[Congressional Record Volume 140, Number 92 (Friday, July 15, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 15, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                BILLIONS FOR NEW PRISONS? WAIT A MINUTE

 Mr. SIMON. Mr. President, Phil Heymann resigned a few months 
ago as Deputy Attorney General. There was a clash of personalities 
within the Justice Department that happens on this Washington scene and 
everywhere else in our country.
  But there is no question about his ability, his dedication and his 
valid insights into many of the problems of our society and our system 
of justice.
  Recently, he had an op-ed piece in the New York Times that questions 
the wisdom of just building more and more prisons, and putting more and 
more people into prison for nonviolent offenses.
  What he has to say makes eminent good sense, even though it may not 
be politically popular.
  I ask to insert his statement into the Record.
  The statement follows:

                Billions for New Prisons? Wait a Minute

                         (By Philip B. Heymann)

       Washington.--If you found a bicycle in a clothes closet, 
     you wouldn't build a new closet for your clothes. You would 
     move the bike to the garage.
       By the same token, the nation's prison population is 
     outgrowing the space for it, and violent offenders are being 
     released to make room for rapidly growing numbers of 
     prisoners convicted on drug charges.
       Before we spend $13.5 billion (authorized in the House 
     version of the crime bill) or even half that amount (the 
     Senate figure) to build more prisons for violent convicts, we 
     should consider whether this use of prisons is worthwhile.
       It makes sense to spend whatever it costs to help the 
     states make sure that violent offenders are imprisoned as 
     long as they remain dangerous. And we should be willing to 
     pay billions of dollars in constructive efforts to stop youth 
     violence.
       Violence with guns by young people in the poorest areas of 
     our cities has increased dramatically in the last six years; 
     the victims are also heavily concentrated among urban, 
     minority youth.
       But it makes no sense to spend whatever it costs to make 
     sure that 100,000 drug offenders continue to be sent to 
     penitentiaries every year--until someone demonstrates that 
     this substantially reduces the availability of drugs or 
     reduces crime.
       Our prison population is three times what it was in 1980, 
     largely because of the rise in incarceration for drug 
     offenses. The 102,000 drug offenders imprisoned in 1992 
     exceed the number imprisoned for all violent offenses and 
     burglary put together. In 1980, there were seven times as 
     many commitments to state prisons for violent offenses as for 
     drug offenses.
       From 1986 to 1993, the number of drug offenders in state 
     prisons grew by more than 140,000 bringing the number held 
     for drug crimes to more than 183,000 of whom about 20 percent 
     had no prior offenses and almost 80 percent had no prior 
     incarceration for a crime of violence.
       In addition, about 18,000 low-level drug offenders with no 
     record of violence, no significant criminal record and no 
     important connection to a drug organization are being held in 
     Federal prisons for mandatory sentences of 5 to 10 years.
       Without this rise in drug prisoners, the growth in national 
     prison capacity would far exceed the need.
       Our political leaders are about to spend as much as $13.5 
     billion to enable the states to continue to house drug 
     offenders at an ever-increasing rate. This is enough money to 
     have an effect on violence--and drug abuse, too, if committed 
     to drug treatment programs, job training, education, 
     enterprise zones, community centers for sports or computer 
     activities--or other important investments that President 
     Clinton has found himself unable to afford.
       Few believe that the incarceration of more than 100,000 
     drug offenders in 1992 has made drugs any harder to get on 
     the streets than did the incarceration of fewer than half 
     that many in 1987 under the Reagan Administration. Only a 
     small fraction of that 100,000 could conceivably consist of 
     important or difficult-to-replace dealers. And there is no 
     reason whatever to believe that increasing the rate of 
     incarceration of drug offenders reduces violence.
       An intelligent effort to reduce the drug supply would focus 
     on those parts of the production and marketing process that 
     can be disrupted and cannot readily be replaced; this would 
     increase the price, risk or difficulty of a purchase. Most 
     street dealers are too readily replaceable for imprisonment 
     to affect these costs.
       Using a cell to house a nonviolent drug offender for years 
     makes sense only if it raises the cost of acquiring drugs on 
     the street and if the benefit of that increase in cost--
     reduced consumption--exceeds the harms resulting from any 
     rise in predatory crime by addicts.
       Even then, it might not be nearly worth the cost of taking 
     up a cell that could be used for a violent offender. Some 
     drug law enforcement pays off; some doesn't.
       I am not arguing for the legalization of drugs. Rather, we 
     should return to a ratio of incarcerations for violence and 
     incarcerations for drugs to something like what prevailed in 
     the Reagan years, shifting the energies of police, 
     prosecutors and courts toward pursuit of violent criminals.
       This would allow a sizable number of the cells recently 
     committed to nonviolent drug offenders to be used for violent 
     offenders; other cells could be made available for violent 
     offenders by shorter or alternative sentences for some 
     nonviolent drug offenders.
       Parole or supervised release could be made conditional on 
     strictly enforced drug testing, abstinence and treatment. (It 
     is also necessary, of course, to fight the symbolism of drugs 
     as a desirable consumption item or of drug dealing as a way 
     to win respect and a good life.)
       Treatment on demand for every addict would further reduce 
     the need for cells. So would more use of problem-solving 
     policing to separate casual users from the sources of drugs. 
     The police can adopt techniques that disrupt the conditions 
     of trust and privacy that any market requires--techniques 
     that make open-air drug markets impossible, all without great 
     numbers of arrests.
       Neither Congress nor the Administration has explained how 
     it has arrived at the vast sums to be committed by a budget-
     starved Government to new prison cells.
       The figures reflect nothing more than sums designed to 
     convince frightened constituents of sweeping action. But even 
     if the numbers were meaningful, they could not be defended 
     until someone addressed the wisdom of our unexamined 
     expansion of drug commitments and its effect on space for 
     violent offenders.
       In other words, we are building expensive new closet space 
     for needs whose size hasn't even been estimated because we 
     haven't thought about removing from our existing closets some 
     of the things that waste space in them.
  Mr. MOYNIHAN. Madam President, the Senate must today take the unusual 
step of returning to a measure previously passed by this body and 
removing an amendment previously adopted. This action is necessary 
because the House has concluded that the amendment in question, which 
affects the enforcement of the Internal Revenue Code requirement for 
the use of undyed diesel fuel in recreational motorboats, violates 
article I, section 7, of the U.S. Constitution.
  I warned the Senate, when this amendment was before us in June, that 
this would be the outcome if the amendment were adopted.
  The amendment is clearly a revenue measure. It employs the artifice 
of denying funds for the enforcement of a selected provision of the 
Internal Revenue Code. Further, it directs the Internal Revenue Service 
as to the particulars of collecting a tax. The legislation to which it 
was attached was not a revenue bill. The House understandably has 
insisted on its constitutional prerogatives under article I, section 7, 
which states in part:

       All Bills for raising Revenue shall originate in the House 
     of Representatives; but the Senate may propose or concur with 
     Amendments as on other Bills.

  Madam President, as I stated when this amendment was originally 
before us, I am sympathetic to the problem that the sponsors of the 
amendment are trying to solve. I expect to work with them toward a 
solution that can be added to an appropriate revenue bill. But as 
chairman of the Committee on Finance, I am mindful of matters of 
jurisdiction involving taxes, and the dictates of the constitution 
regarding this subject are clear. Had the Senate been more mindful of 
the Constitutional implications when this matter was originally before 
us, the additional action we take today would not have been necessary.
  Madam President, I ask unanimous consent that the record of the 
original debate on this amendment (No. 1833) last June 22, including 
the discussion immediately following rollcall vote No. 159, be printed 
in the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Congressional Record, June 22, 1994]

       Mr. Gorton. The Senator from Washington and the Senator 
     from Louisiana have already spoken. So the floor is 
     available.
       The Presiding Officer. The chair informs the Senate that 
     there is a time agreement. Mr. Gorton controls 1\1/2\ 
     minutes. The Senator from Arizona controls 19.
       Mr. DeConcini. I yield whatever time I have to the Senator 
     from New York.
       Mr. Moynihan. May I respectfully ask the Chair how much 
     time is available?
       The Presiding Officer. There are 19 minutes remaining.
       The Senator from New York [Mr. Moynihan], is recognized.
       Mr. Moynihan. Mr. President, I will not require 19 minutes 
     of the Senate's time to make the point that is relevant from 
     the point of view of the Committee on Finance, and from the 
     point of view of the Senate as regards constitutional 
     requirements and our behavior with respect to taxation.
       The first thing to say to my friend from the State of 
     Washington--and I say it also to Senator Breaux from the 
     State of Louisiana, with whom I just spoke--is that you have 
     a real problem which needs to be fixed. I certainly would 
     undertake to attempt just that, and I think the Treasury 
     recognizes that there is such a problem. In the 1993 Budget 
     Reconciliation Act, we removed the luxury tax on pleasure 
     boats, which had made its way into the Tax Code with large 
     unanticipated and wholly unwelcomed consequences, which is 
     that the manufacture and sale of such boats fell off 
     precipitously. Under our rules, if we were to repeal that 
     luxury tax, as it was called, we had to pay for it, and we 
     did so by imposing a tax on diesel fuel, used in this 
     particular type of boating. We required that the fuel thus 
     used be undyed--that being the case with all diesel fuels 
     that are taxed, principally diesel fuel used in trucks. Now 
     we are happy to get rid of this. I should be happy, 
     personally, to see this changed, because there are so many 
     marinas, as I understand it, where really only one tank is 
     available, and the fuel is going to be used for both taxable 
     and nontaxable purposes, and what is the marina proprietor to 
     do?
       The Senator from Washington very properly suggests that the 
     tax should be paid even though the fuel is dyed, which 
     typically means it is destined for an exempt use. That is a 
     fair point but not one persuasive to those persons whose 
     lamentable works have been over the centuries to collect 
     taxes. It just does not work. The law requires that the fuel 
     remain undyed and the sale of it be taxed.
       We cannot change the law on this bill. This would make this 
     bill a revenue bill under article 1, section 7 of the 
     Constitution, what we call the origination clause. And the 
     distinguished Senator from the State of Washington will know 
     this with much greater clarity than I could bring to it given 
     his legal background. But there can be nothing unclear about 
     the origination clause, as it is called.
       It says:
       All Bills for raising Revenue shall originate in the House 
     of Representatives; but the Senate may propose or concur with 
     Amendments as on other Bills.
       In effect, Mr. President, this requires that we have a 
     revenue bill before us which has originated in the House. 
     That is the practice of two centuries and more. It is the 
     rule of the Constitution. It is never breached.
       If this were to go to the House it would be given a blue 
     slip, as our usage has it, and the Parliamentarian would 
     simply send it back. The House is properly vigilant with 
     regard to its prerogative under article 1, section 7. There 
     can be no question of what would happen.
       That being the case, I believe it is the intention of the 
     distinguished manager to move a point of order that simply 
     says that enactment into law of the pending Gorton amendment 
     would reduce revenues below the fiscal year 1995 revenue 
     floor in violation of section 311 of the Congressional Budget 
     Act. A constitutional point of order could be made as well.
       I do not want to extend the debate. I want to extend a hand 
     of friendship and help to the Senator from Washington to say 
     that there is a problem and we have to deal with it and we 
     will seek to do so. But we have to do so on an appropriate 
     measure in a time in the future when one will come before us.
       I predict that in this vale of tears there will be another 
     revenue act before the Senate before too long, and I will 
     undertake to try to work to resolve this matter. In the 
     meantime I will say to my colleagues we cannot accept this 
     amendment. To do so would put the entire bill in jeopardy and 
     strain an already seriously over strained Senate calendar.
       Mr. President, seeing my friend from Washington having 
     arisen, I yield the floor and reserve the remainder of my 
     time.
       The Presiding Officer. The Senator from Washington is 
     recognized.
       Mr. Gorton. Do I understand the Chair to say I have 1\1/2\ 
     minutes remaining?
       The Presiding Officer. The Senator from Washington is 
     correct.
       Mr. Gorton. I ask unanimous consent to have another minute 
     to that.
       The Presiding Officer. Without objection, it is so ordered.
       Mr. Gorton. Mr. President, I am delighted with the 
     agreement in principle as to the goal we would like to 
     achieve on the part of the Senator from New York. I knew 
     those were his views already, but it is particularly welcome 
     that he lays them out for us here.
       We have an absurd situation here. We have a situation in 
     which the convenience of the tax collector is all and the 
     convenience of the taxpayer is as nothing. We have a 
     situation which has made it impossible for many boat owners 
     to purchase fuel if they use diesel fuel pleasure boats, for 
     their vessels.
       We have here an opportunity to solve that problem in the 
     short term.
       The distinguished Senator from New York says that we cannot 
     constitutionally change the Tax Code in the Senate. The 
     Senator from New York is, of course, entirely correct. It is 
     for exactly that reason that this amendment does not purport 
     to change the Tax Code at all. It simply limits the 
     enforcement authority of the Internal Revenue Service, which 
     is not a tax bill.
       Even more importantly, however, I am convinced that we 
     could in fact do so. All appropriations bills originate in 
     the House. This is an appropriations bill. It has been passed 
     by the House of Representatives. Almost every appropriations 
     bill includes revenue provisions in it of some sort or 
     another. I suspect that this one does. It has started in the 
     House.
       The Constitution does not say the Ways and Means Committee 
     of the House must act first. It says the House must act 
     first.
       The House has in a bill which deals with revenues as well 
     as with expenditures. The House in the past has accepted 
     provisions like this one in part.
       If the House wishes to object to it, we can deal with that 
     objection at that point. The House is not going to reject 
     dealing with an appropriations bill which it itself has 
     passed on the grounds of this provision. It may not like the 
     provision. It may insist that the provision come out. Under 
     those circumstances, a conference committee will have to make 
     that decision.
       But to say that somehow or another this is without 
     precedent is absurd. Almost every appropriation bill we deal 
     with in this place deals with revenue in some respect or 
     another.
       The provision is not unconstitutional and the House would 
     not be justified in rejecting it on that ground.
       The Presiding Officer. The Senator from New York is 
     recognized.
       Mr. Moynihan. I thank the President and I respond on the 
     constitutional points made by my friend from Washington by 
     saying clearly the bill before us originated in the House. 
     But it is an appropriations bill. It is a bill for spending 
     moneys.
       The Constitution constrains us with respect to revenue. All 
     bills for raising revenue shall originate in the House of 
     Representatives. This is not a bill for raising revenue. The 
     provision that follows, which is that the Senate my propose 
     or concur with amendments, simply does not apply here because 
     this is not a revenue bill.
       I say to my friends on both sides here that we can solve 
     this problem but not in this manner. If you do it, if we 
     proceed we will simply put at jeopardy all the work that has 
     been done on the appropriations bill.
       This is the Treasury, Postal Service, and general 
     Government appropriations bill. A great deal of effort has 
     gone into it. We are about to conclude it.
       The managers have done superb job. I particularly thank the 
     Senator from Arizona and I simply have to say that I hope 
     that the distinguished manager will make a point of order, if 
     he wishes to do that. That is, of course, the proper means of 
     proceeding. Otherwise, I would feel obliged to do so on 
     behalf of the Committee of Finance.
       Mr. President, I yield the floor.
       The Presiding Officer. Who yields time?
       Mr. Gorton. Mr. President, I would say I am willing to 
     yield back the remainder of my time if the other side is so 
     the distinguished Senator from Arizona can make his point.
       Mr. DeConcini. Mr. President, before I yield back the time 
     I just want to say that I am very sympathetic to what the 
     Senator from Washington wants to do here. Though the Senator 
     from Arizona does not have many rivers and lakes as these 
     States do, we do have a very high per capita rate of boats.
       I am pleased that the distinguished chairman of the Finance 
     Committee indicates that he is going to address this matter. 
     Because of that I am going to support the Senator on the 
     point of order which I will make.
       Mr. President, I make a point of order that the Gorton 
     amendment violates section 311(a) of the Budget Act.
       The Presiding Officer. The Senator from Washington is 
     recognized.
       Mr. Gorton. Mr. President, I move to waive the relevant 
     sections of the Budget Act in order to permit the 
     consideration of the Gorton amendment.
       And I ask for the yeas and nays.
       The Presiding Officer. Is there a sufficient second?
       There is a sufficient second.
       The yeas and nays were ordered.
       Mr. DeConcini. Mr. President, I ask unanimous consent that 
     the vote on Senator Gorton's motion to waive the Budget Act 
     occur, without intervening action or debate, upon the 
     disposition of the Reid amendment No. 1832.
       The Presiding Officer. Without objection, it is so ordered.
       The Presiding Officer. Are there any other Senators in the 
     Chamber desiring to vote?
       The result was announced--yeas 79, nays 20, as follows:

                      [Rollcall Vote No. 159 Leg.]

                                YEAS--79

     Akaka
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Dole
     Domenici
     Dorgan
     Durenberger
     Exon
     Faircloth
     Feinstein
     Ford
     Gorton
     Graham
     Gramm
     Grassley
     Gregg
     Hatch
     Heflin
     Helms
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     Mathews
     McCain
     McConnell
     Mikulski
     Mitchell
     Murkowski
     Murray
     Nickles
     Nunn
     Packwood
     Pell
     Pressler
     Pryor
     Riegle
     Robb
     Rockefeller
     Roth
     Sarbanes
     Sasser
     Shelby
     Simpson
     Smith
     Specter
     Stevens
     Thurmond
     Wallop
     Warner

                                NAYS--20

     Baucus
     Boren
     Bradley
     Byrd
     Campbell
     Danforth
     Daschle
     DeConcini
     Feingold
     Glenn
     Harkin
     Hatfield
     Leahy
     Metzenbaum
     Moseley-Braun
     Moynihan
     Reid
     Simon
     Wellstone
     Wofford

                             NOT VOTING--1

       
     Dodd
       
       The Presiding Officer. On this vote, the yeas are 79, the 
     nays are 20. Three-fifths of the Senators duly chosen and 
     sworn having voted in the affirmative the motion is agreed 
     to.
       More than 60 Senators having voted in favor of the motion 
     to waive, the point of order falls.


                       Vote on Amendment No. 1833

       The Presiding Officer. The question now is on agreeing to 
     the amendment.
       The amendment (No. 1833) was agreed to.
       Mr. Gorton. Mr. President, I move to reconsider the vote.
       Mr. DeConcini. I move to lay that motion on the table.
       The motion to lay on the table was agreed to.
       The Presiding Officer. The Senator from New York is 
     recognized.
       Mr. Moynihan. I thank you, Mr. President.
       Just succinctly and briefly, I am required to say that the 
     Senate has just voted in direct opposition to article 1, 
     section 7 of the U.S. Constitution. This bill will be 
     returned to us from the House of Representatives within 24 
     hours. We knew that in advance and we proceeded anyway.
       It seems to me to have been pointless. We do take an oath 
     to uphold and defend the Constitution of the United States 
     against all enemies foreign and domestic, and I do not see 
     where it says excepting where diesel fuel is concerned.
       The Presiding Officer. The Senator from Washington is 
     recognized.
       Mr. Gorton. Mr. President, the statement of the Senator 
     from New York relating to the constitutionality of this 
     amendment is in error and without merit.

                          ____________________