[Congressional Record Volume 140, Number 104 (Tuesday, August 2, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                IMPROVING AMERICA'S SCHOOLS ACT OF 1994

  The Senate continued with the consideration of the bill.


                           Amendment No. 2442

   (Purpose: To provide mandatory minimum terms of imprisonment for 
   criminals who use guns and for drug traffickers who use children)

  Mr. GRAMM. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Texas [Mr. Gramm], for himself and Mr. 
     Dole, proposes an amendment numbered 2442.

  Mr. GRAMM. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the appropriate place insert the following:

     SEC.   . INCREASED MANDATORY MINIMUM SENTENCES FOR CRIMINALS 
                   USING FIREARMS.

       Section 924(c)(1) of title 18, United States Code, is 
     amended by inserting after the first sentence the following: 
     ``Except to the extent a greater minimum sentence is 
     otherwise provided by the preceding sentence or by any other 
     provision of this subsection or any other law, a person who, 
     during and in relation to any crime of violence or drug 
     trafficking crime (including a crime of violence or drug 
     trafficking crime which provides for an enhanced punishment 
     if committed by the use of a deadly or dangerous weapon or 
     device) for which a person may be prosecuted in a court of 
     the United States, uses or carries a firearm, shall, in 
     addition to the punishment provided for such crime of 
     violence or drug trafficking crime--
       ``(A) be punished by imprisonment for not less than 10 
     years;
       ``(B) if the firearm is discharged, be punished by 
     imprisonment for not less than 20 years; and
       ``(C) if the death of a person results, be punished by 
     death or by imprisonment for not less than life.

     ``Notwithstanding any other provision of law, the court shall 
     not place on probation or suspend the sentence of any person 
     convicted of a violation of this subsection, nor shall the 
     term of imprisonment imposed under this subsection run 
     concurrently with any other term of imprisonment including 
     that imposed for the crime of violence or drug trafficking 
     crime in which the firearm was used or carried. No person 
     sentenced under this subsection shall be eligible for parole 
     during the term of imprisonment imposed herein.''.

     SEC.   . FLEXIBILITY IN APPLICATION OF MANDATORY MINIMUM 
                   SENTENCE PROVISIONS IN CERTAIN CIRCUMSTANCES.

       (a) Amendment of Title 18, United States Code.--Section 
     3553 of title 18, United States Code, is amended by adding at 
     the end the following new subsection:
       ``(f) Mandatory Minimum Sentence Provisions.--
       ``(1) Sentencing under this section.--In the case of an 
     offense described in paragraph (2), the court shall, 
     notwithstanding the requirement of a mandatory minimum 
     sentence in that section, impose a sentence in accordance 
     with this section and the sentencing guidelines and any 
     pertinent policy statement issued by the United States 
     Sentencing Commission.
       ``(2) Offenses.--An offense is described in this paragraph 
     if--
       ``(A) the defendant is subject to a mandatory minimum term 
     of imprisonment under section 401 or 402 of the Controlled 
     Substances Act (21 U.S.C. 841 and 844) or section 1010 of the 
     Controlled Substances Import and Export Act (21 U.S.C. 960);
       ``(B) the defendant does not have--
       ``(i) more than 0 criminal history point under the 
     sentencing guidelines; or
       ``(ii) any prior conviction, foreign or domestic, for a 
     crime of violence against the person or drug trafficking 
     offense that resulted in a sentence of imprisonment (or an 
     adjudication as a juvenile delinquent for an act that, if 
     committed by an adult, would constitute a crime of violence 
     against the person or drug trafficking offense;
       ``(C) the offense did not result in death or serious bodily 
     injury (as defined in section 1365) to any person--
       ``(i) as a result of the act of any person during the 
     course of the offense; or
       ``(ii) as a result of the use by any person of a controlled 
     substance that was involved in the offense;
       ``(D) the defendant did not carry or otherwise have 
     possession of a firearm (as defined in section 921) or other 
     dangerous weapon during the course of the offense and did not 
     direct another person who possessed a firearm to do so and 
     the defendant had no knowledge of any other conspirator 
     involved possessing a firearm;
       ``(E) the defendant was not an organizer, leader, manager, 
     or supervisor of others (as defined or determined under the 
     sentencing guidelines) in the offense; and
       ``(F) the defendant was nonviolent in that the defendant 
     did not use, attempt to use, or make a credible threat to use 
     physical force against the person of another during the 
     course of the offense.
       ``(G) the defendant did not own the drugs, finance any part 
     of the offense or sell the drugs.''.
       (b) Harmonization.--
       (1) In general.--The United States Sentencing Commission--
       (A) may make such amendments as it deems necessary and 
     appropriate to harmonize the sentencing guidelines and policy 
     statements with section 3553(f) of title 18, United States 
     Code, as added by subsection (a), and promulgate policy 
     statements to assist the courts in interpreting that 
     provision; and
       (B) shall amend the sentencing guidelines, if necessary, to 
     assign to an offense under section 401 or 402 of the 
     Controlled Substances Act (21 U.S.C. 841 and 844) or section 
     1010 of the Controlled Substances Import and Export Act (21 
     U.S.C. 960) to which a mandatory minimum term of imprisonment 
     applies a guideline level that will result in the imposition 
     of a term of imprisonment at least equal to the mandatory 
     term of imprisonment that is currently applicable unless a 
     downward adjustment is authorized under section 3553(f) of 
     title 18, United States Code, as added by subsection (a).
       (2) If the Commission determines that an expedited 
     procedure is necessary in order for amendments made pursuant 
     to paragraph (1) to become effective on the effective date 
     specified in subsection (c), the Commission may promulgate 
     such amendments as emergency amendments under the procedures 
     set forth in section 21(a) of the Sentencing Act of 1987 
     (Public Law 100-182; 101 Stat. 1271), as though the authority 
     under that section had not expired.
       (c) Effective Date.--The amendment made by subsection (a) 
     and any amendments to the sentencing guidelines made by the 
     United States Sentencing Commission pursuant to subsection 
     (b) shall apply with respect to sentences imposed for 
     offenses committed on or after the date that is 60 days after 
     the date of enactment of this Act. Notwithstanding any other 
     provision of law, any defendant who has been sentenced 
     pursuant to section 3553(f) who is subsequently convicted of 
     a violation of the Controlled Substances Act or any crime of 
     violence for which imposition of a mandatory minimum term of 
     imprisonment is required, he or she shall be sentenced to an 
     additional 5 years imprisonment.
       (c) Supersedure of Other Law.--The amendment made by 
     subsection (a) supersedes any other law authorizing a 
     downward adjustment of a mandatory minimum term of 
     imprisonment for an offense as described in subsection (a).

     SEC.   . MANDATORY MINIMUM PRISON SENTENCES FOR THOSE WHO 
                   SELL ILLEGAL DRUGS TO MINORS OR WHO USE MINORS 
                   IN DRUG TRAFFICKING ACTIVITIES.

       (a) Distribution to Persons Under Age 18.--Section 418 of 
     the Controlled Substances Act (21 U.S.C. 859) is amended--
       (1) in subsection (a) (first offense) by inserting after 
     the second sentence ``Except to the extent a greater minimum 
     sentence is otherwise provided by section 401(b), a term of 
     imprisonment under this subsection in a case involving 
     distribution to a person under 18 years of age by a person 21 
     or more years of age shall be not less than 10 years. 
     Notwithstanding any other provision of law, the court shall 
     not place on probation or suspend the sentence of any person 
     sentenced under the preceding sentence.''; and
       (2) in subsection (b) (second offense) by inserting after 
     the second sentence ``Except to the extent a greater sentence 
     is otherwise authorized by section 401(b), a term of 
     imprisonment under this subsection in a case involving 
     distribution to a person under 18 years of age by a person 21 
     or more years of age shall be a mandatory term of life 
     imprisonment. Notwithstanding any other provision of law, the 
     court shall not place on probation or suspend the sentence of 
     any person sentenced under the preceding sentence.''.
       (b) Employment of Persons Under 18 Years of Age.--Section 
     420 of the Controlled Substances Act (21 U.S.C. 861) is 
     amended--
       (1) in subsection (b) by adding at the end the following: 
     ``Except to the extent a greater minimum sentence is 
     otherwise provided, a term of imprisonment of a person 21 or 
     more years of age convicted of drug trafficking under this 
     subsection shall be no less than 10 years. Notwithstanding 
     any other provision of law, the court shall not place on 
     probation or suspend the sentence of any person sentenced 
     under the preceding sentence.''; and
       (2) in subsection (c) (penalty for second offenses) by 
     inserting after the second sentence the following: ``Except 
     to the extent a greater minimum sentence is otherwise 
     provided, a term of imprisonment of a person 21 or more years 
     of age convicted of drug trafficking under this subsection 
     shall be a mandatory term of life imprisonment. 
     Notwithstanding any other provision of law, the court shall 
     not place on probation or suspend the sentence of any person 
     sentenced under the preceding sentence.''.

         Subtitle E--Rules of Evidence, Practice and Procedure

     SEC. 831. ADMISSIBILITY OF EVIDENCE OF SIMILAR CRIMES IN SEX 
                   OFFENSE CASES.

       The Federal Rules of Evidence are amended by adding after 
     Rule 412 the following new rules:

     ``Rule 413. Evidence of Similar Crimes in Sexual Assault 
       Cases

       ``(a) In a criminal case in which the defendant is accused 
     of an offense of sexual assault, evidence of the defendant's 
     commission of another offense or offenses of sexual assault 
     is admissible, and may be considered for its bearing on any 
     matter to which it is relevant.
       ``(b) In a case in which the Government intends to offer 
     evidence under this rule, the attorney for the Government 
     shall disclose the evidence to the defendant, including 
     statements of witnesses or a summary of the substance of any 
     testimony that is expected to be offered, at least fifteen 
     days before the scheduled date of trial or at such later time 
     as the court may allow for good cause.
       ``(c) This rule shall not be construed to limit the 
     admission or consideration of evidence under any other rule.
       ``(d) For purposes of this rule and Rule 415, ``offense of 
     sexual assault'' means a crime under Federal law or the law 
     of a State (as defined in section 513 of title 18, United 
     States Code) that involved--
       ``(1) any conduct proscribed by chapter 109A of title 18, 
     United States Code;
       ``(2) contact, without consent, between any part of the 
     defendant's body or an object and the genitals or anus of 
     another person;
       ``(3) contact, without consent, between the genitals or 
     anus of the defendant and any part of another person's body;
       ``(4) deriving sexual pleasure or gratification from the 
     infliction of death, bodily injury, or physical pain on 
     another person; or
       ``(5) an attempt or conspiracy to engage in conduct 
     described in paragraphs (1)-(4).

     ``Rule 414. Evidence of Similar Crimes in Child Molestation 
       Cases

       ``(a) In a criminal case in which the defendant is accused 
     of an offense of child molestation, evidence of the 
     defendant's commission of another offense or offenses of 
     child molestation is admissible, and may be considered for 
     its bearing on any matter to which it is relevant.
       ``(b) In a case in which the Government intends to offer 
     evidence under this rule, the attorney for the Government 
     shall disclose the evidence to the defendant, including 
     statements of witnesses or a summary of the substance of any 
     testimony that is expected to be offered, at least fifteen 
     days before the scheduled date of trial or at such later time 
     as the court may allow for good cause.
       ``(c) This rule shall not be construed to limit the 
     admission or consideration of evidence under any other rule.
       ``(d) For purposes of this rule and Rule 415, ``child'' 
     means a person below the age of fourteen, and ``offense of 
     child molestation'' means a crime under Federal law or the 
     law of a State (as defined in section 513 of title 18, United 
     States Code) that involved--
       ``(1) any conduct proscribed by chapter 109A of title 18, 
     United States Code, that was committed in relation to a 
     child;
       ``(2) any conduct proscribed by chapter 110 of title 18, 
     United States Code;
       ``(3) contact between any part of the defendant's body or 
     an object and the genitals or anus of a child;
       ``(4) contact between the genitals or anus of the defendant 
     and any part of the body of a child;
       ``(5) deriving sexual pleasure or gratification from the 
     infliction of death, bodily injury, or physical pain on a 
     child; or
       ``(6) an attempt or conspiracy to engage in conduct 
     described in paragraphs (1)-(5).

     ``Rule 415. Evidence of Similar Acts in Civil Cases 
       Concerning Sexual Assault or Child Molestation

       ``(a) In a civil case in which a claim for damages or other 
     relief is predicated on a party's alleged commission of 
     conduct constituting an offense of sexual assault or child 
     molestation, evidence of that party's commission of another 
     offense or offenses of sexual assault or child molestation is 
     admissible and may be considered as provided in Rule 413 and 
     Rule 414 of these rules.
       ``(b) A party who intends to offer evidence under this Rule 
     shall disclose the evidence to the party against whom it will 
     be offered, including statements of witnesses or a summary of 
     the substance of any testimony that is expected to be 
     offered, at least fifteen days before the scheduled date of 
     trial or at such later time as the court may allow for good 
     cause.
       ``(c) This rule shall not be construed to limit the 
     admission or consideration of evidence under any other 
     rule.''

  Mr. GRAMM. Mr. President, my colleagues and perhaps the people who 
are following this debate will remember that we passed a tough crime 
bill in the Senate. That crime bill had a provision that tried to deal 
with those who use a gun to commit a crime.
  When you ask the American people what they are most concerned about 
with crime, they tell you they are most concerned about violent crime.
  So what we offered in the Senate bill was a get-tough provision on 
people who use firearms to commit violent crimes. We agreed to 10 years 
in prison without parole for possessing a firearm during the commission 
of a violent crime or a drug felony, 20 years for discharging the 
firearm, life imprisonment for killing someone, and the death penalty 
in aggravated cases.
  That provision was not only adopted in the Senate by an overwhelming 
vote, but it has been adopted every time that we have debated crime in 
the last 6 years.
  People are outraged about drug pushers who are selling drugs to 
children and who are using children in drug trafficking. The American 
people want something done about it, and in the Senate we did something 
about it: 10 years in prison without parole for using a child in the 
commission of a drug felony or selling drugs to a child and life 
imprisonment without parole on a second offense.
  Mr. President, that provision was adopted in the Senate 
overwhelmingly, and it has been adopted in the Senate on numerous 
occasions. But what happened when the crime bill passed through the 
Senate and went to the conference with the House bill is that that 
provision was dropped.
  As I am sure many know, despite all the talk about getting tough on 
crime from the day that Bill Clinton became President until today, he 
and his Justice Department have fought to overturn mandatory minimum 
sentencing for drug felons. They have spent every day they have been in 
office trying to do that. They have sent directives to U.S. attorneys 
giving them leeway in terms of not prosecuting under our mandatory 
minimum sentencing provisions and they have worked to overturn minimum 
mandatory sentencing.
  Mr. President, let me go back and make my point, and then I will 
yield the floor and go back to the Whitewater hearings. I am not 
leaving out of disrespect to our dear colleague, who is chairman of the 
Judiciary Committee. We know each other's views very well, and I have 
the highest respect for him, and I would guess if he and I could have 
written the final bill I would probably be here on the floor supporting 
it.
  But after we adopted a get-tough bill with mandatory minimum 
sentencing for people who use guns in violent crimes and with mandatory 
minimum sentencing for people who sell drugs to minors, those 
provisions were stripped out of this so-called crime bill, which is now 
coming back to the Senate, which is now an anticrime bill in many ways.
  But the worst provision of that bill goes back to the Clinton agenda 
that I was speaking about when I yielded to the distinguished 
Republican leader.
  The Attorney General and the President have sought from day one to 
overturn mandatory minimum sentencing for drug felons. I have fought 
that effort, but in a bipartisan effort in the Senate to pass a crime 
bill I reached a compromise with them which was not a compromise that I 
was happy with but it was a compromise that I was willing to make to 
get a crime bill, something that I have tried to do for 6 years. Here 
was my compromise. Leave the law as it is, mandatory minimum sentencing 
for drug felons, but give the judge a little discretion under the 
following circumstances.
  No. 1, the defendant had no previous criminal record.
  No. 2, the defendant was not a leader in the drug conspiracy.
  No. 3, the defendant was not carrying a gun and no one involved in 
the crime was armed.
  And, No. 4, nobody was hurt in the commission of the crime.
  Now, under my provision, several hundred people a year would have 
been exempt from mandatory minimum sentencing out of more than 10,000 
people who were charged. I think that ought to tell you something. But 
that was a compromise I was willing to make.
  But what happened, Mr. President? What happened was, when they got to 
conference, where a small number of Democrats control the votes, my 
provision was stripped out and a provision was adopted which overturns 
mandatory minimum sentencing and which works retroactively so that as 
many as 10,000 drug felons who are currently in the Federal 
penitentiary could be released under a bill that is being called a 
crime bill.
  Now, if people wonder why there is so much cynicism in America, why 
people are so outraged with our Government, think about it a minute. 
The President is talking about this great crime bill that we are 
getting ready to pass.
  How many people know that this great crime bill is overturning 
mandatory minimum sentencing and is letting people who are currently 
serving in the Federal penitentiary under a mandatory minimum sentence, 
many of whom have more than one conviction, out of prison on a 
retroactive provision that, if used to the maximum extent, could let 
10,000 convicted drug felons back out on the streets of America; 
basically furlough them because we know many of these people are going 
to go out and do it again. I assert, Mr. President, that the American 
people do not know that provision is in this bill now.
  What I have tried to do today is, I have taken three important 
provisions that were in our crime bill which have been stripped out and 
I am offering those provisions, along with Senator Dole's provisions, 
as amendments to this education bill because I believe one of the 
biggest problems in trying to educate our children is the presence of 
violence in our communities and in our schools.
  So I hope my colleagues will adopt this amendment. We have voted on 
it before. We have adopted it by overwhelming numbers. Unfortunately, 
because the debate on crime is not in the media, not in those bright 
areas where the public can see, but in the dark areas where politics as 
usual still dominates, these provisions were dropped from the crime 
bill.
  Mr. President, I would just say that I have worked for a long time 
for a crime bill. I worked very closely in the Senate with the 
distinguished Senator from Delaware. He and I do not agree on 
everything. But we agreed on what I thought was a good crime bill.
  I want people to understand, I am not saying everything about this 
crime bill is bad. There are a lot of good provisions in the crime 
bill. But we have larded it up with another $5 billion of social 
spending on midnight basketball and other things that we defeated in 
last year's economic stimulus package, and that same old lard is back.
  Second, these three provisions that are critically important to 
getting tough on crime were deleted. So I wanted to give our colleagues 
an opportunity again today, as I will now on every bill that comes 
through the Senate that is not an a appropriations bill, until we 
adjourn, I am going to give our colleagues an opportunity to vote on 
these provisions with some hope that if they are adopted again and if 
we go to conference on the bills, that at some point, reason and 
responsibility will prevail and we can bring these provisions back to 
life--tough mandatory minimum sentencing for thugs who use guns in 
crime; mandatory minimum sentencing for people who sell drugs to our 
children or use our children in drug trafficking; and a provision that 
would overturn the provision in the crime bill which could 
retroactively go back and let 10,000 drug felons out of prisons.
  I feel very strongly about this amendment. I hope it is adopted.
  I hope my colleague will forgive me for leaving. I am in the midst of 
a hearing. He understands I mean no disrespect. I have listened to my 
colleague on this subject and he has listened to me. And, quite 
frankly, we have convinced each other on enough things that I think if 
the two of us had written this bill, we would have a good crime bill 
and we would both be supporting it.
  I yield the floor.
  Mr. BIDEN. Before the Senator yields--and I know he has to go back to 
those hearings--I just want to make one comment and then I will speak 
in detail, detail meaning 10 or 12 minutes, to the points he raised.
  But one of the things that, last time we debated the crime bill and 
we went to conference a couple of years ago, there was a lot of talk 
about we just ramrodded this thing through, so on and so forth. This 
time now, in order to obviate that criticism, we made sure we picked 
the second biggest room in the House of Representatives, I am told, and 
C-SPAN televised all of it from beginning to middle to end, to the 
point that my dear mother--I know the Senator from Texas is always 
talking about his mama's gun and how no one is going to take it away.
  Well, no one is going to take my mama's television away. She stays up 
and watches her son Joey into the night. I caused my mother to lose a 
lot of sleep, going into the night on the crime bill.
  I want to assure him that these provisions were detailed openly, in 
the open, clear light of day and night, and there was no politics as 
usual.
  And with that, I will go to the substance of each of the amendments.
  Mr. GRAMM. Your mama did not tell you that you need to listen to that 
nice man from Texas?
  Mr. BIDEN. My mama told me, just be thankful that nice man from 
Texas, who disagrees with me a lot, does not have his mama's gun when 
he is debating. That is what my mama told me.
  I kid--and I want to say it; I say it enough publicly, and it is said 
with affection--I occasionally kid and call my distinguished friend 
from Texas, to distinguish him from Senator Graham from Florida, I 
refer to him as Barbed Wire Gramm. And he has never taken offense to 
that. I want him to know that the distinguished Senator and I have a 
little bit of disagreement on these bills, but not nearly as much as is 
portrayed.
  Mr. DOLE. Mr. President, I thank the Senator from Texas. I think he 
is making a very valid point with reference to the matter he just 
discussed.
  Mr. President, I want to say a few words in support of the amendment 
offered by my distinguished colleague from Texas, Senator Gramm. 
Unbelievably, the recent crime conference rejected Republican proposals 
to establish mandatory Minimum penalties for vicious criminals who sell 
drugs to minors and who use a gun in the Commission of a crime.
  Another proposal rejected by the conference was one that I offered to 
the crime bill last November and which passed the Senate by an 
overwhelming vote of 75 to 19--with a bipartisan group of 39 
Republicans and 36 Democrats expressing support. This proposal amended 
the Federal rules of evidence to allow the introduction of evidence of 
prior offenses of rape and child molestation in prosecutions for these 
same offenses. We had a debate on the floor on that. It was adopted 
again in a bipartisan way.
  Ask any prosecutor, and he or she will tell you how important 
similar-offense evidence can be. In a rape case, for example, 
disclosure of the fact that the defendant has previously committed 
other rapes is often crucial, as the jury attempts to assess the 
credibility of a defense claim that the victim consented and the 
defendant is being falsely accused.
  Similar-offense evidence is also critical in child molestation cases. 
These cases often hinge on the testimony of the child-victims, whose 
credibility can be readily attacked in the absence of other 
corroborating evidence. In such cases, it is crucial that all relevant 
evidence that may shed some light on the credibility of the charge be 
admitted at trial.
  Unfortunately, Mr. President, the Federal Rules of evidence reflect a 
general presumption against let me repeat--against--admitting evidence 
of uncharged offenses. This presumption has been widely reproduced in 
State rules of evidence, whose formulation has been strongly influenced 
by the Federal rules.
  Take the 1988 case of Getz versus State. In Getz, the Supreme Court 
of Delaware overturned the defendant's conviction of raping his 11-
year-old daughter because evidence that he had also molested her on 
other occasions was improperly admitted. The court went on to hold that 
the disputed evidence was impermissible evidence of ``character'' and 
could not be admitted under the State's evidentiary standards. The 
tragic result: the defendant walked.

  Similar tragedies have been repeated in other courts and in other 
States.
  Yes, the Federal rules of evidence have been around since 1975, but 
that does not mean they should not be changed when the need arises. For 
when someone is out there committing sex crime after sex crime, 
committing child molestation after child molestation, it is this 
Senator's view that this evidence should be admitted at trial without a 
protracted legal battle over what is admissible and what is not.
  If you turn on television today, if you read the morning newspaper, 
or listen to the radio you have heard the sad story of 7-year-old Megan 
Kanka, who was recently strangled near her home in Mercer County, NJ. 
The police have arrested a twice-convicted sex offender. According to 
press reports, the person arrested for this vicious crime had been 
sentenced to 10 years in prison, but was released after serving just 6 
years.
  Should the killer's prior offenses be admitted at trial? You bet. Are 
these offenses relevant to the charge. Of course.
  Mr. President, I am aware that even if my proposal became law, it 
would affect only Federal cases. State cases would still be governed by 
State rules of evidence. Nonetheless, the Federal Government has a 
leadership role to play in this area. Once the Federal rules are 
amended, it's possible--perhaps even likely--that the States may follow 
suit and amend their own rules of evidence as well.
  So, Mr. President, I urge my colleagues to support the Gramm 
amendment. It restores some of the mandatory minimum penalties. It 
restores the important changes to the Federal rules of evidence. An it 
undoes some of the damage caused by the conference committee.
  THE PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I am happy to have this statement as part 
of my amendment. It tries to get at exactly the repeat, violent felons; 
what I am trying to get at. I appreciate the Republican leader's 
leadership as usual.
  Mr. BIDEN. Mr. President, I have just received a copy of the 
amendment. And I do not say that critically. I say that only by way of 
explanation, in case I leave something out that I am unaware of that 
has been included in the amendment.
  Let me tell you about three things.
  First of all, let me talk about the part I agree with Senator Gramm 
about. A number of my colleagues, Senators Thurmond and Simpson on the 
Republican side among others, Senator Simon and Senator Kennedy and 
Senator Leahy and a number on this side of the aisle, have all found 
some great difficulty with some of the unintended consequences of 
minimum mandatory sentences that we have passed in the past. So they 
came to me when we were debating the crime bill on the floor, Democrat 
and Republican, and said let us come up with a proposal how to deal 
with these aberrations. We do not want the second-year medical student 
who has had an exemplary record, has been a model student, a model 
citizen, a model child through school, a model young adult, because of 
being found in a circumstance one time to have to go to jail for 10 
years without probation or parole for something that we would not send 
a dealer to jail for for that long, and so on.
  So they came along, both Republicans and Democrats, and said we 
should have this so-called fix, a circumstance whereby you could 
review, under certain circumstances, a particular minimum mandatory 
sentence. I in good faith took that provision worked out by that 
bipartisan group of Senators to a conference with the House of 
Representatives. We conferenced for, I do not know, 20, 30 hours, a 
bill that is 1,100 pages long. One of the few things we could not get 
the House to agree on was this provision.
  Democrats and Republicans in the House of Representatives, led by two 
conservative Republican crime fighters, Mr. Hyde and Mr. McCollum--
Representatives Hyde and McCollum, two very conservative Members of the 
House, along with all the Democrats--did not like the Senate provision 
on reviewing these sentences and said under these rare circumstances 
you should be able to review those in the future and retroactively 
review them. That is where this figure of 10,000 drug dealers being let 
out of jail comes from.
  That is pure hyperbole. It is not what will happen. But I happen, in 
substance, to agree with Senator Gramm. I do not think we should have 
made this retroactive. I think it should have been prospective. But it 
was made retroactive.
  But that is the place from which I depart from Senator Gramm in 
agreeing with him on anything else he had to say here. On that one 
point about being able to look at these minimum mandatory sentences 
there is no disagreement on whether or not we should look at them. 
Democrats and Republicans say we should go back and look at them. The 
disagreement is whether or not it had a retroactive provision; that is, 
people who may have been unjustly sentenced, sitting in jail, should be 
able to say: By the way, take a look at my sentence and see whether or 
not I got a minimum mandatory sentence I should not have gotten.
  The Republicans on the House side and Democrats thought that should 
be done. The Democrats, with the exception of me and one other, thought 
that should be done. I lost. Gramm's position lost. The other team won. 
That means out of a 1,100-page bill, that one paragraph was amended. 
Big deal.
  No. 2, the other Gramm provision of making it a crime with a minimum 
mandatory sentence of 10 years for anyone 21 years or older to buy even 
an ounce of marijuana from someone 17 years or younger--this is how his 
amendment works. If a 21-year-old kid in college bought marijuana from 
a 17-year-old kid on a college campus, under the Gramm amendment that 
person, the 21-year-old, must go to jail and serve 10 years, no 
probation, no parole, no exceptions. And if it happened a second time 
he must be put in jail for life, no probation, no parole.
  All those folks who stole the billions of dollars from the S&L's in 
Texas --none of them are in jail serving 10 years. None of them are in 
jail even considering life. But we are going to send a 21-year-old 
college student to jail for purchasing one ounce of marijuana--for 
life. An incredibly enlightened position. But that is the aberration on 
the one side, why we cannot have such a crazy law.
  But there is some substance to what the Senator says, and I dealt 
with that in the bill, at least I attempted to. There are also those 
23-year-olds and 25-year-olds who go into schoolyards and sell cocaine, 
go into schoolyards and sell heroin, go into schoolyards and sell 
methamphetamines, go into schoolyards and hook young kids on drugs. Now 
those sons of guns should spend a long time in jail. Nobody should have 
any sympathy for them. So how, on the one hand, do you deal with a 
provision in my crime bill which is designed to put those people away 
and not put away the 21-year-old kid who buys an ounce of marijuana 
from a 17-year-old kid--all of whom, in the Gramm amendment, would be 
caught up and swept up in one big net and treated exactly the same? The 
way to do that, in my view, is that using kids to sell drugs near 
schools or playgrounds provides triple the penalties otherwise 
authorized--using a juvenile to sell drugs in a drug-free zone. Right 
now, if you use a juvenile to go into that schoolyard--and that is how 
they do it, by the way. It is by peers.

  The 30-year-old drug dealer does not go into the schoolyard and say, 
``By the way, I have some drugs.'' He goes out and hooks some 17-year-
old or 15-year-old or 13-year-old kid and he gets that 17- or 15- or 
13-year-old kid to go into the schoolyard and sell his drugs for him. 
When he does that he is covered, he is not selling the drugs.
  Or he gets the young kid to carry drugs. That is where the phrase 
``mule'' came from. Because those kids did not go to jail as long and 
therefore he does not get nailed.
  I want to put that person in jail. Right now that person gets, in 
Federal court, a minimum of 5 to 6\1/2\ years in jail, under the 
sentencing guidelines. Under the crime bill that just passed out of 
conference, the maximum penalty for that offense will be tripled--
tripled. So the person will get up to 19 years in jail, if a 21-year-
old or 30-year-old or 50-year-old goes in and takes my 13-year-old 
daughter or your 17-year-old son and gets them to sell drugs to other 
kids. That is treating harshly the person who should be treated harshly 
in my view.
  I realize I get criticized that that is too harsh. I am told 
constantly that is not fair. I do not have any sympathy at all for an 
adult using a child to distribute drugs to another child: None, zero. 
So I make no apologies for that person under the Biden crime bill going 
to jail for a long, long time.
  The second way we took care of what Senator Gramm is trying to get 
after with a sledgehammer, we use--not a scalpel but a big Bowie knife: 
Not precise, kind of harsh, but not a sledgehammer to grab in the net 
almost totally innocent people. The second way we do this is we not 
only triple the sentence for using kids to sell drugs, any crime that 
an adult engages a child in for purposes of committing a crime--any 
crime, not just drugs--any crime where it involves kids, the current 
penalty is 5 to 6\1/2\ years and we mandate that the Sentencing 
Commission increases that penalty. It is a mandate.
  So, not only do we cover what Senator Gramm wants covered--and in all 
fairness he may not know this was in the bill--we pick up not only drug 
crimes but all crimes where an adult is involved in using a child and 
increase the penalties.
  There is another amendment that we debated hotly. I think it is 
absolutely, positively the wrong thing to do. It would stand on its 
head, as they say, 800 years of English jurisprudential thinking on 
admissible evidence. It says, translated in terms of how it really 
works, if a man is accused of a crime and the charge is a sex crime 
against a woman or a child, the way it works now the prosecutor can 
say: ``This person here, John Doe, I allege raped Mary Smith. And John 
Doe is a bad guy. Your Honor, I want to seek permission to enter into 
evidence acts, prior convictions or similar crimes to show a pattern 
and practice that this guy operates under, to prove to you--to lend 
credibility to the fact that this is the guy who did this to this 
woman.''
  Under our system the judge looks carefully at that and says, ``Is 
this a pattern? Does this give you any insight? Is this prejudicial?'' 
Sometimes lets that stuff in and sometimes does not.
  What Senator Gramm wants to do on behalf of Senator Dole--which we 
defeated in the conference--is to say the prosecutor can say: ``You 
know, if I can go out and find anybody''--this is literally true now, I 
am not making this up--``if I can find anybody, from any time in the 
defendant's past, who alleged that the defendant did anything similar 
to the crime for which he was charged, I, the prosecutor, can go get 
that person, bring them into court and say, `When John Smith, the 
defendant here who is now 47 years old--when you went out on a date 
with him when he was 15 years old, what did he do to you?'''
  And now a 42-year-old can say, ``Well, 27 years ago, I remember John 
forcibly tried to make love to me.''
  It is incredibly prejudicial. Under our system, for 800 years, we 
developed these Rules of Evidence because they work. Why do they work? 
They get at the truth. That is the purpose of them. And to allow total, 
uncorroborated, unsubstantiated testimony about something that could 
have happened--anything--from the day before to 50 years before into a 
trial, I think, absolutely violates every basic tenet of our system.
  Remember, I am the guy who wrote this crime bill. I am not ``Mr. Soft 
On Crime.'' I am the guy who put these death penalties in this bill. I 
am the guy who added these penalties for all these other things in the 
bill. But this is crazy.
  If the person has a pattern, if he has been convicted of similar 
crimes, if he has been engaged in that kind of activity and there have 
been complaints, there are ways to bring that in. There are ways with 
our present evidentiary rules to bring that in, as I say, to the 
Presiding Officer, who is an accomplished lawyer himself. There are 
ways to do that. But not this, just waiving all existing rules.
  One other thing. Let me tell you what we did here. Notwithstanding 
the fact I think it is crazy, and that is just my opinion, we have a 
system whereby when we are going to change the Federal Rules of 
Evidence--we set up a system a long time ago. The Judicial Conference 
sets up an advisory committee. The way it works is they suggest changes 
in the rules, the Judicial Conference meaning Federal judges. We have a 
system we put in place because it made sense a long time ago. Federal 
judges come along and say we should change the Rules of Evidence the 
following way. And then if we, the U.S. Congress, do not act to stop 
those changes, essentially those changes become law.
  So in this case, what I say we should do is let us go to the judges, 
let us go to the experts and say, ``Does this approach of Senator Dole 
make any sense? Study it, take a look at it, and come back and tell us 
whether we should change the Rules of Evidence.''
  That is how we have changed the Rules of Evidence in the 22 years I 
have been here. There are no fundamental changes in the Rules of 
Evidence that have been sui generis, that have been spontaneous, that 
have come from the floor. They come from legal scholars and judges 
sitting down and saying we should change the Rules of Evidence the 
following way.
  So if it is any consolation--it probably would not be because I think 
they will agree with me, but maybe I am wrong--if it is any consolation 
to my friends on the Republican side, there is the ability in the 
request of the Senate and the House to ask the Judicial Conference to 
take a look at these rules changes--and they are in fact doing that. 
That is the orderly way in which we should do this, rather than 
haphazardly, willy-nilly, on the floor of the U.S. Senate, in a 
conference on the floor of the Congress, changing these Rules of 
Evidence, with all due respect, that a lot of people do not fully 
understand the significance of.
  Let me ask a rhetorical question of the Presiding Officer: What do 
you think would happen if there were no fifth amendment and I came on 
the floor of the U.S. Senate and submitted an amendment to the 
Constitution called the fifth amendment? And I said, essentially, the 
fifth amendment says that nobody should have to make a case against 
themselves. How many votes do you think that would get on the floor of 
the Senate? And especially with the public the way they are today, 
ready to listen to the Rush Limbaugh malarkey and all that right-wing 
garbage, they would all go, ``Oh, no, fifth amendment; that's 
ridiculous.''
  I wonder how many people would think if I walked on the floor in this 
atmosphere today and offered the fourth amendment saying the Government 
cannot engage in an unreasonable search and seizure of your property, I 
wonder how many votes I would get.
  I wonder if people listening to this ask themselves--as Barry 
Goldwater would say, in your heart you know whether he is right. In 
your heart, what do you think would happen if we put the Bill of Rights 
up for a vote today? What do you think the Rush Limbaughs of the world 
today would do with the Bill of Rights? Do you think they would sustain 
them?
  Thank God, there were people like Madison. Thank God there were 
people like the Founding Fathers, who debated these things called the 
Bill of Rights.
  But I ask a very serious question. I ask those of you on the floor, 
what do you think would happen if we had a referendum on this floor on 
the Bill of Rights? How many people would vote for them? Then I ask you 
the rhetorical question: What country would this be if there were no 
Bill of Rights?
  When you start changing fundamental Rules of Evidence, you start 
affecting fundamental questions that, on the surface, are awfully hard 
to explain. For how could I be against allowing Mary Smith, who said, 
``John Doe did that to me, too,'' from coming into court and saying 
that? How could I be against that, the author of the Violence Against 
Women Act, the guy who spent more of his waking hours dealing with the 
problem of violence against women, presuming to say, than any man or 
woman serving in the U.S. Congress today. How can I be against that? 
The same way I could be for a fifth amendment. The same way I could be 
for a fourth amendment. But the public ``ain't'' ready for that today, 
because they all want instant answers, instant answers, instant 
answers.
  It is very appealing to put up this bogeyman of this horrible rapist, 
which there are horrible rapists. That is why in this bill I increased 
the penalties for rapists.
  The Senator said he did not understand what was in this bill that was 
of any consequence; I mean, this is a soft-on-crime bill.
  I ask unanimous consent to print in the Record a list of those added 
penalties beyond the death penalty.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

                Non-Death Penalties in Conference Report


                             gun penalties

       Semiautomatic Weapons (Sec. 401): Enhances penalties for 
     using, carrying semiautomatic weapon during federal crime of 
     violence or drug trafficking crime.
       Second Offense for Using or Carrying Explosives (Sec. 402): 
     Enhances penalties for second conviction for using or 
     carrying an explosive to commit any federal felony (current 
     enhancement--10 years).
       Smuggling Firearms (Sec. 403): Increases penalty for 
     smuggling a firearm into U.S. to violate a federal or state 
     drug trafficking law or to commit a crime of violence--up to 
     10 years.
       Theft of Guns and Explosives (Sec. 404): Provides up to 10 
     year penalty for stealing a firearm or explosive which has 
     moved in interstate commerce.
       Revocation of Supervised Release (Sec. 405): Mandates 
     revocation of supervised release and institution of prison 
     term for defendant who possesses drugs or firearm in 
     violation of condition of supervised release.
       Revocation of Probation (Sec. 406): Mandates revocation of 
     probation for possession of drugs, firearms.
       Lying on a Gun Application (Sec. 407): Increases penalty 
     for lying on a gun application from 5 to 10 years.
       Felons Possessing Explosives (Sec. 408): Prohibits felons, 
     drug addicts from possessing explosives.
       Explosives Destruction (Sec. 409): Authorizes the summary 
     destruction of explosives subject to forfeiture where the 
     explosives cannot be safely removed and stored.
       Prohibition against Transactions Involving Stolen Firearms 
     or Stolen Guns (Sec. 411): Prohibits possession, receipt, 
     sale of stolen firearm, ammunition that has moved in 
     interstate commerce--up to 10 years.
       Using Firearm in Commission of Forgery (Sec. 412): Enhances 
     penalties for using or carrying a firearm in commission of 
     felony counterfeiting or forgery.
       Firearms Possession by a Violent Felon (Sec. 413): Enhances 
     penalties (depending on number of prior convictions) for gun 
     possession by defendant previously convicted of a violent 
     federal felony or serious drug offense.
       Receipt of Firearms by Nonresidents (Sec. 414): Prohibits 
     non-licensee from receiving firearm if not a resident of any 
     state unless for lawful sporting purposes.
       Firearms of Explosives Conspiracy (Sec. 415): Enhances 
     penalties for conspiracies to violate federal firearms, 
     explosive laws.
       Stealing Guns or Explosives from a Licensee (Sec. 417): 
     Provides up to 10 years for theft of firearm or explosive 
     from a licensee or permittee.
       Disposing of Explosives to Prohibited Person (Sec. 418): 
     Prohibits any person from transferring explosives to felon or 
     other prohibited person (current law forbids transfer by 
     licensees)--up to 10 years.
       Interstate Gun Trafficking (Sec. 420): Increases penalty 
     for interstate gun trafficking--up to 10 years.
       Drive by Shooting (Sec. 208): Up to 25 years for shooting 
     into group of 2 or more to further or escape from major 
     federal drug offense.
       Adult Prosecution of Juvenile Offenders (Sec. 614): Expands 
     category of federal offenses for which juveniles may be 
     prosecuted as adults to include receiving a gun with the 
     intent to commit a felony; traveling interstate to get a gun 
     with intent to commit violence, drug trafficking crime; 
     transferring a gun knowing that it will be used in a 
     crime.\1\ Directs court to consider extent to which juvenile 
     played leadership role in an organization, or otherwise 
     influenced others to take part in criminal activities in 
     deciding whether to transfer to adult status.
---------------------------------------------------------------------------
     \1\Senate bill also included drug possession as transferable 
     crime--mark deletes.
---------------------------------------------------------------------------


                             drug penalties

       Using Kids to Sell Drugs (Sec. 615): Up to three-fold 
     penalty increase for using kids to sell drugs in ``drug 
     free'' zones.
       Drug Dealing in Public Housing (Sec. 616, Sec. 1503): 
     Increases penalties for dealing drugs near public housing.
       Drug Dealing in Drug-Free Zones (Sec. 1505): Enhances 
     penalties for dealing drugs in a drug-free zone.
       Drug Use in Federal Prison (Sec. 1506): Enhances penalty 
     for simple drug possession in federal prison or detention 
     facility.
       Smuggling Drugs into Prison (Sec. 1506): Enhances penalty 
     for smuggling drugs into federal prison or detention 
     facility.
       Drug Trafficking in Prisons (Sec. 1501): Mandates that 
     sentence imposed for providing or possessing drugs in prison 
     be served consecutively to any other drug sentence imposed.
       Selling Drugs at a Truck Stop (Sec. 1411): Enhances 
     penalties for drug-dealing near truck stops and rest areas.
       Cocaine Penalty Study (Sec. 3092): Requires Sentencing 
     Commission to submit a report on sentencing disparities 
     regarding crack and cocaine. (House)


                 other penalties for violent offenders

       Three Time Loser (Sec. 501): Life imprisonment for 3 
     convictions of serious violent felony or serious drug 
     offense. (House)
       Criminal Street Gangs: Additional 10 year penalty for gang 
     member who commits federal drug crime or crime of violence 
     who has previous conviction (state or federal).
       Using Kids to Commit Crimes (Sec. 5130): Enhances penalties 
     for all crimes where defendant used a juvenile or encouraged 
     a juvenile to commit a crime.
       Repeat Sexual Assault Offenders (Sec. 3211): Doubles 
     maximum penalty for repeat sexual assault offenders (first 
     offense can be federal or state). (VAWA)
       Aggravated Sexual Abuse: Federal Penalties (Sec. 3212): 
     Directs Sentencing Commission to review and recommend 
     enhanced penalties for aggravated sexual abuse. (VAWA)
       Interstate Travel to Commit Spousal Abuse (Sec. 3321): 
     Creates new federal offense to travel interstate or to cause 
     someone else to travel interstate to intimidate, harass, or 
     injure. (VAWA)
       Sex offenses Against Victims Under age of 16 (Sec. 3702): 
     Broadens definition of sex offense as the intentional 
     touching through clothing with intent to abuse, humiliate, 
     harass.
       Assaults Against Children (Sec. 301): Increases penalty for 
     simple assaults against a youth under 16; creates new penalty 
     for assaults against youth under 16 resulting in substantial 
     bodily injury. (House)
       Hate Crimes (Sec. 2409): Directs Sentencing Commission to 
     enhance sentences at least 3 levels for persons convicted of 
     hate crimes.
       Travel Act (Sec. 2906) (also see Sec. 617): Increases 
     penalty for interstate travel to commit violent crime in 
     furtherance of drug trafficking from 5 to 20 years.
       Federal Prosecution of 13-Year Olds as Adults (Sec. 1101): 
     Discretionary transfer for 13-year olds who commit assault 
     (with intent to commit murder or felony, with dangerous 
     weapons) murder, attempted murder and with gun: robbery, bank 
     robbery, aggravated sexual abuse, sexual abuse. (House)
       Assault (Sec. 2901): Increases penalties for adult of: 
     federal officer, foreign officials, official guests, within 
     U.S. maritime and territorial jurisdiction, Congress, Cabinet 
     or Supreme Court, and President and President's staff.
       Manslaughter (Sec. 2902): Increases penalty for involuntary 
     manslaughter on federal territory from 3 to 6 years.
       Conspiracy to Commit Murder for Hire (Sec. 2905): Broadens 
     the murder-for-hire statute to include conspiracy to travel 
     interstate to commit murder-for-hire.
       Addition of ``Attempt'' Offenses to Federal Robbery, 
     Burglary, Kidnapping, Smuggling, and Malicious Mischief 
     Statutes (Sec. 2969).
       Civil Rights Violations (Sec. 2903): Conspiracy against 
     rights. Broadens criminal civil rights conspiracy statute to 
     punish kidnapping, aggravated sexual abuse and attempted 
     murder in connection with civil rights deprivation--up to 10 
     years.
       Official deprivation of rights. Broadens criminal civil 
     rights statute to punish use or attempted use of dangerous 
     weapon, explosives or fire in official rights deprivation--up 
     to 10 years.
       Federally protected activities. Broadens criminal civil 
     rights statute to punish use or attempted use of dangerous 
     weapon, explosives or fire in deprivation of federally 
     protected activities, such as voting, serving as juror, or 
     joining labor organization--up to 10 years.
       Religious property/free exercise. Broadens statute to 
     punish use or threatened use of dangerous weapon in defacing 
     religious property or obstructing free exercise of religious 
     beliefs--up to 10 years.
       Fair Housing, Broadens Fair Housing Act to punish use or 
     threatened use of dangerous weapons or explosives or fire.
       Arson (Sec. 2907): Increases penalties for damage or 
     destruction of property by fire or explosives.
       Extension of Civil Rights Statute (Sec. 2911): Extends 
     protection of civil rights statutes to include all persons 
     (now limited to state ``inhabitants'').
       Crimes Against Elderly (Sec. 2002): Directs Sentencing 
     Commission to ensure increasingly severe punishment for 
     physical harm imposed on elderly victim; requires enhanced 
     penalties for violent second offenders.


                          terrorism penalties

       Failure to Depart (Sec. 5005): Increases penalties for 
     failing to depart or reentering the U.S. after an order to 
     deportation, to a maximum of 20 years.
       Alien Smuggling (Sec. 215): Increases penalties for alien 
     smuggling for profit.
       Counterfeiting U.S. Currency Abroad (Sec. 721): Extends 
     counterfeiting laws to acts committed overseas.
       Terrorist Felonies (Sec. 724): Enhances penalties for any 
     felony involving international terrorism.
       Weapons of Mass Destruction (Sec. 711): Outlaws use of 
     weapons of mass destruction against U.S., Americans 
     overseas--up to life; death penalty if death results.
       International Airport Violence (Sec. 719): Increases 
     penalties for acts of violence or destruction at 
     international airports--up to 20 years.
       Document Forgery (Sec. 712, Sec. 5124): Enhances penalties 
     for various offenses involving false documents for 
     immigration purposes to 10 years; 15 years if used for drug 
     trafficking; 20 years if used for international terrorism.
       Maritime Violence (Sec. 701): Up to 20 years for violent 
     acts against maritime navigation (e.g. forcible seizure, 
     property destruction, injury to person).
       Violence against Fixed Platforms (Sec. 701): Up to 20 years 
     for violent acts against fixed maritime platforms.


                         white collar penalties

       Mail Fraud (Sec. 2103): Broadens the mail fraud statute to 
     include use of private interstate carriers to commit fraud.
       Receiving Proceeds for Extortion of Kidnapping (Sec. 2941): 
     Provides up to 3 years for the knowing receipt of extortion 
     proceeds; up to 10 years for the transport or receipt of 
     ransom.
       Receiving Proceeds of Postal Robbery (Sec. 2942): Provides 
     up to 10 years for the knowing receipt of postal robbery 
     proceeds.
       Credit Card Fraud (Sec. 2102): Makes it an offense to: use 
     with intent to defraud another person's credit card; solicit 
     a person to offer credit card or sell information regarding 
     the same; show without permission a person's transaction 
     records.
       Insurance Fraud (Sec. 2101): Creates a new offense of 
     insurance fraud, including false statements, embezzlement, 
     and obstruction, with maximum penalty of 15 years.
       Computer Crime (Sec. 2601): Strengthens federal laws in 
     relation to hackers; prohibits transmission of programs to 
     cause damage to, or to deny the use of, a computer or system; 
     provides a civil remedy.
       Theft of Major Art Work (Sec. 2966): Prohibits and 
     penalizes the theft or procurement by fraud of any object of 
     cultural heritage held in a museum.
       SCAMS (Sec. 3901): Enhances penalties for telemarketing and 
     other fraud targeted at senior citizens.
       Animal Pests (Sec. 5105): Makes it a federal offense to 
     mail non-indigenous species.
       Interstate Wagering (Sec. 5109): Makes it a federal 
     violation to transmit in interstate commerce information for 
     the purpose of procuring a lottery ticket.


                        miscellaneous penalties

       Drunk Driving with Kids (Sec. 1602): Enhances penalties 
     imposed by state for drunk driving on federal lands if child 
     is in vehicle--up to 1 extra year; up to 5 extra years if 
     minor is seriously injured; up to 10 extra years if child is 
     killed.
       International Child Pornography (Sec. 824): Provides up to 
     10 years in prison for engaging or conspiring to engage in 
     sexual explicit conduct with minors outside the US.
       Crediting of Good Time (Sec. 5101): Amends 18 USC Sec. 3624 
     regarding release of prisoners to change the requirements for 
     violent criminals (serving sentences of more than one year 
     and less than life) to receive good time credit. criminals. 
     Such offenders may receive credit of up to 54 days for each 
     year served after the first year of the prisoner's sentence 
     if the Bureau of Prisons determine that the prisoner has 
     displayed exemplary compliance with disciplinary regulations.
       Trafficking in Counterfeit Goods (Sec. 2904): Increases 
     penalty for trafficking in counterfeit goods or services from 
     5 to ten years; increases penalty for second offenders from 
     15 to 20 years.
       Military Medals and Decorations (Sec. 3056): Amends 19 USC 
     Sec. 704 to provide a maximum punishment of one year for the 
     unauthorized wearing, manufacturing or selling of a 
     Congressional Medal of Honor (current punishment is up to 6 
     months); broadens the meaning of the term ``sells'' as 
     applied to Congressional Medals of Honor to include trades, 
     barters, or exchanges for value. (House)

  (Mr. ROBB assumed the chair.)
  Mr. BIDEN. Mr. President, I will just number them. There are over 60 
in this ``soft-on-crime'' bill, 60 new penalties or penalty increases, 
which is interesting. I know I must be doing something right, because 
the liberals are mad at me because I entered these in, and they are 
part of the bill, and the conservatives do not think they are enough. 
So we probably hit a pretty good balance here--probably.
  It increases the penalty for alien smuggling for profit; extends 
counterfeiting laws to acts committed overseas; enhances penalties for 
any felony involving international terrorism; outlaws and penalizes use 
of weapons of mass destruction; increases penalties for acts of 
destruction at international airports; increases penalties for some 16 
gun crimes; increases penalties for damage or destruction of property 
with use of explosives; increases penalties for simple assaults against 
youths under 16; creates new penalties for assaults against youths 
under the age of 16 that sustain bodily injury; broadens definition of 
sex offense as intentional touching through clothing with intent to 
abuse, humiliate, or harass.
  It goes on and on. I am not going to go on and on and on any more. 
The fact of the matter is that what the Senator wants done is done in 
the bill. What is not done in the bill that the Senator wants done in 
the bill should not be done, in my humble opinion.
  The last amendment that he has here is a little beauty. This one is 
the one we talked about a lot. It is formally known as the ``D'Amato 
amendment.'' It is a provision that we expand Federal jurisdiction over 
all crimes of violence, including property crimes and drug trafficking 
in which the offender possesses a gun.
  Let me tell you how many of those crimes there were last year, Mr. 
President. There were 900,000 of those crimes. Let us just put this in 
perspective. I do not know if anybody here is from Philadelphia. 
Philadelphia is the largest big city near me. The DA in Philadelphia 
prosecutes roughly 30,000 crimes a year. We don't prosecute that many 
in the entire Federal system in all 50 States and territories. One DA's 
office does more than the entire Federal Government. The reason for 
that is 96 percent of all the crimes committed in America are committed 
within state jurisdiction.
  Let me make the following point, and I will cease. When you think 
about it, what are my friends, my Republican friends and some of my 
Democratic friends, asking me to do in this crime bill, and asked me to 
do when I wrote the crime bill? They are saying why not make the States 
as responsible as the Federal Government? The Federal Government's 
sentencing bill, which Senator Kennedy and I wrote in the late 
seventies, declared that we would have a sentencing commission. If you 
are convicted in Federal court of a crime, the judge has very limited 
discretion. You go to jail. If the sentence says 10 years, you go to 
jail for at least 85% of the sentence. I defy anyone listening to this 
debate back in their offices, on television in their homes, or in the 
gallery, to name a single case they have read about in the paper where 
they have heard that the awful crime was committed by a Federal 
prisoner out on bail, a Federal prisoner out on parole, a Federal 
prisoner who got a sentence that had been reduced. It does not exist. 
Guess why? Because I and a bunch of us who were around in the late 
seventies led by Senator Kennedy.
  So my friends do not want the States to do the same thing. That is 
why they have this truth-in-sentencing stuff. In the average State, 
when someone gets convicted for 10 years in prison, they will only 
serve 4 years and 3 months; your State. Your Governors are not telling 
you the truth. They tell you they want to get tough on crime. They do 
not want to build more prisons. They want us to build them for them. 
But federally we do it. Once we nail them, they are nailed. And they 
stay in jail.
  What is the second thing the Federal Government has done? We have a 
Speedy Trial Act. I happen to be the author of that act of 10 or 12 
years ago. You get convicted, arrested for a Federal crime, and you go 
to jail. You go to trial within 70 days; no screwing around, no fooling 
around. It is called the Speedy Trial Act. Most States do not have 
that.
  What is the third thing we do? We convict someone. We build a prison, 
and we put them in the prison. We do not have any prison overcrowding 
federally because we had the nerve to go back and tax you, and tell you 
we are going to build more prisons.
  There are three things that I take blame and credit for as chairman 
of the Judiciary Committee and as someone who has had the 
responsibility to deal on this side of the aisle with the criminal 
justice situation in the last 22 years in part or in whole. My friends 
want that done to the States. I would like that done to the States, 
too.
  They are going to take the one system that is not broken--that is the 
Federal system as it relates to the criminal justice system--and they 
are going to say, ``Let us break it. Let us take 900,000 cases that the 
States are not handling and drop them into the Federal courts.'' Crime 
has been a local problem, a local responsibility.
  What do we do in this bill? We help the way we should help. We do not 
Federalize new crimes. We say you need more cops. We--the Federal 
Government--will go to the American taxpayer, and say, ``We are going 
to spend 9 billion of your dollars to get 100,000 more cops; not 
Federal cops, local cops.''
  What else do we do? We say to the States, ``We don't have enough 
prisons.'' Last year 30,000 convicted violent felons in State courts 
were convicted, and then never served a day in jail. Why? Because 34 
States are under court orders for prison overcrowding. They do not have 
any place to put them.
  I keep mentioning Philadelphia because I know the city well. But 
every other city is the same. Every Friday a group of judges on the 
court of general jurisdiction meet with a list given to them by the 
clerk of 25, 20, or 500 people, and they are told. ``Like Barabbas, you 
must release X number of people because we have no room for them.'' 
They sit there and they release convicted felons because they have no 
place to put them.
  What do we do? We come up with almost $9 billion for the States; 
Federal money given to the States to build and operate prisons. So next 
year there will not be 30,000 people, and the next year and the next 
year released in the States because the Federal Government did what we 
should do. We used Federal revenue to give to the States, give to the 
cities, to build more prisons, to buy more cops, and to have tougher 
penalties. But we should not do it this way.
  Now, my friend from Texas, Senator Gramm--and I guess I should stop 
using that. Before all of these debates were televised, there is part 
of a civility here in the Senate which I think is a useful thing where 
we refer to our opposition as our friends. Every time I say that, 
people say to me when I get on the train to go home they say, ``You got 
so mad at him but you kept calling him your friend. How can he be your 
friend? Are not you all being a little phony?'' He really is my friend. 
Phil Gramm and I have incredible disagreements on policy. But he is my 
friend. He has always been straight with me, and I think he would tell 
you I am always straight with him.
  But Phil Gramm has a problem. A Democrat is about to pass the 
toughest crime bill in the history of the United States of America. 
That is a problem we used to deal with, we Democrats, when Republicans 
passed all these tough bills. Now it is a problem.
  This kid, Biden, used to be a public defender. He wrote this bill, 
and guess what? All the cops like it. Guess what? All the prosecutors 
like it. Guess what? It is tough on crime. Guess what? It means it is 
hard to make a case. Those soft-headed Democrats, big spending, taxing 
liberals, are soft on crime. They have a problem.
  I make a prediction. When we bring this crime bill up, they will 
spend at least 2 days on the floor arguing against it; arguing against 
100,000 new cops; arguing against 9 billion dollars' worth of new 
prison money; arguing against 64 new penalties; arguing against over 50 
death penalties. Why? If this passes, how can they say Democrats are 
soft on crime?
  It is a problem. I sympathize with it; I really do. I feel badly for 
them being put in this position. I understand the dilemma, and I 
suspect we are going to see 50 different versions of what happened here 
on every single bill. But as we pass this crime bill, God willing--and 
as my grandfather would say, ``and the creek not rising''--it is going 
to become more and more a hollow echo when we talk about getting tough 
on crime.
  Go out and find me any police agency, any law enforcement agency, or 
anyone who tells you that this bill is soft on crime. It is true that 
the Senator from Texas did not get all he wanted in the bill. I did not 
get all I wanted in this bill either. I happen to agree with him and 
disagree with the Senator from Illinois and the Senator from 
Massachusetts and my Republican friends over in the House. I think 
retroactivity should not be in this bill. I lost. But I have a 1,100 
page bill, and I lost something, so I am going to be against it?
  So as trial lawyer--one of the best in Delaware, for whom I used to 
work ``100 years ago''--Sid Balik used to say--and I will never forget 
going to my first trial with him as a young trial lawyer. He stood 
before the jury and said:

       I want you to look at my defendant in this trial. He is not 
     somebody you would want to bring home to dinner, someone you 
     would want your daughter to go out with; he does not dress 
     very well, and is not well educated. But that is not the 
     issue in this trial. The issue in this trial is whether or 
     not he committed the crime. Did he rob John Doe?

And then he said, ``So I want you to do the following: I want you to 
keep your eye on the ball. Watch the ball. Do not be distracted. Keep 
your eye on the ball.''
  I say to my colleagues and to anyone listening to this debate: Keep 
your eye on the ball. Is the crime bill that we are soon going to 
debate a tough, honest, straight, significant attempt to deal with 
violence in America, and to prevent youth who are at risk from becoming 
violent predators? If it is, be for it. If you think it is not, be 
against it.
  The PRESIDING OFFICER. The Senator from Delaware has the floor.
  Mr. BIDEN. Mr. President, I move to table the Gramm 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. SIMON. Mr. President, I wonder if the Senator from Delaware could 
refrain for 5 minutes so that I can speak on this amendment.
  Mr. BIDEN. Mr. President, I ask unanimous consent that Senator Simon 
be able to proceed for 5 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Illinois [Mr. Simon], is recognized.
  Mr. SIMON. Mr. President, while I do not agree with every word the 
Senator from Delaware said, I agree in opposition to the Gramm 
amendment.
  Mandatory sentences simply do not make sense all the time. And what 
the bill does is to substitute the Federal guidelines which are tough 
for the mandatory sentences.
  Let me quote from a few people. Cato Institute, which is more 
conservative than Senator Phil Gramm, said in an article study entitled 
``How America's Foolish Sentencing Policies Endanger Public Safety'':

       Mandatory minimum sentences enacted in the 1980's, have led 
     to the early release of violent criminals to make room in our 
     prisons for nonviolent, first-time, drug offenders.* * * 
     Instead of spending more money on prison space for nonviolent 
     offenders * * * we should return prisons to their original 
     purpose of incapacitating violent criminals.

  Justice Kennedy of the U.S. Supreme Court, a conservative Justice, 
testifying before the House Appropriations Subcommittee this morning 
said:

       I am in agreement with most judges in the Federal system 
     that mandatory minimums are an imprudent, unwise, and often 
     unjust mechanism for sentencing.

  The Rand study--a highly regarded group--of this whole field points 
out that California went from 22,500 prisoners in 1980 to 106,000 in 
1992. ``This 500-percent increase is the largest of any State in the 
Nation.''
  Then they conclude, ``The data suggests that the massive investment 
in crime control * * * may have had little effect on California's crime 
rate, particularly violent crime.''
  Justice Rehnquist, the Chief Justice of the Supreme Court, has 
criticized mandatory minimums. Is he a wild-eyed liberal, a radical? Of 
course not. The two people who are responsible, particularly for the 
one change that was criticized on the floor by our friend from Texas, 
are Henry Hyde and Bill McCullom. Is Congressman Henry Hyde a wild-eyed 
liberal radical? Is Congressman Bill McCullom a wild-eyed liberal 
radical? Well, we know the answer to that.
  Much of the provision for taking away the mandatory minimum sentence 
on the nonviolent crime was a bill that I introduced, together with 
Senator Strom Thurmond and Senator Alan Simpson. The Federal judges are 
just overwhelmingly on that side of things. The National Center for 
Crime and Delinquency is studying my State of Illinois. The study found 
that shorter prison terms saved taxpayers $100 million a year without 
jeopardizing public safety.
  And then, finally, there is one provision in the Gramm amendment that 
my colleague from Delaware did not mention. He did not mention this. It 
says:--and I think this is unprecedented-- ``any prior conviction, 
foreign or domestic.'' We have never before, to my knowledge, ever 
considered foreign convictions. If someone was a student at Tiananmen 
Square and was convicted there, should that be used against that person 
here? I think we are taking a step that clearly we should not be 
taking, and I hope the Gramm amendment is soundly defeated.
  The PRESIDING OFFICER. The question is on the motion to table 
amendment No. 2442.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from Arkansas [Mr. Pryor] is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 55, nays 44, as follows:

                      [Rollcall Vote No. 251 Leg.]

                                YEAS--55

     Akaka
     Baucus
     Biden
     Bingaman
     Boren
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Chafee
     Conrad
     Daschle
     DeConcini
     Dodd
     Dorgan
     Durenberger
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Leahy
     Levin
     Lieberman
     Mathews
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Reid
     Riegle
     Robb
     Rockefeller
     Sarbanes
     Simon
     Wellstone
     Wofford

                                NAYS--44

     Bennett
     Bond
     Brown
     Burns
     Campbell
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     Danforth
     Dole
     Domenici
     Faircloth
     Gorton
     Gramm
     Grassley
     Gregg
     Hatch
     Helms
     Hutchison
     Kassebaum
     Kempthorne
     Lautenberg
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Roth
     Sasser
     Shelby
     Simpson
     Smith
     Specter
     Stevens
     Thurmond
     Wallop
     Warner

                             NOT VOTING--1

      
     Pryor
      
  So the motion to lay on the table the amendment (No. 2442) was agreed 
to.
  Mr. KENNEDY. Mr. President, I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2443

  Mr. KENNEDY. Mr. President, I send technical amendments to the desk 
and ask that they be considered en bloc and agreed to en bloc.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Massachusetts [Mr. Kennedy] proposes an 
     amendment numbered 2443.

  The PRESIDING OFFICER. Without objection, the technical amendments 
are agreed to en bloc.
  So the amendment (No. 2443) was agreed to.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. JEFFORDS. Mr. President, I move to reconsider the vote by which 
the amendment was agreed to.
  Mr. KENNEDY. Mr. President, I move to reconsider the vote.

                          ____________________