[Congressional Record Volume 140, Number 63 (Thursday, May 19, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 19, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994--MESSAGE FROM 
                               THE HOUSE

  The Senate continued with the consideration of the message.
  Mr. SPECTER. Mr. President, I have sought recognition to comment on a 
number of provisions of the pending crime bill, to provide my thinking 
to the conferees on what I consider to be one of the two central 
problems of serious crime in America. Those two problems are the career 
criminals and the imposition of the death penalty.
  I have listened at some length to the discussion on the floor today 
about giving very substantial additional jurisdiction to the Federal 
courts on criminal matters. I believe that has to be done very 
circumspectly. I introduced the Federal armed career criminal bill back 
in 1981. It became law in 1984 and was broadened in 1986. This law 
provides for sentences up to life imprisonment for any career criminal 
found in possession of a firearm. There is broad Federal jurisdiction 
on drug matters generally, but I believe we have to proceed very 
cautiously to broaden the jurisdiction of the Federal courts, or the 
State courts will not undertake their responsibilities.
  I believe there are some things which the Federal Government can do 
to assist the States which will leave the States largely in control of 
the administration of criminal justice, because, under our Federal 
system, it has been the tradition of the States to handle the vast bulk 
of criminal prosecutions. Our Federal system was established to give 
limited powers to the central government, reserving the bulk of powers 
to the States. I think we have to rely upon the States for the 
principal amount of criminal prosecutions.
  When it comes to dealing with career criminals, there are some things 
the Federal Government can do to help the States but still leave the 
primary responsibility in the States. There is substantial legislation 
pending in this crime bill, pending before the House-Senate conference, 
which would provide funding for realistic rehabilitation to try to take 
offenders out of the cycle of crime at an early stage with early 
intervention and to provide rehabilitation in the form of literacy 
training and job training for first and second offenders.
  There is little public concern for the welfare of the criminal 
himself or herself, but there is substantial interest in the public on 
efforts which will take the career criminal out of the crime cycle. I 
believe that we have to focus on that problem.
  It is no surprise when a functional illiterate, without a trade or a 
skill, leaves prison and goes back through the revolving door to a life 
of crime. But there is another aspect, and that involves the ability of 
the prosecutor--a job I held for many years in the city of 
Philadelphia--to get a life sentence after the career criminal has 
committed three or four violent offenses. It is not as simplistic as 
``three strikes and you're out,'' a popular slogan at this time, 
because the reality is when the judge faces the moment of sentencing, 
it is very difficult to get him to impose, or her to impose, a life 
sentence on the defendant unless the judge concludes that that 
defendant has had a fair opportunity.
  If there is a chance at rehabilitation with literacy training and job 
training, and the first offender fails and commits a second offense and 
then has still another chance and commits a third offense, then I think 
it is realistic and proper at that juncture for the judge to impose a 
life sentence.
  The Federal Government can further be of assistance to the States in 
providing prison space for those who are convicted under the habitual 
offender statutes. It is a fact that many judges are reluctant to 
sentence to life imprisonment because of the overcrowded prisons. When 
I was district attorney of Philadelphia, some 40 States in the Union 
had habitual offender statutes, but they were used very little--
realistically, not at all in the city of Philadelphia where we had 500 
homicides a year and some 30,000 crimes. And there is substantial 
funding in this bill for the Federal Government to provide prison space 
for the States which will allow State judges to sentence career 
criminals or habitual offenders to life sentences. I think that is the 
kind of assistance which the Federal Government ought to be giving 
rather than having wide, sweeping changes which would bring to the 
Federal Government virtually all of the responsibility for criminal law 
enforcement.
  There is another issue which this bill does not take up, which I have 
spoken on in the past and spoke in the Republican caucus today and I 
want to comment on again; and that is, the absence in this bill of any 
remedial legislation dealing with the tremendous delays in the Federal 
courts which have rendered the imposition of the death penalty a 
virtual nullity. In order for the death penalty to have any effect, 
like any other form of punishment, it has to be swift and it has to be 
certain. But today, the death penalty is a relative rarity.

  Recently, when the death penalty was imposed in Illinois, after some 
30 years without a death penalty having been carried out, and similarly 
in Maryland, it made front-page news. While there are some 2,800 
criminals on death row, last year the sentence was carried out in only 
38 cases. The death penalty, which is, in effect, the flagship of 
criminal law enforcement, is not being carried out and the criminal 
element knows it. It really makes the criminal justice system a 
laughingstock.
  The death penalty can be an effective deterrent. In my days in the 
Philadelphia district attorney's office, when the death penalty was 
carried out, there was a lot of evidence that professional burglars 
would not carry a weapon with them in the course of a burglary for fear 
of killing someone and facing a first-degree murder charge for felony 
murder. Many hoodlums would not carry guns in the course of robberies, 
again, for fear that someone might be killed and they might face the 
death penalty under a first-degree murder charge.
  I believe that the death penalty has to be carried out in a very, 
very careful way. I am hopeful that the conference committee will 
reject the House provision which imposes a statistical study for the 
determination of whether the death penalty has been imposed unfairly. 
That provision has been incorporated into the House bill under the name 
of the Racial Justice Act which, I submit, is a misnomer because the 
essence of fairness in criminal justice is to have each individual case 
considered on its own merits, in terms of the nature of the offense, 
and the background of the individual. It ought not to depend upon a 
statistical tabulation.
  I do believe that a recent order entered by a Federal judge in the 
middle district of Pennsylvania calling on the Department of Justice to 
articulate standards for when the death penalty will be requested, is a 
sensible step in the direction of guaranteeing objective standards and 
of being as sure as we can that the death penalty will only be imposed 
after consideration by prosecuting officials at the highest level under 
preexisting standards.
  But if there is to be a statistical tabulation on the death penalty, 
it seems to me that that will remove the individualization of justice 
from the nature of the offense and from the background and record of 
the criminal.
  So it is my hope, Mr. President, that as the crime bill moves through 
the conference we will focus on ways that we can be of assistance to 
the States without assuming all of the States' traditional criminal law 
enforcement responsibilities in violation of the basic tenets of 
federalism; that we will work to try to help the States with career 
criminals by creating incentives to ensure that they provide 
opportunities for realistic rehabilitation in prison to take the career 
criminals out of the crime cycle in order to protect law-abiding 
citizens or, where that is not done, after the first offense and after 
the second offense, we will have set the stage for the imposition of 
life sentences for career criminals or habitual offenders, and that we 
will provide incentives for States to use their career criminal laws 
with Federal prisons.
  These are very important provisions which I hope will receive the 
attention of the conference committee and come forward in the final 
version of the conference report.
  Mr. President, in the absence of any other Senator seeking 
recognition, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BIDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Baucus). Without objection, it is so 
ordered.


                      Unanimous-Consent Agreement

  Mr. BIDEN. Mr. President, I ask unanimous consent that the vote on 
Senator D'Amato's motion to instruct occur without any intervening 
action or debate upon the disposition of my motion, and that no 
amendments be in order to his motion, and that, upon the disposition of 
his motion, the Chair be authorized to appoint conferees.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, while I have the floor, we are waiting 
until 6:30 because two of our colleagues would not agree to what every 
other colleague would agree to, to voice vote all of these amendments. 
I apologize to the rest of my colleagues for being inconvenienced on 
something that, quite frankly, does not matter much whether it passes 
by voice vote or whether we have a rollcall vote on these. But the 
Presiding Officer understands this place as well as I do.


                  D'Amato Motion to Instruct Conferees

  Mr. BIDEN. Mr. President, I will be very brief.
  To refresh everyone's recollection, Senator D'Amato's amendment 
federalizes any crime committed with a gun that at any time crossed a 
State line. We are told by reliable authority, by the Justice 
Department, that offenders armed with handguns in the year 1992 
committed 900,000 violent crimes. So what we have just done is we have 
made eligible for prosecution in the Federal court system crimes now 
totally within the State court system, 900,000 offenses, 900,000 
potential cases.
  Obviously, not all those 900,000 people are going to be arrested, and 
all 900,000 are not necessarily individuals. Maybe 500,000 people 
committed 900,000 of these crimes. No one knows. But it is safe to say 
that there are going to be at least between 50,000 and 100,000 of these 
crimes where someone is apprehended and they are going to go to trial.
  Let us take the most conservative estimate. Say it is 50,000 people 
who now are going to go into Federal court, requiring a Federal 
prosecutor, a Federal judge, and a Federal prison cell when, in fact, 
they are now all eligible to be and, in fact, are tried at the State 
court level.
  That will more than double the total number of crimes tried in the 
entire Federal court system. Not tried, handled. There were 43,000 
criminal indictments that were in Federal court last year. I think the 
number, to be precise, is 43,300 something. But it is 43,000 plus.
  Excuse me, I said 43. I correct myself; 48,366 Federal district court 
criminal cases entertained by the district court last year. In one fell 
swoop, we will add--we could add--200,000, but we will add probably 
50,000 cases eligible, just with the D'Amato amendment, that are now in 
State jurisdiction. We more than double the entire number of cases the 
entire Federal court system now handles.
  To put this in perspective, in 36 years, from 1955 to 1991, there 
were a total of 1.3 million criminal cases filed in the Federal 
district court in 36 years, 1.3 million: 900,000 would be eligible in 1 
year.
  There were 4 million criminal filings in State courts of general 
jurisdiction, 82 times as many as in the Federal court system. There is 
a reason for that. There are considerably more resources at the State 
level to handle these cases. There are 23,000 prosecutors across this 
country, 3,000 Federal. There are 9,600 State trial court judges. There 
are 629 Federal trial court judges. There are 1.3 million prisoners in 
State jails. There are 84,000 in Federal jail. This is kind of silly.
  But there is another provision in the D'Amato amendment, and that is 
the one that says if you commit murder with a gun, it is a Federal 
crime now. I have no objection to that. I support the death penalty. 
But there are 15 States in America where the people have voted not to 
have the death penalty, Delaware not being one of them. I do not know 
what Montana is, but 15 States in America have said, after overwhelming 
debate, deliberation, consideration, their legislators and/or their 
Governors have voted or vetoed, depending on what it is, against 
legislation that said we want a death penalty.
  It is one thing to come in here and assist a State. It is another 
thing to completely vitiate States' rights on things that are totally 
local matters.
  So if the D'Amato amendment is adopted, we will, even though I 
support the death penalty, be telling the people of Wisconsin, New York 
and 13 other States: What you feel like doing in your home State does 
not matter; we, the U.S. Senators and legislators, know better than 
your legislature knows, we know better than you know, we know better 
than your people know.
  Whether it is by referendum they oppose the death penalty, whether by 
legislative vote they oppose the death penalty, or gubernatorial veto 
they oppose the death penalty, 15 States said, ``Look, we don't want a 
death penalty.'' That is their business. We are Federal--Federal--
elected officials.
  In the Biden crime bill we are going to be going to conference with, 
I believe we should have a Federal death penalty for Federal offenses. 
So we make the rules for the Federal Government. And I am for the death 
penalty. I think if the State of Delaware wants to have a death 
penalty, I should not tell them whether they can or cannot. I am a 
federally-elected official. I did not run for the State legislature. I 
did not run for Governor. And the people in my State said, ``Hey, we 
want the death penalty.'' But the people in New York said, through 
their system of checks and balances, ``We don't want a death penalty.'' 
The people in Wisconsin said, ``We don't want a death penalty.'' Is it 
our prerogative to stand on the floor of the Senate and say, ``Hey, 
here's the deal. We know better than you''?
  I wonder what the Senator from New York and others would say if there 
were enough votes on the floor to say any murder committed with a gun 
that crossed interstate lines could not receive the death penalty, must 
be minimum mandatory life in prison, and we had 35 State death-penalty 
laws overruled where a gun was involved. I will bet you, Mr. President, 
we would hear a lot of States' rights arguments on the floor then.
  It seems to me there has to be a principled rationale on matters that 
affect State-Federal relationships. There has to be a consistent 
rationale. I cannot pick from one pile one day and another pile the 
next day, as to what I want to make Federal, based on my whim or what I 
like. It seems to me there should be a principle.
  I ask unanimous consent to print in the Record a speech that I made 
on federalism to the Judicial Conference to the Third Circuit 
Conference.
  There being no objection, the speech was ordered to be printed in the 
Record, as follows:

       setting the stage for the nineties--our mutual obligation

                   (By Senator Joseph R. Biden, Jr.)

       I am honored to be here today, to address the judges of the 
     trial and appellate courts within the third circuit--which 
     includes my home State of Delaware. I am especially pleased 
     to accept your invitation to discuss how the Congress will 
     set the agenda for the federal courts in the coming decade.
       Implicit in this assignment is an acknowledgement that the 
     Constitution gives the Congress that very power--to set 
     within the very broad limits authorized by the Constitution 
     the scope of the federal courts' jurisdiction.
       Although debate about Federal jurisdiction is not new, 
     public attention to that debate has increased in recent 
     years. Some members of the judiciary have expressed concern 
     about the number and kind of cases occupying the Federal 
     courts.
       In some instances, there is a desire to have Congress 
     reduce the courts' existing jurisdiction--as with diversity 
     cases and habeas corpus reform. In others, there is 
     opposition to efforts by Congress to expand the courts' 
     jurisdiction--such as efforts to make new federal crimes or 
     to recognize new Federal civil rights actions.
       I welcome the efforts to raise the profile of this debate. 
     Indeed, I hope the Congress will respond to the judiciary's 
     concern by considering with great care all legislative 
     proposals that affect Federal court jurisdiction. In this 
     respect, however, I solicit your help.
       Much of the recent public debate about Federal jurisdiction 
     has had a practical tone--it has focused on the burdens 
     placed on the Federal courts by an increasing caseload.
       The concern is legitimate, for the costs are real--today, 
     Federal litigants in many districts, particularly those 
     bringing civil cases, face significant delays in getting 
     their claims heard. In some jurisdictions, judges and other 
     court personnel are overwhelmed by the sheer volume of their 
     dockets.
       But the focus on the practical dimensions of the problem 
     has tended to displace discussion of the goals that should 
     govern our efforts to fashion a solution. Efficiency is 
     neither the only value our judiciary must serve, nor does 
     recognizing it as one goal help us choose what cases should 
     be heard by our Federal courts.
       We must pursue a constructive debate about what principles 
     should guide the process of choosing. Then we can distinguish 
     between those claims that fit within traditional notions of 
     Federal jurisdiction, those we may wish to add, and those 
     that do not belong.
       The focus on the pragmatic is understandable. The 
     statistics on caseload increases leap from the page in black 
     and white; the columns of numbers easily convey the 
     additional burdens facing you: in the decade between 1981 and 
     1991, the number of filings in Federal district courts 
     nationally increased by 28.5 percent--with civil cases 
     increasing 23 percent; and criminal cases by 61 percent.
       Less easy to articulate, much less to quantify, is the cost 
     of the public's loss of faith in the ability of our system to 
     provide justice. The intangible nature of that loss makes it 
     difficult to address, but it does not diminish our need to do 
     so.
       What I will try to do this morning is to turn the debate in 
     that direction--to identify the principles I believe should 
     guide Congress in setting the agenda for the Federal courts, 
     and to articulate standards for distinguishing between a 
     ``Federal case'' and one that should be heard in another 
     forum.


         I. Constitutional Authorities for Federal Jurisdiction

       The history of Federal court jurisdiction is marked by 
     constitutional authority of vast proportions and by the 
     gradual realization of that authority as the Congress 
     expanded Federal court jurisdiction over the last century.
       Article III of the Constitution sets forth the structure of 
     the Federal judiciary and allows the Congress to grant the 
     lower courts broad authority:
       ``Section 2. The judicial power shall extend to all cases, 
     in law and equity, arising under this constitution, the laws 
     of the United States . . .''; and to treaties; to all cases 
     affecting ambassadors, other public ministers and consuls; to 
     all cases of admiralty and maritime jurisdiction; to 
     controversies to which the United States shall be a party; to 
     controversies between two or more States or citizens thereof.
       Notwithstanding the breadth of this authorization, the 
     first Congress chose not to give the lower courts the full 
     power permitted by article III. In creating the Federal 
     district courts through the judiciary act of 1789, the 
     congress focused on diversity of citizenship jurisdiction, 
     admiralty jurisdiction, and jurisdiction over cases where the 
     Federal Government was a party.
       The Congress did not grant the courts Federal question 
     jurisdiction in civil cases, and civil claims based on 
     Federal law (and not otherwise enjoying Federal jurisdiction) 
     were originally tried in the State courts, with appellate 
     review of State supreme court decisions exercised by the 
     United States Supreme Court.
       Similarly, although the Congress gave the Federal courts 
     exclusive jurisdiction over ``all crimes and offences 
     cognizable under the authority of the United States,'' it 
     enacted few criminal laws.
       Early on, the Congress prohibited and punished only those 
     acts directly related to the functions of the Federal 
     Government or occurring on United States Territory--acts 
     which could not be covered by the criminal laws of the 
     States. These included treason, espionage, bribery of Federal 
     officials, perjury in a federal court, interference with the 
     assessment or collection of Federal taxes, and murder or 
     manslaughter if committed in a place within the exclusive 
     jurisdiction of the United States.
       For the most part development of the criminal law was left 
     instead to the States. In fact, even when the Congress passed 
     specific Federal criminal statutes, it regularly provided for 
     concurrent jurisdiction by State courts.


   II. The Expansion of Federal Jurisdiction Following the Civil War

       It was only in the wake of the Civil War that the momentum 
     shifted in favor of giving the Federal courts more of the 
     power authorized by the Constitution. What accounted for this 
     dramatic change?
       The driving force behind the expansion of Federal 
     jurisdiction was the perception of the Congress that State 
     courts were not able or, in some cases, not willing to 
     protect Federal rights--in that instance, the civil rights--
     of the recently freed African-American slaves. This concern 
     was explicit during debate on the Civil Rights Act of 1871. 
     Representative Lowe of Kansas stated that the ``Records of 
     the [state] tribunals are searched in vain for any evidence 
     of effective redress'' of federally secured rights.
       Part of this perception, no doubt, was trust in the 
     superior independence of judges whose tenure and salaries 
     were impervious to attack by the public or the legislature. 
     Representative Coburn of Indiana stated during that same 1871 
     debate that,
       ``The United States courts are further above mere local 
     influence than the county courts; their judges can act with 
     more independence, cannot be put under terror, as local 
     judges can;
       ``Their sympathies are not so nearly identified with those 
     of the vicinage; the jurors are taken from the State, and not 
     the neighborhood; they will be able to rise above prejudices 
     or bad passions or terror more easily.''
       Thus moved by political and practical events following the 
     Civil War, the Congress grew to prefer Federal courts as the 
     primary interpreters and enforcers of Federal law.
       First, with the enactment of the post-Civil War amendments 
     and statutes limiting State power to interfere with Federal 
     rights, the Congress shifted the balance of Federal question 
     jurisdiction from the State to the Federal courts.
       Second, roughly the same period witnessed the expansion of 
     Federal criminal jurisdiction.
       Throughout the present century, Congress has passed laws 
     prohibiting kidnapping, extortion, use of firearms, many 
     forms of theft, and other violent acts, where the means of 
     accomplishing the criminal act involved a Federal instrument, 
     such as use of the mails or interstate commerce.


   III. Should the Congress Halt the Expansion of Court jurisdiction?

       As a result of this trend, the Federal court caseload has 
     increased sharply. Many eminent jurists and commentators on 
     the courts now argue that the Federal system is overloaded 
     with cases that should not be there. The concern lies both 
     with the sheer volume of cases, as well as with the nature of 
     the claims occupying the time and attention of the Federal 
     trial and appellate courts.
       Thus have we come to the current question: Should the 
     Congress now exercise its discretion to shrink lower Federal 
     court jurisdiction?
       Of course, the concern about expanding Federal jurisdiction 
     is not new. The following passage could as easily be from a 
     1993 speech by Chief Justice Rehnquist as from the 1925 
     Harvard Law Review article by Charles Warren where it 
     actually appears:
       ``The present congested condition of the dockets of the 
     Federal courts and the small prospect of any relief to the 
     heavily burdened Federal judiciary, so long as Congress 
     continues, every year, to expand the scope of the body of 
     Federal crimes renders it desirable that consideration be 
     given to the possibility of a return to the practice which 
     was in vogue in the early days of the Federal judicial 
     system.''
       That is, to give the States primary jurisdiction over many 
     cases within Federal constitutional authority.


           IV. A principled approach to federal jurisdiction

       How, then, can we identify those cases that have the 
     strongest claim on Federal jurisdiction?
       There is little controversy where the States are not 
     competent to act because the matter is one of exclusive 
     Federal jurisdiction, as where cases involve conduct that 
     occurs on Federal territory or across State lines.
       But, where States are equally competent to act, how are we 
     to distinguish among all the cases the Federal courts are 
     constitutionally authorized to hear? How are we to identify 
     those of highest priority that pose the strongest claim on 
     the limited resources of a Federal forum?
       I propose the principle that motivated the post-Civil War 
     Congress as a starting point for our debate:
       Federal courts should hear claims where the States are 
     unable or unwilling to protect an important Federal interest.
       This principle immediately suggests two others.
       First, Federal courts should hear cases involving conduct 
     that is occurring in many jurisdictions, overwhelming the 
     ability of any one State to respond.
       Second, Federal courts should hear those cases where the 
     gravity of an important Federal interest and the 
     pervasiveness of the States' inaction together outweigh the 
     burden to the Federal system.
       If applied to legislative proposals that would expand 
     Federal jurisdiction, these criteria could serve as a 
     starting point for determining whether a claimed Federal 
     interest is weak or strong.

                   A. Creation of new Federal crimes

       Turning first to the question of criminal jurisdiction: Two 
     different justifications have been offered to support recent 
     legislative proposals making conduct a crime under Federal 
     law.

                      1. Use of Federal facilities

       The first of these, where Federal jurisdiction over 
     specific conduct is premised on the use of Federal 
     facilities, is the most problematic. The potential for 
     expanding Federal jurisdiction using this rationale is 
     virtually limitless--if the use of a Federal facility that is 
     merely incidental to the conduct at issue is deemed 
     sufficient to justify Federal intervention.
       One example is a bill currently pending in both Houses of 
     Congress that would make ``Stalking'' a Federal crime if the 
     mail or wire fraud statutes are involved. Stalking can be 
     competently investigated and prosecuted by State authorities.
       The practice of ``Bootstrapping'' Federal jurisdiction 
     simply on a showing that an individual has used the mail or 
     telephone, when there is no particular demonstrated need for 
     Federal intervention, is a weak claim of Federal 
     jurisdiction. In my view, the Congress should not employ the 
     incidental use of Federal facilities to bring claims into 
     Federal court in the absence of another basis for Federal 
     jurisdiction.
       Senator Cohen's stalking bill, enacted by Congress last 
     year, plays a much different role. It authorized the National 
     Institute of Justice to draft a model stalking bill for 
     enactment by the States. The bill was designed to permit 
     States to retain jurisdiction over the criminal conduct, but 
     offered them the benefit of the Federal Government's 
     expertise in crafting statutory language that would not run 
     afoul of the first amendment's protection of free expression.

               2. Where local authorities are overwhelmed

       A second basis for assertion of Federal jurisdiction over 
     criminal conduct occurs where local authorities are 
     overwhelmed by the magnitude of criminal conduct, usually 
     involving a multi-jurisdictional element. In such cases, the 
     superior resources of the Federal Government offer a 
     practical benefit in fighting complex criminal activity that 
     exceeds the capacity of any one local authority to 
     investigate and prosecute. I believe Federal jurisdiction is 
     appropriate in these cases, although concurrent State 
     jurisdiction over the criminal conduct usually exists.
       The challenge we must face, however, is in ensuring proper 
     allocation of specific cases between the Federal and State 
     courts. For example, in the 1980s, the Congress expanded the 
     jurisdiction of the Federal courts over drug cases in 
     response to the volume and magnitude of criminal activity 
     related to illegal Drugs. The result has been a steep rise in 
     the number of drug cases being prosecuted in Federal courts--
     from 3,372 in 1981 to 11,929 in 1991--an increase of 220 
     percent over 10 years.
       But it is important to get behind the statistics and 
     analyze the nature and merits of these cases.
       Large, complicated, multi-jurisdictional drug trafficking 
     cases belong in Federal court. I believe the Federal system 
     is the only authority capable of investigating and bringing 
     to justice the organized crime rings running multi-national 
     drug trafficking operations. The problem is that too many 
     small cases--against first time offenders or low-level 
     runners--are brought in Federal courts, rather than in the 
     State courts that are equally competent to hear them.
       The Congress has an obligation to promote better allocation 
     of such cases, to identify the pragmatic priorities for 
     managing cases, given the limited space on the Federal 
     docket, and United States attorneys must work effectively 
     with State and local prosecutors within their districts, to 
     encourage targeting of cases to the appropriate forum. We 
     must also work with the States where inconsistencies between 
     State and Federal laws--most notably involving sentencing 
     standards--lead prosecutors to prefer Federal courts.
       Finally, the Congress must carefully evaluate legislative 
     proposals that base Federal jurisdiction on the fact that 
     local authorities are overwhelmed. For example, in the last 
     Congress, an amendment was offered in the Senate that would 
     have subjected all State gun offenses to Federal 
     jurisdiction. Federalizing all gun crimes does not lend to 
     the fight against gun violence the weight of Federal 
     authority so much as render the Federal authority 
     meaningless.
       Because of the potential for limitless expansion, proposals 
     based on this rationale should be carefully considered and 
     the need to assert Federal jurisdiction should be clear and 
     strong. A better vehicle for Congress to express the national 
     outrage over gun violence, in my view, is passage of gun 
     control legislation such as the Brady bill and an assault 
     weapons ban.

           B. Where the States are unable or unwilling to act

       A different situation is presented by legislative proposals 
     to recognize civil rights claims. As with the Civil War 
     amendments and statutes, these laws are designed to fill in 
     where State courts are unable or unwilling to protect Federal 
     constitutional or statutory rights.
       Although such laws often extend to what look like ``local'' 
     matters--such as the ability to obtain a marriage license, 
     access to restaurants, safety from physical violence--they 
     actually serve to safeguard a national principle such as 
     equality.
       Federal jurisdiction in such cases is premised on a belief 
     that Federal courts afford a superior forum for the 
     adjudication of these claims for two reasons:
       First, because the institutional independence enjoyed by 
     Federal judges affords them a real--and just as importantly, 
     a perceived--protection of impartiality.
       And second, because where a constitutionally protected 
     right is involved, there is a benefit to ensuring a 
     consistent interpretation and application of the law 
     throughout the Nation.
       Most importantly, Federal adjudication of these claims 
     demonstrates the national commitment made to eradicating 
     discrimination. Only a Federal court can speak with the voice 
     of the entire Nation. Each branch of the Government has 
     joined in condemnation of conduct proscribed by a Federal 
     statute--the legislature in passing the law, the executive in 
     executing the law, and the judiciary in adjudicating claims 
     brought pursuant to the law's authority.
       Lending the prestige of the Federal Government to a cause 
     is an invaluable tool of education; its effectiveness in 
     promoting the goals of the law reaches far beyond anything 
     available to an individual State or locality.
       In my view, where a case involves the protection of a civil 
     right guaranteed by the United States Constitution or a 
     Federal statute, the Federal interest is strong and the 
     presumption of federal jurisdiction appropriate.


             V. Case Study: The Violence Against Women Act

       Over the last several years, one bill in particular has 
     served as the catalyst for my attempt to derive a principled 
     theory of Federal jurisdiction. The Violence Against Women 
     Act, legislation I first introduced in 1990, has been the 
     subject of some controversy.
       Although most of the bill is not controversial from a 
     jurisdictional perspective, one of the bill's provisions has 
     caused controversy: Title III creates a Federal civil rights 
     cause of action for violent crimes motivated by gender bias.
       When I first introduced the bill, the Federal Judicial 
     Conference opposed it, on the grounds that it would bring 
     into the Federal courts ``domestic relations disputes'' and 
     other litigation traditionally reserved to the State courts. 
     I believe the opposition to the bill--which was recently 
     reversed by the conference--reflected a misunderstanding of 
     its intent and scope. Read with an eye to the principles just 
     outlined, title III stands firmly within the scope of 
     established Federal jurisdiction.
       Title III would provide a civil rights remedy for gender-
     motivated violent crimes, permitting a victim of such crime 
     to sue the perpetrator of that violence for damages and 
     injunctive relief. The distinction I have tried to maintain 
     in title III of the Violence Against Women Act is precisely 
     that embodied in post-Civil War civil rights laws.
       Think about the difference between a mugging of a person 
     who happens to be an African-American and a lynching of an 
     African-American by an all-white mob. The first is NOT a 
     Federal Crime, the second may be the subject of Federal civil 
     rights remedies.
       The Violence Against Women Act specifically provides that 
     ``Random'' crimes NOT motivated by gender bias are not 
     covered by the act. Proof of discriminatory motive is 
     explicitly required.
       If we recognize that hate beatings of African-Americans 
     violate the right to be free and equal, we should guarantee 
     the same protection to America's women.
       Title III falls within established Federal jurisdictional 
     principles governing civil rights remedies. Like existing 
     civil rights remedies, its animating principle is a national 
     ideal of equality. It remedies conduct that burdens an 
     individual because of a characteristic that is immutable and 
     morally irrelevant--a characteristic like race or, in this 
     case, gender.
       The bill places the cause of action in the Federal courts 
     for two reasons: First, because the Federal courts have 
     traditionally been charged with enforcing national principles 
     of equality. And, second, because State remedies have too 
     often proven inadequate.
       The record of the States in addressing violence against 
     women has been, and remains, marked by prejudice rather than 
     reason. Barriers of law, of practice and of prejudice, still 
     exist. For example, some States have eliminated entire 
     classes of persons from the scope of rape statutes. In these 
     States, a father who rapes his child or a husband who beats 
     and rapes his wife--or even his former wife--has not 
     committed a presecutable offense.
       In my own State of Delaware, among others, rape by someone 
     who is a ``voluntary social companion'' of the victim is 
     classified as a less serious offense.
       It is my view that title III should bring only a small 
     number of new cases into Federal court. Indeed, I intend for 
     its primary purpose to be the symbolic recognition that 
     violence against women is a national tragedy that warrants 
     the commitment of our National Government--much the same way 
     as fighting race discrimination has for much of this century.


                             vi. conclusion

       The question of what cases should be adjudicated by the 
     courts of the United States is complex. Legitimate pragmatic 
     concerns with an overloaded system have led many to argue 
     that subjects the State courts can address do not belong in 
     the Federal system.
       But this argument begs the question: The constitutional 
     authority of the Federal courts is broad--as a matter of 
     jurisdictional theory, a strong presumption favors a Federal 
     forum for claims involving rights guaranteed by the United 
     States Constitution or Federal statutes.
       The real question is: Given the practical limits of Federal 
     court resources, what cases are of the highest priority? What 
     cases have the very strongest claims on the Federal courts?
       We must be careful to make the right choices. The civil 
     rights of women or minorities must not be held hostage to the 
     shortage of resources. We must address pragmatic concerns 
     about overcrowded dockets without losing sight of the 
     ultimate goal:
       To restore to our Federal courts their deserved reputation 
     as a hallowed place--a place where majoritarian impulses do 
     not stampede over the legitimate needs of minorities; a place 
     where the great moral truths embodied in our constitution 
     still reign supreme.
       The value of a Federal forum could not be more starkly 
     illustrated than by the events of the past year in Los 
     Angeles. One year ago, four police officers were acquitted by 
     a State jury of charges of assaulting Rodney King. For many 
     Americans, the verdict came to symbolize the failure of 
     justice, and the civil unrest it touched off served as a 
     chilling reminder that we all pay a price for widespread 
     disillusionment with our judicial system.
       Then, this past saturday, a Federal jury convicted two of 
     the same four police officers for violating Mr. King's civil 
     rights--rights guaranteed by the fourth and fourteenth 
     amendments to the United States Constitution. As we debate 
     the matter of what cases our Federal courts should hear, we 
     must bear in mind that the public's faith in justice hangs in 
     the balance.
       Today, I have addressed only a small part of what this 
     debate must become. We must undertake a comprehensive review 
     of Federal jurisdiction--looking at matters, such as 
     diversity jurisdiction, I have not mentioned today.
       What I have attempted here is to begin the debate at the 
     point of greatest challenge--deriving a principled means of 
     identifying those cases the Federal courts should decide. By 
     setting forth the guidelines I have used to evaluate 
     legislative proposals that affect the courts' jurisdiction, I 
     do not pretend to have all the answers.
       I hope my thoughts will provoke all of you here today and 
     your colleagues throughout the Federal judiciary to join this 
     debate, in concert with my colleagues in the Congress and 
     with the new administration.
       We all share in a solemn responsibility imposed upon us by 
     the Constitution that has made a great nation out of a 
     diverse people over more than two eventful and challenging 
     centuries--in the words engraved upon the lintel of the 
     Supreme Court Building, to assure ``equal justice under law'' 
     to every American.
       That is our mutual obligation--and one we can fulfill only 
     by joining our energies, our intellects, and our hearts in a 
     common enterprise to preserve and extend the historic promise 
     of our matchless Constitution.
  Mr. BIDEN. Mr. President, I spent a lot of time on it, deliberating 
what I thought should be the principled rationale for Federal 
intervention in State matters as it relates to the criminal justice 
system or any other effort.
  Historically what we have done, Mr. President, is we have only 
intervened when there has been an unwillingness on the part of State 
courts to apply the Federal Constitution which many States, including 
mine, sadly did on civil rights matters for years. So we came along and 
said, ``Look, you States are not giving people their civil liberties 
and civil rights, so we are going to pass a Civil Rights Act.''
  We also have done it in areas where there is something that is 
clearly within the State-Federal ambit. International drug trafficking 
cannot be stopped by the State of Delaware, but they inherit the wind 
because we do not do a good enough job federally, so we pass laws 
allowing the Federal Government to intervene in drug cases because 
there is a nexus. Drugs hardly ever start and end within that State. So 
what happens is, drugs come in through the Port of New York or 
California, the Port of San Diego or Seattle on the west coast, or 
Galveston--wherever. They are disseminated throughout the country. No 
one, single, police agency can handle that network. You need interstate 
jurisdiction. So it makes sense for the Federal Government to be 
involved. It makes sense.
  We also have gotten involved where the States have not met their 
responsibility in any way. But the idea of federalizing the death 
penalty and insisting that the 15 States like the State of Wisconsin--I 
see the Senator from Wisconsin here, who made a very eloquent speech on 
this matter when we debated it in November last. It seems to me we 
should not be telling them that they are going to have to impose the 
death penalty, a Wisconsin citizen will get the death penalty because 
the Federal Government thinks they should.

  Now, I happen to think there should be the death penalty. In the 
Biden crime bill there are over 50 death penalties. I have been heavily 
criticized from my friends on the left for that. But I happen to 
believe in the death penalty. But I also think there has to be some 
principled rationale by which we separate State and local and Federal 
matters.
  The Founding Fathers, sitting up here in a hot Philadelphia summer, 
spent an awful lot of time trying to figure out this new form of 
Government. Montesquieu spent a lot of time about 100 years earlier 
figuring this notion out. That is the revolutionary part of this 
Government. It works unlike any other in the world--separated powers, 
not the concentration of power.
  I wonder how many people on this floor would call for the 
federalizing of all police forces locally. Anybody want a Federal 
police force? No local police? I do not. I do not want that. It has 
been one of the tenets of our separated powers concept. There is not a 
Federal police force. We do not come in and tell the local police in 
Delaware what they can and cannot do. If it is a Federal crime, an FBI 
agent is involved. If it is not a Federal crime, he or she is not 
involved.
  But gosh, what we are doing here, in the name of I do not know what, 
to use the phrase of a friend of mine, we are standing federalism on 
its ear. There is no sense to this.
  What is the principled rationale to say OK, wait a minute now. Guns, 
we are going to federalize any crime committed with a gun because they, 
in fact, cross a State line. How about if we say anybody who commits a 
crime while wearing a piece of clothing that had traveled in interstate 
commerce and crossed the line is now eligible to be tried in a Federal 
court, or must be tried in a Federal court?
  It is not like this bill is not a big deal. It is a big deal. What 
are we doing? We are giving the State of New York, the State of 
Delaware, the State of California, South Dakota, all the States, 
billions of dollars for them to go out and hire more local police, 
build more local prisons, hire more local prosecutors, build boot 
camps. We are saying, what do you need? They have come back and said 
look, we have a real problem. We need more police. We said OK, we will 
give you the money to hire more police. We are not sending Federal 
police, and the people who live in the cities and States that the folks 
here are from, if the local police force wears blue uniforms, they are 
not going to have someone showing up in a green uniform saying, ``I am 
a Federal police officer and I am working here at the local level.''
  We are saying this is a local problem. We will give you money to hire 
local police like you always have. We are doing the same with prison 
systems. We are not saying OK, we are going to build a Federal prison 
in your State and we are going to federally run that prison and tell 
you who you can let in and not let in. We are saying you have a State 
problem. We are going to give you some Federal money to build State 
prisons run by State and local people.
  My gosh, that is the way federalism is supposed to work. If we want 
to help the States, let us help them. And we do that in this bill, for 
gun offenses. We provide all these additional cops. As I pointed out 
earlier, Mr. President, and I know because you have worked so hard on 
this criminal legislation with us, we are adding 100,000 cops. In the 
entire United States of America, there are only about 550,000 cops. Not 
even that. I think it is 540,000 cops.
  OK, we are going to add 100,000, almost a 20 percent increase in the 
number of local cops. Is that, as another friend of mine says, chopped 
liver? Are we not helping? Are we not helping the local officials?
  No, that is not enough for people. We have to decide we know better 
than the Governor of a State. We know better than the State 
legislators. We know better than everybody. And we do not want to let 
the people of a State decide how they believe their criminal justice 
system should work.
  I just think we are setting a terrible precedent. We are going to 
vote at 6:30, or shortly thereafter, on this. I have no illusions about 
how that vote is going to turn out. I think part of it is nobody wants 
to be seen as not being tough on crime.
  Well, other than probably anybody on this floor except possibly the 
Senator from Arizona, Senator DeConcini, I do not know anybody who has 
worked more and had a ``tough on crime,'' self-serving statement to 
make than me. But people are going to come in here and say, no, we have 
to vote on this. We are going to do this.
  I just think we are going to rue the day that we go this route, 
because I tell you what it is going to do. If it passes, becomes law, I 
am going to be back here on the floor, assuming I am still here and 
still chairman of the Judiciary Committee, I am going to be back on the 
floor saying we only have 624, or 625 or 635 trial court judges. We now 
have doubled the number of cases. We have to double the number of 
judges. Everybody better belly up to the bar to pay for them. We only 
have 3,000 Federal prosecutors in all the United States of America. 
Now, with all this additional work at the Federal level, let us hire 
more Federal prosecutors.
  I do not know. It is kind of discouraging.
  I wish to point out, when I got here in 1973, January of 1973, the 
press at home used to write about me as Joe Biden, the iconoclast--I do 
not know who thought it up--because they could not quite figure out how 
someone who had such a strong view on civil rights and civil liberties 
was so, in the context of the times, ``tough on crime.'' It did not 
fit. If you were tough on crime, you were not supposed to care about 
civil rights and civil liberties. And conversely, if you cared about 
civil rights and civil liberties, you were not supposed to be tough on 
crime. I never thought they were at odds with one another, quite 
frankly.
  When I joined the Judiciary Committee, through a friend who was then 
my counsel on the committee, a first-rate lawyer named Mark Gitenstein, 
we sat down in my early years here and said, ``Well, what do we have to 
do to fix the Federal criminal justice system?'' And there were four 
initiatives I decided I wanted to work on and, I say with some little 
pride, accomplished them. One was a lot of people were committing 
crimes while awaiting trial.
  So I drafted, with Mark's help, the ``speedy trial law.'' We got it 
passed. It means, if you do not go to trial within 60 days, they have 
to let you go. Guess what? That got their attention in the Federal 
courts. Everybody goes to trial in 60 days. There are notable 
exceptions. You can get 90 days with extensions. But basically they 
went to trial. All of those crimes being committed while people were 
out on bail dropped.
  The next thing I wanted to do was--I thought we did not have enough 
Federal prison space, so I supported, along with others, legislation 
increasing the number of prison spaces. Guess what? It passed. We do 
not have the problem at the Federal level. We did. We do not now.
  The third thing, I thought the way the sentencing thing worked was a 
bad idea. There was too much discretion, and it was being applied in a 
prejudicial manner. To overstate it, the study showed that if you were 
young and black, and young, white, and middle class, and you committed 
the same exact crime, the young, white, middle-class person got 
probation and the young black got jail.
  So back then it was facetiously referred to as the Biden-same-time-
for-the-same-crime bill. It is now the bill that is called the 
sentencing commission. The law is now if you get sentenced at a Federal 
court, you go to jail for 85 percent of the time at a minimum; mostly 
100 percent of the time. And you can get a 15-percent reduction for 
mitigating circumstances. That much discretion is left to the judge, 
and you can get a 15-percent add-on for aggravating circumstances. That 
discretion is left to the judge. People actually serve their time.
  The last thing I did, which everyone was a little bit--not everyone; 
many of my Democratic friends were a little bit disturbed--but I 
thought we needed more Federal judges. I am the guy with the Republican 
President who introduced a bill for an additional, I think, 84 or 88 
Federal judges. I remember going in the caucus. My friend from Arizona 
will remember. He supported it. And we basically got lambasted saying, 
``Wait a minute. What are you doing? You are adding 84 new judges for 
Ronald Reagan to appoint.'' I was not happy about Ronald Reagan 
appointing those judges. But we needed the judges.
  The end result was--not because of what I, Senator DeConcini, and 
others did, but in little part because--the Federal system is working 
relatively well.
  A lot of things have to be improved. We need more Treasury agents. We 
need more customs agents. We need more FBI agents. We still need more. 
But on balance the system is working pretty well.
  As I said, all the horror stories--and they are real; I do not mean 
to belittle them--that we hear are not about Federal prisoners. They 
are not about Federal convicts. They are not about federally convicted 
people who were let out of jail. They are all about State courts.
  So we have one system basically that is working pretty well. It is 
called the Federal system. It is ironic, is not it, that I would be 
able to stand on the floor and say there is a Federal thing that is 
working; the Federal system? You do not pick up the paper and hear 
criticism on a large scale, hardly at all, of the Federal criminal 
justice system. But you hear absolutely excoriating--with good reason, 
I might add--things about the State justice system. So we have one that 
is working now.
  It seems to me that we have to do one of two things. I see my friend 
from North Dakota is here, and he may want to speak, so I will not take 
much more time. We have to do one of two things. We either have to 
really beef up this Federal system to accommodate all this new 
responsibility so it does not become broken again, so it continues to 
function, or we have to provide money and expertise to the State 
systems to help them fix it.
  This is not rocket science. I mean, it seems you have to do one of 
the two. What is being proposed here is we are going to do one in this 
bill, the crime bill, which is to help shore up that State system. I 
predict the number will be closer to $29 billion worth of help over, I 
predict, 6 years and not 5.
  But on the other hand, as my friend from Arizona pointed out, we are 
not doing much to help the Federal system except we are going to add 
onto the Federal system an incredible burden. So we are not going to 
completely fix the one and we are going to break the other. That does 
not seem to me to make sense.
  I am willing to work with my colleagues, after we pass this crime 
bill, for additional legislation if you want to go ahead and do this--
that is, to shift this burden to the Federal Government--as long as you 
balance it like this bill balances it, and say, ``OK. If you want to do 
it, I will do it,'' if, in fact, you say, ``OK. All gun crimes 
committed are eligible or must be with concurrent jurisdiction of the 
Federal Government.'' But that is section 1 of the bill.
  Section 2, we are adding the requisite number of prosecutors, Federal 
judges, and Federal prisons to accommodate the expected workload. If 
you are going to do that, that is at least--I am not suggesting anyone 
who has a different view is being dishonest--but in a literal sense 
that is an honest way of doing it, and then add, as the Senator from 
Arizona in a very straightforward way pointed out earlier this 
afternoon, the money to pay for it. Tell me where you are getting the 
money.
  But my goodness. Here we are, in my view, confusing the principle of 
federalism; in fact, putting in motion what will do real damage to the 
Federal system of justice and not much help to the State system.
  I want to remind all of you who are so--I mean this sincerely--
business oriented, when in fact you increase by 10, 20, 30, 50, 100, 
200--and no one can predict exactly what it will be--percent the 
criminal caseload on 635 Federal judges, and then your business 
community comes to you and says, ``By the way, I have a commercial case 
filed in the Federal court. They tell me I will not be able to even go 
to trial for it for 2 years.'' That is not an exaggeration by the way. 
Right now there is an incredible backlog. But when your business 
community says, I cannot get into court for 2 years on my case--and I 
have a little press statement I can give you which says I knew that 
when I voted and I cared less about your concerns because I think the 
Federal Government should handle this additional responsibility that 
heretofore has been handled at the State level.
  Look, I challenge anyone in this Chamber, after hearing this or their 
staffs hearing this, to come back tomorrow, or Monday, or Tuesday, 
whatever is the appropriate time, and enter in the Record something 
from the Chamber of Commerce in their State or community that says the 
following: ``I have ample and ready access to the Federal courts. There 
is no need to speed up the process. I have no problems relative to 
commercial litigation.''
  I challenge any Senator to come into this Chamber representing the 
views of their business community or their chamber of commerce, and say 
that. Maybe it is because my responsibility is to deal with the Federal 
court system as chair of the Judiciary Committee. But I am bombarded, 
with good reason, by Federal judges, but more importantly by local 
business officials, men and women, who point out to me that they lose 
tens of thousands of dollars a year being unable to resolve their 
commercial and business disputes because of lack of access to the 
Federal courts. Because of the Speedy Trial Act, the court must try the 
Federal criminal cases first.
  So, I hope we at least go into this with open eyes.
  So I do not think anyone is likely to listen to what I have to say on 
this right now. The environment does not lend itself to that at the 
moment. But I do want to be in a position at least to have done my duty 
and my responsibility as chairman of the committee of laying on the 
record what I honestly believe to be the consequences of the action we 
are about to take, if it becomes law, if it comes out of conference, if 
the President signs it--the consequences for commercial litigation in 
the Federal system, the availability of Federal judges and prosecutors, 
and the impact it will have on crime.
  Maybe I am wrong. We will see. But just remember, if it turns out 
that I happen to be right, be prepared to tell the voters of the Nation 
that you are willing to spend more money, you are willing to hire more 
judges, you are willing to hire more prosecutors, at a magnitude of 
two, three, and four times as many as we have now, to meet this new 
workload.
  I see my friend from North Dakota on the floor. I assume he wants to 
speak to one of these resolution goes.
  I yield the floor.
  Mr. DORGAN. Mr. President, I say to the distinguished chairman that I 
will soon insert in the Record a communication I received from the 
Chairman of the Federal Reserve Board.
  With your indulgence, I ask unanimous consent to speak for 4 minutes 
as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Dakota is recognized.

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