To Supporters of Senate Joint Resolution 1,
the Crime Victims Rights Amendment
From Steve Twist, Chief Counsel, National Victims
Constitutional Amendment Project
Date
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BULLETIN
Our
Congressional fight for victim justice is not over. Jump to the final
paragraphs to see what we need victim advocates to do right now.
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As I am certain that you know, on the afternoon of
Thursday, April 22, Senators Jon Kyl (R-AZ) and Dianne Feinstein (D-CA), the
primary sponsors of the S. J. Res. 1, proposed a statutory substitute for their
amendment proposal. The bill, S. 2329,
had no one to speak against it, and when the roll was called ninety-six to one.
I want to give you the reasoning that caused our two
champions and me, as the lead representative of the victim's movement in the
discussions, first, to explore and, in the end, to support a statutory
alternative.
In all this, I believe we acted honorably and with the
best interests of crime victims at heart - and I hope this memo will lead you
to the same conclusions. But in one
respect, we let you down, and as the counsel to the National Victims
Constitutional Amendment Project, I bear full responsibility an explanatory
memo like this one should have been sent to all of our supporters at the same
time that S. 2329 was revealed to the full Senate. I'm sorry that I did not do that.
What I did do was to bring MADD, POMC, NOVA, Force
100, and all of our supporters present in
While all of us deeply regretted the failure to get 67
votes for S. J. Res. 1, we all accepted the idea that Federal legislation which
establishes real and enforceable rights would advance our cause in the long
run. You should know that we would not have even been able to achieve this much
without the unflagging support of Sen. Kyl and Sen. Feinstein. They are truly
deserving of our highest honors. I saw them in action and marveled at their
legislative abilities on our behalf. Please make sure they know how much we
honor their work for our cause.
In addition, none of this achievement would have been
possible without Stephen Higgins, Sen. Kyl's Chief
Counsel, and Steven Cash and David Hantman, on Sen.
Feinstein's staff. This whole team worked for us in the best bi-partisan
tradition of the Senate for the good of the country and we owe them our thanks.
Finally, Colleen Campbell was our leader extraordinaire who, with her husband
Gary, visited 91 senate offices in the weeks leading up to the debate.
Let me review how the statutory alternative came into
play and why its provisions make it a very strong victim rights statute
The genesis of the bill was simply this: we came to
the sober realization that despite our best efforts, we didn't have the 67
needed votes for final passage. Senator
Kyl elaborated on that on the Senate floor
”After eight years of work on the Federal
constitutional amendment, supported by President Bush and the Attorney General,
we were able to schedule ... the constitutional amendment for floor action
today. [But] knowing we would not have
the 67 votes to pass it, we decided it was time to get something tangible in a
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.
“... Consensus was reached that 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.” ‘
Senator Feinstein’s comments were much the
same
“Some have asked – why proceed with a
statute, rather than a Constitutional amendment? Why a law and not a constitutional amendment?
“Senator Kyl and I have been working for
many years towards a constitutional amendment to establish these rights. I have always believed that amending the
Constitution is the best way to ensure victims’ rights are protected in the
criminal justice process. But many have
disagreed, arguing that we should try, once again, a legislative approach.
“It is clear to me that passage of a
Constitutional amendment is impossible at this time. If we tried, and failed, it could be years
before we could try again. Victims of
crime have waited years for progress, and a compromise approach, resulting in
the bill now under consideration, will result in meaningful progress.
“Will it work? I hope so. The bill before us is a new and
bolder approach than has ever been tried before in our Federal system.”
In the lead-up to the bill, Senators Kyl and Feinstein
– along with Senator Patrick Leahy (D-VT), who had proposed a different
statutory alternative – agreed that the bill should encompass three principles:
The bill meets every one of those tests.
For all of us in the nine-year Constitutional
Amendment campaign this moment is both bitter and sweet. We bent every intellectual and emotional
muscle we could muster to put victim justice into our national charter. While we did not succeed, the Senate has
overwhelmingly passed a statute that will put the arguments of our opponents to
the final test. If this statute in
particular will not work (and we will fight hard to make it work for the
victims we serve) we will have proven that no statutes alone will work - except
as tools to implement a Constitutional amendment.
Be assured, we will fight hard to make it work. And even as we work to have these rights implemented
in the Federal courts, we will redouble our efforts to get states to better
comply with their bills of victims rights.
As Senator Feinstein observed:
“This act, of course, binds only the
federal system, but is designed to affect the states also. First it is hoped
that states will look to this law as a model and incorporate it into their own
systems. This law encourages that by
allowing both types of grants – legal assistance and victim notification – to
be provided to state entities, and for use in state systems, where the state
has in place ‘laws substantially equivalent’ to this act.”
Note that last phrase.
After the Justice Department issues regulations defining
"substantially equivalent" victim rights laws, we will all have a
benchmark to see how our state statutes measure up – and a ready plan to have
them meet that test.
Here are the basic features of the bill the rights
established are clear and unequivocal, taken from S. J. Res.1 and current law;
the victim (or the prosecutor) has standing assert the victim's rights in the
Federal District court with jurisdiction in the case; further, the enforcement
mechanisms require the court which denies a victim's petition to uphold a
specified right must explain its denial on the record; at that stage, the
victim may seek a review by a Federal Appeals court, which must not only hear
the appeal but act on its promptly, and order the District Court to make
whatever redress is required.
To help the victim learn of and enforce these rights,
funding is authorized for a Federal notification system (so that the
administrative dimension of the law is advanced) and for legal clinics to help
victims to assert and protect their rights.
States that have victim rights laws substantially equivalent to the
Federal may also receive grants. A
separate funding provision allows states and localities to construct their own
compliance systems, with or without lawyers.
These too are unprecedented features of any victim rights law.
Finally, the bill requires the Administrative Office
of the Courts to report annually every assertion of a victim's right in a
criminal case that was not honored by the court and the result of every
mandamus action in the Court of Appeals which challenged a lower court's denial
of a right.
I encourage you to read the bill in full
(go to http://www.nvcap.org). The basic features are plain to see. But some are more subtle. For example, as a colloquy during the debate
between Senators Kyl and Feinstein indicates, a court that finds that a plea
bargain was accepted under circumstances where the victim's rights were
ignored, such a plea may be voided. The
same is true of sentences handed down improperly.
I was going to start this last paragraph
with, “In conclusion ...”
But the truth is we have not yet reached a conclusion. While we have lost the amendment for now, we
will have gained much if we can get this bill through the House of
Representatives. I urge everyone to press the House leadership with a simple message: take S. 2329 straight to the Floor; don’t
amend it; and speed its passage to the President.
That message should be sent to the
following people at least once a day until we have action.
IL J. Dennis
Hastert R Speaker of the House (202)
225-2976 (202) 225-0697
TX Tom Delay R House Ma
MO Roy Blunt R House Ma
VA Eric Cantor R House Chief Deputy
Ma
OH Deborah Pryce R House
Republican
Conference
Chairman (202) 225-2015 (202) 225-3529
I again want to thank all of you for your support for our movement for victims’ rights; when S.2329 passes the House and is signed by the President, we will have moved our cause forward in a dramatic way.