Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, it seems to me the amendment of the Senator from North Dakota does both too little and too much. A lot of thought went into crafting the bill before the Senate by staff and members on the Finance Committee. It is hard to get this exactly right. We have done that. This is very complicated. What I mean by doing too little and too much is this: The amendment only affects about 7 percent of the products according to the Commerce Department; 7 percent of the goods and services these multinational corporations produce are imported back into the United States. That is the only part of the new deferral rule that would be affected. In that sense, it probably does not do much to accomplish the purposes of the authors of the amendment. But it does too much in the sense that anything that impedes the competitive advantage of the U.S. corporations and the quality of their products is going to hurt their ability to do business. What we have tried to do with the deferral rules is to even the balance between the European corporations, for example, and the American corporations, so our companies are not taxed more than their competitors. This would, to the extent it changes these deferral rules, impose a higher tax on American businesses than their European counterparts are required to pay. In that sense, it changes this competitive balance. It is exactly what we are trying to get away from. I urge my colleagues to reject the amendment of the Senator from North Dakota, acknowledge the work of the Finance Committee which, as I said, very carefully tried to get this balance right and ensure American companies would not be at a competitive disadvantage vis-a-vis their European competitors. I urge my colleagues to defeat the amendment of the Senator from North Dakota and support the Finance Committee.

Mr. KYL

Mr. KYL. Mr. President, speaking before the UN General Assembly in September, President Bush asked the Security Council to take a firm stand against the proliferation of weapons of mass destruction, WMD. President Bush asked for a Security Council resolution that would call on all nations to criminalize proliferation, enact strict export controls and secure these terrible weapons within their own borders. Seven months later, on April 28, the UN Security Council unanimously passed Resolution 1540 fulfilling the President's goals. Those who have argued that this administration has turned its back on the international community need only look at the diverse group of nations--from Algeria to Angola, Chile to China, Pakistan to the Philippines--that stood with the United States in this important battle in the war on terror to dispel such notions. It is now up to the members of the United Nations to follow the Security Council lead and enact the provisions that will help stem the flow of dangerous weapons and technology. This resolution is the culmination of the administration's hard work, led by Under Secretary of State John Bolton, to halt the proliferation of chemical, biological and nuclear weapons. The President's proliferation security initiative, launched last March, embodies these efforts. It has brought together nations from North America, Europe, Africa, and Asia to interdict shipments of WMD around the world. This resolution endorses such important collective action and I urge all nations to join in the effort. I applaud the administration and the Security Council for helping take an important step to building a safer, more secure world.

Mr. KYL

Mr. KYL. Mr. President, I rise to speak to the legislation we are going to be taking up when we go back to S. 1637, called the Jumpstart Our Business Strength Act, which will attempt to modify the law relative to how we treat manufacturing firms in tax policy to comply with rulings of the World Trade Organization and related legislation. There is an amendment pending that will be offered by Senator Harkin that relates to final regulations issued last week by the Department of Labor. I would like to speak to why we should quickly dispense with that Harkin amendment to move on with the S. 1637 and not get bogged down in the regulations that were issued by the Department of Labor. The regulations issued a final rule to update the previous regulations that implemented the Fair Labor Standards Act. That act implements rules guaranteeing overtime pay for certain nonwhite collar workers--in other words, when somebody works longer than the period they would ordinarily be required to work, what circumstances the employer is required to then pay overtime pay for that additional work. The rules the Department of Labor has had in effect have not been modified for over a quarter of a century. The salary levels to which these regulations apply have not been changed since 1975. The duties test has actually not changed since 1949. That is the test that tries to define whether a worker is a white collar worker who would be exempt from this requirement or a blue collar worker who would be guaranteed overtime if they worked longer than they are supposed to. What this has done is to leave employers with very obsolete job classifications, things such as straw boss and leg man, other titles for work that have not been performed for years. That needed to be fixed. The Department of Labor had been struggling to try to bring it up to date and get final rules into place, which now has been done. A lot of the concerns expressed by supporters of the Harkin amendment are based on interpretations or misreadings of the previously proposed rule. But a lot of that has now been cleared up in the final rule made effective last week. Much of the criticism should fall by the wayside. Let me describe what the final rule does. It would guarantee overtime benefits to 1.3 million low-wage workers who before were not entitled to overtime pay. Under this rule, 6.7 million new employees must be paid overtime regardless of their duties. That is 1.3 million more than is currently the case. It would raise the minimum salary level at which workers are ensured overtime pay from $155 to $455 a week or $23,660 annually. That is the largest increase since the law was enacted in 1938. Under the previous regulations, individuals earning the minimum wage, which would be about $10,700 a year, were not guaranteed overtime. They must be classified by their employers as nonexempt in order to receive overtime. The previous regulations guaranteed only employees earning less than $8,000 a year a nonexempt status--in other words, guaranteed minimum wage. This regulation updates all of that. The work the Department of Labor has done is going to help a lot of Americans. Over 6.7 million Americans will now be guaranteed this overtime pay and a lot more than that will probably get it, depending upon exactly what kind of work they perform. Under the new regulations, employees who earn more than $100,000 annually would be exempted, but here again, even they would only be exempted if they regularly and customarily perform executive, administrative, or professional duties. Even somebody with earnings over $100,000 a year could get overtime pay. The Department of Labor estimates only about 107,000 employees who earn $100,000 or more could be reclassified as white collar employees and potentially lose their overtime pay. Those who earn between $23,660 and $100,000 will remain eligible for overtime pay if they meet the so- called ``short test,'' which determines whether they are exempted white collar employees or not. Let me respond to some of the misinterpretations. There was a view that a lot of folks would not be guaranteed pay. The new rules explicitly define certain groups as being guaranteed pay. For example, first responders, police officers, firefighters, paramedics, emergency medical technicians, and similar public safety officers are entitled overtime pay. I ask unanimous consent to print in the Record a statement from the Fraternal Order of Police relating to these regulations.

Mr. KYL. Mr. President, reserving the right to object, there is a division of time between the two sides. Could I suggest that regarding the remarks of the Senator from Florida with the Senator from Nevada, that they get together and figure out the time to speak if it will not be under leader time? Is that acceptable? I will object to the request and try to talk to the Senator.

Mr. KYL. The Fraternal Order of Police is one of the groups very interested in this issue. It is the largest organization of sworn law enforcement officers, and obviously they are in support of the first responders being exempt from the nonguarantee--in other words, being guaranteed overtime pay. Another group is nurses. The licensed practical nurses and other similar health care employees will be entitled to overtime pay under the new regulations. Originally unions had asserted to the contrary, but that is not the case. With respect to registered nurses, they are already exempted professionals under current law. The new rule will not change that. Explicitly blue collar workers are identified as entitled to overtime pay. There was a question about cooks. They are entitled to overtime pay. The only people in that group that might not be are college degree chefs who have degrees in culinary arts, who supervise others in work they do. Paralegals will be entitled to overtime pay. Public sector inspectors, people such as building inspectors, will be entitled to overtime pay. Union courts, collective bargaining agreements in States will not be affected by the rule. This is another area that has been grossly misrepresented. The bottom line is this final rule will bring clarity. It defines specific categories of people who will be guaranteed pay and, therefore, shuts down a lot of the litigation that has been based on the fact that the law has not been explicit or very clear. The confusing and outdated current or previous regulation has been a gold mine for trial lawyers, and there are a lot of articles that have recently been published that point out some of the abuses. The number of lawsuits in this area has doubled since the 1990s. Class action lawsuits have tripled since 1997. The number of these suits has actually surpassed the EEOC class action lawsuits in number. While the trial lawyers have made out very well off of the confusion of the previous regulations, the plaintiff's benefit is significantly smaller. For example, in a recent Oregon lawsuit, which the Presiding Officer will be interested in, fast food restaurant workers each received $1,300, while the trial lawyers received $1.5 million. In a similar California case, workers got $2,800 while the trial lawyers were awarded almost $4 million. Let me conclude by making a point that part of the confusion is due to objections by the AFL-CIO. Even before the final rule was made public, they were criticizing it, producing TV advertisements, misrepresenting the effect of the new rule. This is especially distressing given the fact--I know this personally from the Secretary of Labor, who had spent untold numbers of hours working on this--it was their intention to try to take in all of the criticisms and comments and blend them into a rule that made sense for workers. She did this, and then to have it attacked before it is finalized, with misrepresentations, is very unfair. Prior to drafting a rule, the Department of Labor held over 40 stakeholder meetings with 50 different interested groups, including 16 different unions, and invited 80 groups to participate in these so- called stakeholder meetings. It was not as if this were done without the input of people clearly interested in it. The amendment that is in order when we take up the bill is the Harkin amendment. It is unclear precisely what the wording of the amendment will be, but obviously the intent is to preclude the regulations from fully taking effect. I urge my colleagues, after they review that language, to quickly dispose of the amendment so we can move on to the important business of passing the underlying JOBS bill. As we know, the only group of employees that is not going to be guaranteed overtime under the new regulations is those making over $100,000 or more. The theory there is they are in a position to negotiate their own salary. Just to conclude, if this new rule is not allowed to go into effect, the biggest winners under the new rule, which are the low-income workers, will be the biggest losers. We need to put this into effect, clear up the confusion, and create the specific categories that are guaranteed overtime pay or these people are going to lose. The police, the firefighters, the lower income people, the blue collar workers are not going to be assured overtime pay. Remember, it only previously would guarantee anybody with $8,000 or less the overtime pay they should be entitled to. The effect of the Harkin amendment will be to hurt workers, not to help them. It is my hope that, again, we can quickly dispense with the Harkin amendment, defeat that amendment, support the regulations, the new rules that have been adopted by the Department of Labor, let them go into effect, and see how they work; in the meantime, move on with S. 1637, the underlying legislation, the purpose of which is to finally get our manufacturing industry back on even par with our competitors, particularly in the European market. That is legislation we have to pass because of the tariffs that are being imposed each month until we comply with the ruling of the WTO.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the time for the two leaders be reserved for their use later in the day.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that Tom Stack and Kevin Patrick Wilson be granted the privilege of the floor during the course of debate on S. 2329.

Mr. KYL

Mr. KYL. Mr. President, notwithstanding the previous order, I ask the technical amendment which is at the desk be considered and agreed to and--I withhold on that request for a moment.

Mr. KYL. I ask unanimous consent Senator Kohl be added as a cosponsor to the legislation pending.

Mr. KYL. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL. Yes, that it is my understanding. Mr. President, I anticipate Senator Leahy's arrival. I suggest the absence of a quorum.

Mr. KYL. Yes. Let me comment briefly on section 4, Reports. Subsection (a) requires the Administrative Office of the U.S. Courts to report annually the number of times a right asserted in a criminal case is denied the relief requested, and the reasons therefore, as well as the number of times a mandamus action was brought and the result of that mandamus. Such reporting is the only way we in the Congress and other interested parties can observe whether reforms we mandate are being carried out. No one doubts the difficulty of obtaining case-by-case information of this nature. Yes, this information is critical to understanding whether Federal statutes really can effectively protect victims' rights or whether a constitutional amendment is necessary. We are certain that affected executive and judicial agencies can work together to implement effective administrative tools to record and amass this data. We would certainly encourage the National Institute of Justice to support any needed research to get this system in place. Is this Senator Feinstein's understanding?

Mr. KYL. Yes, it is. We have, over the years, tried to reassure those that oppose victims' rights that they are not an attempt to undermine defendants' rights. This provision reiterates that. It is important for victims' rights to be asserted and protected throughout the criminal justice process, and for courts to have the authority to redo proceedings other than the trial such as release hearings, pleas, and sentencings where victims' rights are abridged, but to not tread upon defendant's rights against double jeopardy in the process. Victims' rights are about a fair and balanced criminal justice system--one that considers defendant's rights as well as victims' rights. This provision protects that careful balance. I want to turn to the definitions in the bill, contained in section 2, subsection (e). There are a couple of key points to be made about the definitions. A ``crime victim'' is defined as a person directly and proximately harmed as a result of any offense, felony or misdemeanor. This is an intentionally broad definition because all victims of crime deserve to have their rights protected, whether or not they are the victim of the count charged. Additionally, crime victims may, for any number of reasons, want to employ an attorney to represent them in court. This definition of crime victim allows crime victims to do that. It also assures that when, for any reason, crime victims are unable to assert rights on their own, those rights will still be protected. Is that the Senator's understanding of the bill as well?

Mr. KYL. Absolutely. Without the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country's appellate courts are designed to remedy errors of lower courts and this provision requires them to do so for victim's rights. For a victim's right to truly be honored, a victim must be able to assert the rights in trial courts, to then be able to have denials of those rights reviewed at the appellate level, and to have the appellate court take the appeal and order relief. By providing for all of this, this bill ensures that victims' rights will have meaning. I would like to turn our attention to section 2, subsection (d)(4) because that also provides an enforcement mechanism. This section provides that in any appeal, regardless of the party initiating the appeal, the government can assert as error the district court's denial of a crime victim's right. This subsection is important for a couple of reasons. First, it allows the Government to assert a victim's right on appeal even when it is the defendant who seeks appeal of his or her conviction. This ensures that victims' rights are protected throughout the criminal justice process and that they do not fall by the wayside during what can often be an extended appeal that the victim is not a party to. Is that the Senator's understanding of the bill?

Mr. KYL. Absolutely. The enforcement provision the Senator addressed is critical to this bill. Without the ability to enforce the rights in the criminal trial and appellate courts of this country any rights afforded are, at best, rhetoric. We are far past the point where lip service to victims' rights is acceptable. The enforcement provisions of this bill ensure that never again are victim's rights provided in word but not in reality. I want to turn to section 2, subsection (d)(2) because it is an unfortunate reality that in today's world there are crimes that result in multiple victims. The reality of those situations is that a court may find that the sheer number of victims is so large that it is impracticable to accord each victim the rights in this bill. The bill allows that when the court makes that finding on the record the court must then fashion a procedure that still gives effect to the bill and yet takes into account the impracticability. For instance, in the Oklahoma City bombing case the number of victims was tremendous and attendance at any one proceeding by all of them was impracticable so the court fashioned a procedure that allowed victims to attend the proceedings by close circuit television. This is merely one example. Another may be to allow victims with a right to speak to be heard in writing or through other methods. Importantly, courts must seek to identify methods that fit the case before that to ensure that despite numerosity of crime victims, the rights in this bill are given effect. Does the Senator agree with this reading of the bill?

Mr. KYL. Yes, it is. Turning briefly to section 2, (c), there are several important things to point out in this subsection. First, where there is a material conflict between the Government's attorney and the crime victim, this provision protects crime victims' rights. This means that if Government lawyers interpret a right differently from a victim, urge a very narrow interpretation of a right, or do not believe a right should be asserted, they are in conflict with the victim and this provision requires that they inform the victim of this and direct the victim to independent counsel, such as the legal clinics for crime victims contemplated under this law. This is an important protection for crime victims because it ensures the independent and individual nature of their rights. Second, the notice section immediately following limits the right to notice of release where such notice may endanger the safety of the person being released. There are cases, particularly in domestic violence cases, where there is danger posed by an intimate partner if the intimate partner is released. Such circumstances are not the norm, even in domestic violence cases as a category of cases. This exception should not be relied upon as an excuse to avoid notifying most victims. Is that the Senator's understanding of this section?

Mr. KYL. I concur in the Senator's comments. I would add that the delays in criminal proceedings are among the most chronic problems faced by victims. Whatever peace of mind a victim might achieve after a crime is too often inexcusably postponed by unreasonable delays in the criminal case. A central reason for these rights is to force a change in a criminal justice culture which has failed to focus on the legitimate interests of crime victims, a new focus on limiting unreasonable delays in the criminal process to accommodate the victim is a positive start. I would like to turn to section 2, (a)(8). This provision contains a number of rights. The broad rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct Government agencies and employees, whether they are in executive or judiciary branches, to treat victims of crime with the respect they deserve. Does the Senator agree?

Mr. KYL. Yes. That it is my understanding as well. There may be organized crime cases or cases involving national security that require procedures that necessarily deny a crime victim the right not to be excluded that would otherwise be provided under this section. This is as it should be. National security matters and organized crime cases are especially challenging, and there are times when there is a vital need for closed proceedings. In such cases, the proceedings are not intended to be interpreted as ``public proceedings'' under this bill. In this regard, it is not our intent to alter 28 CFR Sec. 50.9 in any respect. Despite these limitations, this bill allows crime victims, in the vast majority of cases, to attend the hearings and trial of the case involving their victimization. This is so important because crime victims share an interest with the government in seeing that justice is done in a criminal case and this interest supports the idea that victims should not be excluded from public criminal proceedings, whether these are pretrial, trial, or post-trial proceedings. This right of crime victims not to be excluded from the proceedings provides a foundation for the next section, section 2, (a)(4), which provides victims the right to reasonably be heard at any public proceeding involving release, plea, or sentencing. This provision is intended to allow crime victims to directly address the court in person. It is not necessary for the victim to obtain the permission of either party to do so. This right is a right independent of the Government or the defendant that allows the victim to address the court. To the extent the victim has the right to independently address the court, the victim acts as an independent participant in the proceedings. When a victim invokes this right during plea and sentencing proceedings, it is intended that the he or she be allowed to provide all three types of victim impact--the character of the victim, the impact of the crime on the victim, the victims' family and the community, and sentencing recommendations. Of course, the victim may use a lawyer, at their own expense, to assist in the exercise of this right. This bill does not provide victims with a right to counsel but recognizes that a victim may enlist counsel on their own. It is not the intent of the term ``reasonably'' in the phrase ``to be reasonably heard'' to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court. This section would fail in its intent if courts determined that written, rather than oral communication, could generally satisfy this right. On the other hand, the term ``reasonably'' is meant to allow for alternative methods of communicating a victim's views to the court when the victim is unable to attend the proceedings. Such circumstances might arise, for example, if the victim is incarcerated on unrelated matters at the time of the proceedings or if a victim cannot afford to travel to a courthouse. In such cases, communication by the victim to the court is permitted by other reasonable means. Is this the understanding of the Senator of this provision?

Mr. KYL. Yes. The intent of this section is just as the Senator says. This right to confer does not give the crime victim any right to direct the prosecution. Prosecutors should consider it part of their profession to be available to consult with crime victims about concerns the victims may have which are pertinent to the case, case proceedings or dispositions. Under this provision, victims are able to confer with the Government's attorney about proceedings after charging. I would like to turn now to the section on restitution, section 2, (a)(6). This section provides the right to full and timely restitution as provided in law. This right, together with the other rights in the act to be heard and confer with the Government's attorney in this act, means that existing restitution laws will be more effective. I am interested in the Senator's views of this restitution provision.

Mr. KYL. I would like to address the notice provisions of section 2, (a)(2). The notice provisions are important because if a victim fails to receive notice of a public proceeding in the criminal case at which the victim's right could otherwise have been exercised, that right has effectively been denied. Public proceedings include both trial level and appellate level court proceedings. It does not make sense to enact victims' rights that are rendered useless because the victim never knew of the proceeding at which the right had to be asserted. Simply put, a failure to provide notice of proceedings at which a right can be asserted is equivalent to a violation of the right itself. Equally important to this right to notice of public proceedings contained in this subsection is the right to notice of the escape or release of the accused. This provision helps to protect crime victims by notifying them that the accused is out on the streets. For these rights to notice to be effective, notice must be sufficiently given in advance of a proceeding to give the crime victim the opportunity to arrange his or her affairs in order to be able to attend that proceeding and any scheduling of proceedings should take into account the victim's schedule to facilitate effective notice. Restrictions on public proceedings are in 28 CFR Sec. 50.9, and it is not the intent here today to alter the meaning of that provision. I ask Senator Feinstein, if she can comment on her understanding of section (a)(2)?

Mr. KYL. As soon as Senator Leahy is here, I will relinquish the floor to him. I do want to thank President Bush and Attorney General Ashcroft; the Office for Victims of Crime Director John Gillis and the administration for their help; Colleen Campbell and her husband Gary; Roberta Roper; Bob Preston; Duane Lynn; Earlene Eason from Indiana, whose son Christopher was murdered; Sally Goelzer from Arizona, whose brother was murdered; Myssey Hartley from Arkansas, whose brother was murdered; Dee Engles, also from Arkansas, a family member murdered; the National Organization for Victim Assistance, especially Beth Rossman, president, Marlene Young, executive director, and John Stein, deputy director, who has been a tremendous help; the National Organization of Parents of Murdered Children, Nancy Ruhe-Munch, executive director; Mothers Against Drunk Driving, Wendy Hamilton, president, and Stephanie Manning; Professor Douglas Beloof, director of the National Crime Victim Law Institute, one of the entities integral to ensuring these rights are enforced--he has done a tremendous job in Oregon in setting up the programs and the lawyers who can defend victims' rights-- Attorney Meg Garvin, lead staff attorney at NCVLI; Attorney General Jane Brady and the National Association of Attorneys General--this has been a bipartisan effort and almost every attorney general in the country has signed on; the National District Attorneys Association; the Fraternal Order of Police, strongly in support of what we are doing; the International Association of Chiefs of Police; the National Restaurant Association; U.S. Chamber of Commerce; Maricopa County attorney Rick Romely and county attorney Barbara LaWall in Arizona, who have helped me a lot in this effort; District Attorney Josh Marquis; the Arizona Voice for Crime Victims. On Senator Hatch's staff, I thank Grace Becker, and on Senator Cornyn's staff, Jim Ho. On Senator Feinstein's staff, I can't thank enough Steve Cash and David Hantman who have been tremendously helpful in providing great advice and counsel, particularly in the last 3 or 4 days, helping us to convert the amendment to a statutory provision and in working on the Democratic side to make this a truly bipartisan process. Without their assistance, we would not have the statute before the body either. I have a couple legal interns, Tom Stack and Kevin Wilson, who provided tremendous help to me, and finally I wish to thank my chief person on my staff, Stephen Higgins and I mentioned Steve Twist. All of these organizations and individuals have been of tremendous help in getting to this point and ensuring we will be able to get this statutory provision passed and sent over to the House for action. Madam President, I am going to conclude with a couple of points. As soon as Senator Leahy arrives, I am going to relinquish the floor to him because Senator Feinstein has the remainder of the time, and I advise colleagues, if anyone wishes to speak, they should do so right away because I suspect at the conclusion of Senator Leahy's remarks and anything Senator Hatch and Senator Feinstein wish to say, we will proceed to the final passage vote. The act before us, in addition to setting forth the rights and providing a remedy for the victims of crime, has an authorization of funding. Let me describe that authorization. In the first year, fiscal year 2005, $16.3 million will be available to the U.S. Attorney's Victims Witness Office for the Victims of Crime Office in the Department of Justice; $300,000 is for the Office of Victims of Crime to administer these new rights; $7 million to the Office of Victims of Crime for the National Crime Victim Law Institute to provide grants and assistance to lawyers to help victims of crime in court. It is the only entity in the country that provides lawyers for victims in criminal cases, and it will provide for two new regional offices and nine specific clinics. Finally, borrowing a provision from a bill Senator Leahy had earlier, there is $5 million for grants to States to develop and implement state-of-the-art victim notification systems. In the following 4 years, there will be each year authorized an appropriation of $26.5 million generally to the same entities and offices to ensure that these programs are carried out, that victims will have the support they need, and that the notice that is guaranteed in the legislation will be provided. Those are the authorizations for the funding. That is a description of the legislation. I will close by again referring to the people who have driven this effort, the people who represent the families and who are themselves victims of crime, who did not simply retreat into a shell following the tragedy that befell them but who were willing to muster the courage and the strength to do something about the issue, not necessarily so that they could receive any particular kind of vindication, but so future victims would not have to suffer through the same kind of problems and the same indignities they did. This is the real spirit of great people, of leaders, and it is the spirit of America. I commend all of these victims for the leadership role they have played in being willing to step out in very difficult circumstances to prod those of us in the legislative body to move this process forward and to get this legislation adopted. They are the ones who deserve the primary thanks today. The victory, when we pass this legislation, will be largely a victory for them and all of the future victims who will never have to suffer the same kind of indignities that they did. Mr. President, as the sponsor of this bill, I would like to enter into a colloquy with the Senator from California. She is the primary cosponsor of this bill. After extensive consultation with our colleagues, we have drafted a bill with a broad bipartisan consensus. It is not the intent of this bill to limit any laws in favor of crime victims that may currently exist, whether these laws are statutory, regulatory, or found in case law. I ask Senator Feinstein if she agrees.

Mr. KYL. I noted in a rather inaccurate Washington Post editorial of yesterday that somehow victims would have a right to speak to the jury. That is what the Washington Post thought. They were very wrong, as they were in other comments in the editorial. There is nothing in here about anything like that. It is only during the time of a release, like the parole hearing I talked about earlier, or sentencing or pleading there would be an opportunity to speak. They would have a right to full and timely restitution in appropriate cases, and the right to be treated fairly, with respect for their dignity and privacy. Most importantly, they would be granted the right to enforce these rights. They would have legal standing to enforce their rights in court with the appropriate writ procedure to be able to take the court's decision to the higher court. That is one of the problems with existing Federal law which the Tenth Circuit Court of Appeals noted did not grant the victims the standing to sue. So that had to be corrected here. Finally, we authorized an appropriation of funds to assure the proper oversight of these rights is exercised, that moneys would be made available to enhance the victim notification system, managed by the Department of Justice's Office for Victims of Crime, and the resources additionally to develop state-of-the-art systems for notifying crime victims of important states of development. To pursue that a moment, all courts notify attorneys for the defendant, the prosecutor's office, and it is a relatively simple matter to add another name and telephone number or address to that list. That is what we are talking about here. It is now being done electronically. It is very easy. So the notice to victims of crime is not something that should be seen as an impediment. I would like to conclude by thanking some people. Since I know Senator Feinstein did have to attend another meeting, let me thank some folks. Before I do that, I ask unanimous consent to add Senators Lott and Nickles as original cosponsors.

Mr. KYL. Madam President, I join Senator Feinstein in supporting S. 2329, which is the statutory version of the constitutional amendment we have prepared and about which Senator Feinstein has spoken. The legislation, as I will describe in a moment, will attempt to accomplish as much as possible the same goals the constitutional amendment which has been pending before us would have accomplished. But before I discuss the details of that, there are several people I would like to thank. In addition to Senator Feinstein--again it is impossible to express my appreciation enough for all of the hard work she put into this effort. We simply couldn't be here, because in order to get things passed in the Senate it is critical there be a bipartisan consensus, especially so for something that requires a supermajority. Without Democrats and Republicans working together, we would have never gotten to this point. Certainly Senator Feinstein was largely responsible for the work on the Democratic side of the aisle. I appreciate all of my colleagues' understanding and support on this as well. Senator Frist, who is willing to trust us in scheduling this for time on the floor--and there is very little time to take up matters, as the Presiding Officer knows--understood this was a very important commitment we had made to the victims of crime. During Crime Victims' Rights Month was the time to try to accomplish this. I appreciate his support. I appreciate the support of Senator Hatch who throughout the years has never stood in the way but always lent us a hand in setting up a hearing and getting a time and a room for markup on the constitutional amendment and supporting its passage. Again, it is not easy to get a constitutional amendment through even the Judiciary Committee, let alone to get it adopted. But Senator Hatch was supportive of that effort. I very much appreciate his cosponsorship of the statutory version of this amendment, as well as the support of Senator Leahy. I think I would be remiss if I didn't make the point that the first cosponsors of this legislation were Senator Feinstein, myself, and Senators Hatch and Leahy, chairman and ranking member of the Judiciary Committee. Obviously this legislation has very strong support. We anticipate it will pass overwhelmingly and will be quickly sent to the House for action there, and hopefully to the President, who I am confident will be supportive of it and will sign it. Let me at this point thank some of the victims' rights organizations. Again, they were responsible for bringing the issue to our attention and for providing a lot of the information we needed to be able to make the cases and for, frankly, the moral support to keep going. When Senator Feinstein and I would get discouraged, after meeting with victims' rights groups we were no longer discouraged; we were even more committed to pursue this head on. Some of them are headed by remarkable people. There is a whole page of groups I will thank. Specifically, I thank Mothers Against Drunk Driving, the National Organization for Victim Assistance, Parents of Murdered Children, and Force 100, and especially Colleen Campbell for her leadership of Force 100. Senator Feinstein has already spoken of Colleen Campbell, and this pin in memory of Mickey Thompson speaks volumes about her leadership of this effort. The fact this is Crime Victims' Rights Month and week I think is important. President Reagan actually had the first recognition of crime victims in a week that was designated for that purpose. I think it is important at this time we especially recognize the victims of crime all over America; that with this year's memorial of victims' rights, America's values will be vindicated to some extent with the passage of this legislation. It is especially poignant we would be waiting at this time to recognize these rights of victims of crime. Indeed, it is right to take up this issue. The right to fairness for crime victims and the right to notice and presence and participation are deeply rooted concepts in the United States of America. This country is all about fair play and giving power to the powerless in our society. It is about recognizing the values of liberty of the individuals against encroachments of the Government. Fair play for crime victims, meaningful participation of crime victims in the justice system, protection against a government that would take from a crime victim the dignity of due process--these are consistent with the most basic values of due process in our society. I was involved in Arizona issues for victims of crime even before I ever ran for the U.S. House of Representatives, so this was to some extent a cause for me before I became a public official. It was after I became a public official and people really came to me with these stories that I realized I had an opportunity to do more than the things I had done before. I have come to see the need for these protections as critical for our country. While engaged in all of the other important activities, at bottom, it is a country about individuals who have inherent rights recognized and given to us by God. That is the basis for the creation of this country. Human dignity and the right that all people are made in God's image is such an important part of the foundation of our country that we would be remiss if we did not recognize that concept, that value, especially for those who have been victimized in our society because we could not as a government provide adequate protection for them. I came to realize in many cases these victims were being victimized a second time because while we were asking them sometimes to come into court and testify against the perpetrators of the crime so they could be incarcerated or dealt with in an appropriate way for the further protection of society, we were not helping these victims at all. They were suffering through the trauma of the victimization and then being thrown into a system which they did not understand, which nobody was helping them with, and which literally prevented them from participation in any meaningful way. I came to realize there were literally millions of people out there being denied these basic rights, being victimized by our criminal justice system. Let me mention two circumstances, but we will discuss all of the rights in a moment. The one circumstance that seemed to be the most frequent is: My mother was murdered, my daughter was murdered--whatever the situation--and I could not attend the trial. That is what our system says today. While there are statutes in States and even some State constitutional provisions that purportedly guarantee a victim will not be denied access to the courtroom, it is still the case today that the victims, the victims' families, cannot even go into the courtroom. The defendant is there, the defendant's family is there seated in a reserved row seats, but the victim and the victim's family cannot be present. That is fundamentally wrong. We are not talking even about them saying anything. Obviously, everyone in the courtroom has to behave. The judge can throw anybody out if they do not behave or if they express emotions or try to communicate with the jury. That is not the issue. They could not attend sometimes because the defendant's lawyer would say: It would be prejudicial to my client if the victims are seen in the courtroom. This was one of the circumstances that I could not believe our criminal justice system was imposing. It is one of those things that is fixed in this statute. The other circumstance--and there is an especially telling, emotional case in Arizona I became familiar with which induced me to pursue this with all the vigor I could--is the circumstance where a crime has been committed, the perpetrator has been convicted and is in prison or jail, but unbeknown to the victim and the victim's family, the individual gets out of jail. The individual escapes, has some kind of a parole hearing or in some other way is able to leave before the sentence is up, and the victims are not even notified, let alone given an opportunity to appear before that parole board and say: Wait a minute, this person has a 15-year sentence and you are letting him out after 8 years. Let me tell you what he did to me. Not to go into detail but to finish that story, in one of the Arizona cases with which I am familiar, the woman having been brutally raped and slashed and left to die recovered. Her perpetrator was convicted and put into prison. He had a parole hearing and the parole board decided to release him prematurely. She got no notice of that. She got no opportunity to be present. By not quite coincidence but enormous alertness and compassion on the part of an individual in the Governor's office at the time routinely reading through the notices of the parole board, a staff person saw this and again almost coincidentally thought, Wait a minute, I don't think that is right under our law. He tracked down this individual who had by then moved to California and asked her if she would like an opportunity to appear before another parole board hearing if that could be arranged. She said yes. The parole board agreed to revisit the issue in a subsequent hearing and she testified. She told her story. After she told her story, the parole board reversed its opinion. I asked her later: Were you afraid he would come after you if he were released? She said: No. My victimization was random. I was trying to hitchhike. I should never have done it. He--and, by the way, his wife--picked her up and she was then brutalized as I described it. She said: It was random. I don't think he would come after me again. What I was concerned about was knowing the nature of the kind of individual that commits this kind of crime, he would do it again to somebody else. I didn't want him to have that opportunity to hurt somebody else like he hurt me. That tells you about the motivation of these victims of crime who are willing, despite the hurt that it causes them, to participate in the criminal justice system--not just for themselves because they get nothing out of it--because they know what it is like and they want to prevent that harm to others. Those are the kind of people whose portraits are behind me and who Senator Feinstein was talking about. That is why we are trying to do something about righting this wrong, about balancing the scales of justice. Rightly, defendants in this country are protected better than in any country in the world through constitutional amendments that give them rights. We are not trying to take one single right away from any defendant. That would be wrong under our system. But we do think it is time to balance the scales of justice. That was the motivation for Senator Feinstein and me. Let me talk about some of these individuals. Senator Feinstein talked about Duane Lynn. Duane is from Arizona. I will not repeat the entire story, but he enjoyed the Navy as a young man. He performed in the military. He had a successful career as a highway patrolman upholding the laws of the State of Arizona. He and his wife Nila literally fell in love as teenagers and had been married 49 years and 9 months, just 3 months shy of their 50th anniversary when she was brutally murdered as Senator Feinstein talked about. They had left their home to attend this homeowners' meeting and just happened to be in the wrong place at the wrong time because the murderer, who was a disgruntled and enraged former resident of the community, burst into the room saying, I am going to kill you, and he started shooting. As I said, Duane and Nila had been married not quite 50 years when she was brutally murdered. In anticipation of the golden anniversary of their parents, the Lynn children had secretly been saving money to throw a surprise anniversary party, and that money was used to pay for Nila's casket. It is at this point that Duane's journey through the legal system really started. As Senator Feinstein recounted, he did not really understand what it meant to participate in the judicial system at that time but at least understood that he would have some voice in what happened. Under the Arizona law and constitution, he had a right, for example, to make a recommendation to the judge when the judge sentenced the perpetrator. But despite having that right in the Arizona Constitution--and, by the way, Arizona judges are pretty good about enforcing these rights--he was denied the right to even appear at the time of sentencing to tell the judge the sentence he thought the perpetrator should get. He lost an appeal to the Arizona Supreme Court and a petition for certiorari to the U.S. Supreme Court. They all told him his rights were unenforceable because for him to speak would violate the defendant's eighth amendment rights against cruel and unusual punishment. Now, that is one of the reasons that Senator Feinstein and I believed that a constitutional amendment was necessary, because as long as the defendant's rights are always asserted as Federal constitutional rights, a mere statutory right, such as we are creating today, is going to be subservient to that. It will be very difficult for victims to win in cases where the defendant's right is asserted under the U.S. Constitution. Even as a State constitutional right, Duane Lynn was denied the right to speak because the court perceived that the Federal eighth amendment superseded the Arizona State Constitution. So we may still have problems, even with the adoption of a statute here. But Senator Feinstein and I are committed to moving the cause forward, to see whether it is possible to make statutes work, so that we do not need a Federal constitutional amendment. If, as it turns out, we do, then we will revisit the issue, as she said. Hopefully, we will not need to do that. Just a final I think paradoxical or ironic ending in the Duane Lynn matter. He wanted to speak at the time of sentencing, not to urge the court to impose the death sentence but to impose life without parole. That recommendation was denied because, as I said, the court held that the defendant's rights outweighed his rights. Let me talk about some of the other victims. I just briefly want to mention Louarna Gillis, because John Gillis, her father, who was a Los Angeles police officer at the time, is now a very important person in our Government in protecting victims' rights because he heads up the Office for Victims of Crime in the Department of Justice. One of the reasons the Attorney General and the President wanted him in that position is because he felt firsthand the sting of being a crime victim when his daughter was killed, picked out at random by a gang member because the gang member, to be initiated in the gang, had to kill the child of a cop. She just happened to be a child of a cop and she was killed. John could not be here today, but his wife Patsy is in attendance. I commend her for her support of this effort as well. Their family has suffered further tragedy in the very recent death of their only other child, their son John. So it reminds us that it is important not only for people to have rights as victims of crime, but to recognize that these very people are the people who are willing to take up the cause here to right this injustice. By John Gillis' efforts, he literally became the person in charge of this issue in our Government. He is doing an incredibly great job. Part of this legislation is to give him some additional responsibility and a little bit more in the way of resources to see to it that our Federal Government, through the Department of Justice, the Attorney General, and the Office for Victims of Crime, can continue to support the effort of crime victims. I applaud John Gillis very much and appreciate his wife Patsy being with us today. Let me mention three other people, because this legislation is named for five people--the two I mentioned and then the other three I will mention. Let me discuss each of them. Roberta Roper is also in attendance. There is nobody who has pursued the cause for victims' rights more strongly than Roberta Roper. She has made numerous trips to Washington. She has testified before the Judiciary Committee in support of the constitutional amendment. She has given us incredible advice and strength. What she did, after her victimization, when her daughter Stephanie was murdered at the age of 22, was to start a foundation in her daughter's name, and that Stephanie Roper Foundation has been a tremendous asset in pursuing the cause of victims around the country. Her daughter, on April 3, 1982, was kidnapped and raped, tortured and dismembered by two men. The killers had just come upon her when Stephanie's car had been disabled. They had kidnapped her and over a period of 5 hours had repeatedly tortured her. She tried to escape but was caught and killed in a most brutal manner. Her parents were not even notified of the many continuances that were granted in this case. They were excluded from the courtroom for the entire first trial that occurred. They could not even go into the courtroom. In 1982, the defense convinced the court that the victims would be emotional, irrelevant, and probable cause for a reversal of an appeal. The court agreed and, therefore, denied Vince and Roberta Roper the right to be a voice for their daughter. That is one of the things that will be corrected by this legislation. We hope a statutory correction will serve to be sufficient. Roberta Roper is in attendance, and I thank her from the bottom of my heart. She and Collene Campbell--who I will mention next--have been two of the real troopers in this battle. I also want to say, with regard to Collene Campbell, when Senator Feinstein discussed the death of her son Scott, it is unfortunately the case in many of these situations that more than once people are victimized. Collene and Gary Campbell have been victimized twice. Collene's brother was killed as well and that has been discussed as well. One of the killers of their son Scott was released from prison. By the way, the circumstances of Scott's murder were especially gruesome. He met an individual who was going to fly him to North Dakota, and somewhere between Los Angeles and Catalina Island, Scott Campbell was killed. His body was literally thrown out of the airplane into the ocean and has never been located. His parents were not permitted to enter the courtroom during the trials for the men who murdered their son. They were not even notified of a district court of appeals hearing. When one of the killers was released, as I said, the Campbell family was not notified. They only learned of the developments through the newspaper. You can argue that a defendant might be prejudiced in certain situations by victims having certain rights, but to treat victims this way is not to treat them with the fairness and dignity any American deserves under our values as a nation. Even when these rights exist in statute, when they are not observed, it is time for the Congress to act. That is why we act here, so that no one else will have to suffer through this kind of unfair treatment. Scott Campbell is shown in this picture. I mentioned Nila Lynn before, as shown in this picture. Roberta Roper's daughter Stephanie is this beautiful young lady shown in this picture right here. As I said, her mother is with us today. I would also like to mention Robert Preston. In the case of Bob Preston's 22-year-old daughter, Wendy--the beautiful young lady shown in this picture right here--she was murdered in his home on June 23, 1977. She was killed when a man broke into the home to steal money to buy drugs. Her body was found 6 days later. Wendy's murderer was arrested and charged with first-degree murder. Her parents were told that the State of Florida was the victim in the case and they would be notified if and when they were called as witnesses. That was it. After nearly 6 years, the murderer was allowed to plead to a second- degree murder charge, and he was sentenced to life in prison. In 1987, the Florida Supreme Court overturned the killer's conviction, and in the decision also held that the victims had no rights. This is the kind of example that needs to be brought to light so Americans can appreciate that it is time for Congress to act. This is Wendy Preston, yet another example of victims being treated unfairly. There are a lot of other cases we could talk about. Wendy Preston and Stephanie Roper, Scott Campbell, Mickey Thompson, Nila Lynn, and Louarna Gillis are the best of America. We owe them our best. Our best is to ensure the families of future victims will not suffer through the same indignity their families have had to endure. That is why Senator Feinstein and I began the effort to try to persuade our colleagues a constitutional amendment was necessary to protect these rights, because the defendant's right was always constitutional. Unless we had an equal constitutional right, there was no chance in a conflict the court would ever afford the victim an equal right. That is why we still have reservations about a statutory remedy. But a lot of our colleagues have said, try a statutory remedy and let's see if by bringing these situations to light, by providing incentives for States to follow the Federal example, by embodying these same rights that were in the constitutional proposal in a statute and giving the victims a right to sue, a remedy, a mandamus remedy, let's see if that can work. After 8 years of work on the Federal constitutional amendment, supported by President Bush and the Attorney General, we were able to schedule, after we passed the bill through the Judiciary Committee, that constitutional amendment for floor action today. Knowing we would not have the 67 votes to pass it, we decided it was time to get something tangible in statute to protect the rights of victims, and accompanying it could be a modest appropriation of money to help actually support these victims in court when that was necessary and called for. We believed despite the potential that it would not serve adequately, it was time to try something, to be successful, and to at least move the ball forward. As Senator Leahy said in a press conference we had earlier: The Judiciary Committee of the Senate will provide very strong oversight of implementation of this statute so we will know if it is not working. If it does not work, we will be able to come back and pursue the constitutional remedy. But we consulted with the victims' rights groups that have been most active in support of this. They concurred it was time to pursue the statutory remedy, if we could get some assurance we would be successful in that pursuit and that it would not be simply a fool's errand. Through the significant help of an individual who I am sure all would acknowledge has been the national leader of this effort, Steve Twist, a lawyer from Phoenix, AZ, communicating with the various victims' rights groups, the consensus was reached it was time for us to convert the constitutional proposal into a statute. This occurred within the last 48 hours. Through the cooperation of Senator Leahy, Senator Hatch, staff, and several other Senators, but most importantly because of the very hard work done by Senator Feinstein's staff and mine, they were able to literally convert these rights in the constitutional proposal into the statutory proposal for submission. That is what is before us today and what we will be voting on. These are the rights that are set forth in the new statute: That the victim would be reasonably protected from the accused; afforded reasonable, accurate, and timely notice of any public proceedings involving the crime or any release or escape of the accused; included in public proceedings; ensured proceedings are free from unreasonable delay; that they could confer with the attorney for the government in the case; that they would be given a voice to be heard at any public proceeding involving release or plea or sentencing. I ask unanimous consent to take time from the time under the control of Senator Feinstein.

Mr. KYL. Madam President, I ask unanimous consent that Senators Nickles and Inhofe be added as original cosponsors of the legislation.

Mr. KYL. Madam President, it isn't always possible for us to schedule matters in the Senate in a convenient way. I am aware Senator Feinstein must leave to attend another meeting. It is my hope she will able to be here before we vote. While she is still here, I must say I share her sentiment that some of the most gratifying work I have done in the Senate has been my work with Senator Feinstein and her good staff in putting together a constitutional amendment and working hard to try to get it passed and preparing for the hearings--speaking with the victims, meeting with the Justice Department--literally hundreds of hours of time we have spent together working on this issue. It has helped to foster a bond of trust and friendship between us that I think could be used as a template for our colleagues in this body to work together in a bipartisan way. I can never thank Senator Feinstein enough for her work on this amendment. I know the many victims who are here in the gallery share that sentiment. This legislation would not be before us today without Senator Feinstein. That is simply a fact. For all of the hard work we have put in with her cooperation and her commitment to this, I thank Senator Feinstein deeply. She knows that bond of trust will continue to exist between us.