Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions, Subcommittee on Employment, Safety, and Training be authorized to meet for a hearing on The Ergonomics Rule: OSHA's Interference with State Workers' Compensation during the session of the Senate on Thursday, April 27, 2000 at 2:00 p.m.

Mr. KYL. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, April 27 at 9:30 a.m., to conduct a hearing. The committee will receive testimony on S. 282, the Transition to Competition in the Electric Industry Act; S. 516, the Electric Utility Restructuring Empowerment and Competitiveness Act of 1999; S. 1047, the Comprehensive Electricity Competition Act; S. 1284, the Electric Consumer Choice Act; S. 1273, the Federal Power Act Amendments of 1999; S. 1369, the Clean Energy Act of 1999; S. 2071, Electric Reliability 2000 Act; and S. 2098, the Electric Power Market Competition and Reliability Act.

Mr. KYL. Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to meet during the session of the Senate on Thursday, April 27, 2000, at 9 a.m., in SD- 106, to conduct a full committee hearing to consider the nomination of Michael V. Dunn to be a member of the Farm Credit Administration Board, Farm Credit Administration, and to examine pending legislation on agriculture concentration of ownership and competitiveness.

Mr. KYL

Mr. KYL. I yield.

Mr. KYL. Mr. President, until those in opposition wish to be here, then, I will speak to close out, really, what I have to say about this. I would like to do two things: Just to reiterate a couple of circumstances why this is necessary, and, second, to respond to some of the arguments that have been adduced against what we propose. Why do we need these rights? Suppose your daughter was raped and murdered and you wanted to attend the trial and you were told that, under the law, you were going to have to sit outside the courtroom every day. The defendant, the defendant's family and friends, they can be in the courtroom, they can watch the trial, but you are going to have to sit outside on the bench in the hallway. That is not fair. It tears at the gut of those who have been victimized already by the commission of the crime that hurt or killed their loved one. Suppose you pick up the newspaper someday and read that the person who raped you, or assaulted you, is out on the street. He had been incarcerated. Your testimony helped put him there. You have no idea he is running free. His may be the knock on your door or the person at the other end of the telephone which rings. You did not get notice of his parole hearing. You could not even go down and tell the parole board how vicious a person this was and why they ought to think twice before releasing him on parole. You did not even have a chance to go down and say, ``Will you please consider my safety in establishing conditions for his release, that he has to stay away from me,'' for example. We are talking about things that are serious, not frivolous. These are real cases. Both of the examples I cited are real cases--multiple cases, I might add. What are the arguments against it? One argument is it is too long and specific. Right after that, we heard it is too general. Senator Schumer said we should just have a general statement about the fairness that victims are entitled to and leave it at that. Others say that would be far too general. How would we ever define ``unreasonable,'' which is one of the words in our amendment here? Of course, one could have argued that same thing about some of the protections for defendants in the Bill of Rights. How will we define ``unreasonable search and seizure,'' it could have been argued. We have done all right on that. We were fairly specific about the enumerations of these rights because we didn't want to take anything away from defendants. We wanted it to be crystal clear exactly what the rights were so nobody could contend they went further than they go, so that nobody could argue we might be stepping on the toes of a defendant. We didn't want to step on the defendant's toes. We wanted to make sure the government wouldn't deny victims access to certain points in the criminal justice process. We were very careful to define this. Indeed, the Department of Justice met with us on numerous occasions and said we would have to be more precise in our description because they could envision possible problems if we do not nail it down. We nailed it down. That took a few words. Then we were criticized for having too long an amendment; it is longer than the Bill of Rights. We pointed out, it is not longer than the Bill of Rights. Indeed, our amendment is shorter than all of the rights guaranteed to defendants in the Constitution. The defendants' rights consume 348 words; the victims' rights consume 179 words. There are 307 words in our amendment, excluding the purely technical provision. Isn't it amazing we have gotten down to a word count, if that is one of the big objections of opponents? ``It is a little too long.'' It is not too long. If it were shorter, their argument would be it is not specific enough, we need to be more specific--and that takes more words. Perhaps the least argument--and there will be others propounding this argument--is that because the Constitution is sacred, it should not be amended. Maybe it is appropriate to read something in the sacred document, article V: Whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution . . . when ratified by the legislatures of three-fourths of the several States, it becomes effective as part of this Constitution. Thomas Jefferson said: I am not an advocate for frequent changes in laws in the Constitution, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance to keep pace with the times. Indeed, Thomas Jefferson also said: Happily for us, when we find our Constitution is defective and insufficient to secure the happiness of our people, we can assemble with all the coldness of philosophers and set them to rights, while every other nation on Earth must have recourse to arms to amend or restore their constitutions. It is certainly a reflection of our wonderful United States of America and our Constitution that from time to time we have found it necessary to grant rights in this sacred document: the right to vote, the right to vote when you are 18, the right to vote and not to be defined by one's sex, the right to a speedy trial. These are rights that were granted by amendment to citizens after this sacred document was written. We all agree with the proposition that it is a wonderful document, a sacred document, a document that ought not lightly be added to, which has a wonderful and glorious history. Indeed, I submit that some of the most profound and glorious aspects of the history of this Constitution are found in its amendments. To suggest that somehow those who propose an amendment to the Constitution are doing a great disservice and are assaulting the Constitution is itself a great disservice to the process set forth in the Constitution. It is said that the Constitution ordinarily precluded the government from affecting the rights of citizens, whereas we are granting rights to people. I talked about three or four amendments that granted rights to people: the right to vote if you are 18, the right to vote if you are a woman, the right to a speedy trial. Those were rights granted to citizens. Other rights are expressed in terms of preventing the government from intruding on your rights. For example, the government will not preclude you from having a speedy trial. They will not deny you the right to a speedy trial. They won't deny you the right to counsel. You can express it either way--as a grant of a right or the government not denying you the ability to do these things. We say the government cannot exclude you from the courtroom. They can't exclude you from the trial. We are not really saying you have a right to attend the trial; we are saying you have a right not to be excluded from the trial. There is a difference. The former could lead to assertions that the government should pay for your getting to the trial, that your employer should have to let you off work or pay. We don't address that. We only say if you show up, you get to attend; the government cannot exclude you. Some of the other rights are expressed in terms of direct rights. However, they all infer that the government can't exclude you from these proceedings. We are doing exactly what other amendments to the Constitution have done. They are similar rights. The right of the press to be able to cover a trial, it seems to me, should be no greater than the right of a victim to be present at the trial. What is the difference? I conclude by challenging anybody to tell me what the difference is between granting the media the right to attend a trial and granting the victim in the case the right to attend the trial. I don't understand why there is such a visceral negative reaction to what we are trying to do. If you have ever been a victim or been part of a tragedy that has affected others, you know how much they want to bring closure to the event, why they want to witness the criminal justice process that brings the matter to a close, why they want to participate at a couple of the stages, particularly at the time of sentencing and also at the time of a conditional release so that their safety can be considered, as well as the safety of others. No one opposing our amendment has suggested that those are unworthy of protection. Rather, they have said we can do it by statute. But what did we find yesterday when we looked at the data according to the National Institute of Justice? After 18 years of Federal and State statutes and State constitutional provisions, looking at the statistics from the States that do it the best, that have the most stringent requirement for notice, fewer than 60 percent of victims were notified of the sentencing hearing and fewer than 40 percent were notified of the pretrial release of the defendant. As I said yesterday, would we consider those adequate percentages for defendants being given their Miranda warnings, something which isn't even in the Constitution? No. But somehow we think it is OK that statutes provide notice to only 40 percent of the people who want to be present at the parole board, or at least have the opportunity to be present, to say, please, don't let my assailant go; he will hurt someone. We are no longer talking about somebody accused of a crime; we are talking about somebody who has been convicted and who has been serving time for the commission of that crime. I mentioned the case of Patricia Pollard--because it is a case from Arizona--who was brutally raped and left to die. She wasn't told that the parole board was meeting to consider and then eventually decided to let her assailant out of prison on a home arrest kind of program. By accident, she was made aware of it. When she went back to the parole board and asked them to reconsider their decision, after hearing her story, they kept him in prison. When I asked her if she thought her life was in danger had he gotten out, she said: Maybe he would have tracked me down, but, frankly, I was a random opportunity for him. I came along at just the time he wanted to do this to somebody, and he did it to me. Mostly I was concerned what would happen to somebody else because if he got out he would be sure to do this to somebody else. This is what we are talking about. This is not frivolous. This is not trivial. This is people's lives we are talking about. When opponents say, we can protect it by statute, we say, the State of Arizona had a very good statute. In fact, it was better than a statute; it was a constitutional provision in the State. She still didn't get notice. In fact, 60 percent of people don't get notice under these constitutional provisions and State statutes. Opponents say: That is good enough; maybe we can pass a Federal statute. We say a Federal statute can only affect 1 percent of all of these cases, and there is little reason to believe a Federal statute would be observed any better than State constitutional provisions are, as the Oklahoma City bombing case reveals. I am at a loss. I agree with Senator Feinstein. We are moved by these cases. We are moved by the people. We want to help. Everybody wants to help. Even opponents, I am convinced, want to help. So let's do something about it. It is not doing something effective about it to fall back on the notion: Well, we will just rely on another statute; let's pass another law. That is not the answer. We are at this point now because we have not done enough to educate our colleagues, and I will accept part of the blame for that. I should have spent a lot more time--although I must confess my colleagues got tired of me coming around saying: Are you sure you wouldn't like to hear a little bit more about this? Maybe we should have tried a little harder to say: Will you please listen one more time to our plea? What has happened is a very superficial mantra of inaccuracies and falsehoods have persuaded colleagues to oppose this to the extent they would not be willing to allow it to come to a vote. In other words, when we would seek to bring this to a final vote, we would not be able to stop the talking, to stop the filibuster, in effect, to get 60 of our colleagues to agree to bring the matter to a vote or to prevent nongermane amendments. There had been a suggestion by some that if we proceed, then we can expect a whole flurry of amendments that have nothing to do with what we are talking about. Obviously, we do not want to tie up our colleagues' time with that, so we come to the unhappy conclusion that we have more work to do. The good news is that we prevailed with 80-some votes--perhaps the Senator can recall exactly how many votes we got on the cloture motion to proceed. But it was over 80, as I recall. We have 41 cosponsors of our amendment now, which is real progress. We got a good bipartisan vote out of the Judiciary Committee. This is the first time this Federal constitutional amendment has been brought to the floor of either House. We have reached a real milestone. We have done well. Most constitutional amendments never pass. All of them take a long time. I do not know of any, at least in modern history, that passed the first time they were presented on the floor of the Senate. The fact we have been thwarted part way down the road temporarily, while a setback of sorts, should not dissuade those advocates or crime victims in their efforts. As Senator Feinstein said, we will be back, and hopefully next time when we are back, more of our colleagues will have had an opportunity to study this carefully, more victims and victims' rights organizations will have had an opportunity to visit with Senators and Representatives, and we will have been able to persuade a sufficient number of them to allow us to proceed to a final vote. While there is some sorrow in our inability to bring this to conclusion today, I am buoyed by the prospect and the fact we have at least gotten to this point.

Mr. KYL. I do. If I may read one paragraph from a piece written by Professor Paul Cassell, I think it helps to elucidate what we are talking about, if the Senator would not mind. We are talking about potentially conflicting rights under the Constitution. Senator Biden has made this point. Hopefully, he will be here a little bit later to speak to this, but he made the point he can't see there ever being an irreconcilable conflict between the defendant's rights and the victim's rights, and in one sense I think he is absolutely correct because you can vindicate two conflicting rights through a balancing test. But the fact is, there is only one situation I can think of in which you even have that conflict, and that is the right to attend a trial, where the defendant would say, it is not fair to me if the victim or the victim's family attends the trial, and the victim's family or the victim says, wait a minute, that's one of my most fundamental rights, and the Senator guaranteed that in this provision. There are ways to accommodate both the defendant's and victim's rights, of course. At least the Senator and I understand that, but there are some who find that very difficult and troubling. But here is the analogous situation which I think makes our case. This is what Professor Paul Cassell says: Confirmation of the constitutional worthiness of victims' rights comes from the judicial treatment of an analogous right: the claim of the media to a constitutionally protected interest in attending trials. In Richmond Newspapers v. Virginia, the Court agreed that the First Amendment guaranteed the right of the public and the press to attend criminal trials. Since that decision, few have argued that the media's right to attend trials is somehow unworthy of constitutional protection, suggesting a national consensus that attendance rights to criminal trials are properly the subject of constitutional law. Yet the current doctrine produces what must be regarded as a stunning disparity in the way courts handle claims of access to court proceedings. Consider, for example, two issues actually litigated in the Oklahoma City bombing case. The first was the request of an Oklahoma City television station for access to subpoenas for documents issued through the court. The second was a request for various family members of the murdered victims to attend the trial, discussed previously. My sense is that the victims' request should be entitled to at least as much respect as the media request. Yet under the law that exists today, the television station has a First Amendment interest in access to the documents while the victims' families have no First Amendment interest in challenging their exclusion from the trial. The point here is not to argue that victims deserve greater constitutional protection than the press, but simply that if press interests can be read into the Constitution without somehow violating the ``sacredness of the covenant,'' the same can be done for victims. That is the end of Professor Cassell's quotation, the point being--to those who say the Constitution is sacred; we cannot change it--it includes rights of the media to attend trials, but somehow it would be wrong to grant those same rights to victims. That, indeed, is a disparity. To the extent a defendant might say, ``but I don't want the victim or the victim's family in the courtroom,'' just as the Constitution says, but there is a right that we have to balance with your concerns--and that is the media's right--we would be saying here: The victim also has some consideration here, and the court needs to take that into account in deciding the circumstances under which victims and victims' families would be present. If we were to somehow insert language that made it possible for courts to rule that the defendant would always win in the case of such an assertion, then we would have, I think, perpetrated a cruel hoax on victims who would think they had something that in fact they would not have. It would be similar to what victims experienced when they proudly went into court with their new statute that the Congress had passed, saying: ``Now, judge, we have a right to attend the trial,'' and he ignored it. If we put it in the Constitution, the judges can't ignore it. But if we said in the Constitution: However, the defendant is always going to prevail in the case of a conflict, then that would be a cruel hoax. I think we have gone so far as to suggest we are willing to acknowledge that the rights enumerated for victims do not abridge rights guaranteed in the Constitution to defendants. I do not know how much more clearly we can say that. It leads us, and those who are supportive, to conclude, if that is not good enough, that perhaps there really is not a desire on the part of those on the other side to come to an agreement here in a way that could permit us to have a chance of succeeding in this debate this week or next. That is the unfortunate state of play. Senator Feinstein is absolutely correct. Perhaps in the ensuing weeks we will have an opportunity to explore other ways of expressing this that make it clear we are not taking anything away from defendants. But by the same token, we have to give meaningful rights to victims.

Mr. KYL. Mr. President, I reiterate what I said yesterday, and that is, the best part of the debate we had was the debate with Senator Schumer whose approach to this was serious and intelligent. He asked the best questions. I believe we answered them, but we did not come to agreement. Of course, we will be working with him in the future on this matter and, hopefully, persuade him that a constitutional amendment is the best way to go. The debate we had among Senator Feinstein, Senator Schumer, and myself I thought was the highlight of this debate. I appreciate his remarks. I yield to Senator Feinstein for comments I know she wants to make.

Mr. KYL. Mr. President, finally, I ask unanimous consent to print in the Record a series of a dozen or so statements and letters from supporters of the amendment. Included in those, incidentally, is a strong statement of support for our specific amendment by Governor George Bush of the State of Texas. I ask unanimous consent to print these in the Record.

Mr. KYL. We will announce to all Members, if we can work that time arrangement out, just exactly how this will proceed. In the meantime, let me see if I can set the stage so everyone will know where we are in this debate. Then I would like to thank some people and then move on to a colloquy with Senator Feinstein, if I might. Because of the way the Senate works, we have moved back and forth in Senate business. But the pending business is the motion to proceed on S.J. Res. 3; that is, the crime victims' constitutional rights resolution sponsored by Senator Feinstein and myself. We gained cloture earlier this week so we could proceed, and the motion to proceed will certainly be agreed to, if we carry the debate that far. Senator Feinstein and I, however, are of the view that because of various things that have occurred, it is unlikely that a cloture motion, if filed, would be supported by the requisite number of Senators to succeed early next week. Therefore, what we are prepared to do is speak to the issue of the resolution, where we are with respect to the resolution, to thank the many groups and sponsors and other individuals who have been so supportive of this effort, and to seek permission of the Senate, when people have finished their comments, to withdraw the motion to proceed and to move to other business. That merely means a timeout in our efforts to secure passage of this constitutional amendment. We recognize at this point in time that proceeding will simply encourage more Senators to use a great deal of the Senate's time in unproductive speeches that really do not go to the heart of our constitutional amendment but take time away from the Senate's important business. We have no intention of doing that. So we will make some remarks that will set the stage for what we are about to do. But let me begin by noting the tremendous amount of support around the country that has accompanied our effort to bring this measure to the floor of the Senate. I have to begin by thanking two people in particular, Senator Dianne Feinstein and Majority Leader Trent Lott. We could not have brought this amendment, over the course of the last 4 years, to the bipartisan level of support it now enjoys without the ability to work on both sides of the aisle. No one could have carried this matter on the Democratic side more capably than Senator Dianne Feinstein. Before she came to the Senate, she was a passionate advocate for victims of crime. As mayor of San Francisco, she was a proponent of area residents who were victims of crime and carries that passion with her to this debate now. She and I have worked closely with victims' rights advocates to shape the legislation. I might say, while some of our colleagues have suggested there is something wrong with the fact that we have conducted dozens of meetings with the administration, Department of Justice, and many others, and honed this amendment in 63 different drafts, we are very proud that we have included anyone who wanted to talk about this in our circle of friends working to get an amendment that could pass the Senate and that we have carefully taken their suggestions into account, thus accounting for the many different drafts as the 4-year progress of this resolution has brought us to this point. The fact that we have taken their suggestions to heart and continually polished this amendment we think is a strong point. While we were criticized yesterday on the floor for engaging in yet more negotiations that might result in a final, 64th draft, I must say that was largely at the instigation of Senator Feinstein, who said, given the fact the Department of Justice has four concerns still pending with regard to our specific proposal, let's meet with them and see if we can come to closure on those items. Because of her leadership, we were able to come to closure on three of them. We believe we made more than a good faith effort with respect to the fourth, which had to do with the protection of defendants' rights. We were willing to acknowledge that the rights enumerated in this proposal take nothing whatsoever away from defendants' rights. I do not know how more clearly we can say it. That was not acceptable to the Department of Justice. But it is not for want of trying, on the part of Senator Feinstein, that we have been unable to secure the support of the Department of Justice for this amendment. So my first sincere thanks go to the person without whom we would not be at this point, my colleague Senator Feinstein. I also thank Leader Lott. When I went to him with a request for floor time for this amendment, his first response was: You know all the business the Senate has to conduct. Are you sure you want to go forward with this? I said we are absolutely certain. Despite all the other pressing business, he was willing because he, too, believes strongly in this proposal, as a cosponsor, to give us the floor time to try to get this through. It is partially out of concern for his responsibilities as leader that we recognize that to proceed would result in a vote that would not be successful, and therefore, rather than use that precious time, we are prepared to visit privately with our colleagues to further provide education to them about the necessity of this amendment since, clearly, the methodology we have engaged in thus far was not working. We would make strong arguments, but I daresay it didn't appear that anyone was here on the floor listening because when various opponents would come to the floor, they would repeat the same mantra over and over again that we had already addressed. Part of that mantra was, Did you know this amendment is longer than the Bill of Rights? We would patiently restate that is not true, that all of the rights of the defendants in the Constitution are embodied in language of more words than this amendment that embodies the victims' rights and so on. Then that individual would leave the floor, and another individual would come to the floor and repeat the same erroneous information, and we would have to patiently respond to that. Rather than continue that process, we believe it is better that we visit with our colleagues when we are not using this time on the floor and explain all of this to them, with the hope they will then be better able to support us in the future. So I thank Senator Feinstein. We have gone through a lot together on this. There is nobody in this body for whom I have greater respect. Again, I thank Senator Lott, the majority leader, for his support for us as well. The National Victims' Constitutional Amendment Network is one of the really strong victims' rights groups that has backed us throughout this process. Roberta Roper has been involved in that. She was in my office this morning. She was with us yesterday. She has been with us throughout the process, helping us evaluate these various proposals and assisting us. The National Organization for Victim Assistance, known by the acronym NOVA, headed by Marlene Young and John Stein, and all the people on the NOVA board, we are enormously appreciative of their strong support and assistance throughout this effort. They are going to continue to fight for sure. Marsha Kight, whom Senator Feinstein and I have come to know and respect because of her advocacy as someone whose daughter was killed in the Oklahoma City bombing, brought the experience of that trial and the firsthand knowledge of how victims were denied their rights even to attend the trial. She has been an important witness for us before the Judiciary Committee and at various other forums. One of the groups in the country that is most strongly in support, and has provided a lot of grassroots support, is Mothers Against Drunk Driving, or MADD. Also, Students Against Drunk Driving, SADD, a group of younger people, has been helpful. Tom Howarth, Millie Webb, Katherine Prescott, and others have been very helpful to us in that regard. Parents of Murdered Children has been enormously helpful. Rita Goldsmith is from my State of Arizona, from Sedona. We have had tremendous help from legal scholars such as Professor Laurence Tribe, Professor Doug Beloof, and Professor Paul Cassell. I thank them for their enormous help in this effort, including their testimony before the Judiciary Committee. There are many prosecutors. I need to mention a couple from my own State. The two largest counties in Arizona are Maricopa and Pima Counties. Rick Romley, the Republican-elected attorney from Maricopa County, the sixth largest county by population in the country, and Barbara LaWall, a Democratic-elected attorney from Pima County, have been very strong supporters and helpful in our work. Law enforcement has been very well represented by organizations and individuals. From the Law Enforcement Alliance of America, Darlene Hutchinson and Laura Griffith have been helpful. Various attorneys general, such as Delaware Attorney General Jane Brady, Wisconsin Attorney General Jim Doyle, and Kansas Attorney General Carla Stovall. By the way, these are Democrats and Republicans alike. It is a totally bipartisan effort. As a matter of fact, the National Association of Attorneys General--we have a very good letter signed by the vast majority of attorneys general in support of our crime victims' constitutional rights amendment. We also have support from former U.S. Attorneys General: Ed Meese, Bill Barr, and Dick Thornburgh are strongly supportive of our proposal. From a show with which Americans are familiar, ``America's Most Wanted,'' John Walsh has been an early and strong supporter of our proposal. From the Stephanie Roper Foundation--I mentioned Roberta Roper--but Steve Kelly of the Stephanie Roper Foundation has been very helpful. Arizona Voice for Crime Victims; a person who helped Senator Feinstein in the early years, Neil Quinter, a superb former Senate staff member and with whom I visited just this morning, continues his support for this. Matt Lamberti and David Hantman of Senator Feinstein's office; Jason Alberts, Nick Dickinson, and Taylor Nguyen of my office; and, most important, Stephen Higgins of my staff and Steve Twist, an attorney from Arizona, whose support and competence in helping us through this process was, frankly, simply indispensable. Also, I will submit for the Record two things. One is a list of crime victims' rights amendment supporters. This list includes, in addition to those I mentioned, more than half a page of law enforcement organizations. I mention this because there has been some suggestion that law enforcement does not support us: The Federal Law Enforcement Officers Association, Law Enforcement Alliance of America, American Probation and Parole Association, American Correctional Association, the National Criminal Justice Association, the National Organization of Black Law Enforcement Executives, National Troopers Coalition, Concerns of Police Survivors, and on and on. This amendment is strongly supported by prosecutors, law enforcement, legal scholars, attorneys general, Governors, former U.S. Attorneys General, and many more. I ask unanimous consent to print this list of supporters in the Record.

Mr. KYL. Mr. President, Senator Feinstein is exactly correct. I think it illustrates the inconsistency of the opponents of the amendment. In the first place, they say we should try a statutory remedy. When we try the statutory remedy and the court says you lose, you still don't have the rights--and as Senator Schumer said, the court essentially ignored what Congress did, and that was offensive to him because he had been one of the authors of that legislation--we come back and say that illustrates the fact that you need a constitutional protection because until you have that, the courts can't continue to ignore these statutes. Then Senator Schumer said: But courts cannot ignore statutes; they are just like the Constitution. You have to apply statutes. The answer to that is, well, you should, but what is the remedy if you don't? As the Senator pointed out, until we provide standing in a constitutional amendment, if the courts don't abide by the statutes, there is no recourse. That is the bottom line as to why a constitutional amendment is necessary in these kinds of cases. The other inconsistency is the other side says you don't have a lot of court decisions overturning statutes for State constitutional protection, so we don't need a constitutional amendment. That is an odd argument. Most of the constitutional protections are not the result of a Supreme Court decision to strike down a statute or a State provision. In fact, I don't know of any that are, frankly. Most of the constitutional protections for defendants and other citizens have come about because of the recognition that there are certain fundamental rights that need to be protected, and we ought not to wait for courts to strike something down in order to assume that it is time to propose a constitutional amendment. But if that were the proper standard, then we have a clear reason to do so because as the Senator from California pointed out, the Tenth Circuit Court of Appeals has now ruled that is the precedent, and for at least, I think, seven States in the Tenth Circuit, they have a very bad ruling on their hands; namely, victims have no standing to assert the rights we provided for in statute. So if that is to be the standard--that you have to have a court decision that proves the need for a constitutional protection--we have it. So whichever way you want to argue it, I think the point is made that we need a constitutional amendment to provide real protection for victims of crime.

Mr. KYL. Mr. President, another point Senator Feinstein made yesterday which people need to continue to focus on is that a Federal statute is going to apply to Federal crimes. A U.S. constitutional amendment applies to all cases in all courts in every State, whether at the trial court level in the county--we call it superior court in Arizona--all the way to any other court, including Federal courts. But a statute that we pass applies to Federal court trials for the most serious crimes. In Federal law, that accounts for about 1 percent of the victims of violent crime in the entire country. Almost always the local police catch the perpetrator, that perpetrator is tried by the local county prosecutor in the county courts, and the appeals go up through the State court process. Sometimes they can jump over to the Federal court because of a constitutional issue involved. But except on military reservations, Indian reservations, certain kinds of kidnapping cases, and things of that sort where it is not a Federal case, a Federal statute doesn't apply.

Mr. KYL. Mr. President, Senator Feinstein has touched on a central point because none of the advocates for victims have ever sought to deny one single right to the defendant. In point of fact, the victims' rights that we protect do not deny or abridge the defendants' rights under the Constitution. It is not our intention, and it doesn't happen. We have been willing to acknowledge that in a variety of ways and in a variety of words in the Constitution. We are not willing to say if there is ever a case in which the defendant asserts a right under the Constitution then that right automatically wins over any of these victims' rights. What we said, and what people in the Department of Justice and the President and others have agreed with, is there should be a balancing just as there is a balancing of two constitutional rights, defendants' rights to a speedy and public trial, a fair trial, and the right of free press. When the press wants to get into the courtroom, sometimes, as we all know, the judges say: No. We are only going to allow a limited number of certain kinds of media in the courtroom. We don't want a media circus in the courtroom. That wouldn't be fair to the defendant. The media says: Wait a minute. We have a first amendment right. The defendant says: I have a constitutional right, too, which amounts to a right for a fair trial. The judge says: You are both right, and you are both going to get your rights vindicated, but neither of you have an absolute right that excludes any other consideration. The judge says to the defendant: I am not going to allow your case to be prejudiced by a media circus. Media, you are going to have to restrain yourselves to the following conditions. Judges say that every day. The defendant has a right to sit at his trial. But he can't sit there if he is going to be yelling, screaming, and jumping up and down and threatening people. The judge has a way to control his courtroom, and so on. We are perfectly willing to make it crystal clear in our language that the enumeration of these rights for victims does not abridge any rights guaranteed in the Constitution for defendants or those accused of crime. We are unwilling to say, if there has to be any balancing, the defendant always wins. That would deny exactly what we are trying to achieve for the victims, which is some equal consideration under the Constitution for their fairness given all of the things we have rightly done for defendants.

Mr. KYL. Mr. President, I want to add something to a point Senator Feinstein just made. I do not think she would take offense at my mentioning what occurred in my office about 4 hours ago. We were summarizing the events and what led to the inability to get this across the goal line this week. I said it is partially my fault for not bringing more victims to the Senate to talk directly with Senators and share their personal stories. I told that to Roberta Roper, who heads up the Stephanie Roper Foundation. Stephanie Roper was brutally murdered, and Roberta, her mother, has carried this cause in Stephanie's name. They do a lot of good in terms of victim support, in addition to victim advocacy. She said: You have to understand, though, we are conditioned not to present these stories in an emotional, personal way. We have been told over and over again in the court that ``there can be no display of emotion.'' Those are the words the judges used. I have been told that a display of emotion would be wrong. Now, think about that. Part of what makes us great as a people is the willingness to act out of our heart as well as our mind. We should never do incorrect things or unintelligent things, acting purely on the basis of emotion, but nor should we deny that emotion can be a potent force in developing public policy. I tried to tell Roberta that I think it was a mistake, on my part, not to appreciate what she was telling me, not to understand it in advance, and not to counsel her to go ahead in this environment and express it in emotional terms. This is not a court of law. This is where the people's business is done. I believe that until one fully appreciates what a victim goes through, it is hard to appreciate the necessity for what we are doing here. Perhaps I could conclude by reading a paragraph again from the remarks of Professor Paul Cassell before the Judiciary Committee. He said: The available social science research suggests that the primary barrier to successful implementation of victims' rights is ``the socialization of [lawyers] in a legal culture and structure that do not recognize the victim as a legitimate party in criminal proceedings.'' He is talking about a professor, a colleague of his, who disagrees with our position, Professor Mosteller. He says: Professor Mosteller seems to agree generally with this view, explaining that ``officials fail to honor victims' rights largely as a result of inertia and past learning, insensitivity to the unfamiliar needs of victims, lack of training, and inadequate or misdirected institutional incentives.'' A constitutional amendment, reflecting the instructions of the nation to its criminal justice system, is perfectly designed to attack these problems and develop a new legal culture supportive of victims. To be sure, one can paint the prospect of such a change in culture as ``entirely speculative.'' Yet this means nothing more than that, until the Amendment passes, we will not have an opportunity to precisely assay its positive effects. Constitutional amendments have changed our legal culture in other areas, and clearly the logical prediction is that a victims' amendment would go a long way towards curing official indifference. This hypothesis is also consistent with the findings of the National Institute of Justice study on state implementation of victims' rights. The study concluded that ``[w]here legal protection is strong, victims are more likely to be aware of their rights, to participate in the criminal justice system, to view criminal justice system officials favorably, and to express more overall satisfaction with the system. It is hard to imagine any stronger protection of victims' rights than a federal constitutional amendment. Moreover, we can confidently expect that those who will most often benefit from the enhanced consistency in protecting victims' rights will be members of racial minorities, the poor, and other disempowered groups. Such victims are the first to suffer under the current, ``lottery'' implementation of victims' rights. I think that expresses well the reason for the frustration we have shared, the reason so many of our colleagues have come here repeating the mantra of the legal profession that it has never been this way before. Maybe it is time to change the way things have been. That is why we have been so strongly in support of this amendment. I see one of the opponents of the amendment is here. I know he wishes to speak. Therefore, let me conclude my remarks by again thanking Senator Feinstein for her stalwart, effective support and her desire to continue this battle on behalf of the victims of crime. I assure you, Mr. President, that even though we will be withdrawing our motion to proceed on S.J. Res. 3, we will continue to meet with, and work with, anyone who wishes to work with us on this--opponents and proponents--to try to get it into the condition that will finally be approved by two-thirds of this body and two-thirds of the other body. That is our challenge. That is our commitment. It is our promise that we will continue in this effort.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Subcommittee on Forests and Public Lands of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Wednesday, April 26, at 2:30 p.m. to conduct a hearing. The subcommittee will receive testimony on S. 2273, a bill to establish the Black Rocks Desert-High Rock Canyon Emigrant Trails National Conservation Area; and S. 2048, a bill to establish the San Rafael Western Legacy District in the State of Utah, and for other purposes.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that Nick Dickinson of my staff be granted floor privileges for the duration of the consideration of S.J. Res. 3.

Mr. KYL

Mr. KYL. As soon as I conclude these two points, again I am happy to allow the Senator from Vermont to speak. I was waiting for this last hour or so and thought we would take up the time, and Senator Schumer has provided a very important challenge. Why not a statute? I provided the first answer. Second, let me provide the answer from a piece Paul Cassell wrote, offered earlier by Senator Feinstein. He said: In theory victims' rights could be safeguarded without a constitutional amendment. It would only be necessary for actors within the criminal justice system--judges, prosecutors, defense attorneys, and others--to suddenly begin respecting victims' interests. The real world question, however, is how to actually trigger such a shift in the Zeitgeist. For nearly two decades, victims have obtained a variety of measures to protect their rights. Yet, the prevailing view from those who work in the field [including the Justice Department in this fine volume, New Directions from the Field] is that these efforts ``have all too often been ineffective.'' Rules to assist victims ``frequently fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, or sheer inertia . . . '' The view that state victims provisions have been and will continue to be disregarded is widely shared, as some of the strongest opponents of the Amendment seem to concede the point. For example, Ellen Greenlee, President of the National Legal Aid and Defender Association, bluntly and revealingly told Congress that the State victims' amendments ``so far have been treated as mere statements of principle that victims ought to be included and consulted more by prosecutors and courts. A state constitution is far . . . easier to ignore than the federal one.'' A fortiori, as we lawyers say, a statute is far easier to ignore than the Federal Constitution. Just citing a couple of more points in Paul Cassell's piece, he quotes from the Department of Justice, the Attorney General herself. The Department finding that these various efforts--the State and Federal and statutory and constitutional provisions: . . . have failed to fully safeguard victims' rights. These significant state efforts simply are not sufficiently consistent, comprehensive, or authoritative to safeguard victims' rights. I would intersperse that a Federal statute, of course, is in the same category. In fact, it is of a slightly lower category than a State constitutional amendment in the State courts. In any event, with respect to the number of crimes of violence in the Federal system, you are only talking about approximately 1 percent of the crimes. So clearly a Federal statute does not give you anything that these State statutes do not. But here is the point, and I continue to quote here: Hard statistical evidence on non-compliance with victims' rights confirms these general conclusions about inadequate protection. In other words, now let's go to the tape. Let's look at the numbers, not just the conclusions reached by scholars. . . . the National Institute of Justice found that many crime victims are denied their rights and concluded that ``enactment of State laws and State constitutional amendments alone appears to be insufficient to guarantee the full provision of victims' rights in practice.'' Here are the statistics. For example: . . . even in several States identified as giving ``strong protection'' to victim's rights [like my State of Arizona and Senator Feinstein's State of California] fewer than 60 percent of the victims were notified of the sentencing hearing and fewer than 40 percent were notified of the pretrial release of the defendant. Fewer than 40 percent. Would we consider that a good enough job in notifying defendants of their right to counsel? Would we consider, if the police in 40 percent of the cases remembered to give the Miranda warnings, that that would be OK? Absolutely not. That is the fundamental difference between a constitutional right and a statute, or a State constitutional provision. They just are not enforced with the same degree of vigor and consistency and care as the U.S. Constitution must be and is. So we find that 40 percent of the people who ought to be notified that their assailant is about to be released from prison never get the notice. That is in the good States. That is not good enough. After 18 years of experience with this, we ought to appreciate that statutes and State constitutional provisions just have not done the job. That is the second reason. I will get to the third one. But that is the second key reason why the Senator's question, Why not a State statute or State constitutional amendment or Federal statute? just has not worked. I will be happy to yield to the Senator from New York.

Mr. KYL. I yield to the Senator from Hawaii.

Mr. KYL. Mr. President, I think the Senator from New York has made an excellent presentation. As a matter of fact, that is the presentation I made about 4 years ago when a very fine attorney in Arizona came to me and said these State constitution provisions in statute are not working, we need a Federal constitutional amendment. I made essentially the same argument, probably not as eloquently as the Senator from New York. I share with the Senator both the concern for victims' rights and a concern for the U.S. Constitution not being unduly tampered with. We all acknowledge that it can and sometimes should be amended. However, it should be done only when necessary. In that we all agree. He made the case to ask the question, Why not a statute? I respond to that in three quick ways. First, let's get one thing out of the way. We do not want to amend the Constitution only when there has been a finding by the U.S. Supreme Court that some action we want to take is unconstitutional. Of course, there are not findings that State constitutional provisions or statutes are unconstitutional. There would be no reason for that. None of them conflicts with defendants' rights. That is the only basis on which I can think they would be declared unconstitutional. No one wants to conflict with or hurt defendants' rights. There is no reason to expect any provision will be declared unconstitutional. There is a problem with respect to precedent, and that is, the Tenth Circuit has held there is no standing to enforce a Federal statute that the Senator from New York helped to draft. That is a problem. Now I believe in seven different States victims do not have the standing to assert rights we provided in a Federal statute. That is bad. That is a precedent we need to overturn and can overturn with a constitutional amendment. The third point in this respect is that the problem is not that there has been or ever would be a finding of unconstitutionality with respect to these statutes or provisions. It is, rather, that they are just not enforced. As somebody said, they are enforced more in the breach than in the observance. That is the problem. Not that there is unconstitutionality. Let me do the other two things I wanted to do. I see the Senator from Vermont is standing.

Mr. KYL. That is fine.

Mr. KYL. If I might interrupt, all of this is on my time, which is fine with me. It is a good exchange, and I agree with the Senator from New York, this is the right way to debate the subject. I am happy to have the Senator finish his thought, but I want to respond to a question asked some time ago.

Mr. KYL. That is the second point. We are criticized on two accounts. We literally can't win. On one hand, the Senator from New York and others have said it is subject to interpretation. What does ``reasonable'' mean? On the other hand, we have written too much. We ought to just say ``reasonable rights'' and then flesh it out in statute. We can't win, if that is the argument. What we have done, I submit, is the compromise that the Founding Fathers did. They expressed general terminology in order to keep it short and succinct, understanding that it would have to be fleshed out. But what we have done is to describe in enough additional detail to ensure that there could never be a contention that we are infringing on a defendant's rights and to be sure there would never be a criticism that we weren't specific enough about what these rights were. So we have actually enumerated these eight specific rights. But I think we have struck the right compromise in that regard. Two other quick points, if I may: The Senator correctly pointed out that it appears one of the reasons for the judge's decision in the Oklahoma City bombing case was that he just ignored it. I think it is hard to figure out exactly why he didn't apply it. He couldn't ignore a U.S. constitutional provision as he could ignore a Federal statute, which is precisely why we need a Federal constitutional amendment. It may also be that the Oklahoma City statute was not well enough drafted. I think that is exactly correct as well. It is no answer to say that a statute would be the way to go here, that it is better than a constitutional provision. The bottom line is this: In words somewhat similar to those words that protect the rights of the accused, we have identified eight specific rights. I have yet to see anybody say those eight specific rights should not be guaranteed. Rather, the argument is that they should be put in statute. Senator Schumer has just pointed out why putting it in statute doesn't work.

Mr. KYL. Mr. President, before she arrived at noon, I had shared some specific comments that go directly to Senator Schumer's questions. I thought I would repeat what I said here in brief. The first objection is that this is too wordy. It is not 15 pages. It is about 2\1/5\ pages. But the total number of words that describe victims' rights is 179. The total number of words in the amendment, except for the technical provisions regarding the effective date, is 307. If you add them all up, it is 394 words. Again, 179 of those words describe the victims' rights. The defendants' rights consume 348 words in the U.S. Constitution. The Bill of Rights is 462 words. If you add it up word for word, we win, as I said this morning. But that, obviously, is hardly a way to evaluate.

Mr. KYL. Yes. I thank Senator Feinstein for that statement. It is a confirmation that scholars of law, not only she and I, have reached this conclusion. I was just reminded of another place in which this conclusion is found. The U.S. Department of Justice volume ``New Directions from the Field, Victims Rights and Services for the 21st Century.'' Among the statements in this report is the following: Granting victims of crime the ability to participate in the justice system is exactly the type of participatory right the Constitution is designed to protect and has been amended to permanently ensure. Such rights include the right to vote on an equal basis and the right to be heard when the government deprives one of life, liberty or property. What we have provided here is a set of rights, some expressed in terms of ``not to be excluded from,'' some expressed as a right such as a right to vote, as has been noted. In each case, the fundamental basis is that the Government cannot deprive one of their ability to participate in the criminal justice process to the extent we have defined it here. I think that is a very important distinction. As the Senator pointed out, without the standing to assert the right, it would be hollow. It would be merely an oratory statement. That is precisely why the people in the Oklahoma City bombing case couldn't vindicate their rights. The court said they didn't have any standing.

Mr. KYL. Mr. President, I know Senator Leahy and Senator Byrd want to make a presentation. I would certainly be prepared to yield to them as soon as they are ready to make their remarks. In the meantime, I thought perhaps I could engage Senator Feinstein in some conversation and maybe make a couple points myself. But as soon as Senator Leahy or Senator Byrd arrive, I will be happy to relinquish the floor to them. One of the arguments that has been raised by some opponents of the amendment, including a prominent columnist whom I respect greatly, George Will, derives from a superficial reading of our amendment. It is said that this kind of an amendment, which grants rights to victims of crime, would be discordant with the general purpose of the Constitution, which is not to grant entitlements to people that the Government would provide but, rather, protects people's natural rights, some of which are enumerated in the Bill of Rights, some of which are assumed to exist outside the Constitution and are more expressed in terms of prohibitions on bad government conduct. I want to make clear--and seek Senator Feinstein's view on this--that in both cases the Constitution has prevented deleterious Government action. In neither case does the Constitution grant rights. In our case, for example, the right to attend the trial that we talk about in the Oklahoma City bombing case is really not expressed as the right to attend the trial. There is no right to Government access to the trial. We express this as a prohibition on the Government denying access to the trial so if a victim or victim's family is able to get to the courtroom, nobody has to bring them there, but if they are able to get there and they want to attend the trial, the Government may not deny them that right. In this regard, it is the same as the right to free speech. We all talk about the right to free speech. We really don't have an entitlement to free speech in the Constitution. We believe that is a natural right. As the Constitution says, the Government shall not abridge our right to free speech. It cannot constitutionally enact any laws that would inhibit the free exercise of speech. I urge my colleagues and wise people, such as George Will, to read this carefully. It is just as the existing Constitution. We speak in common terms of protecting the right of free speech, the right to attend the trial about which Senator Feinstein has been talking. But in reality, both constitutional provisions are prohibitions on the Government infringing upon this right. Is that a distinction the Senator finds important in describing the Oklahoma City case?

Mr. KYL

Mr. KYL. Mr. President, on behalf of the majority leader, I ask consent that when the Senate receives the veto message to accompany the nuclear waste bill, it be considered as read by the clerk and spread in full upon the Journal and then temporarily laid aside, with no call for the regular order returning the veto message as the pending business in order. I further ask consent that at 9:30 a.m. on Tuesday, May 2, the Senate proceed to the veto message and there be 90 minutes under the control of Senator Murkowski and 90 minutes under the control of Senators Reid and Bryan. I further ask consent that the Senate stand in recess for the weekly party conferences between the hours of 12:30 and 2:15 p.m. on Tuesday, May 2, 2000. I further ask consent that at 2:15 p.m. on Tuesday, there be an additional 30 minutes under the control of Senators Reid and Bryan and 30 minutes under the control of Senator Murkowski and at 3:15 p.m. the Senate proceed to vote on the question ``Shall the bill pass, the objections of the President to the contrary notwithstanding?'' all without any intervening action.