saharan Africa. Certainly, the region's poverty, which has deprived Africans of access to health information, health education, and health care. Cultural and behavioral patterns have led to sub-Saharan Africa being the only region in which women are infected with HIV at a higher rate than men. Clearly, there needs to be considerable emphasis addressing the health care infrastructure of Africa. There must also be additional resources for education. If the international community is to be successful, we must also make every effort to get appropriate medicine into the hands of those in need. For too many years, there were no effective drugs that could be used to combat HIV/AIDS. Now, thanks to recent medical research, we do have effective medicine. For example, some recent pilot projects have had success in reducing mother-to-child transmission by administering the anti-HIV drug AZT, or a less expensive medicine, Nevirapne, NVP, during birth and early childhood. As a matter of fact, four pills can prevent, in many cases, the transmission of HIV from a mother to an unborn child. Unfortunately, and inexplicably in my view, access for poor Africans to costly combinations of AIDS medications, including antiretrovirals, is perhaps the most contentious issue surrounding the response to the African pandemic. I happen to believe we have a very strong moral obligation to try to save lives when the medications for doing so actually exist. There are several things the United States could do to increase access to life-saving drugs. First, we can work with others in the international community to provide support to make these drugs affordable and to strengthen African health care systems so that drug therapies can be administered. Second, we should not prevent African Governments and donor agencies from achieving reductions in the cost of antiretrovirals through negotiated agreements with drug manufacturers. The British pharmaceutical firm, Glaxo Wellcome, a major producer of antiretrovirals, has already stated it is committed to differential pricing which would lower the cost of AIDS drugs in Africa. Third, I strongly believe the United States must not oppose parallel importing and compulsory licensing by African Governments, to lower the price of patented medications so that HIV/AIDS drugs are more affordable and more people in Africa will have access to them. That is what the amendment that Senator Feingold and I offered would do. Through parallel importing, patented pharmaceuticals could be purchased from the cheapest source, rather than from the manufacturer. Under compulsory licensing, an African Government could order a local firm to produce a drug and pay a negotiated royalty to the patent holder. Both parallel imports and compulsory licensing are permitted under the World Trade Organization agreement for countries facing health emergencies. This is a health emergency. Without compulsory licensing and parallel importing, which would allow access to cheaper generic drugs, more people in sub-Saharan Africa will suffer and die needlessly. For my colleagues who may be concerned that this amendment may undermine wider intellectual property rights, an accusation that those opposed to this amendment--and let me be frank, the pharmaceutical industry--is making, they are incorrect. This amendment reaffirms the World Trade Organization's TRIPS agreements which is the legal standard for intellectual property rights. TRIPS does not prohibit parallel importing and compulsory licensing during health emergencies. That is fully consistent with current U.S. policy on intellectual property rights. In other words, despite what some pharmaceutical companies have been saying behind closed doors about this amendment, the amendment does not weaken intellectual property rights protection one iota. It keeps the bar exactly where it is now. The World Trade Organization and U.S. commitments on intellectual property protection allows countries flexibility in addressing public health concerns. The compulsory licensing process under this amendment is fully consistent with the WTO's approach to balancing the protection of intellectual property, with a moral obligation to meet public health emergencies such as the HIV/AIDS pandemic in Africa. In other words, this amendment is consistent with international trade law. The amendment does not create new policy or a new approach on intellectual property rights under TRIPS, nor does it require intellectual property rights to be rolled back or weakened. All it asks is that in approaching HIV/AIDS in Africa, U.S. policy on compulsory licensing and parallel importing remain consistent with what is accepted under international trade law. By doing so, the amendment will allow countries of sub-Saharan Africa to continue to determine the availability of HIV/AIDS pharmaceuticals in their countries and provide their people with affordable HIV drugs. By itself, the amendment is not going to solve the problems of AIDS in Africa. Opponents of the amendment suggest that because it doesn't address the entire HIV/AIDS problem, it should be removed from the bill. They argue that because the health care infrastructure is weak, allowing parallel importing and compulsory licensing will not get the drugs to the people who need them. That misses the point. Although it is true we need to strengthen infrastructure, and my amendment contains language urging additional efforts in this area, that was never the purpose or intent of the amendment. Its purpose and intent was to address this one specific issue, this one small piece of the puzzle, and in so doing, provide some measure of relief to the millions and millions of people now suffering from AIDS in sub-Saharan Africa. Let me provide one example of why the approach adopted by this amendment, admittedly one small part of a larger effort, is necessary. On March 14 of this year, Doctors Without Borders, the medical relief group that won the Nobel Prize last year, sent a letter to Pfizer calling on Pfizer to lower the price of fluconazole, a drug needed to treat cryptococcal meningitis, the most common systematic functional infection in HIV-positive people in developing countries. As the Doctors Without Borders letter notes, in Thailand, fluconazole is available for just $1.20 for a daily dose. Yet in Kenya and South Africa, the daily dose costs $17.84. It is 15 times higher in Africa than in Thailand. That is unconscionable. So, what accounts for the difference? In Thailand, a generic version is available. In Kenya and South Africa, the only supplier is Pfizer. As Bernard Pecoul, director of Doctors Without Borders Access to Essential Medicines Campaigns, has noted: People are dying because the price of the drug that can save them is too high. As the March 14 Doctors Without Borders letter notes: While we appreciate that patents can be an important motor of research and development funding, there must be a balance to ensure that people in developing countries have access to lifesaving medicines. That is the purpose of my amendment, and I am deadly serious about it. I am pleased to note that, under pressure from Doctors Without Borders, Pfizer has now agreed to lower the prices of fluconazole. This situation never should have existed to begin with. Ironically, the pharmaceutical companies would profit more from this amendment than they do right now. Presently, most sub-Saharan African countries are not buying these drugs because they can't afford the price tag. So the pharmaceutical companies are not earning any money at all on these drugs. But if sub-Saharan African countries produced HIV/AIDS drugs through compulsory licensing or purchased them through parallel importing, the pharmaceutical companies holding the patents on these drugs would receive royalties. I was very pleased to work with the managers of this bill, when the African Growth and Opportunity Act was on the floor of the Senate last November, to modify my amendments to meet some of their concerns and to have their support in seeing it included in the final Senate-passed version of this bill. I have been happy to work with them. My staff has worked with their staff over the past several months to try to meet some additional concerns which have subsequently been voiced. But, frankly, my patience is wearing very thin. The pharmaceutical companies that are opposed to this amendment, opposed because they want to squeeze every last drop of profit from the suffering of the millions of HIV/AIDS victims in sub- Sarahan Africa. They have shown no willingness to compromise, no willingness to enter into good-faith negotiations. I am more than willing to see additional clarifying language added to this amendment in conference. I believe strongly that the core of the amendment must remain and that efforts to either remove this amendment or to gut it are both inexplicable and reprehensible, and I am determined not to let this happen. It is clearly in the interests of the United States to prevent the further spread of HIV/AIDS in Africa. I believe my amendment is a necessary part to the Africa Growth and Opportunity Act if we are to continue to assist the countries of this region in halting the number of premature deaths from AIDS. Antiretroviral drugs can work to improve the quality and length of life. The United States has the power to make these lifesaving drugs more affordable and more accessible to Africans. We should not turn our backs, and the greed of the pharmaceutical industry should not stop us. I am absolutely determined that if a conference report comes to this floor without this amendment, Senator Feingold and I, and I hope others, will join together and filibuster this report. I thank the Chair. I yield the floor.

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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Resumed2000-04-26

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I am happy to yield when I have concluded my thought. I am in the middle of a quote from a very distinguished law professor, whom I know Senator Schumer respects greatly.

Mrs. FEINSTEIN. Circuit court.

Mrs. FEINSTEIN. If the Senator will permit me, because I think he so well outlined that, I want to add one thing. No matter what we craft-- we have taken two cracks at it and missed. Maybe the third time will either be another strike or a home run. I don't know. But, nonetheless, no matter how the statute is crafted, it will affect just 1 to 2 percent of the victims of violent crime all across this great land. For me, that is a very great problem.

Mrs. FEINSTEIN. We are eagerly awaiting the ``but.''

Mrs. FEINSTEIN. Continuing the quote: To protect these rights of victims does not entail constitutionalizing the rights of private citizens against other private citizens; for it is not the private citizen accused of crime by state or federal authorities who is the source of the violations that victims' rights advocates hope to address with a constitutional amendment in this area. Rather, it is the government authorities themselves, those who pursue (or release) the accused or convicted criminal with insufficient attention to the concerns of the victim, who are sometimes guilty of the kinds of violations that a properly drawn amendment would prohibit. I think that well states what we are trying to do. I am delighted to yield to Senator Schumer.

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