Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. They do go on. And once more, they are worth listening to.

Mrs. FEINSTEIN. Mr. President, I think Senator Kyl has stated it very well. Not only do I find that to be a correct distinction--it is not only Senator Kyl and I--it is legal scholars who we have worked with and trusted throughout this process. Let me quote the professor from Harvard with whom we worked, Larry Tribe. These are the very kinds of rights with which our Constitution is typically and properly concerned, rights of individuals to participate in all those government processes that strongly affect their lives. Congress and the states have already provided a variety of measures to protect the rights of victims. Senator Kyl and I have heard that said on this floor and outside of this floor. That certainly is true. Yet, as Professor Tribe goes on, the reports from the field are that they have all too often been affected. Rules to assist victims frequently fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia, or the mere mention of an accused's rights, even when those rights are not genuinely threatened. I read the chronology of the Oklahoma City bombing case and the rights that those victims were afforded by two statutes, not one statute. We couldn't get it done right in 1990. We tried again 7 years later. Both of those were effectively declared a nullity by the Tenth Circuit because the victims had no standing under article III of the Constitution. So the question of standing and harm all enter into this. Everything I have been able to deduce is, the only way to provide standing to be a party at issue in the situation is through the Constitution of the United States. Would my colleague agree with that?

Mrs. FEINSTEIN. The point made by the Oklahoma City case is that these were not indigent victims. They had Washington counsel, distinguished counsel of very high quality. They tried to assert the rights under the statute, and the court essentially turned them down. This isn't what we think; this is what happens. I will quote a bit more from Professor Tribe on this very subject, until Senator Byrd, who is next, comes to the Chamber. Larry Tribe makes this statement: Beginning with the premise that the Constitution should not be amended lightly and should never be amended to achieve short-term partisan or purely policy objectives, I would argue that a constitutional amendment is appropriate only when the goal involves (1) a needed change in government structure, or (2) a needed recognition of a basic human right, where (a) the right is one that people widely agree deserves serious and permanent respect, (b) the right is one that is insufficiently protected under existing law, (c) the right is one that cannot be adequately protected through purely political action such as state or federal legislation and/or regulation, (d) the right is one whose inclusion in the United States Constitution would not distort or endanger basic principles of the separation of powers among the federal branches . . . (e) the right would be judicially enforceable without creating open-ended or otherwise unacceptable funding obligations. Professor Tribe goes on to say: I believe that S.J. Res. 3 meets these criteria. The rights in question--rights of crime victims not to be victimized yet again through the processes by which government bodies and officials prosecute, punish, and/or release the accused or convicted offender--are indisputably basic human rights against government, rights that any civilized system of justice would aspire to protect and strive never to violate.

Mrs. FEINSTEIN. First, I think the Senator knows I have very deep respect for him. If I am fighting a battle, he is certainly one I would like to have in the trench with me.

Mrs. FEINSTEIN. There is always room in the trench to change his mind, if the Senator cares to. I do appreciate his concern and his testimony does carry weight with me. As a matter of fact, it was Senator Schumer's comment in the Record that I referred to last night when I addressed and talked with the attorneys in Oklahoma City today who represented the victims--Professor Cassell was one of them--and got that chronology. To me, the reason the statute won't work is because it hasn't worked. Both Houses of Congress, and even the redoubtable intelligence of the Senator in working on both the 1990 and the 1997 statute, rendered both a nullity by the Tenth Circuit. Therefore, they were victims in that entire circuit and are effectively left without a remedy, and the belief is that it would be difficult in that circuit, based on the precedent that has been set, without providing standing for victims in the Constitution under article III, to have a successful statute. Now, I don't believe many victims have the wherewithal to get a professor of law at a distinguished university and a Washington law firm. The people who are going to be the most impacted by this are poor, are minorities, where most of the crime victims, after all, really are in the Nation. So the ability for them to get redress under a statute, I think, is effectively quite limited. Addressing the second part about the drafting of this article, we have been at this for 4 years. There are 800 pages of testimony, as I have mentioned. I ask Senator Kyl, how many meetings does the Senator believe we have had with the Justice Department in the last 4 years over the wording in this?

Mrs. FEINSTEIN. So we have had at least a dozen meetings with Justice. The concepts are the authors', and much of the writing is actually a product of those meetings with the Justice Department. In fairness, staff has changed over the years. We worked with one assistant U.S. Attorney General, and that person has changed, and so on and so forth. We have also worked with White House staff. The basics of the amendment that the Senator questions as being burdensome in verbiage is really very simple: to reasonable notice of, and not to be excluded from any public proceedings relating to the crime; to be heard, if present; to submit a statement at all such proceedings to determine a conditional release from custody and acceptance of a negotiated plea or sentence. I might say that this was gone over with precision and detail with Justice as to whether a plea bargain would be effected; the foregoing rights in a parole proceeding that is not public to the extent these rights are afforded to the convicted offender; the reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation; reasonable notice of escape or release from custody. I will say the pardon has not been worked out with Justice, and there are some negotiations going on about that right now. But notice of release or escape; consideration for the interest of the victim; that any trial be free from unreasonable delay--there was considerable discussion through Senator Kyl, ourselves, attorneys for the victims, victims' rights groups, as to not to create a problem there. And the words ``to consideration of the interest'' were added to avoid any problem. To order restitution, to consideration for the safety of the victim in determining any conditional release from custody, and to notice of the rights: that is essentially the bulk of the basic rights. The rest sets up a vehicle. Now, we have heard two Senators come to the floor and say: ``Who would define a victim?'' We have to write in this that the Congress shall have the power to enforce this article by appropriate legislation. So the Congress would enforce the article. And some of that language, by way of clarification, is added. This is not 1791; it is the year 2000. Fortunately, since 1791, there is court precedent. There is now definition of language in the law that has been predetermined, and it is much more complicated, I think, to write this kind of language than it was way back when.

Mrs. FEINSTEIN. Will the Senator permit me to respond?

Mrs. FEINSTEIN. I am going to defer to the distinguished Senator from Arizona to give the opening response, and then I would like to finish up, if I might.

Mrs. FEINSTEIN. Mr. President, I thank the ranking member and the distinguished Senator from Arizona. I am delighted the distinguished Senator from West Virginia is here. I will try to be as brief as I can. However, when I left the Democratic caucus at lunch yesterday, I felt, I might say, very lonely; that this, in a sense, was an insurmountable quest. As I went back to my office and as I considered what had been said in the caucus and what had been said on the floor of the Senate, I felt so strongly how worthwhile this fight is and how many people will be touched and protected if, one day, we do succeed. Then I realized we were not alone. Later today, I will be submitting a raft of letters from a panoply of victims' rights organizations as well as law enforcement organizations that are in support of this measure. A few of them are up here on the board today: Mothers Against Drunk Driving, National Victims' Constitutional Amendment Network, National Organization for Victims Assistance, Parents of Murdered Children; Colorado Organization for Victim Assistance; Stephanie Roper Foundation; Mothers Against Violence in America--and on and on and on. Also, a group of 37 State attorneys general, the former U.S. Attorneys General, William Barr, Dick Thornburgh, Ed Meese; the Alabama Attorney General, and on and on and on; the Law Enforcement Alliance of America, the American Correctional Association, American Probation and Parole Association, Concerns of Police Survivors, the National Troopers' Coalition, the International Union of Police Associations, Los Angeles County Police Chiefs' Association, and on and on and on. Members can look at this. I will submit later individual letters. However, I thought it might be useful to answer some of the questions that were asked on the floor yesterday. One of them was that we should not be doing this lightly; this is too precipitous; it comes too fast; Members have not had enough of an opportunity to study it. In fact, Senator Kyl and I have been working on this for 4 years. We have had four hearings in the Judiciary Committee. We have heard from 34 witnesses. We have taken 802 pages of testimony. The House has had 32 witnesses and has 575 pages of testimony. So this is not a lonely quest in the sense that it has lasted for a short period of time, but it is a quest that will go on as well. Yesterday, both in the Democratic caucus, as well as on the floor, one distinguished member of the Judiciary Committee, a Senator whom I greatly respect, made this statement. Hopefully he will be listening because I want to provide the answer. The statement is: I have not received an answer, a good answer, from my colleague from Arizona and my colleague from California as to why not a statute. You can pass it more quickly and more easily. It fits the amendment. It fits what you are trying to do. No court, no Supreme Court, no final authority has thrown it out. Let me take the biggest and broadest case and describe to my colleagues why a statute will not work. The reason I use this case is it is a case with which we are all familiar. It is a case in which this Senate has played a role twice in passing, in fact, two statutes. It is a case where the defendants had access to attorneys and could mount a legal challenge. It is the treatment of the Oklahoma City bombing victims. I am going to read from a letter from a law professor who was one of the attorneys for the Oklahoma City bombing victims. His name is Paul Cassell. He is a professor of law at the University of Utah. He says: This morning I had the opportunity to listen to the debate on the floor of the Senate concerning the Crime Victims Rights Amendment. During that debate, if I understood it correctly, the suggestion was made that federal statutes had ``worked'' to protect the rights of the Oklahoma City bombing victims. As the attorney who represented a number of victims in that case, I am writing to express my strong view that this suggestion is simply not correct. To the contrary, the events of that case show that statutes failed. To be specific, the statutes failed to assure that all victims who wanted to were able to attend the trial of Timothy McVeigh. Indeed, the Department of Justice prosecutors handling the case advised a number of victims that they should not attend to avoid creating unresolved legal questions about their status in the case. A number of the victims reluctantly accepted that advice. In other words, they sat outside the courtroom despite the presence of two federal statutes specifically designed to make sure that they had an unequivocal right to attend. To add insult to injuries, the other attorneys and I who represented the individual victims were never able to speak a word in court on their behalves. . . . Some might claim that this treatment of the Oklahoma City bombing victims should be written off as atypical. However, there is every reason to believe that the victims here were far more effective in attempting to vindicate their rights than victims in less notorious cases. The Oklahoma City bombing victims were mistreated while the media spotlight has been on when the nation was watching. The treatment of victims in forgotten courtrooms and trials is certainly no better, and in all likelihood much worse. Moreover, the Oklahoma City bombing victims had six lawyers working to press their claims in court, including a law professor familiar with victims rights, four lawyers at a prominent Washington, DC, law firm and a local counsel. In the normal case, it often will be impossible for victims to locate a lawyer willing to pursue complex and unsettled issues about their rights without compensation. One must remember that crime most often strikes the poor and others in a weak position to retain counsel. Finally, litigating claims concerning exclusion from the courtroom or other victims' rights promises to be quite difficult. For example, a victim may not learn that she will be excluded until the day the trial starts. Filing effective appellate actions in such circumstances promises to be practically impossible. It should, therefore, come as little surprise that the Oklahoma City litigation was the first in which victims sought federal appellate court review of their rights under the Victims Bill of Rights, even though that statute was passed in 1990. What he is saying is that this was the first time victims under a statute passed 6 years earlier actually tried to use the court to enforce their rights. He continues: The Oklahoma City bombing victims would never have suffered these indignities if the Victims Rights Amendment had been the law of the land. It would have unequivocally protected their right to attend and their ``standing'' to assert claims on their behalf to protect that right. In short, the federal amendment would have worked to protect their rights. Then he goes on to give a chronology, and I think this is very important because the issue is effectively standing and the fact that they have no standing in the Constitution to have these rights. I think it is important that I point out a chronology of exactly what happened. I want to take the time to do that: During a pre-trial motion hearing in the Timothy McVeigh prosecution, the district attorney . . . issued a ruling precluding any victim who wished to provide victim impact testimony at sentencing from observing any proceeding in the case. The court based its ruling on Rule 615 of the Federal Rules of Evidence the so-called ``rule on witnesses.'' In the hour that the court then gave to victims to make this wrenching decision about testifying, some of the victims opted to watch the proceedings; others decided to leave Denver to remain eligible to provide impact testimony. Thirty-five victims and survivors of the bombing then filed a motion asserting their own standing-- This is important-- then filed a motion asserting their own standing to raise their rights under federal law and, in the alternative, seeking leave to file a brief on the issue as amici curiae. The victims noted that the district court apparently had overlooked the Victims Bill of Rights, a federal statute guaranteeing victims the right (among others) ``to be present at all public court proceedings unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial.'' In other words, the court had flexibility to make that determination. Continuing: The District Court then held a hearing to reconsider the issue of excluding victim witnesses. The court first denied the victims' motion asserting standing to present their own claims, allowing them only the opportunity to file a brief as amici curiae. After argument by the Department of Justice and by the defendants, the court denied the motion for reconsideration. It concluded that victims present during the court proceedings would not be able to separate the ``experience of trial'' from ``the experience of loss from the conduct in question,'' and, thus, their testimony at a sentencing hearing would be inadmissible. . . . The victims then filed a petition for writ of mandamus in the U.S. Court of Appeals for the Tenth Circuit seeking review of the district court's ruling. Because the procedures for victims appeals were unclear, the victims filed a separate set of documents appealing from the ruling. Similarly, the Department of Justice, uncertain of precisely how to proceed procedurally, filed both an appeal and a petition for a writ of mandamus. 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 the 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. In the meantime-- And now it gets even more critical-- the victims, supported by the Oklahoma Attorney General's Office, sought remedial legislation in Congress clearly stating that victims should not have to decide between testifying at sentencing and watching the trial. The Victims' Rights Clarification Act of 1997 was introduced to provide that watching a trial does not constitute grounds for denying the chance to provide an impact statement. The 1997 measure passed the House by a vote of 414 to 13. The next day, the Senate passed the measure by unanimous consent. The following day, President Clinton signed the Act into law, explaining that ``when someone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in.'' The victims then promptly filed a motion with the district court asserting a right to attend under the new law. The victims explained that the new law invalidated the court's earlier sequestration order and sought a hearing on the issue. Rather than squarely uphold the new law, however, the district court entered a new order on victim-impact witness sequestration. The court concluded ``any motions raising constitutional questions about this legislation would be premature and would present issues that are not now ripe for decision.'' Moreover, the court held that it could address issues of possible prejudicial impact from attending the trial by conduct[ing] a voir dire of the witnesses after the trial. The district court also refused to grant the victims a hearing on the application of the new law, concluding that its ruling rendered their request ``moot.'' After that ruling, the Oklahoma City victim impact witnesses--once again--had to make a painful decision about what to do. Some of the victim impact witnesses decided not to observe the trial because of ambiguities and uncertainties in the court's ruling, raising the possibility of exclusion of testimony from victims who attended the trial. The Department of Justice also met with many of the impact witnesses, advising them of these substantial uncertainties in the law, and noting that any observation of the trial would create the possibility of exclusion of impact testimony. To end this confusion, the victims filed a motion for clarification of the judge's order. The motion noted that ``[b]ecause of the uncertainty remaining under the Court's order, a number of the victims have been forced to give up their right to observe defendant McVeigh's trial. This chilling effect has thus rendered the Victims Rights Clarification Act of 1997 . . . for practical purposes a nullity.'' So the effort of this Congress to write one statute, and to clarify it with a second statute, was rendered a nullity. Unfortunately, the effort to obtain clarification did not succeed, and McVeigh's trial proceeded without further guidance for the victims. After McVeigh was convicted, the victims filed a motion to be heard on issues pertaining to the new law. Nonetheless, the court refused to allow the victims to be represented by counsel during argument on the law or during voir dire about the possible prejudicial impact of viewing the trial. The court, however, concluded (as the victims had suggested all along) that no victim was in fact prejudiced as a result of watching the trial. This recounting of the details of the Oklahoma City bombing litigation leaves no doubt that statutory protection of victims rights did not ``work.'' To the contrary, for a number of the victims, the rights afforded in the Victims Rights Clarification Act of 1997 and the earlier Victims Bill of Rights were not protected. They did not observe the trial of defendant Timothy McVeigh because of lingering doubts about the constitutional status of these statutes. The undeniable, and unfortunate, result of that litigation has been to establish--as the only reported federal appellate ruling [to date]--a precedent that will make effective enforcement of the federal victims rights statutes quite difficult. It is now the law of the Tenth Circuit that victims lack ``standing'' to be heard on issues surrounding the Victims' Bill of Rights and, for good measure, that the Department of Justice may not take an appeal for the victims under either of those statutes. For all practical purposes, the treatment of crime victims' rights in federal court in Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming has been remitted to the unreviewable discretion of individual federal district court judges. The fate of the Oklahoma City victims does not inspire confidence that all victims rights will be fully enforced in the future. Even in other circuits, the Tenth Circuit ruling, while not controlling, may be treated as having persuasive value. If so, the Victims Bill of Rights will effectively become a dead letter. This is the reason we pursue our case with such ardor. We do not believe it is possible, under any statute drafted to cover victims of violent crimes, to provide them with certain basic rights because any Federal statute would only cover 1 to 2 percent of the victims of violent crimes in the United States; and, secondly, because the one noteworthy case, in the sense of public knowledge, in the sense of major representation of victims by attorneys of major quality, resulted in two laws, passed by this Senate and the other House, being rendered a nullity. That is the reason we pursue our quest here today. I thank the Chair and yield the floor.

Mrs. FEINSTEIN. I think that is a very important question. I am sure I cannot answer as adequately, but let me try. I think any statute lasts a ``New York minute.'' Let me state why. I think there is bureaucratic inertia. At our caucus yesterday, to be very frank, I was amazed at Members' reactions. We are trying to give victims certain basic rights. I almost came out of the caucus feeling somewhat un-American because I am trying to do something that can stand the test of universal time to improve a very convoluted, difficult administration of justice process in this country, to ensure victims a certain participation in the process.

Mrs. FEINSTEIN. I grant that the 1997 clarification act, which, as I understand it, meant to say that a victim could both be present in court and make a statement, was simply not answered; it was ignored. The 1990 victims' rights amendment was a more considered bill, developed over a period of time, and was the one with which the Tenth Circuit essentially said that victims lack standing under article III because they had no legally protected interest to be present at the trial and had suffered, therefore, no injury. I don't know how one remedies by statute to withstand the test of time, the bureaucratic inertia, the equivocation that goes on. From 1850, we have a century and a half in this country where victims have had no rights in the process. The process has locked itself. The Senator is right, some district attorneys don't want to be responsible to send a victim or say, Give me your address and phone number if you want to come to court; I will notify you. Then it is up to the victim to provide that and be there at the appropriate time. Many don't want to do that. What makes me very suspect is, that reaction is disproportionate to what we are trying to achieve, which is basically status rights. It is not like the right to counsel, not like a right of a jury of your peers, it is not like protection against double jeopardy or unreasonable search and seizure. Those are very ``meaty'' rights that defendants have that should be provided, including the right to be present, the right to make a statement--pretty simplistic rights.

Mrs. FEINSTEIN. Then I think it is the wrong tool for what is a basic human right against government because it is government that refuses these people access. I think then you have to monitor government, and it would take a whole new bureaucracy to monitor government to see every notice was sent out and every change of address and that kind of thing. But I want to read a statement from someone who you do respect. I know you respect Professor Tribe. In addition, I know you respect the Attorney General of the United States. Just before you leave, I want to read a statement: Unless the Constitution is amended to ensure basic rights to crime victims, we will never correct the existing imbalance in this country between defendants' irreducible constitutional rights and the current haphazard patchwork of victims' rights. While a person arrested or convicted of a crime anywhere in the United States knows he is guaranteed certain basic protection under our Nation's most fundamental law, the victim of that crime has no guarantee of rights beyond those that happen to be provided and enforced in the particular jurisdiction where the crime occurred. This is similar to the discussion of how many angels dance on the head of a pin. I supported the first State constitutional amendment in 1982. It is now 18 years later. Even by constitutional amendments, what Senator Kyl said about 60 percent and 40 percent of victims being responded to is really correct. We believe it is never going to be enforceable, it is never going to be carried out. The bureaucratic inertia is too great, the system is too ingrained, and the Constitution of the United States should not be so static and so immutable that people who have suffered violence do not have a right in a court of law. That is what we are about. Thank you.

Mrs. FEINSTEIN. I certainly will.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I appreciate the courtesy of the distinguished Senator from West Virginia. I say to the Senator, please, continue on and conclude. I am just fine. I enjoy listening.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Would the Senator finish reading that? I think the next points are very important to our cause. They should be heard.

Mrs. FEINSTEIN. I thank the Senator. The Senator and I worked extensively with both Laurence Tribe, a professor of constitutional law at Harvard University, and Paul Cassell, a professor of law at the University of Utah College of Law. Both are very skilled and knowledgeable in this area. I happened to find an article that they wrote together in a newspaper. I thought it might be interesting to hear their view. I would like to read it to you and ask for your response: We take it to be common ground that the Constitution should never be amended merely to achieve short-term, partisan, or purely policy objectives. Apart from a needed change in governmental structure, an amendment is appropriate only when the goal involves a basic human right that by consensus deserves permanent respect, is not and cannot adequately be protected through State or Federal legislation-- I think we have shown why that can't happen-- would not distort basic principles of the separation of powers among the Federal branches or the division of powers between the national and state governments or the balance of powers between government and private citizens with respect to their basic rights. The proposed Victims Rights Amendment meets these demanding criteria. It would protect basic rights of crime victims, including their rights to be notified of and present at all proceedings in their case and to be heard at appropriate stages in the process. These are rights not to be victimized again through the process by which government officials prosecute, punish and release accused or convicted offenders. Then it goes on to say: These are the very kinds of rights with which our Constitution is typically and particularly concerned--rights of individuals to participate in all those government processes that strongly affect their lives. ``Participation in all forms of government is the essence of democracy,'' President Clinton concluded in endorsing the amendment. Now, what we come down to, essentially, is how do you express these things in a way that gives victims these certain basic rights? I think we have tried to do that. We put it up on a schedule here of crime victims' rights. I wish to quickly go over this. The rights of the accused are on the left. The rights we would afford victims are on the right. In a sense, we achieve a kind of balance. Now, the question comes when and if these rights come into conflict. The fact is, I think we both believe it will be rare that these rights come into conflict. As was said, with an emotional victim, there is in the law already the opportunity for a judge to handle this situation. I have had a very hard time, because the Senator and I have had a number of critics on this; we have had a number of newspapers that have editorialized and said that what we are trying is trivial, not important. But let me tell you something. If you are a rape victim and you have reason to believe that individual may come back after you, it is not unimportant that you have notice when that individual is released from prison or from jail. It is not unimportant at all. I indicated earlier a case of an individual who has had to change her name and live in fear and anonymity because of this. The Constitution should protect that victim, and that is what we try to do. So I have had a very hard time seeing instances where there is actual conflict. My question of the Senator is, Can the Senator expand on this more and indicate where there is conflict? People have said, ``You diminish the rights of the accused.'' I don't see us diminishing the rights of the accused. Their rights are very specific. We don't touch on these. There is the right to counsel, the right to due process, the right to a speedy trial. We want that, as well, because we know that the speed of the trial is an important deterrent to violence. We know that if a trial is not speedy, evidence grows cold, witnesses disappear. It is much more difficult to make a case if there is a long hiatus between arrest and trial. In fact, Federal law recognizes that by moving trials along in an expeditious way. Double jeopardy. We certainly don't interfere with that. We certainly don't interfere with the prohibition against self-incrimination or against unreasonable search and seizure, probable cause, a jury of peers, the right to be informed, the right to confront witnesses, to subpoena witnesses, a prohibition against excessive bail, the right to a grand jury. There are a few other rights written into the Constitution. But our rights are so basic for a victim, such as the right to have notice when a trial takes place, the right to be present in the courtroom, the right to make a statement at an appropriate place in the trial, the right to have notice if your assailant is released. These are certain basic, core rights that in no way, shape, or form, it seems to me, interfere with the constitutional rights granted to a defendant or to an accused to protect them from excessive government under the Constitution of the United States. So I have been very perplexed as to why we see bubbling out there this argument that we are setting up some collision of rights. We are simply trying to provide a victim with certain basic rights that are spelled out and are specific. Would the Senator care to elaborate on that?

Mrs. FEINSTEIN. Let me stop the Senator on that point because I think he has very well expressed what we are trying to do. We have discussed this before. I think the whole body should hear this. We know that those who are accused have basic rights. We know that the prosecution usually wants to try to get the victim in the courtroom. The defense attorney wants to keep the victim out of the courtroom. Supposing a situation arises where you have an emboldened or abusive victim, or one who is overly emotional, under our amendment, how would this work? What rights would the judge have in this situation?

Mrs. FEINSTEIN. Mr. President, if I may, I would like to have an opportunity to ask the Senator from Arizona a couple of questions. I thought he pointed out very ably the problem of a statute filling the void, the first problem being that the rights of the accused will always trump the rights of the victim. He pointed out very well and very ably and very specifically the situation that took place with respect to Oklahoma City. Then we turned to the FBI to try to get the amount of coverage that could be achieved in the statute for victims across this great land. We were told that really the best we could do would be to protect by statute the 1 to 2 percent of victims who were victimized by violent crimes. I think it is important that we discuss a little bit more why the Constitution will always trump a State law. I ask the Senator to lay that out once again.

Mrs. FEINSTEIN. I thank my colleague, yield the floor, and reserve the remainder of our time.

Mrs. FEINSTEIN. I thank the Senator. If the Senator recalls, in our earlier discussions with the Justice Department, we were very concerned that the rights of the accused not be violated, not be diminished, and we quite consciously left out any specific remedy in this situation so that if someone doesn't exercise their right either to be present or to make a statement, in effect, they have no remedy, or after they make their statement, if the facts in the trial are such and the jury comes in with a decision, they have no right of a remedy. So the basic core rights we provide are, in a sense, certain procedural rights that give them a place in the process. Let me read what these two law professors have said on this point: The framers of the Constitution undoubtedly assumed the rights of victims would receive decent protection, but experience has not vindicated this assumption. It is now necessary to add a corrective amendment. Doing so would neither extend the Constitution to an issue of mere policy, nor provide special benefits to a particular interest group, nor use the heavy artillery of constitutional amendment where a simpler solution is available, nor would it put the Constitution to a purely symbolic use or enlist it for some narrow partisan purpose. Rather, the proposed amendment would help bridge a distinct and significant gap in our legal system's existing arrangements for the protection of basic human rights against an important category of government abuse. This, I think, goes right to the question of remedy. We don't provide for a remedy, we simply say you have these basic rights to participate in this manner.

Mrs. FEINSTEIN. Mr. President, I thank our ranking member for this opportunity. It gives an opportunity for the Senator from Arizona and me to explain the amendment. I very much appreciate that. Providing constitutional rights for victims of violent crime has been at the top of my list of priorities as a Senator from California. I will take a few moments to explain why. I thank our colleague, Senator Kyl, for his leadership in bringing this issue to the forefront and working so closely with me in a bipartisan way over the past 4 years through two Congresses. I believe this is what voters sent us here to do, to work together, Republicans and Democrats, House and Senate, to find solutions to the problems ordinary Americans face every day. Indeed, ordinary Americans do find problems in the criminal justice system. There were about 9 million victims of violent crimes in 1996, when we began this effort, and each of the 4 years since that time in the United States. Many of these victims were actually victimized a second time by the criminal justice system. They were kept in the dark about their case. They were excluded at the trial. They were unable to express their concerns for their safety when a decision was made to release their attacker. It is for these victims we are fighting for this amendment to the Constitution of the United States. There are those who say the Constitution is a static document; it is a perfect document; it should not be changed. There are those who say it should not be changed easily. There are those who say it should not be changed without need. We are in the latter two. We believe we have a serious amendment, and we believe we can demonstrate the need for this change. The amendment we propose today meets a situation, the situation that when the Constitution of the United States was written in 1789, there were but 4 million people in 13 colonies. Today we are over 250 million people, and victims of violent crimes alone amount to over 9 million a year. When the Constitution was written, it was a different day. In 1791, the Bill of Rights was written. Between the text of the Constitution and the text of the Bill of Rights, a number of rights were provided to the accused, rights to protect them against an overeager, overzealous, and overambitious Government. We all know what they are: The right to counsel, to due process, to a speedy trial, against double jeopardy, against self-incrimination, against unreasonable searches and seizures, the right to have warrants issued upon probable cause, the right to a jury of peers, the right to be informed, and so on. Victims were entirely left out, and when the Constitution and the Bill of Rights were written in 1789 and 1791, there were essentially no rights provided to victims in the United States. There was good reason for it. I want to say why that took place. When the Constitution was written, in America in the late 18th century and well into the 19th century, public prosecutors did not exist. Victims could, and did, commence criminal trials themselves by hiring a sheriff to arrest the defendant, initiating a private prosecution. The core rights of our amendment to notice, to attend, to be heard were inherently made available to a victim of a violent crime. As Juan Cardenas, writing in the Harvard journal of law and public policy, observed: At trial, generally, there were no lawyers for either the prosecution or the defense. Victims of crime simply acted as their own counsel, although wealthier crime victims often hired a prosecutor. Gradually, public prosecution replaced the system of private prosecution. With the explosive growth of crime in this country in recent years, it became easier and easier for the victim to be left aside in the process. As other scholars have noted: With the establishment of the prosecutor the conditions for the general alienation of the victim from the legal process further increased. Mr. President, this began to happen in the mid 19th century, around 1850, when the concept of the public prosecutor was developed in this country for the first time. The victim is deprived of his [or her] ability to determine the course of a case and is deprived of the ability to gain restitution from the proceedings. Under such conditions, the incentives to report crime and to cooperate with the prosecution also diminished. As the importance of the prosecution increases, the role of victim is transformed [in our country] from principal actor to a resource that may [or may not] be used at the prosecutor's discretion. Those aren't my words; those are words of Fredric Dubow and Theodore Becker in ``Criminal Justice and the Victim.'' So we see why the Constitution must be amended to guarantee these rights. There was no need to guarantee them in 1789 and 1791, when the Bill of Rights was added. We see that the criminal justice system has changed with the evolution of the concept of the public prosecutor, and we see that America has changed. The prevalence of crime has changed. The number of victims has changed. So creating the need and circumstance to respond to these developments and to restore balance in the criminal justice system by guaranteeing certain basic rights of violent crime victims in the United States is what we seek to do. Those rights would be as follows: The right to notice of proceedings; the right not to be excluded from proceedings; the right to be heard at proceedings, if present; the right to submit a statement; the right to notice of release or escape of an attacker. For me, that is a central point and how I got involved in this movement. Also, there is the right to consideration in ensuring a speedy trial; the right to an order of restitution ordered by a judge; the right to consideration of safety in determining any conditional release. Those are basic, core rights that we would give to a victim of violent crime to be balanced against the rights of the accused. Senator Kyl mentioned that among our supporters are Prof. Laurence Tribe of the Harvard Law School. Professor Tribe is a noted constitutional expert. Let me quote portions of his testimony from the House hearing on the amendment: The rights in question--the rights of crime victims not to be victimized yet again through the processes by which government bodies and officials prosecute, punish, and release the accused or convicted offender--are indisputably basic human rights against government, rights that any civilized system of justice would aspire to protect and strive never to violate. Our Constitution's central concerns involve protecting the rights of individuals to participate in all those government processes that directly and immediately involve those individuals and affect their lives in some focused and particular way. . . . The parallel rights of victims to participate in these proceedings are no less basic, even though they find no parallel recognition in the explicit text of the U.S. Constitution. The fact that the States and Congress, within their respective jurisdictions, already have ample affirmative authority to enact rules protecting these rights is. . .not a reason for opposing an amendment altogether. . . . The problem, rather, is that such rules are likely, as experience to date sadly shows, to provide too little real protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia, or any mention of an accused's rights regardless of whether those rights are genuinely threatened. Now, some people would say, ``Let's pass another Federal statute.'' To them, I say: Been there, done that. We did that twice--in the case of the Oklahoma City bombing--and the judge ignored the Federal statute both times. According to the FBI, 98.4 percent of violent crimes are prosecuted in State courts. So why a Federal statute won't work is that even the broadest Federal statute would affect only 1 percent of the victims of violent crimes in this Nation. And then that statute could, in effect, be trumped at any time by the constitutional amendment provided to the accused. The attorneys general of 37 States, Puerto Rico, and the Virgin Islands have all signed a letter with this statement: We are convinced that statutory provisions are not enough. Only a Federal constitutional amendment will be sufficient to change the culture of our criminal justice system. Let me tell you, very personally, why I believe this to be very necessary. Let me take you back to my life in San Francisco in the 1970s. In 1974, in my home city, a man by the name of Angelo Pavageau broke into the house of Frank and Annette Carlson in Portrero Hill. Mr. Pavageau tied Mr. Carlson to a chair, murdered him by beating him with a hammer, a chopping block, and a ceramic vase. He then repeatedly raped Annette Carlson, who was 24 years old, breaking several of her bones. He slit her wrists and tried to strangle her with a telephone cord before setting their home on fire and leaving them to go up in flames. But Mrs. Carlson survived the fire; she lived and she testified against her attacker. That testimony sent him to prison where he resides, I believe, to this day. But she has been forced to change her name. She lives anonymously and she continues to live in fear that one day her attacker may be released and come back after her. When I was mayor of San Francisco, she called me several times to notify me that she had found out that he was up for parole, and she begged me to do what I could to see that she would know if he was released so she could protect herself. Amazingly, it was up to her to find this information. The system did not provide it. I believe no American citizen should have to live out of fear that their attacker will be released from jail or from prison without their notice. That is a basic right provided by this measure. In 1979, a killing occurred which galvanized the victims' rights movement in California. A young woman named Catina Rosa Salerno was murdered on her first day of school at the University of the Pacific in Stockton. The killer was an 18-year-old, Steven Jones Burns, Catina's high school sweetheart and a trusted family friend. After shooting her, Burns went back to his dorm room to watch Monday night football. He could see her as she bled to death outside his window. During the trial, the family was not allowed in the courtroom and had to sit outside waiting for news. The murder of Catina had a profound and lasting effect on the family. Her mother, Harriet, and her father, Michael, cofounded Crime Victims United, one of California's more outspoken groups for victims' rights, and the family has since that day worked tirelessly to educate the public about the rights of crime victims. These cases helped California become the first State in the Nation to pass a crime victims' constitutional amendment, an amendment to the State Constitution of California, Proposition 8, in 1982. It gave victims the right to restitution, the right to testify at sentencing, probation, and parole hearings, established a right to safe and secure public school campuses, and made various changes in criminal law. It was a good start. Since that time, a total of 32 States have passed constitutional amendments to provide victims of crime with certain basic rights. All of them have passed by substantial margins--Alabama, 80 percent; Connecticut, 78 percent; Idaho, 79 percent; Illinois, 77 percent; Indiana, 89 percent; Kansas, 84 percent. Some States passed them by constitutional convention: South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. What is wrong with that? What is wrong is the paperwork quilt of different rights provided by different State Constitutions. The remaining States--18 of them--provide no basic rights for a victim of a violent crime. We provide a basic core of rights--of notice, of presence, to be heard, to be noticed of an attacker's release, to restitution if ordered by a judge--eight certain, basic, core rights that exist for every victim of a violent crime throughout the United States. For the first time in history, the Constitution would recognize a victim has core basic rights, that those rights are present in the Constitution, and that the victims are free to exercise those rights. In summary, I know this amendment is controversial. I know there are those who will say these State amendments are enough. I want to give a few examples of why the State amendments are not enough. Maryland has a State amendment. But when Cheryl Rae Enochs Resch was beaten to death with a ceramic beer mug by her husband, her mother was not notified of the killer's release 2\1/2\ years into the 10-year sentence. The mother was not given the opportunity to be heard about this release--in violation of the Maryland constitutional amendment. Arizona has a State constitutional amendment, but an independent audit of victim-witness programs in four Arizona counties, including Maricopa County, where Phoenix is located, found that victims were not consistently notified of hearings; they were not conferred with by prosecutors regarding plea bargains; they were not consistently provided with an opportunity to request postconviction notification. Ohio has a State amendment. But when the murderer of Maxine Johnson's husband changed his plea, Maxine was not notified of the public hearing and was not given the opportunity to testify at his sentencing as provided in Ohio law. A Justice Department-supported study of the implementation of State victims' rights amendments released earlier this year made similar findings: Even in States with strong legal protections for victims' rights, the Victims' Rights study revealed many victims are denied their rights. Statutes themselves appear to be insufficient to guarantee the provision of victims' rights. The report goes on: Nearly two-thirds of crime victims, even in states with strong victims' rights protection, were not notified that the accused offender was out on bond. Therefore, the victim had no opportunity to protect himself or herself. Nearly one half of all victims, even in the strong protection states, did not receive notice of the sentencing hearing--notice that is essential if they are to exercise their right to make a statement at sentencing. Finally: A substantial number of victims reported they were not given an opportunity to make a victim impact statement at sentencing or parole. State amendments are not enough. The reason a Federal statute will not work is that it has not worked before and our area of coverage is too small. The best Federal statute we could pass would cover but 1 percent of victims of violent crimes in this Nation. That leaves but one remedy. It is a difficult remedy. It takes time. It imposes an act of conscience on every Member of this body and the other body who believes the Constitution of the United States should not be amended: Is it worthy to make this amendment to afford the victim of a rape attack, the victim of an attempted murder attack, with the notice as to when that individual is going to be released from jail or prison? I think it is. Is this a worthy enough cause so that an individual can at least be noticed when a trial is going to take place, can at least be present, can at least make a statement, can at least have an order of restitution if ordered by a judge, and to at least have notice of these basic rights? I think so. I don't believe the Constitution of the United States was written purposefully to exclude victims. The victim was part of the trial. The victim brought the trial. The victim brought the investigation. The victim was present in court. And our country functioned that way until the mid-19th century and the evolution of the public prosecutor. The only way to remedy this significant omission, I contend, is to amend the Constitution of the United States and at long last show the Constitution is, in fact, a living document, that it does expand to take into consideration the evolution of circumstances within our country. This cannot be done, it cannot be achieved, without an amendment to the Constitution of the United States. I reserve the remainder of my time, and I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, yesterday, April 24, marked the 85th anniversary of the beginning of the Armenian genocide. I rise today to acknowledge and commemorate this terrible crime and to help ensure that it will never be forgotten. On April 24, 1915, the Ottoman Empire launched a brutal and unconscionable policy of mass murder. Over an eight year period, 1.5 million Armenians were killed, and another 500,000 were driven from their homes, their property and land confiscated. As Americans, we are blessed with freedom and security, but that blessing brings with it an important responsibility. We must never allow oppression and persecution to pass without condemnation. By commemorating the Armenian genocide, we renew our commitment always to fight for human dignity and freedom, and we send out a message that the world can never allow genocide to be perpetrated again. Even as we remember the tragedy and honor the dead, we also honor the living. Out of the ashes of their history Armenians all across the world have clung to their identity and have prospered in new communities. My State of California is fortunate to be home to a community of Armenian-Americans a half a million strong. They are a strong and vibrant community whose members participate in every aspect of civic life, and California is richer for their presence. Let us never forget the victims of the Armenian genocide; let their deaths not be in vain. We must remember their tragedy to ensure that such crimes can never be repeated. And as we remember Armenia's dark past, we can take some consolation in the knowledge that its future is bright with possibility.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I will conclude with one additional comment. Colombia is the source country for 80 percent of the cocaine consumed in this Nation. It is the source country of 70 percent of the heroin consumed in this Nation. It is a country under siege. It is a country where one- third of the geographic area is controlled by narcoterrorists, and it happens to have a government that is willing to stand up and say: We want to do something about it. United States, help us in a multilateral effort do something about it. This Senate is saying it does not have time to consider the request. It is in our national interest to consider the request. It is in our national interest to have debate on the request. It is in our national interest to appropriate the dollars for this request. I end by summarizing something Mr. Friedman said in the New York Times: If we give the Colombian majority the aid it needs to fight the drug Mafia, there is a chance--and it's no sure thing -- that it will be able to forge a domestic peace. If we don't --and this is a sure thing--the problem will only get worse, it will spew instability across this region, and the only rain forest your kids will ever see is the Rainforest Cafe. I thank the Chair, and I yield the floor.

Mrs. FEINSTEIN. I thank the distinguished Senator from Connecticut. I think the point is well taken. I, for one, was delighted--because I tend to read all of Tom Friedman's articles in the New York Times--he spent time in Colombia. I was so pleased that he saw what was the central point in all of this debate. I want to quote him. I know the Senator did earlier, and I hope this is not redundant. He said there are two ways to look at Plan Colombia. One is to get wrapped up in the details--the helicopters, the training, why we might or might not like it. The other way, and he suggests the right way, is to step back and ask yourself: What kind of courage does it take? That is what we are talking about here, what kind of courage it takes to stay in Colombia right now--to be a judge who puts drug lords in jail or be a politician such as the President of the country, or the Attorney General, or the generals of the army, or local public officials who fight for the rule of law, knowing that criminals have millions of dollars in drug money and would kill their kids in a second. That is not an esoteric concept. The numbers of children of families who have been killed in drug wars are legion. These people do not care for anybody who stands in their way. The debilitating part about it is the ability to corrupt to get your way. How many people can actually stand up to that? We see over and over and over again where a respected public official, a police officer, a judge, a prosecutor gives in to this kind of tyranny. The Ariano Felix Cartel in Mexico is notorious for this. They will kill anybody standing in their way. Their cocaine comes right out of Colombia. There you have the narcoterrorists controlling a third of their country and everybody and everything within that third. So the real courage, as Mr. Friedman points out, is that the people who are trying to do the right thing deserve our support. This is our hemisphere; it is not another hemisphere. The results of drug trafficking, the results of narcoterrorism, only spread. They do not contain themselves; they spread. The spread is northerly into our country. So I make this point again and again and again: This supplemental appropriation, an appropriation in our budget, is in our national interest. It is in the American national interest to stand tall against the cartels, to stand tall against this kind of terrorism, to support public officials who are willing to do the same thing. That support should be for the Attorney General of Mexico, the President of Mexico, the President of Colombia, the Attorney General of Colombia, the Judges of Colombia, the people who have been able to come back from M-11 and what was done in their country to try to institute a democracy. These are the people who recognize that, yes, there are problems but they are trying to make the changes. The people who plead to this country say: Help us. Don't do the whole thing; just do a part of it. Put your imprimatur of leadership on it so other nations will follow and so we will have the ability to control something which, if we do not, will spread through the whole Andean region and, I contend, to Mexico and to the United States as well. I think you have, essentially, a major battle in this area of South America that will effectively determine the future of these countries-- Colombia, the Andean region, Mexico--and to a degree our own country. I very much hope people will reconsider and really look at how important it is to stop this trafficking. I remember the day--and it was in the 1980s--we in the cities of America never saw an arrest involving a ton of cocaine or a ton of any other substances, hundreds of pounds of drugs at one time. Now the arrests are being made, and they are finding 5 tons, 6 tons, 4 tons. The business that is inherent in this, the corruption that comes with it, is so enormous it is beyond anything we can possibly conceive. The complicity by transportation companies is one of the reasons Senator Coverdell and I worked together on this drug kingpin bill, to apply the RICO statutes to companies doing business with the cartels who simply turn their heads when there are 5 tons of cocaine on a train coming into this country or in a container as part of a fleet of trucks that come across the border every day. People have to open their eyes. They have to see what is happening. We have to begin to support the leaders who will stand tall. I will be very candid with the Senator from Connecticut and our distinguished Presiding Officer from the great State of Maine. If somebody came to me with a picture of my daughter or my granddaughter, I don't know what I would do. I don't know. I believe I would tell them where to get off, but I don't really know. It is like the person who jumps in the river to save someone who is drowning. You don't really know until you are in that situation. The fact is, thousands of people in Colombia are in that situation on a daily basis. What they are saying is: Help, United States. Use your leadership. Give us the resources because we need helicopters that can fly at a certain altitude and have a certain range. The Huey cannot do it; it is the Black Hawk. We need a certain altitude for certain areas. The Huey can't do it; give us the Black Hawk. Help us with some of this other equipment we need and stand by us as we make the battle real. If we are to put our money where our mouth is, it has to be to fight the major trafficker. It has to be to fight the narcoterrorist. It has to be to stand up for the political leaders who are willing to stand against them.

Mrs. FEINSTEIN. I think the Senator has stated the case about as well as it can be stated. I have never been to Colombia. I come at this a little differently, as one who has watched the development of major narcotics trafficking over a long period of time. My State is very much influenced and affected by this kind of narcotrafficking. I have worked with Senator Coverdell of Georgia in the certification of Mexico. I have watched the development of the big transportation cartels because Colombia is the source country of most of the cocaine. I have watched the big transportation cartels develop in Mexico. I have watched them interface with gangs in our country. I have watched California become the export State of gangs. The Crips and Bloods started in Los Angeles and are now in 118 American cities. I have watched the gang deaths in America over drugs. It is a huge problem. I have watched the debate over supply versus demand. We spend dollars on demand. In fact, local jurisdictions are the ones that mount the demand programs, the prevention, the counseling, the drug abuse programs. The one area in which the Federal Government has total responsibility is interdiction at our borders; it is international narcotics, trafficking, and control. These big amount of drugs come from outside of the United States; therefore, what we do affects our role. I did not know President Pastrana. The chairman of the Appropriations Committee, on which I am fortunate to sit, had a meeting with him in the appropriations room during his last trip. I met this young President for the first time. Prior to that, I had been visited by the head of the military under the former government who pointed out with great alarm what he thought was happening and even said he didn't think Pastrana was being strong enough in the drug area. The former head of the military pointed out to me that a third of the country at that time was under control of narcoterrorists. That is a country the size of Switzerland. That is how large the geographic area is. He pointed out that a million and a half citizens were refugees within their own country; 300,000 had fled. He believed that 60,000 had tried to come into this country illegally, people who were devastated by this, running in fear for their lives because of it. We do have a role to play. He pointed out to me there were 3,000 citizens held hostage by narcoterrorists, 250 of them local police, 250 of them soldiers. Nobody knows what happens to these people. I met President Pastrana. He was a very sincere leader, a leader who had been sobered by this, a leader determined to do something about it, a leader pleading for backup and help by the United States. Is it in our national interests to help? I believe it is. All of these drugs come to our country, all of these cartels interface with American gangs, all of these cartels are brutal. They kill anyone who stands in their way--even a Catholic cardinal in Mexico. They kill newspaper heads who write against them. They kill anyone who stands up and says no. The question that Tom Friedman mentioned so eloquently in his New York Times column--and I ask this of the Senator from Connecticut--if someone comes to you and says: here is half a million in an envelope, here is a picture of your wife and where she has her hair done, and a picture of your children and the schools they go to, which will you take? I ask the Senator from Connecticut what kind of courage does it take to stand against that kind of entreaty?