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Volume 19, Numbers 2 and 3 (of 12 issues), 2000

Kyl, Feinstein To Continue Fight

Senate Sponsors Pull Victim Rights Amendment

In the afternoon of April 27, 2000, after two days of off-and-on again debate, Senators Jon Kyl (R-AZ) and Dianne Feinstein (D-CA) returned to the Floor to announce they were withdrawing the proposed Crime Victims’ Rights Amendment from further Senate consideration. Said Senator Kyl:


”Senator Feinstein and I ... are of the view that because of various things that have occurred, it is unlikely that a cloture motion [ending debate], if filed, would be supported by the requisite number of Senators to succeed early next week.”


Senator Feinstein later added:

”The tragedy for me, today, is that we are so close that, if we could bridge that one gap, getting the support of the Justice Department, the President’s support, the Vice President’s support, perhaps we might, on our side, pick up some votes.”


Her reference to ”our side” was to her fellow Democrats, both in the Senate and in the Clinton Administration. Had an Administration-backed bill emerged, she hoped to win critical converts among her Democratic colleagues.


That was a tantalizing hope on Monday, April 24, the day before debate began. First, a letter was circulated from 37 state Attorneys General giving their ”strong and uneqivocal support” for the bill. Then, that evening, a team of Justice and White House officials agreed to meet with the sponsors over the language. The meetings that followed over the next two days ultimately failed to bring resolution – but it was close.


As one index of the unpredictability of the vote, only fourteen Senators spoke in opposition to the resolution while 41 others remained co-sponsors. Somewhere among the 45 unannounced Senators, the proponents hoped, could be found the needed two-thirds majority.


In fact, it was one of the prominent opponents who suggested how close the sponsors had come. After the retreat had been announced, Senator Edward Kennedy (D-MA) said, ”When we began this debate earlier this seek, the conventional wisdom was that the proposed constitutional amendment was within a vote or two in the Senate of obtaining the two-thirds majority needed for passage.”


He then went on to express his pleasure with the turn of events in the grandiose terms typical of speakers on both sides: ”The debate has so clearly demonstrated the fundamental flaws of this amendment that the amendment is likely to be withdrawn. It is a proud moment for the Senate, and I believe the founders who wrote the Constitution would be proud of us, too.”


It is unlikely that the formal debate on the Senate floor was the determinant, since there were rarely more than three or four members on the floor at any given time. But the debate was certainly going on elsewhere, and over an extended period of time.


Administration Reservations
For at least two years before the full Senate took up the proposal, the Justice Department had been expressing reservations about certain provisions of the Kyl-Feinstein proposal. Organizations like the National Victims Constitutional Amendment Network (NVCAN) and NOVA had written letters to Attorney General Janet Reno expressing disagreement with the Department’s positions and requesting meetings to seek resolution. Those letters went unanswered.


Justice formalized its objections in a February 10, 2000, hearing before the Constitution Subcommittee of the House Judiciary Committee, considering a counterpart proposal. There, Assistant Attorney General Eleanor D. Acheson submitted a statement for the Department specifying four objections to the Kyl-Feinstein resolution (and an additional one pertaining just to the House bill, introduced by Ohio Republican Steve Chabot).


That statement became the focus of the discussions between the Administration and the sponsors. These began Tuesday afternoon, necessitating the sponsors to leave the floor as opponents held forth.


The Justice position and the proponents’ response can be found in a rejoinder that NVCAN Chief Counsel Steven Twist filed to the Acheson statement. Italicized excerpts from the statement, with the Twist rejoinder afterward, follow:


” ... [w]e urge that the following language be added: ‘Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution.’ ”


”The likely, although perhaps unintended, consequence of the proposed language would be to always subordinate the rights of the victim to those of an accused or convicted offender. To constitutionalize such a ‘trump card’ would be directly contrary to the views President Clinton expressed on June 25, 1996 ...”

”This provision would create an unprecedented incursion on the President’s power to grant executive clemency requests.” [Referring to the right to notice and be heard regarding a proposed pardon or commutation.]


”That victims should have the right to be heard on the matter of a proposed pardon or commutation seems beyond substantive debate. The concern of the Justice Department is therefore most telling and points precisely to the need for this right to be protected in the Constitution. Presumably the Department also would take the position that a mere statute which gave a victim the simple right to voice an opinion on the matter of a pardon or commutation would be unconstitutional. How then, except by way of a constitutional amendment, would the right be preserved?”

”While we would prefer that the Amendment authorize the creation of exceptions that are ‘necessary to promote a significant government interest,’ we believe that eliminating the reference to the exceptions power altogether, and therefore leaving it implicit, would be preferable to retaining the ‘compelling interest’ language.”

”The provision ... gives Congress and the states the ability to ‘enact exceptions when necessary to achieve a compelling interest.’ This provision is designed to respond to suggestions that have occasionally been made that, in some rare cases, it would be impossible to provide rights to crime victims. Those suggestions are rarely fleshed out in any tangible way; nor are they based on real world examples of difficulties in implementing state constitutional provisions protecting victims rights. Accordingly, my sense is that the ability to enact exceptions will prove to be a safeguard against purely imaginary dangers. Should such dangers materialize, however, the Amendment empowers Congress and the states to respond by enacting exceptions. Exceptions must serve a ”compelling interest,” a standard with which the courts are familiar.”


”The Statement argues that the ‘compelling interest’ standard may be too high. We simply note that the standard should be high enough to protect the rights secured, but flexible enough to allow exceptions that would avoid true injustice or impossible administrative burdens. The exceptions language proposed in the Statement carries its own problems. The requirement that the interest protected be a ‘government interest’ is arguably too restrictive.”

” ...Section 2 invites the reopening of completed criminal cases to revisit the issue of restitution. ...Section 2 ... is overly broad and would unduly disrupt the finality of sentences.”

”Such a change would leave the curious anomaly that while the Constitution established a right to restitution from the convicted offender, if a court failed to honor and protect the right with an order of restitution, there would be nothing the victim could do to remedy the violation. Surely the Department cannot mean this.”

The two sponsors, members of their staff, and Steven Twist met with the Justice/White House delegation to review at some length positions they had already exchanged in writing. Reportedly, the discussions were professional and at times illuminating. Thus, for example, on the issue of whether restitution orders should be reopened, the Administration team was surprised to learn that under current Federal law, such orders may indeed be revisited when new grounds for restitution are discovered.


After the Tuesday meeting, the sponsors’ staff and Mr. Twist began consultations with two legal experts, Professors Paul Cassell of the University of Utah law school and Douglas Beloof of Lewis and Clark law school, plus Roberta Roper, NVCAN’s co-chair, Millie Webb and Thomas Howarth, MADD’s President and Washington representative, respectively, and John Stein, NOVA’s Deputy Director. By the next morning, they had drafted, and the sponsors accepted, counterproposals on all four points.


The issue that seemed the thorniest was the first, concerning defendants’ rights. The proponents’ negotiators reported that the Administration had rejected alternative language that Professor Cassell had publicly suggested over a year before: ”‘Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution. In cases of conflict, the rights of the accused or convicted offender and the victim shall be reasonably balanced.”


Finding a new way to express protection of both defendants’ and victims’ rights proved an intellectual challenge, but in the end, the lawyers and the sponsors were satisfied with their draft.


At the second meeting on Wednesday, the Administration team reviewed the sponsors’ counteroffers, and accepted all but the defendant’s rights language. Nor would they suggest an alternative to their own formulation.


That led to further discussions among the sponsors and supporters, none of whom could accept the Administration’s language. The meetings continued on Thursday with huddled conferences in the lobby outside the Senate chamber. In the end, there was unanimous agreement that it was best to pull back the proposal without seeking a vote to end the debate or on final passage. It appeared that support for the amendment had weakened over the past two days.


Rising Democratic Opposition
If on Monday, Senator Feinstein was encouraged that the Democratic Administration was willing to talk, she was discouraged by the reception she received at the regular Democratic Senate Caucus held over lunch on Tuesday. She was ready to debate behind closed doors with known opponents of the amendment such as Patrick Leahy of Vermont and Charles Schumer of New York. What caught her by surprise was a speech in opposition by a heretofore-undecided Senator, Tom Daschle of South Dakota.


This was not a disagreement with just another colleague – he is her party’s leader. Moreover, it was evident that it was in the role of Minority Leader that Senator Daschle spoke, for he urged Democratic co-sponsors to take their names off the resolution.


Though only one Senator heeded that request, Daniel Inoye of Hawaii, the portents were hardly favorable. Both Houses of Congress had in recent years become increasingly partisan, and for the Crime Victims’ Rights Amendment to become viewed as a Republican or conservative proposal was to strip it of any chance of obtaining the needed two-thirds vote in both bodies.


Moreover, the Republican Majority Leader, Trent Lott of Mississippi, may have inadvertently sent a partisan signal in scheduling just three days of debate, while simultaneously filing a petition to end the upcoming debate.


Thus, in his opening statement, Senator Leahy, floor manager for the opponents, said,

”So as we turn to this constitutional debate, I observe it is not a matter on which the immediate filing of a cloture motion would be appropriate. I urge all Senators – Republicans and Democrats alike – to vote for cloture on the motion to proceed. [That was a preliminary step, and it passed 82 to 12.] But if we are serious about debating this measure, then we should debate it [for weeks].


”...But if we are going to bring up a constitutional amendment, let’s do it right. I hope once we turn to the measure, the majority leader will recognize the inappropriateness of filing a cloture motion on this unexplored, proposed constitutional amendment. When that course was followed in 1995 in connection with the constitutional amendment to impose term limits on Congress, it short circuited the debate and prevented any serious consideration or amendment.”

Whether these procedural concerns were shared by others is not known. In the debates that followed the Caucus meeting, Senator Leahy alone addressed them. Notably, of the 14 Senators who spoke in opposition, 13 were Democrats (Fred Thompson of Tennessee being the lone Republican). The quality of the debate was, according to a number of observers, not the highest, causing Senator Kyl to vent some frustration in his remarks on Thursday:

”[W]e 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.”

In addition to the length of the resolution, another common theme raised by opponents was that a statute alone could secure the rights of crime victims. Part of the Kyl-Feinstein response to this repeated point was that a Federal statute would only cover violent crime victims in Federal courts, leaving unprotected 99-plus percent of such victims whose cases were in state court.


”Eroding the Rights of the Accused”

But within the mantra of objections was one that seemed to go beyond disagreement to something more like fear – a fear that the effects of the amendment would produce something fundamentally unfair – something illiberal.


In Senator Daschle’s floor statement, he put it this way:

”In addition to the threat this amendment poses to our constitutional framework, I am also concerned it may erode the rights of the accused. I know full well that accused criminals are not a popular group. But the cornerstone of our justice system is the belief that we are all presumed innocent until proven guilty. If we undermine that basic principle in any way, we are all hurt.”

It was the ”defendants’ rights” issue again. Its appeal to the progressive wing of the Democratic Party was seemingly visceral, with one liberal group after another, from the American Civil Liberties Union to the National Association for the Advancement of Colored People, citing this danger.


As one of them put it in an April 10 statement, ”The NAACP appreciates and commends the attempts of the members of the Senate to improve the way in which the American judicial system treats crime victims ... Yet we cannot support S. J. Res. 3 for, as well meaning as it is, we have grave concerns that the negative effects of this amendment would have on the rights of the accused seeking a fair and impartial trial would outweigh the benefits it bestows upon victims.”


That line of thinking has perplexed a number of prominent amendment supporters who identify themselves with the likes of the NAACP and the ACLU. Where, they ask, in the hundreds of thousands of cases that have been tried in state courts where all the victims’ rights were observed has harm been done – or even alleged – to defendants’ rights?


Two prominent figures in this camp gave voice to their sense of estrangement just before and during the debate.


Norman S. Early, Jr. – NOVA Board President, former Denver District Attorney, and founding President of the National Black Prosecutors’ Association – was particularly troubled by the NAACP’s statement. In response, he wrote a letter to the sponsors under the letterhead of a newly-formed group – Racial Minorities for Victim Justice – and rounded up co-signatories from African-American, Latino, Native American, and Asian-American victim advocates and survivors.


The letter recites America’s long misuse of the application of criminal law against racial minorities, basically agreeing with civil rights groups who view the justice system with suspicion. ”What we cannot understand, however,” the letter continued, ”is why some in those communities have concluded that one way to bring justice agencies into harmony with our higher ideals is to deny the victims of crime any effective and enforceable rights. To us, that makes no sense. We do nothing to improve the fair treatment of minority defendants by impeding the fair treatment of minority victims.”


The complete letter, updated since the Senate debate, is included elsewhere in this Newsletter. [RMVJ Letter - PDF]


Meanwhile, Harvard Constitutional law professor Laurence Tribe was growing troubled that many of his fellow liberals, while acknowledging that legal protections for crime victims were warranted, nonetheless did not perceive them as basic human rights, and could be provided by way of a simple statute. In a letter to Senator Feinstein arriving on the last day of the debate (also reprinted in the Newsletter), he also spoke somewhat wistfully that his views had little support among colleagues in the rarified upper ranks of academia. He wrote:

”Evidence of the depth and pervasiveness of this basic attitude, and of the view that to defend the rights of victims is to engage in a primitive exercise in emotionalism, incompatible with the structure of our adversary system of justice and with the rational character of the modern bureaucratic state, is the ferocity and generality of the opposition to a constitutional amendment to protect victims’ rights, at least among the elite and especially in the supposedly enlightened circles with which I like to think I associate. I can count on the fingers of one hand the number of ostensibly ‘liberal’ lawyers and scholars who do not look askance when they learn of my support for this amendment.


”Friends who otherwise respect me and admire my work have a difficult time, it seems, assimilating the notion that a liberal champion of defendants’ rights – something I think I have been all my life – should take seriously the idea that the victims of violent crime actually have ‘rights’ that the Constitution should compel government to take seriously and to treat with respect, rather than merely being the unfortunate – well, victims – of criminal predations that the state is charged with combating, in a system where the only ‘rights’ worth naming and treating as such of course belong to those unfortunate enough to find themselves on the wrong end of the machinery of criminal justice.


”With all respect, I do not share that perspective. Rather, I regard its deeply ingrained nature as the principal argument for the conclusion that statutory measures will never fully suffice.” [Tribe Letter - PDF]

One of the most forceful Democratic advocates for the amendment was Senator Joseph Biden of Delaware. However, to the dismay of proponents, as the ranking Democrat on the Foreign Affairs Committee, he was on a fact-finding mission in Columbia for the first two days of the debate. Thus, by the time he spoke, his statement had no influence on how the Senate would act in 2000.


Nonetheless, for amendment advocates who look to gain more Democratic support in the future, the Biden speech remains an important marker (and so is reprinted elsewhere in the Newsletter). [Biden Letter - PDF] For as the author of the ”Biden Compromise,” he explains why a number of changes he insisted on were designed to protect defendants’ rights, thus, in his mind, putting to rest any concerns on that front.


Immediate Reactions
Most amendment supporters on the scene were most disappointed that the Feinstein strategy of getting the Administration on board, and then Senate Democrats, had failed. To NVCAN’s Roberta Roper, that failure was attributable to an Administration in which she had placed much trust; when in June, 1996, the President had announced his support of an amendment, the other Rose Garden speakers joining him were the Vice President, the Attorney General, and Ms. Roper.


In her May 2 letter to the President, Ms. Roper took some pains to address the defendants’ rights issue on which the negotiations floundered. She recited the written positions of the Administration, of the sponsors, and of President Clinton himself:

”Administration: ‘Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution.’


”Sponsors: ‘In cases of conflict, the rights of the accused or convicted offender and the victim shall be reasonably balanced.’


”The Administration officials rejected the co-sponsors’ wording, and then a second approach at expressing the same ‘balancing’ idea. And which of these two reflected your views? I remember vividly what you said on that bright June day:


” ‘When a judge balances defendants’ rights in the Federal Constitution against victims’ rights in a statute or a state constitution, the defendants’ rights almost always prevail. That’s just how the law works today. We want to level the playing field. This is not about depriving people accused of crimes of their legitimate rights, including the presumption of innocence; this is about simple fairness. When a judge balances the rights of the accused and the rights of the victim, we want the rights of the victim to get equal weight.’ ”


”The Administration jettisoned any commitment to a level playing field, to balance, and to any consideration of equal weight. In so doing, none of your officials gave a compelling example of how a clash of victims’ rights and defendants’ rights might arise. But if such a case ever did occur, they adamantly insisted, the victim’s claims of right would not, and could not, be balanced.”

Her letter in full is reprinted elsewhere in the Newsletter, as is a statement issued by MADD President Millie Webb.


Future Prospects
In some respects, Ms. Roper’s words were addressed as much to the person who will succeed Mr. Clinton as to the sitting President. For the amendment’s advocates, obtaining vigorous Presidential support is an important element in their plans to renew the campaign.


They start from a good vantage point. On July 12 of last year, Vice President Gore pledged ”to lead the fight to pass a Victims’ Rights Amendment” if elected. On April 7 of this year, Governor Bush declared ”I strongly support passage of the Victims’ Rights Amendment.” Both the timing of his statement, and the use of the word the rather than a Victims’ Rights Amendment were duly noted.


Then, on the day the resolution was withdrawn, the Administration issued a statement that contained more than one wink in the direction of the supporters. It read:




Office of the Vice President





On behalf of the Administration, I want to express our appreciation for the good faith effort on all sides in trying to reach an agreement on a Victims’ Rights Amendment. I want to reiterate our strong commitment to continue to work towards passage of a constitutional amendment that will ensure that victims’ rights are fully considered in the criminal justice system. We look forward to working closely with Senators Feinstein and Kyl in the future to pass a balanced Victims’ Rights Amendment.


Pro-amendment activists took note of who spoke for the White House and the choice of the phrase of a ”balanced” amendment. At the same time, there is a consensus among them that all statements and gestures of support from political figures are welcome but, of themselves, are not sufficient. As NVCAN and their allies regroup, they are committed to turn supporters into passionate advocates and anxious opponents into confident supporters.


The sponsors are of like mind. Senator Kyl said, ”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.


”The good news is that we prevailed with 80-some votes ... on the cloture motion to proceed. ...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.”


To which Senator Feinstein added, ”I want to say something to the victims who have been so heartrending in this process. Those of us who are political come to grips with the sophisticated lobbying around this place. One of the things I have seen in the people whom we represent is they are real people. They have been maimed, they have been harmed, they have been hurt, and with this – I have seen this in the past when I was active in the criminal justice system – victims almost become catatonic. They almost become unable to go out and do the lobbying that is necessary to move something such as this.


”I want them to know how much we identify with their cause, how much we intend to continue to pursue this cause. It is a just cause. It is a cause that deserves remedy and recognition in the Constitution of the United States.”


A stalwart within the NVCAN coalition has been Mothers Against Drunk Driving, which proudly bills itself as the world’s largest victim assistance organization, and which was the major originator of calls for help from victim advocates around the country as the debate came close.


MADD has offered to co-host a retreat by early summer among the NVCAN ”regulars” with the aim, among others, of expanding the list of ”regulars” in the pro-amendment forces. Updates on NVCAN’s activities are regularly posted by volunteer Webmaster Steve Derene at The Newsletter will also continue to track the campaign to add a Crime Victims’ Rights Amendment to the U.S. Constitution.


And in the meanwhile, Senators Kyl and Feinstein are teaming up in an effort to address the number one concern of the victim assistance community – the Congressionally-imposed cap on the Crime Victims Fund of $500 million in the current and an Administration-recommended $550 million cap for next fiscal year. Their efforts will be described in a future Newsletter.