Victim Rights Amendment
Wins Friends in High Places

Origins of S.J.Res. 52

The initial impetus began with a meeting in April, 1995, when Phoenix attorney Steve Twist broached an old friend, freshman Senator Jon Kyl (R-AZ), on the idea of a victim rights amendment.

It was a comfortable topic for both men, each of whom brought a fair amount of history to the discussion. Before going into politics, Mr. Kyl helped found the private Maricopa County Crime Victims Foundation and helped raise hundreds o thousand of dollars for the public and private victim compensation program. He later championed victim issues as a member of the U.S. House of Representatives.

For his part, Steve Twist had a long history in the victim rights' movement. As the state's chief assistant Attorney General, Mr. Twist was the drafter of many of Arizona's victim rights laws and was the author of its far-reaching state amendment, for which he earned NOVA's 1990 "allied professional" award. He later sought and won election to the NOVA Board.

At the meeting, Mr. Twist walked Senator Kyl through a Federal amendment which he and over a dozen members of the "National Victims' Constitutional Amendment Network" (NV-CAN) had recently drafted.

NV-CAN was the outgrowth of a January, 1986, NOVA conference to debate the merits of the Federal amendment proposed three years earlier by the President's Task Force on Victims of Crime. For several years, NV-CAN had focused on helping allies pass state constitutional amendments. Then, beginning in April of 1995, the group held a number of weekend retreats to revisit the "core values" it believed should be embodied in any amendment, state or Federal. At the first of these meetings, Mr. Twist discussed his friendship with Senator Kyl and asked if he should bring the group's handiwork to the Senator.

That offer was instantly appealing to the NV-CAN activists. For the first time in years, they were returning to their deferred dream of putting victim rights in the U.S. Constitution, and the idea that one of NV-CAN's active members had a friend who was both sympathetic to their cause and part of the new Republican majority in Congress was irresistible.

The Twist-Kyl discussions continued through the year, and were invigorated by a September, 1995, NV-CAN meeting which revisited its "core values" approach and the language to express them. By late January, 1996, Senator Kyl was ready to wade in.

Between February and April of 1996, Senator Kyl had taken two important steps. First, he sought out potential co-sponsors, among the first of whom was a Judiciary Committee colleague of the other party with whom he felt comfortable, Senator Feinstein. Though a Senator for only four years, the Californian had already been judged "an active and influential senator she has a tough, prosecutorial demeanor, and on the podium she is one of the best speakers in American politics today," according to The Almanac of American Politics, 1996, a respected publication. Senator Kyl was delighted when she agreed to sign on.

He was no less pleased when an old colleague from the House, Representative Hyde, agreed to be an original co-sponsor. Mr. Hyde, the new Chairman of the House Judiciary Committee, is "one of the most respected and intellectually honest members of the House," again according to the Almanac.

And second, Senator Kyl, along with Senator Feinstein, went back to square one to test whether the collection of rights expressed in the latest NV-CAN draft did represent essential core values that deserved constitutional protection, and if the language expressing them was well-crafted.

On the first score, the NV-CAN proposal met the test. But by the time their resolution was introduced, the language reflected the imprint of its two lead sponsors and their advisors in the start of an extended give-and-take. Thus, Senator Kyl's lead staff member on this legislation, counsel Steven Higgins, had logged in the original NV-CAN version as "draft 1" on his office computer - and he was already up to draft 10 or 12 by the April 22 introduction date of Senate Joint Resolution 52 (or "S.J.Res. 52," as the caption reads).

One of the changes resulted from Senator Feinstein's overtures to the California District Attorneys Association. It did not object to victims' challenging plea bargains, but not twice - at both the hearing on the offered plea and at a later sentencing hearing. If the victims' fundamental objections to the plea could be made at just the sentencing hearing, it would allow prosecutors to respond only one. It would also let them continue accepting what they regarded as good, last-minute guilty pleas which could be tested later in the sentencing hearing.

Only when these views were reflected in the draft did Senator Feinstein and the California District Attorneys Association pledge their support to the amendment.

Mr. Hyde also signalled some struggles over language when he introduced a companion resolution on the same day in the House, for he actually introduced two of them. H.J.Res 173 was a more modest version of the Kyl-Feinstein submission, while H.J.Res. 174 was identical to it.

The Senate Judiciary hearings were held the next day (not coincidentally, during National Victim Rights Week.) The first three panels of witnesses were all proponents: Mr. Hyde by himself, and then two groups of victim/survivors: Katherine Prescott, President of Mothers Against Drunk Driving Ralph Hubbard, State Coordinator of Parents of Murdered Children of New York State (and a NOVA Board member), John Walsh, host of "America's Most Wanted," and Patricia Pollard, a survivor of attempted murder - and of injustices done to her by the Arizona justice system until its new constitutional amendment vindicated her rights.

On the next panel was survivor Collene Campbell, Mayor of San Juan Capistrano, CA, Rita Goldsmith, spokesperson for of Parents of Murdered Children (the national organization as distinct from Mr. Hubbard's state group), and Robert Preston, President of Justice for Surviving Victims (and Co-Chair of NV-CAN, whose formation he, more than anyone else, brought to life).

The fourth panel pitted two attorneys on the NV-CAN board, Steve Twist and University of Utah law professor Paul Cassell, against two opponents: Bruce Fein, a prominent conservative attorney and commentator, and American University law professor Jamin Raskin, a political progressive and commentator.

The disagreements were interesting in what they were not about. As a general rule, these opponents and others support the kinds of victim rights the amendment would enshrine, but asserted that, since they could be achieved by statutes, they should not be put in the Constitution (a view the proponents strongly contested). They also took issue with the specific language of the resolution, sometimes painting scenarios of chaotic, unforeseen consequences if it were adopted.

Readers of the hearing transcript might fairly conclude that the Twist-Cassell team won the informal debate, but in the weeks that followed, as often-friendly critics kept raising concerns over the practical effects of the proposed language, adjustments were made in the text. The net effect was that, by the time Senators Kyl and Feinstein introduced a fresh resolution - version 41 in the Kyl tally - many of the practical objections to the proposal had been addressed.

Given Senator Dole's stature as Senate Majority Leader and presumptive Presidential nominee, his June 4 co-sponsorship of the Kyl-Feinstein resolution was welcomed by proponents, although Senator Feinstein worried that fellow Democrats would have a different reaction, given that she was having difficulty gaining Democratic co-sponsors.

But there were stirrings in the Executive Branch, as noted in the last Newsletter. In commenting on Attorney General Janet Reno's August speech at the annual NOVA conference, the Newsletter reported:

-In all likelihood, historians will someday reveal the reactions of the Clinton White House and Justice Department when [the sponsors] first introduced their amendment resolutions on April 22 of this year. Until those facts are uncovered, one can only speculate that there was interest in the proposal in both parts of the Administration, since it seems unlikely that Ms. Reno's reactions would have been so strong without at least a nod of interest from the President and his policy advisors.

-The strength of her reactions is a matter of public knowledge. Within a matter of weeks, the Attorney General had convened a high-level working group of department officials to study the Congressional initiative. Then, as NOVA Executive Director Marlne Young noted in introducing Ms. Reno at the conference, "it is the Attorney General who responded with the order of a massive, nationwide search for evidence of the need for such an amendment, and then for the principles on which it should be founded."

His complete remarks, reprinted on pages 6 and 7, omit one noteworthy fact: in his long pubic career, Bill Clinton has endorsed only two Constitutional amendments - the victim rights amendment and the equal rights amendment for women.

During the ceremony, the President was flanked by Vice President Al Gore, the Attorney General, Office for Victims of Crime Director Aileen Adams, Violence Against Women Office Director Bonnie Campbell, and Maryland victim rights activist Roberta Roper. Vice President Gore said that the President's support "sends a very powerful message to America's crime victims and survivors. The message is, 'You are not forgotten.' " Ms. Reno added that "victims' rights are critically important to effective law enforcement." And Roberta Roper, speaking for many victims, declared that much of the legislation that is intended to protect victims rights is in reality "largely paper promises," and that "the criminal justice system remains more criminal than just."

In his remarks, the President paid tribute to a number of amendment supporters present at the ceremony. One of the many not mentioned, Harvard law professor Laurence Tribe, quickly surfaced in the media follow-up as the President's most articulate champion. Excerpts of his debate on that evening's edition of the PBS "NewsHour with Jim Lehrer" appear on pages 10 and 11. Amendment supporters were pleased with Mr. Tribe's contributions, not the least being his stature as the nation's most eminent liberal constitutional scholar. The amendment again appeared to transcend party and ideology.

But "the" amendment did not yet take form. The President did not endorse any specific wording, and by his silence, he had not signed onto a few of the elements of the Kyl-Feinstein draft. This opened the way for his White House and Justice Department officials to begin weeks of discussions with the Congressional sponsors and their advisors.

Negotiating the Framework, Language

Those discussions were extraordinary in their tenor and effects. First, the participants in the discussions represent a wide philosophical spectrum - perhaps the one thing they share in common is that they are regarded by their peers as bright and judicious. In addition to the three original co-sponsors or their staff, they sometimes included staff of the White House Counsel's office and the U.S. Justice Department, notably Associate Attorney General John Schmidt and Assistant Attorney General Eleanor Dean Acheson and their aides. Also sometimes involved were Senate Judiciary Chairman Orrin Hatch (R-UT), ranking minority member Joseph Biden (D-DE), and two advisors from outside of government: Steve Twist, and less frequently, Laurence Tribe.

Perhaps half a dozen meetings took place, some lasting for hours, always with a few members joining in by speakerphone. According to participants, the sessions had the flavor of an intellectual roundtable, so that there were occasional differences of opinion expressed among the Justice Department lawyers or among the sponsors, if only in a tentative way. There was sufficient trust among the participants to preclude the need for a code of loyalty to a group's "bargaining position."

Indeed, in an unusual form of negotiations ballet, issues were explored but were not exactlyresolved. Thus, the only written material before the members was the latest Kyl-Feinstein draft, reflecting the sponsors' best judgment of how to express ideas for change that they and others agreed on, while retaining the Kyl-Feinstein language on issues where there remained disagreement.

For all open-mindedness in the discussions, the Administration, the Senate sponsors, and NV-CAN would always regroup and consult among themselves after the meetings to form a position on new ideas that came up. Even when one party found it could live with a suggested change, it did not necessarily concede the point since the parties all understood that, ultimately, there were no firm agreements on the particulars until there was agreement on the whole package.

And from the outset, there was an openness by all the participants to get between-session reactions from other interested bystanders in the criminal justice field. Many of the changes, in fact, were made in response to suggestions from outside of the circle.

It was not always easy to keep up. After the President's announcement, several professional associations, including the National District Attorneys Association, the National Association of Attorneys General, and the National Governors' Association, appointed working groups whose members would, it was said, sometimes start a conference call with, "Do you all have a fax of draft 34?" and the conference would be postponed until they were all literally reading off the same page. Even if apocryphal, that story rings true to dozens of participants.

It was, in short, a fluid process, and slightly chaotic, but always conducted in good faith. Thus, for example, it was Steve Twist, Senator Kyl's closest collaborator over the original resolution, who spotted a potential difficulty with that draft, one giving victims a right to "a speedy trial." If one puts aside the "speedy" qualifier, does not that phrase also give victims a right to force a prosecutor to go to trial? If the courts so ruled, that would end the prosecutor's discretion to plea-bargain or dismiss charges - and thus accidentally put a lie to the victim advocates' long-standing claim that "all we seek is a voice, not a veto" in having victims participate in the justice process.

According to participants, there was always consensus in support for most of the basic principles contained in the original Kyl-Feinstein-Hyde proposal. On one such issue, the sponsors had already agreed to a change in the wording of S.J.Res. 52. They conceded that the tools of redress over rights violations should be limited to various kinds of judicial orders, not money damages - a change that many victim advocates had expected and accepted, just as they have done in virtually all twenty state amendments now on the books.

The NV-CAN coalition that laid the groundwork for the amendment drive were a number of veterans of state amendment campaigns. These included Bob Preston and Greg Novak of Justice of Surviving Victims (FL and CO), Roberta Roper of the Stephanie Roper Committee (MD), and David Voth of the Ohio Victim-Witness Association, as examples. Among the participating lawyers with similar state experience were Paul Cassell, Steve Twist, and Jay Howell, a Florida practitioner specializing in representing crime victims.

Among the national groups represented at the NV-CAN meetings were NOVA, the National Victim Center, and Mothers Against Drunk Driving. With the introduction of S.J.Res. 52, these were formally joined by other victim groups, including Concerns of Police Survivors, the National Coalition Against Sexual Assault, the National Center for Missing and Exploited Children, Parents of Murdered Children (this being only the second time POMC has taken a stand on an issue of public policy), and the Victims' Assistance Legal Organization.

In addition to the working groups at the associations representing district attorneys, attorneys general, and governors, others who began investigating the proposal included the American Bar Association, the American Civil Liberties Union, the International Association of Chiefs of Polce, the National Legal Aid and Defender Association, and the National Association of Criminal Defense Lawyers. The last two groups were the only ones to take a hard position on the issue - they were against it.

The main reason for the neutral or tentative reaction among the others was that they all seemed to contain voices of support, along with some skepticism, among their members. Moreover, the many participants with problems over the specific wording of a draft often had difficulty keeping up with the re-drafting, which added confusion and irresolution to the advice-giving.

Perhaps the most negative group of outside observers, other than organized criminal defense bar, were newspaper editorial writers and op-ed columnists. Though not many weighed in, only a few who came to the attention of NV-CAN were supportive. Particularly harmful, from NV-CAN's perspective, was a negative piece by veteran columnist Anthony Lewis of The New York Times, a piece that was reprinted by quite a number of other newspapers.

Worse, from that perspective, was a guest column published by The Washington Post two days after Rose Garden ceremony. In it, Scott Wallace, special counsel to the National Legal Aid and Defender Association, laid into the proposal with a string of apocalyptic inaccuracies. Among his charges: "[p]rosecutors' offices would be tied in knots," "[c]orrections officials wouldn't know what hit them," "[t]he courts particularly would be crippled," - the public would actually be less safe with such an amendment in force. And the amount of taxpayer dollars spent could be staggering."

The polemicist chose to make no reference to the twenty states where such amendments were already in force, some of them for years - and where none of Wallace's predicted disasters has come to pass.

The harm of his opinion piece was in its being reprinted in many papers subscribing to The Post's news service - but none of which ran the "Taking Exception" column refuting his distortions - because The Post itself chose not to publish an offered rebuttal.

In many respects, the July 11 House hearings were similar to the Senate's except that now the Administration weighed in through the testimony of Associate Attorney General Schmidt.

Meanwhile, the redrafting process continued. Readers can view the effects of those efforts by comparing the texts of S.J.Res. 52 and 65, reprinted on page 5. While a future Newsletter will present a clause-by-clause analysis of the revised version, one can get a flavor of the changes with three examples.

The original draft described its federal victim rights as "fundamental to liberty, justice, and due process," which was a device to ensure that they also would be applied to the states' justice systems. For the Supreme Court has held that fundamental rights in the U.S. Constitution are incorporated in the Fourteenth Amendment's mandate that states guarantee "due process" to their citizens. Some Federal rights, such as the right to a grand jury, are not treated as fundamental, and thus are not imposed on the states.

Those who argued that this was too backhanded a way to achieve the desired result prevailed in having the redraft read, "The rights established by this article shall apply in all federal, state, military, and juvenile justice proceedings, and shall also apply to victims in the District of Columbia, and any commonwealth, territory, or possession of the United States." The reference to the U.S. jurisdictions outside of the 50 states was an example of the precautious, "cross-every-t" tenor of the redraft.

The right to "a speedy trial [and] a final conclusion free from unreasonable delay" was collapsed to "a final disposition free from unreasonable delay." As noted earlier, the term "speedy trial" could impose unwanted limits on prosecutorial discretion, and, it is believed that the new language would serve to ban "unreasonable delay" in both the pre-trial and appellate stages.

As a final example, "full restitution from the convicted offender" became a ight to "an order of restitution from the convicted offender" in the belief that the Constitution should only make promises on which it can deliver, here, the order of restitution, not its payment.

Sensing and Fighting Impasse

Hidden within the language of the redraft are points of contention between the Senate sponsors and the principle negotiators at the Justice Department. The Justice officials appeared to want to limit the rights just to victims of violent crime, and not permit Congress and the states to extend them over time to victims of property crimes, as the sponsors proposed. Second, the Justice officials evidently wanted to expand the list of decisions victims could not overturn, after their rights had been violated, to include a plea bargain or sentence. And third, the officials seemed to want to apply any "unreasonable delay" rule just to stage between charging and trial, not to the appeals process.

Given the reluctance of the Justice Department staff to state their views in writing, one must be tentative in describing them. Yet the reports from the discussions convinced a number of the NV-CAN members that the talks were at an impasse on these three issues (and unresolved on several lesser ones). Distressed at the Department's positions, the amendment supporters decided to seek a meeting with the Attorney General, whom they consider a friend and an ally, and who heretofore had not joined in the group discussions.

On August 30, through joint letters from NOVA Executive Director Young and NV-CAN Co-Chair Roberta Roper, the supporters made that request. Ms. Reno accepted, and the meeting was held on September 10.

In addition to the meeting's requestors, the NV-CAN representatives included Tom Howarth, MADD's Washington representative, attorney Jay Howell, National Victim Center Acting Director David Beatty, NOVA Deputy Director John Stein, and, by speakerphone, Steve Twist, NV-CAN's representative in the earlier discussions. Also present were about two dozen Justice Department officials and staff.

While the meeting was designed to reaffirm NV-CAN's support of the Senate sponsors' position on the three points at impasse, the Attorney General also used the occasion to probe how the states which had similar amendments were tackling the same issues. As the Department's lead prober into the jurisprudential and practical ramifications of any amendment language, Ms. Reno did not voice a position on any of the three points of contention except to hint in her questions that it would not be wise to limit the reach of the amendment just to violent crime victims - a viewpoint expressed less obliquely in a later meeting with the Senate sponsors.

On September 11, the day after the NV-CAN meeting with the Attorney General, Senators Kyl and Feinstein met with Chairman Hatch to discuss a Judiciary Committee vote on their resolution. They reluctantly concluded that in the absence of an agreement with the Administration - critical to rounding up Democratic votes - it was premature to move the resolution in the waning days of the 104th Congress, especially since there was no longer any prospect of the House taking up the measure in that timeframe.

In planning on how to build on the surprising gains they had made in the less than a year - only once has Congress ever voted amendments to the Constitution in less than a year, and that was for the original Bill of Rights, according to Wisconsin victim advocate Steve Derene - Senators Hatch, Kyl, and Feinstein pledged to try to move the resolution quickly in the next Congress, and Senate Majority Leader Trent Lott (R-MS), trusting he retains that position, promised quick floor action.

The group also agreed to seek support of the amendment in their parties' platforms, which they achieved.

And just before Congress adjourned, the sponsors also opted to file S.J.Res. 65 as an aid to further deliberations inthe wider public arena. The discussions resume after the November elections.