[Congressional Record Volume 140, Number 122 (Tuesday, August 23, 1994)]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]

[Congressional Record: August 23, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]


  The Senate continued with the consideration of the conference report.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. THURMOND. Mr. President, I rise today in opposition to the 
conference report accompanying H.R. 3355, the so-called crime bill. It 
was my sincere hope that the Senate-House conferees would report a bill 
worthy of the American people who are fed up with violent crime. 
Unfortunately, even after a second round, the conference report has 
lost its identity as a law enforcement bill and more closely resembles 
a new social stimulus package for the Democrats.
  The President and my colleagues on the other side of the aisle had a 
wake-up call when the House originally voted against the conference 
report. The President immediately launched a public relations campaign 
to salvage the crime bill which had been appropriately stalled because 
of excessive Federal spending. President Clinton and his aides blamed 
the Republicans in strong terms for inaction on the crime bill. 
However, the White House was forced to change strategies when the 
American people said no to the social spending measure which the 
President was trying to revive.
  Despite efforts by the Clinton administration, the public did not 
rise to support a social spending plan under the guise of law 
enforcement. The American people largely disagreed with the President 
and demanded that Congress fix the crime bill to focus its priorities 
on law enforcement. So over the course of several days, the President 
changed his message from blaming the Republicans to one of calling for 
bipartisan negotiations.
  Mr. President, there should be no mistake about this, the Republican 
party was initially dismissed by the Democrats when they were drafting 
the crime conference report. Later, they tried to force it through the 
House of Representatives, again with indifference toward the minority 
party. It is clear that the Democrats had no intention of allowing 
meaningful participation in this debate until a significant number of 
their own party joined Republicans to bring reason to the legislative 
process. It was at that point the Democratic Party had to negotiate on 
a number of items in the crime bill with the Republicans.
  Where the Democrats had rejected a Republican measure for HIV testing 
of accused rapists, begrudgingly they now had to accept it. Where the 
Democrats had rejected our proposal to favorably amend the rules of 
evidence concerning prior offenses of rape and child abuse, they now 
had to accept it. Where the Democrats had rejected our proposal 
requiring mandatory restitution to victims of violent crimes, they now 
had to accept it. Where the Democrats had rejected our effective 
language on notification to residents when sexual offenders are 
released into their community, they now had to accept it. Where the 
Democrats had rejected a proposal to prosecute 14-year-olds as adults 
for certain violent crimes, they now had to accept it.
  Also, the Democrats had to acknowledge through negotiations that 
there was an excessive and often duplicative amount of Federal spending 
for social programs in the conference report. Scrambling for votes to 
gain passage, the White House and Democratic leaders agreed to 
reductions in a few of their social programs in the crime bill. This 
was an incremental process with compromise on pork spending inching 
along only to the point where they had enough votes for passage.

  Mr. President, after a long weekend of meetings, discussions and 
negotiations, the House trimmed only $3.3 billion from the original 
cost to be borne by the taxpayers of $33.5 billion.
  There are many social programs funded through this bill which have 
been euphemistically called crime prevention programs. There is almost 
$7 billion allocated for so-called prevention programs which will do 
little to reduce violent crime. The expenditures authorized in the 
conference report harken back to the costly and ineffective programs of 
the Great Society.
  The social welfare spending in the conference report should not be 
adopted under the guise of law enforcement. One example of excessive 
social spending in the crime conference report is the Local Partnership 
Act. This provision will allow President Clinton to hand out $1.6 
billion to local governments just prior to the 1996 elections for 
supposedly crime prevention programs. There have been no hearings on 
this proposal and essentially there are only vague requirements on how 
this money will be used to prevent crime.
  Another example of scarce law enforcement resources the Democrats 
wanted for superfluous social spending in the conference report is the 
Youth Employment and Skills Crime Prevention Program. Fortunately, we 
were able to finally remove this provision from the conference report. 
Here, you had a proposal to give a check for $900 million to the 
Secretary of Labor to hand out for job training, apprenticeships and 
job experience targeted at youth. Mr. President, this sounds appealing 
but I hasten to point out that there are currently 154 overlapping 
Federal employment and training programs which are administered by 14 
separate Federal departments and agencies. There are no fewer than 50 
different offices within these departments and agencies running these 
programs with $25 billion which was budgeted for fiscal year 1994. 
Despite the $25 billion which had already been allocated, the original 
conference report would have thrown an additional $900 million at this 
extensive job training system. As I stated earlier, this is one program 
that the Democrats were forced to abandon to bargain for votes on final 
  Additionally, the Model Intensive Grant Program within the conference 
report is another expenditure of tax dollars for social programs having 
little to do with reducing violent crime. Under this program, President 
Clinton's administration would have nearly total discretion to give 
away $625 million in grants for 15 programs on crime prevention. The 
criteria for receiving money under this program are very general, 
allowing recipients to assert even the most tenuous links to crime 
prevention. Further, under this proposal, the Clinton administration 
selects 15 areas to begin distributing this largess all prior to the 
1966 elections.
  Some of the arguments that I have heard in support of this type of 
spending are on behalf of America's youth. There are approprite 
measures that we can adopt and have adopted to target at-risk youth. In 
fact, the GAO recently reported that there are already seven Federal 
departments sponsoring 266 prevention programs for at-risk youth. Of 
these 266 programs, 31 are administered by the Department of Education, 
92 by the Department of Health and Human Services, and 117 by the 
Justice Department. The GAO found that current Government programs 
reflect a massive Federal effort on behalf of troubled youth. The GAO 
report stated the following:

       Taken together, the scope and number of multi-agency 
     programs show that the government is responsive to the needs 
     of these young people * * * [It] is apparent from the federal 
     activities and response that the needs of delinquent youth 
     are being taken quite seriously.

  Mr. President, clearly the Federal Government is already spending 
billions of dollars for delinquent youth. There is room for appropriate 
Federal programs--and we have passed many--to target delinquent and at-
risk youth. Before billions more are authorized, the Congress should 
debate and determine whether the hard-earned tax dollars of the 
American people are best spent on more social programs. I do not 
believe that we should ask the American taxpayers to spend billions in 
the conference report in such a haphazard manner.
  I am pleased that a number of House Republican members were able to 
have some positive changes made to the conference report. Almost $3.5 
billion in Federal spending was cut from the crime bill only after the 
Democrats had to compromise to ensure passage. This is a good start, 
but there remains a significant amount of social spending in the crime 
bill which should be removed. The crime bill continues to be topheavy 
in 1960's style social spending, and we have an opportunity to right 
this wrong and produce a crime bill worthy of the American people.
  Mr. President, I have been working for years to pass a tough crime 
bill to assist law enforcement and to reduce the level of violence in 
this country. There are a number of provisions in this crime bill which 
should be passed to address violent crime. We need an enforceable 
Federal death penalty and increased penalties for violent crime. We 
need mandatory life sentences for conviction on a third violent felony 
and other important measures in this bill.
  It is unfortunate that a Federal crime control plan is being held 
hostage by social programs which will cost the American taxpayers 
billions and billions of dollars. The message that I have received from 
the good people of South Carolina and others across the country is for 
the Congress to adopt a true crime fighting proposal and not a social 
welfare bill. the American public wants a crime bill that will address 
violent crime with tough law enforcement measures and not a return to 
excessive spending on Federal programs.
  I will oppose this conference report and continue to work for an 
effective crime fighting plan that deserves our support and has the 
support of the American people.
  Mr. President, I yield the floor.
  Mr. HARKIN addressed the Chair.
  The PRESIDING OFFICER (Mr. Feingold). The Senator from Iowa.
  Mr. HARKIN. Mr. President, in my State of Iowa, robbery rates are up 
almost 44 percent in our capital city of Des Moines this year over last 
year, and there has been a 48-percent increase in robberies involving 
handguns. The rising tide of crime is why it is so important to pass 
this conference report on the crime bill.
  Passage of this legislation will mark the first successful 
comprehensive crime bill in 6 years.
  While I would have written a somewhat different bill, I support this 
legislation because I believe that the American people deserve 
energetic action by their National Government to fight the scourge of 
crime. If every Member insisted that it is my way or no way, we would 
have 535 different crime bills and absolutely no action.
  Since Senate passage of this bill, I have talked to law enforcement 
officials across my State. One thing I heard again and again was the 
need for more resources. The police and law enforcement in my State 
support this bill, Mr. President, as does the chief law enforcement 
officer of Iowa, Attorney General Bonnie Campbell.
  This legislation authorizes and funds some $30 billion over 6 years 
in anticrime measures, mostly in State and Federal law enforcement, 
prison construction, and crime prevention measures. Too often 
authorizing legislation talks big but fails to deliver. They are just 
promises of authorization with no real money to fund it. This 
legislation, however, is the most important Federal crime-fighting 
measure in many years because it will deliver what it promises. It does 
not just authorize funds; it sets up a mechanism by which we fund these 
crime-fighting measures.
  So what will passage of this bill mean to the people of my State of 
Iowa? It will mean safer streets and neighborhoods. It means an 
estimated 1,300 new police officers on the streets, beefing up Iowa 
police enforcement by nearly 20 percent. Our State would be in line for 
$20 million more for corrections facilities, an increase of nearly 15 
percent. Iowa would receive some $5 million in Byrne grant funding 
through the trust fund, ensuring the security of these antidrug grants 
that law enforcement officers across our State have told me are vital.
  This bill also establishes innovative programs to combat crime and 
drug abuse. The ``drug court'' program that started in Dade County, FL, 
will be expanded nationwide. This is a State program of intense 
supervision of youthful drug offenders, including random drug testing. 
The results in Dade County are encouraging. Ex-offenders are getting 
off of drugs and keeping out of trouble. Reincarceration rates have 
fallen from 60 percent in the general population to only 11 percent for 
drug court graduates.
  The bill also gets tough on repeat offenders. The three-strikes-and-
you're-out provision will put people who have repeatedly committed 
violent crimes in prison for life without parole, where they cannot 
hurt people again. It combats domestic violence through the Violence 
Against Women Act. Now we are anticipating a point of order against 
this bill because of the inclusion of the violent crime control trust 
fund in this bill. This trust fund uses savings from reductions in the 
Federal work force, and transfers it to crime fighting efforts. This 
provision was developed by the distinguished President pro tempore, 
Senator Byrd, and at the time was lauded by all sides. The senior 
Senator from Texas at the time said that the trust fund would make 
American history in crime and punishment. He also said that, with the 
trust fund spending, we could fund both the social approach, including 
drug treatment and boot camp prisons, and funding for higher security 
facilities for violent criminals.
  In fact, I got the Record out from last November 4, 1993. I see where 
the senior Senator from Texas was talking about using this trust fund. 
He said, ``The Congressional Budget Office scored that amendment as 
saving $21.8 billion. That is a reduction in Federal work force.'' He 
further said, ``That gave us the vehicle to fund this crime bill; not 
just to promise funding, but to actually provide the funds.'' Further 
on, he said,

       The proposal of Senator Byrd, which cut the existing 
     spending by $21.8 billion, is that we fund both the social 
     approach of the Democrats, where we keep people in prison for 
     drug abuse, and where as an alternative to incarceration for 
     first-time, nonviolent offenders we have boot camps. But in 
     addition to that we need to build real prisons for real 
     criminals. Someone who kills somebody in this country ought 
     to go to prison.

  That is a quote of the senior Senator from Texas. It is my 
understanding that the senior Senator from Texas is now saying he is in 
favor of raising a point of order against this bill, that it is not in 
keeping with the budget control act, the Budget Act.
  But last November 4, the senior Senator from Texas was lauding the 
fact that we used the trust fund to provide the money.
  So let us be clear, Mr. President. This point of order is a 
subterfuge. Nobody wants to change the trust fund. If we eliminated the 
trust fund to avoid this procedural maneuver, this bill would be much 
weaker, and every one of us knows that. This is just a way to get the 
gun provisions out, and stop any crime bill from passing.
  The Senator from Texas says that if the point of order is not waived, 
he will offer an amendment. It would add back a provision he supports 
providing for mandatory penalties, including the death penalty, for 
what until now have been State crimes with no Federal nexus.
  This mandatory minimum sentencing provision concerning gun crimes was 
dropped in conference. But this does not mean that there are no tough 
sentences for gun crimes--it just means that those sentences are 
imposed by State, rather than Federal, action. My State already has 
tough laws, which have resulted in Iowa having the 10th lowest rate of 
violent crime in America.
  There is no need for the heavy hand of the Federal Government to 
impose new sentencing standards on State crimes. It is a violation of 
one of the last areas of fedralism--the right of a State to control its 
own criminal law, and the punishment for violation of those laws.
  The provision advocated by the Senator from Texas would impose the 
death penalty in States that currently do not have it, including Iowa. 
But the fact is, there are eight times as many murders per capita in 
Texas, which has the death penalty, than in Iowa, which does not. This 
just goes to show that the death penalty has no proven impact on 
violent crime. I would suggest that the Senator from Texas look at what 
we are doing in Iowa, and consider adopting our criminal justice system 
in his State, because ours obviously seems to be working better. I see 
no reason at this point for Iowa to adopt the Texas system of justice.
  The solution to violent crime is to bring new resources to bear to 
fight it, as is done in this bill both on the preventive end, providing 
assistance and resources for young people to keep them off the streets 
so they do not get involved in gang activity, and on the other end to 
make sure that those who do violate the law are punished severely.
  If a person has proven that they cannot be trusted in society, by 
being convicted by three violent crimes, then that person should be 
locked up for life, as is done in this bill. To do that, we need to 
ensure adequate prison space, as is done in this bill.
  But let us be honest about it. The real reason that many Senators are 
opposing this bill can be summarized in three letters: N-R-A. The gun 
lobbies have been calling and faxing to tell us that they oppose this 
bill, and they want to have us kill it. Senators know that they cannot 
say they are voting against this bill because of the assault weapons 
provision because everyone knows that at least 78 percent of the people 
in this country want the assault weapon ban. But they can use some of 
the other issues, such as a point of order, as a smokescreen to 
disguise a vote motivated by the gun lobby.

  Here is a piece that we got in our office, Mr. President. It is from 
the Gun Owners of America, Springfield, VA. It says, ``Before you vote 
on the crime bill, remember * * *''--and it quotes here; it says, 
```When the gun lobby goes after you, it does have an adverse impact.' 
Soon to be former State Senator Dave Robertti. Los Angeles Times, June 
  Then it says--and I have to give them credit for being open--in heavy 
black lettering: ``Single-issue voters are overwhelmingly pro gun. 
Translated: Gun owners are much more likely than gun control advocates 
to be single-issue voters. Be forewarned. There is incredible voter 
anger brewing outside of the beltway.''
  Well, at least they are being up front about it.
  They are saying that some gun owners are going to be a single-issue 
voter. I do not know. I am a gun owner. I happen to like guns. I go 
hunting just about every fall, assuming we get out of here in time this 
year. I do not belong to this organization. But I have a belief that 
gun owners are not necessarily single-issue voters. I know too many of 
them in my home State of Iowa. They do not believe there is any need or 
any reason for assault weapons in our society. So I think the Gun 
Owners of America are unnecessarily spreading a lot of fear by telling 
people who vote for this crime bill that they are going to be a target 
in the upcoming election by gun owners across America. I do not believe 
that is true. It is not true in my State, and I do not believe it is 
true throughout the country.
  Lastly, Mr. President, I keep hearing time and time again, almost ad 
nauseam, the repetition by the NRA of this mantra that ``the right of 
the people to keep and bear arms shall not be infringed. It is printed 
in bold lettering right outside their building in downtown Washington. 
They claim to be quoting the second amendment of the Constitution.
  That is what they say. Mr. President, there is a passage in the Bible 
that says ``there is no God.'' That is right. I can use the Bible to 
prove that there is no God. It says it right here in Psalm 14, ``there 
is no God.'' What I did not tell you is that the full sentence says, 
``The fool has said in his heart that there is no God.''
  So you see, you can take things out of context and use them as you 
will. So I can take that out of the Bible and say ``there is no God, 
the Bible tells me so''--unless I use the whole sentence which says, 
``The fool has said in his heart there is no God.''
  So what does the second amendment to the Constitution say? Does it 
say: The right of the people to keep and bear arms shall not be 
infringed? Partially, just as the Bible says, partially, that there is 
no God. Here is what the second amendment really says in its entirety:

       A well-regulated Militia, being necessary to the security 
     of a free State, the right of the people to keep and bear 
     Arms, shall not be infringed.

  As we all know, the framers to the Constitution were very much 
opposed to a standing army. They had experiences with the British army, 
and they did not want a standing army here. Instead, they wanted a 
militia, people in their own homes to be called out like the National 
Guard in times of emergency. But they wanted them regulated--``A well-
regulated Militia.'' They did not say a rag-tag group of people each 
having their own gun. The second amendment says, ``A well-regulated 
Militia, being necessary to the security of a free State, the right of 
the people to keep and bear arms shall not be infringed.''
  I wish the NRA would put the entire second amendment of the 
Constitution on the outside of their building instead of lifting just a 
portion of it to further their aims, which is to put more guns on the 
streets, which in my view will increase the violence that is already 
all too prevalent in our society.
  So, Mr. President, I support the conference report on the crime bill. 
As I have said, I do not agree with everything in the crime bill. There 
are some provisions I probably would have changed. I do not happen to 
be a proponent of the death penalty. But I understand that, as I said, 
if we all drafted a crime bill to our wishes, we would have 535 of 
them, and we would not make any progress. So I am willing to swallow 
hard on that, perhaps, just as long as we do not have the Federal 
Government imposing on our States the death penalty for crimes which 
are now entirely controlled by the States.
  I know the occupant of the chair represents a State which has not had 
a death penalty since 1858, if I am not mistaken. I am sure the people 
of Wisconsin, as well as the people of Iowa, do not want the Federal 
Government saying here is what you have to do in your criminal justice 
system. We have done pretty well in Iowa, and we do not need the 
Federal Government coming in and telling us what we have to do in our 
criminal justice system.
  So, first of all, I hope there is no point of order raised against 
this, and I hope we can move ahead expeditiously to vote on the crime 
bill and send it down to the President for his signature. I do hope if 
in fact a point of order is raised, we have the votes to override that 
point of order. It is in the best interest of this country to do so.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California [Mrs. Boxer] is 
  Mrs. BOXER. Mr. President, I want to add my voice to that of the 
Senator from Iowa, who I think was quite eloquent in his analysis of 
where we are at this moment on the crime bill. I think it is very 
important to pass this crime bill, Mr. President. It is very important 
for the people of my State of California, and it is very important to 
the people of this country.
  For my State, we are looking at an additional 10,200 police officers 
on the street. We are looking at more boot camps. We are looking at 
rural law enforcement grants and Byrne formula grants, which help our 
law enforcement people. We are looking at discretionary grants for drug 
court programs, and money to help us enforce the Brady law, and more 
judges, and prosecutors, and public defenders. We are looking for 
prevention programs.
  Let me say, Mr. President, from the bottom of my heart, anyone who 
says that you can beat the crime problem in this country simply by 
voting for prisons, I just do not believe have really been honest with 
themselves or the American people.
  Where do I get my advice on my stand here? Basically, from the law 
enforcement people in my State. I have had a series of four very 
important summits on violence across my State. My State is very 
diverse. It ranges from very conservative Republican country to liberal 
Democrat country, to everything in between. And I would get people 
around the table, Mr. President, who are in law enforcement and who 
have been rather conservative on this issue, to social workers and 
teachers. Mr. President, the good news is that they are coming 
together. They are coming together with comprehensive solutions. They 
are telling me:

       Senator, we can no longer have one camp of people saying 
     prevention is the only answer, and another camp of people 
     saying enforcement and punishment is the only answer. We must 
     move together.

  Let me say to my friend in the chair that I think he came here to 
make life better for the people of his State. I think that is the 
reason we are all here. We have to get out where the people are. We 
cannot stand these arguments which no longer are relevant, and that 
basic argument between prevention and punishment is a real relic; it is 
a relic of years gone by. We must come together.
  I was so grateful to the mayor of the city of Los Angeles, Mayor 
Riordan, who came here to really be a voice for this crime bill. It was 
a controversial thing for him to do, but he came to Washington, he 
stayed and lobbied, as did the mayor of New York and the mayor of 
Philadelphia. They are living with the fact that we have had inaction 
here on this crime scene front.
  Well, Mr. President, we are very close to a breakthrough here. I 
watched every minute of the debate in the House, and it was a difficult 
debate. But I think the President was very wise to stand firm on the 
assault weapons ban. When the crime bill went down the first time, he 
had two choices. He could have deleted the assault weapon ban and then 
gotten some of the antigun control Democrats to join him, or he could 
have kept the assault weapon ban and tried to make some compromises 
with the more moderate Republicans. He chose to do that, and what we 
have before us now, it seems to me, is a well-balanced plan.
  I want to be honest with you. I would have preferred to see more 
dollars in there for prevention. But as the Senator from Iowa said, 
each of us could write the bill in his or her own way. I think the 
product we have is a good product.
  I have here the basic summary of the conference report, which 
provides for $13.5 billion for law enforcement, Federal and State, $9.7 
billion for prisons, $6 billion for prevention, and $1 billion for drug 
  Actually, what we have, of course, is most of the money going by far 
and away for law enforcement and prisons and some for prevention and 
drug courts.
  So those who say that there is not enough in there for prisons should 
only look at the number because we actually see that when we voted on 
it the bill had $6.5 billion for prisons and now there is $9.7 billion 
for prisons. So the fact is it is moving in the direction for those who 
want to put more into enforcement and punishment.
  Mr. President, I am very hopeful that our Republicans in the Senate 
will not choose to filibuster this bill, will not choose to hold this 
bill up on a parliamentary procedure. I understand they are thinking 
about doing that right now, that they are meeting about doing that 
right now, and they may raise a point of order regarding the trust fund 
that pays for this crime bill. I think it very ironic if they choose to 
do that.
  Mr. President, you and I spent a lot of time presiding in the chair, 
and it was my good fortune to be in the chair when the Senator from 
Massachusetts, Senator Kerry, who will be speaking later in this 
debate, proposed the notion that we think big when it comes to the 
issue of crime. He made a very eloquent point that the problem is so 
great that the response must be comprehensive. It struck a chord.
  And the next thing you know the Senator from West Virginia [Mr. 
Byrd], the chairman of the Appropriations Committee, came up with this 
trust fund idea, and he made the compelling point that if we can take 
the savings from a reduction in the number of Federal employees and put 
that money in a crime trust fund we can pay for this bill.
  At the time that proposal got a tremendous amount of support from 
Democrats and Republicans. It was the most heartening time perhaps 
during the whole year that we have spent on trying to solve issues to 
see that kind of bipartisanship.
  Now the very same Republicans who lauded Senator Byrd, who said, 
``Senator, you have broken through; we have a very tough deficit 
problem; we have to pay as you go; we need to pay for the things that 
have to be done,'' the very same Senators who praised Senator Byrd and 
praised Senator Kerry for thinking big are now saying, ``Gee, we are 
going to raise a point of order against this trust fund idea,'' and 
this could bring the entire crime bill down.
  I think it would be a very sad day to see Members of the other side 
of the aisle, Republican Senators who praised Senator Byrd's idea of 
the trust fund, now try and bring the crime bill down on that 
  I think the reason I wanted to take the floor today and do a little 
thinking out loud is that I want the American people to see through 
those tactics. If a Republican Senator stood up and said ``I love this 
trust fund; it gives us a way to pay as we go; it is a fiscally 
responsible way to fight crime,'' if that Republican Senator suddenly 
changes and says now, ``We cannot bring it up because we do not like 
the trust fund,'' you have to begin to question what the motivation is.
  When you learn the parliamentary rules of this Senate, which is not 
easy to do, you find out that is the only way they can move if they 
want to kill this crime bill. And then you have to say, why do they 
want to kill this crime bill?
  I just invite you to read the papers and realize that the National 
Rifle Association has moved everything over to the Senate side, and 
they are now pulling out all stops because they are interested in only 
one thing in this bill, and that is the ban on certain types of assault 
weapons. They oppose that. They do not want anyone in the Congress 
telling them that assault weapons are weapons of war, that they do not 
belong in our streets. They want to have every gun that they want 
available to everyone in this country. That is the bottom line.
  I was fortunate to be at a press conference with the senior Senator 
from California [Mrs. Feinstein], who has worked so hard on this 
assault weapons ban, and with us was a police lieutenant who had been 
brutally attacked by an assault weapon. No one expected him to live. He 
pulled through it, and he is now working very hard to see that the 
assault weapon ban remains in this bill. He looked at the assault 
weapons that were laid out on the table and he whispered to me: ``Those 
are weapons of war. They do not belong on our streets. And the police 
are outgunned.''
  So that is what this is about. You will hear speeches, I say to the 
American people, about every conceivable thing. They are going to say 
there is too much prevention in this bill. I have already shown you the 
balance. Most of the money, over 70 percent, goes for law enforcement 
and prisons and 20 percent goes for prevention.
  Again I say let us look at the Record. I have here a beautiful speech 
that was made by the ranking member of the Budget Committee, a 
wonderful Senator, Senator Domenici, and I do not know where he is 
going to come out on this vote. I sure hope he will be with us and hope 
he will not go with the point of order. He made the most beautiful 
speech. I will read it in part. Again I was in the chair when he 
delivered this speech. He said:

       Madam President, let me tell the Senate a rather 
     enlightening and satisfying experience I had about 7 weeks 
     ago. I was honorary chairman of the second annual Youth 
     Outstanding Unified Roundup * * * Basketball Camp. The 
     objective of this camp is to provide 250 financially deprived 
     youth aged 6 to 16 with free basketball instruction and other 
     life skills training that they could not otherwise afford. In 
     addition, 150 pairs of basketball sneakers were given to 
     those most in need.

  He goes on to talk about this truly remarkable mix between a few 
stars of the university basketball team and these young people, and in 
the end he says:

       The youth of today have been born into a society that 
     provides little fertile ground for sound physical, mental, 
     and spiritual development.

  And he says, and I agree with him:

       Government cannot and should never try to replace the 
     family. Yet we can put forth policies which we hope will 
     strengthen the family or at the very least, fill in those 
     gaps where children are not receiving the support or 
     direction they need and inwardly crave.

  That is a quote from Pete Domenici, the very articulate Senator from 
New Mexico, Republican ranking member on the Budget Committee, who 
praised the fact that we have prevention in this bill.
  So you may hear talk that there is too much in this bill. Just 
remember it is a small positive portion of this bill, No. 1, and, No. 
2, it works and we need that prevention. Our Republican colleagues 
supported that prevention.
  You look at the military, young men and women in the military. The 
military has many programs for recreation. I never heard our Republican 
colleagues come out here and say that is a waste of money, because they 
know it is important.
  The fact is, as President Clinton has said many times, young people 
need something to say yes to. And if they are in a program that I used 
to be when I was a kid growing up in the city, we had night centers, we 
had places to go after school, we had evening activities, and we were 
kept busy doing things that were good for us and good for our 
  So when you hear this talk about too much prevention, ask those 
Republicans why they do not want to strip all the recreation out of the 
military, ask them why they did not make those speeches when they voted 
for this bill in the first place, and really ask yourselves why they 
are against this bill. And the answer will be it is because there is an 
assault weapon ban in here, and that is really the true agenda and why 
so many of them want to bring down this bill.
  So, Mr. President, in conclusion, let me just say, coming from a 
State that had the terrible Polly Klaas kidnap and brutal murder, 
coming from a State where we have had our citizens gunned down in the 
workplace, I had to see my son who is only 29 years old have to go to a 
funeral of his law school friend who was working in a building at 101 
California Street in San Francisco as a lawyer. He threw himself in 
front of his wife and took the assault weapon bullets for her, Michelle 
Scully. Many of you have seen her on national television. There she is 
begging us to pass this bill.
  I come from a State that needs this bill, and I daresay all of my 
colleagues who are going to be speaking feel the same way in their 
States. Crime is a national epidemic. It needs a national response. It 
needs a comprehensive response. We have had the chairman of the 
Judiciary Committee, Senator Biden, working overtime to make sure we 
have a good bill and we have a good bill.
  I would say to my Republican friends who are not currently on the 
floor perhaps they are still meeting to decide whether or not they will 
raise this technical point of order and slow us down and try to derail 
this bill, I say to them, please put the partisan politics aside, say 
to the National Rifle Association that you are not going to be with 
them, and let us pass something that is good for the people.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. KOHL. Mr. President, I rise today in strong support of the crime 
bill conference report now before us.
  This crime bill has been long in the making, Mr. President. The 
process began last November, when the Senate managed to put aside 
politics and pass unprecedented, comprehensive anti-crime 
legislation. This bill was far from perfect, but it ended years of 
absurd debate between liberals and conservatives over whether we need, 
as a country, to better focus on punishment or policing or prevention. 
After years of bickering, Congress finally came to the conclusion that 
we need to do better, much better, at all three.
  In recent weeks, however, just as we were on the brink of finalizing 
a historic conference report, partisan politics and special interests 
returned like a bad dream to shatter the consensus that had developed.
  Thankfully, a reasonable compromise was reached that resulted in 
House passage of the bill over the weekend. But now, as the Senate 
prepares to vote on the crime bill conference report, we are faced yet 
again with procedural obstacles and game playing.
  In light of these developments, Mr. President, it is no wonder that 
people do not trust Washington. We told them months ago that we would 
do our part to help reduce crime in America, but instead, we are only 
helping to reduce America's trust in its elected officials.
  What is so sad about this state of affairs is that most of us in 
Congress generally agree about what needs to be done, and this 
agreement was actually reflected in the bipartisan crime bill passed by 
the Senate months ago.
  Democrats and Republicans agree that we need to put more police 
officers on America's streets. These police officers will help banish 
fear and broadcast the message that street crime will not be tolerated.
  Democrats and Republicans agree that we need to build more prisons to 
house violent criminals. Because in the face of statistics which 
reflect that murderers are only incarcerated for 6 years on average and 
first-time rapists for less than 4 years, we must do better at keeping 
predators off our streets.
  Democrats and Republicans agree on a range of tougher punishments, 
including three-strikes-and-you're-out.
  Democrats and Republicans agree that we need to take handguns out of 
the hands of kids, and crack down on adults who peddle firearms to 
  And many Democrats and Republicans agree that we cannot ignore our 
children--that we cannot allow a culture of drugs and guns and violence 
to capture their hearts and minds at a young age. Make no mistake about 
it, Mr. President. There is a battle on for our children. A battle that 
we cannot allow gangs and crack peddlers to win.
  Mr. President, all of these areas of agreement are reflected in the 
crime bill conference report now before us, which is why it is a good 
bill and why so many of us support it strongly. What happened to our 
agreement? Why has it fallen apart? Why are we now--at the last 
minute--loudly exaggerating minor differences and disagreements, 
instead of emphasizing common ground?
  I appeal to my colleagues. Let us rediscover the reasons that brought 
us together months ago. Let us move beyond crude political calculation.
  Yes, we all have some differences with the crime bill conference 
report. Certainly, I do. For example, I was disturbed that conferees 
eliminated the only provision in the crime bill providing funds for 
States to incarcerate violent juveniles.
  With juvenile crime being the leading edge of the crime problem in 
America, I do not understand how we can neglect juvenile corrections in 
a $30 billion crime bill.
  And yes, we should also recognize that there is work to be done--
primarily by the administration, but also by Congress--to ensure that 
the prevention funds in the crime bill are spent wisely and 
effectively. We cannot afford--and we will not tolerate--boondogles, no 
matter how noble the cause. So I intend to hold oversight hearings next 
month on the juvenile anticrime programs contained in the crime bill.
  Because, Mr. President, the crime bill is, in many respects, a 
promise; it is, at this point, just a commitment to the American 
people. Exactly how we implement this promise is crucial.
  In sum, our work is not done. But, Mr. President, this work cannot 
begin unless we pass this bill. And by all rights, we should pass this 
bill, because our areas of agreement far outweigh our differences. I 
challenge anyone to suggest otherwise. By any reasonable standard, this 
agreement should translate into support for the crime bill conference 
  Mr. President, let me close by cautioning my colleagues that the 
American people are not stupid. Out in America's neighborhoods, where 
crime is reality rather than rhetoric, the people we serve can smell 
cynical politics and opportunism.
  So let us move beyond all that. Our constituents want safe streets, 
not sloganeering. Let us do our part today, and give them the tough, 
smart, balanced crime bill now before us.
  Mr. SARBANES addressed the Chair.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, and colleagues, there are few, if any, 
issues that are more important to the people we represent than dealing 
forthrightly with the problem of crime.
  We all understand the bulk of the law enforcement responsibility in 
this country rests at the State and local level. That has always been 
the case. But I strongly believe there is an important Federal role 
that can be played in helping to address the crime problem, and 
particularly in providing very needed support for local governments as 
they confront this critical challenge about which people all across the 
country are so deeply concerned.
  That is why I very strongly support the violent crime control and law 
enforcement legislation now before us. This is a balanced package. It 
deals with policing, with prisons; in other words, with punishment, 
with the entire enforcement package. It also deals with the prevention 
of crime, with a crime prevention package. It would make important 
strides in reducing gun violence and in addressing drug-related crime. 
It expands community policing by 100,000 across the Nation.
  It will reduce prison overcrowding by providing additional support to 
State governments for additional prison space and by creating boot 
camps to take first-time, nonviolent offenders out of the standard 
prison system and place them in camps that can be more productive in 
rehabilitation and can free up the prison spaces for the more violent 
offenders. It includes important new tools, including special court 
procedures and treatment for drug cases.
  It has a variety of preventive programs including educational and 
community support programs directed for at-risk youth, and directed to 
keep our young people from getting on the path of drugs and crime to 
begin with.
  If you are going to have a comprehensive approach, you must address 
the beginning of the problem by cutting down on the number of people 
who move down down the crime path, as well as by tightening up how we 
deal with those who do go down that path by increased enforcement, more 
policing, stricter punishment, and more prison spaces.
  This crime bill is designed to work in partnership with State and 
local governments and to provided the support and resources that are 
most needed at the local level to fight crime.
  This legislation has been developed in close cooperation with police 
organizations, State and local government groups, and others at the 
local level who are on the front line in the crime fight.
  It contains a ban on assault weapons, prohibiting the future 
manufacture, sale, or importation of certain military-style, rapid-fire 
weapons that are used heavily for criminal activity. There are 
provisions which the law enforcement officials of the country have 
urged us to enact and have welcomed as being of importance to them.
  This bill is supported by every major State and local government and 
law enforcement organization.
  I have here a list of those that are strongly supporting the crime 
bill: Police groups, prosecutor groups, Governors, mayors, city and 
county organizations, police departments.
  I want to read just one letter that is representative of the kind of 
support that exists for this legislation. This letter is from the 
National District Attorneys Association to Chairman Biden, chairman of 
the Committee on the Judiciary, who has done such a skillful job in 
guiding this bill through the legislative process. I now quote from the 
letter from the president, Robert J. Deschamps, of the National 
District Attorneys Association.

       Dear Senator Biden: The House of Representatives has 
     finished its long debate on the crime bill and passed the 
     much-needed effort to provide the means to combat this 
     national tragedy. The National District Attorneys Association 
     calls upon the Senate to emulate their colleagues and swiftly 
     end the six-year wait for an effective program to address 
       As the prosecutors for every town, city and county across 
     the Nation, we have worked long and hard with you, the 
     Congress of the United States, to provide the American people 
     with an initiative that both fights crime and addresses the 
     causes of crime.
       Our support has been bipartisan, with the needs of our 
     nation foremost in our efforts. The crime bill has come too 
     far and too much is at stake to have the Senate reject it at 
     this juncture.
       As the people's prosecutors, we pledge to do all within our 
     power to lead our communities in their daily struggle against 
     crime. We ask you, the Congress, to give us the means and the 
     leadership to accomplish this task by passing the crime bill 
     without further delay or debate.

  From the National District Attorneys Association.
  Mr. President, I ask unanimous consent the letter be printed at 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SARBANES. Mr. President, we have made a number of attempts to 
pass meaningful crime legislation in recent years but these efforts 
have not been successful. Today we are on the threshold of enacting the 
toughest, smartest legislation at the Federal level to address the 
crime problem that has ever been before us. This is strong legislation. 
Attacks are now being made upon it that do not square with the facts. 
And let me just review those very quickly.
  First of all, it is asserted that this bill is too heavily 
preventive. Only 20 percent of the bill is preventive, and I am going 
to run through some of these programs whose merit is, I believe, 
manifest. This amount is significantly less than was in the previous 
conference report. Most of this bill is for law enforcement and prisons 
but it does provide some prevention money giving us a balanced package. 
It makes some sense to do preventive programs designed to keep people 
from becoming criminals in the first place as well as those programs 
designed to apprehend and punish severely those who have engaged in 
criminal activity. We ought to be doing an across-the-board approach in 
order to try to come to grips with this problem that is threatening so 
many parts of our country.
  On the law enforcement side, out of a $30 billion bill, $13.5 
billion, 45 percent of it, is for law enforcement. This includes almost 
$9 billion to put additional police on the streets across our country 
for community policing efforts. We are doing some of this right now 
with a program within the Department of Justice, a very limited one, 
that makes grants to communities in order to institute community 
  I received a phone call just this morning from the mayor of Ocean 
City, MD, Mayor Powell. Ocean City is a community which in the 
summertime becomes a metropolis. It is only a few thousand people in 
the off season, but in the summer season it is hundreds of thousands of 
people. You can imagine the kind of law enforcement problems that 
raises. He urged us to continue our hard efforts for enactment of the 
crime bill and he pointed out that a small grant which they received 
earlier in the year for community policing enabled them to put two 
additional officers on bike patrol in that resort town.
  Last night this bike patrol, carrying out its community policing, 
heard a woman screaming and were able to apprehend a rapist. They now 
believe that this person apprehended was responsible in the State of 
Delaware for an unsolved rape that occurred 2 years ago, and may well 
be the person responsible for a series of rapes that has taken place. 
This legislation will enhance such community policing many, many times 
over all across the country. So I urge my colleagues: Support this 
legislation and put more such police on the street to do community 
  This legislation will provide for enhanced drug enforcement. It will 
provide assistance to the FBI, to the DEA, it provides over $1 billion 
for the Border Patrol and the Immigration and Naturalization Service in 
order to deal with the problem we confront at our Nation's borders.
  It provides support for Federal and State courts, for U.S. attorneys, 
for State prosecutors. It is designed, in effect, to strengthen the 
entire criminal justice system--not just apprehending, arresting the 
criminals, but then bringing them to justice through the court system.
  And then it moves from law enforcement to prisons and provides almost 
$10 billion for prisons. Almost 80 percent of the money in this 
legislation is for law enforcement and for prisons--just under 80 
percent. On the prisons, almost $10 billion--$8 billion of it to States 
to build and operate prisons and incarceration alternatives such as 
boot camps which will ensure that additional prison space is available 
for violent offenders. There is almost $2 billion to provide assistance 
to the States for the costs of incarcerating criminal illegal aliens.
  I already made reference earlier to the provision dealing with 
firearms, a ban on assault weapons. There is money in this legislation 
for drug courts, for a program for nonviolent offenders with substance-
abuse problems. Participants will be intensely supervised and receive 
drug treatment. They will be subject to graduated sanctions ultimately 
including prison terms if they fail random drug tests.
  These drug courts, where they have been tried across the country, 
have proved to be a more effective way of dealing with drug problems 
for first-time nonviolent offenders.
  Finally, let me turn to the preventive programs because it is now 
being asserted by some, ``Oh, this is the basis of our opposition to 
this legislation.'' Of course these programs were addressed in the 
reconvened conference and slimmed down and reduced. But let me just 
mention what some of these programs are that have been kept in the 
legislation. People are taking the floor here or in the debate across 
the country and condemning prevention programs without examining 
exactly what they do. Often the programs are misrepresented.
  There is $6 billion out of a total of $30 billion in the package for 
the preventive programs. Let me just mention the larger ones amongst 
them. There is $1.6 billion to fund the Violence Against Women Act. We 
have been trying to enact that legislation here for a long period of 
time. Almost 30 percent of the preventive money about which some are 
now raising questions--I believe in large part as a smoke screen for 
other reasons--but almost 30 percent of the prevention money is to fund 
the Violence Against Women Act. It includes funds to increase and train 
police, prosecutors and judges, to encourage pro-arrest policies; funds 
for victims' services and advocates; battered women's shelters, rape 
education and community prevention programs; and increased security in 
public places. It extends rape shield law protection to civil cases. It 
is a comprehensive approach to deal with the violence against women 
problem that we confront in our society. That is an essential program. 
We must move forward with it.
  This legislation provides $1.6 billion for funding for localities 
around the country for drug treatment and drug education programs. We 
want to stop, right at the start, people from going down the path of 
drugs and then crime.
  Who can quarrel with that? Who would question the importance of such 
a program in every part of the country--not just the urban areas of 
this country? It is clear, increasingly clear, that all across the 
land--in rural, suburban, and urban areas--we are confronting a rising 
drug problem.
  It provides money for drug treatment of prisoners in State and 
Federal prisons. We arrest these people; we put them in prison; they 
have a drug habit; we do not treat the drug habit; eventually they come 
out of prison; they are right back on drugs; the next thing you know 
they have committed a crime; and they are right back in prison. So you 
revolve them around and back into the system, and in the meantime 
someone out in the community has been the victim of their crime.
  There is about $800 million to provide aid for school-based 
programs--after school, weekends, summer activities--to help make the 
schools a safe haven for our young people, a place they can go to 
escape the risks that they confront on the streets in their 
neighborhoods that are permeated by a life of drugs and crime. It 
provides inschool assistance to at-risk children. This is a wise 
investment in the future of our country, and it is certainly a wise 
investment in achieving a safer society.
  Now, those are the major items within the prevention programs. Then 
we do provide a block grant program to local governments of just under 
$400 million to try to develop antigang programs, to have sports 
leagues, to have boys and girls clubs, to have police partnerships. 
Those programs will work if we will give them a chance to work. The 
police themselves tell us that such programs are important to building 
safer neighborhoods.
  So, Mr. President, this is a balanced, comprehensive approach to deal 
with the crime problem. It will deal with policing. It will deal with 
prisons. It will toughen punishment. This legislation has provisions 
that provide additional death penalties for certain heinous crimes. It 
has the three-strikes-and-you-are-out provision, imposing a life 
sentence for a third violent felony. So it tightens and makes tougher 
our punishment system. It commits resources in order to do something 
about crime--for the police, for the support agencies, the prosecutors, 
the courts, the State and local governments. And, of course, it seeks 
to deal with prevention programs as well.
  Let me make one final observation. Some say they are going to raise a 
point of order against this conference report because the conference 
report includes in it a trust fund which would ensure that the savings 
realized by the downsizing of the Government will be committed to the 
crime fight.
  I know my distinguished colleague from Massachusetts will speak on 
that. Senator Kerry had a lot to do with developing and pushing that 
concept forward. What this legislation does is make certain that the 
savings which come from reducing the size of Government will go to 
address this major national problem, what some have characterized as 
the most serious domestic issue in the country.
  Now, interestingly enough, apparently some of the Members of this 
body on the Republican side who were most insistent on the trust fund 
concept are the ones who are now considering raising a point of order 
against the crime conference report on the basis of the trust fund.
  Now, everyone needs to appreciate that raising a point of order means 
we then have to have 60 votes in order to waive the point of order, so 
the majority escalates from 51 to 60. That is why you make the point of 
order. And, of course, if you fail to get the 60, you can bring down 
the conference report and throw this whole effort to come to grips with 
the crime problem back into turmoil.
  Why would people who urged the trust fund concept upon us, who took 
the floor and insisted upon it, who said that this was the way to go, 
why would they now use this technicality of a point of order against 
the trust fund, the very concept they were urging, in order to bring 
down this crime conference report?
  I am not going to try to answer that question because I do not think 
there is any reasonable or decent answer to it. I just want to leave it 
there for people to think about. But I raised it so there is an 
understanding of the political dynamics that are taking place with 
respect to this legislation.
  We have to forget those dynamics. We cannot be engaged in that game. 
This legislation is too important. The problem is too critical for the 
people of this country. This is good, strong, tough, smart legislation, 
and it needs to be enacted, and it needs to be enacted now.
  Mr. President, I yield the floor.

                               Exhibit 1

                                                 National District

                                        Attorneys Association,

                                  Alexandria, VA, August 23, 1994.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senator Biden: The House of Representatives has 
     finished its long debate on the Crime Bill and passed the 
     much needed effort to provide the means to combat this 
     national tragedy. The National District Attorneys Association 
     calls upon the Senate to emulate their colleagues and swiftly 
     end the six year wait for an effective program to address 
       As the prosecutors for every town, city and county across 
     the nation we have worked long and hard with you, the 
     Congress of the United States, to provide the American people 
     with an initiative that both fights crime and address the 
     causes of crime. Our support has been bipartisan, with the 
     needs of our nation foremost in our efforts. The Crime Bill 
     has come too far and too much is at stake to have the Senate 
     reject it at this juncture.
       As the peoples prosecutors we pledge to do all within our 
     power to lead our communities in their daily struggle against 
     crime. We ask you, the Congress to give us the means and the 
     leadership to accomplish this task by passing the Crime Bill 
     without further delay or debate.
                                              Robert L. Deschamps,

  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER (Mr. Wellstone). The Senator from Massachusetts 
is recognized.
  Mr. KERRY. I join my colleague from Maryland in expressing support 
for this bill, but, more importantly, I wish to thank him for his 
articulate summary of what is contained in this bill and what is at 
stake here. Indeed, he has left the most important question hanging out 
there. I may be either bold enough or stupid enough to answer it 
somewhat in the course of some of my comments, but it is a question 
that should not avoid the focus of the American people.
  It is really extraordinary enough that a bill that is as needed, as 
important, as crucial to the fabric of American life as this one, it is 
extraordinary enough that it has traveled such a tortured path to get 
us where we are today. It is even more extraordinary that after having 
navigated the legislative minefield, after having passed the Senate by 
a vote of 94, 95 to 5, after going to conference and having all of the 
input of the Republicans throughout the conference and agreement, and 
passing the conference, after then going to the House and finding some 
contention and being negotiated back and forth through the House, and 
then finding agreement--and I might add, even in those negotiations 
having Senator Gramm, Senator Dole, and other Republicans present and 
part of the negotiations--even after those negotiations and the House 
passes the bill by a steady margin, now it comes back here and we are 
faced with a situation where it has traveled this incredible journey, a 
journey really not just of those votes but of 6 years--for 6 years we 
have been struggling to pass a crime bill, and year after year the gun 
lobby has succeeded in finding some excuse or another to prevent the 
American people from getting cops on the streets, prisons built, 
programs to assist with the inner cities, a real crime bill to deal 
with the problem of crime in this country, and it is extraordinary to 
me, Mr. President, that here we are today in an extended session of the 
Senate hung up over the question of whether a small group may now 
assert a narrow political interest or a narrow special interest. That 
is really what we are doing here.
  That is, I think, an extraordinary statement about how the real 
concerns of the American people are blocked and trampled by a small 
minority for even smaller reasons.
  If ever there was an advertisement for campaign finance reform or for 
some means of getting the U.S. Congress more closely in touch with the 
real concerns of the American people, this bill makes that argument. 
This is, I think, my opinion. But having listened to Charlton Heston 
for these last days, at least in Washington and perhaps all across the 
country, this is I think the NRA's most brazen, political, myopic, 
narrow-interest stands. And as we know, small, narrow-interest thinking 
always provides the most stubborn resistance.
  This is a fight that is not touched yet by the larger interests of 
our Nation except to the degree that people are struggling to pass this 
bill. So perhaps the scope of reasonableness that we can expect from 
some of those who represent that interest will be as limited as their 
  Mr. President, let us understand very clearly. Let us ask the 
American people to understand what is happening here. America must 
understand this is not just a point of order. This is not just a 
technical vote. A vote, if there is a point of order, to sustain the 
point of order, is a vote to kill the crime bill. That is what we are 
doing here. A point of order is being raised, a technical point, that 
wants to suggest to America that something is wrong with this trust 
funding mechanism in this bill.
  Our friends who voted are for this trust fund. Our friends who helped 
create this trust fund, our friends who praised this trust fund, our 
friends who stumbled over each other to take credit for this trust fund 
are now going to come to the floor and suggest that it somehow violates 
the budget process.
  But Senator Domenici, one of the smart and astute observers of the 
Senate who knows the budget as well as anybody, stood up during the 
debate of Senator Byrd and called to the attention of the Senate during 
the debate that this was indeed a problem with respect to the budget 
process. But he then said he thought it was so important to fight crime 
that we would overlook that and move forward. He urged his colleagues 
to overlook it.
  Indeed, Mr. President, the U.S. Senate voted overwhelmingly to 
overlook the very point of order that they want to bring back today to 
kill the crime bill.
  Let me read what Senator Domenici said that night. Senator Domenici 
said, ``I am sure the distinguished chairman''--referring to Senator 
Byrd--``agrees with me that the pending amendment violates section 306 
of the Congressional Budget Act.'' Senator Byrd said:

       I do concur. I want to be clear that a 60-vote point of 
     order lies. The distinguished Senator from New Mexico and I 
     discussed this earlier today, and we both agreed it would 
     lie. May I say to the Senator that I will just as zealously 
     guard the legislative process in the future as I have in the 
     past. It was only because of the very extenuating 
     circumstances throughout this country today that I think cry 
     out for solutions that I have taken this approach.

  So the Senate was on notice. The Senate was aware. The chairman of 
the Appropriations Committee, whose jurisdiction this is, together with 
the Budget Committee--and Senator Domenici is on the Budget Committee--
both agreed to move on.
  Let me quote from Senator Domenici:

       I think it is historic. From my standpoint, as money is 
     saved from reducing the work force of the United States, I 
     join in saying if we are going to spend it, we probably ought 
     to spend it for the most serious domestic issue in our 

  The U.S. Senate listened to this distinguished Senator and voted 95 
to 5 to send this bill on.
  Senator Gramm, who now talks about bringing this point of order, said 
at the time:

       We have now put together a bill that is going to approach 
     the crime problem in two ways. It is going to deal with the 
     first offender. It is going to provide boot camps. It is 
     going to try to provide drug rehabilitation facilities. And 
     it is also going to build prisons so that violent predator 
     criminals convicted in State courts end up serving their full 

  Thus said Senator Gramm, who now contemplates coming back when the 
bill provides more money for prisons, tougher sentencing, more money 
for cops, and yet all of a sudden he has found a reason to assert the 
point of order that every single Republican was willing to ignore 
  So the Senator from Maryland asked the question, why are we here? Why 
are we back here now, with a fight as to whether or not we will pass a 
crime bill for the people of this country? Is it because Charlton 
Heston understands this better than we do? Is it because there is a 
political strategy here to prevent the President from signing a bill 
into law and claiming some constructive effort to help this country 
deal with this problem? Why else would they do it? Oh, we hear talk of 
pork and things. I will deal with that in a few moments.
  But, Mr. President, let me just say there are two real items of 
agenda here. One is the agenda of the NRA, and the other is the 
political agenda. Make Congress look bad. Prove that those Democrats 
who control Congress cannot get it passed. The American people do not 
all draw the distinction between filibusters and 60 votes or 40 votes, 
and they do not draw the distinction unless the media help draw the 
  Democrats are prepared to vote for a crime bill today, now, this 
afternoon. But some Republicans are talking about a technical point of 
order, which will be a hidden way of voting to kill the crime bill. 
That is what is at stake. That is gridlock. Mr. President, this is the 
test of gridlock in Washington. If Americans want to understand why we 
do not get a crime bill, then ask why this point of order is being 
  Some will assert, well, it is because there is some pork in here, and 
so forth. Do you know what this really is about? It is about weapons of 
war, 19 assault weapons and some other weapons that can be converted 
into assault weapons, all of which have nothing to do really with the 
ability of a sports person to go out and enjoy shooting.
  Mr. President, I have had a hunting license for the last years. I 
enjoy going out. I am not somebody who has come to the floor and 
asserted that we should change the second amendment. I am not somebody 
who asserts we can ever begin to enforce changing the second amendment 
in this country. If you do not think we have enough cops today to deal 
with the normal amount of felonies, how do you think we are going to 
assert dealing with more private weapons held? And there are weapons 
held by the Army, Navy, Air Force, Marines, Coast Guard, police, and 
private security forces all put together. Do you think they are going 
to stop one of those weapons from getting into their hands?
  We are crazy if we think that is our objective in the long run. That 
is not our objective. But no American is allowed to have an atomic 
weapon in their backyard. No American is allowed to have an M-1 Abrams 
tank sitting in their driveway. No American is allowed to go out and 
buy mortars and grenades and other weapons of war. Why should they be 
allowed to buy assault rifles that are weapons of war?
  I concede that these are not the weapons that are used predominantly 
as the choice in the commission of crimes in America. Indeed, handguns 
are, knives are. But they are used. They are used. So to whatever 
degree they are used, they are inappropriate to be on the streets of 
America. We are talking about assault weapons, weapons of war; 19 named 
weapon types, all of them identifiable, all of them frightening even in 
their appearance, all of them--Berettas, AK-47's, Uzis, street 
sweepers, Striker 12's--weapons that can spray a whole arena full of 
people in seconds, that have no purpose other than to try to kill 
faster. I have never met a sportsman who goes out--one who calls 
himself a real sportsman--to hunt with these. Whatever sportsman did 
would spend most of his time picking lead out of whatever was left to 
eat. Those are weapons of war, Mr. President. They do not belong in the 
streets of America. That is what this fight is about, because evidently 
some people somehow believe that we ought to be able to sell those.

  I believe, Mr. President, there is a reasonableness in this bill. 
These weapons should not be stockpiled in the streets of America. They 
are available today and they, quite simply, should not be. It is that 
simple. We have heard a lot of subterfuge about what this sort of 
hiddenly does to sports people.
  Let me just draw directly from the bill, Mr. President. The bill 
specifically exempts more than 650 different hunting and sporting 
rifles and shotguns, including the Browning and Remington rifles, and 
replicas and duplicates thereof. In other words, it takes 19 rapid-fire 
weapons of war and says, no, but it specifically exempts all these 
other weapons and allows them to be sold. Can we really, in America, 
find quarrel with a bill that is as clear in its restraint as that?
  In addition to those firearms specifically exempted, it exempts from 
the ban a firearm if it is a manually operated bolt, pump, lever, or 
slide action, if it is rendered permanently inoperable, such as a 
machine gun, or if it is an antique firearm, and so forth. I am not 
going to go through all of these, Mr. President. But the American 
people should not be misled here. They should not be lied to in fancy 
television ads or misled to believe this bill is something that it is 
  This is a reasonable approach in an effort to try to deal with the 
mayhem and chaos on the streets of America today.
  Mr. President, how often do we hear from the gun folks the mantra 
that ``guns do not kill people, people kill people.'' That is what you 
always hear. I happen to agree with the underlying concept of that. If 
a gun is lying on the table, unless something kicks it or something 
happens, it is not going to stand up on its own and shoot somebody. 
Somebody is going to pick it up. That is what happens in America. Some 
depraved human being, or crazed person, or somebody who lost their 
sense of life, or is so down or so angry or so something, picks up a 
gun and losing all sense of connection to the world and they pull the 
trigger and we pick up the pieces, and everybody else around them.
  So people do pick up a gun and kill. If this is true, it is a very 
important statement about the limits of what we are going to be able to 
do, unless we begin to deal with those people, particularly given what 
I said a moment ago about the numbers of guns there are in America.
  So it seems to me, Mr. President, if this is true, and if they mean 
what they say, if it is really guns that are not the problem, that 
people are the problem, then it is totally appropriate that this bill 
focuses on people, and that we put some attention into why it is that 
people kill people and how people kill people. What do we do about 
people killing people?
  But here we are, and we see that the very people who speak this 
mantra are prepared to deprive kids of the opportunity to make a better 
judgment than killing somebody, prepared to deprive America of the very 
programs that would make a difference in the choices that people make. 
The stark reality is, Mr. President, that we are raising children in 
America who are willing to shoot children. They have no stake, no 
balance to help them discern between good, bad, right and wrong. 
Literally, too many children are growing up in America today without 
contact with civilized choices.
  I ask my colleagues on the other side of the aisle to think back on 
their own childhoods and reflect a little bit on the things that made a 
difference in their lives. I hear these things when I talk to them 
privately, but somehow that private conversation gets lost between the 
privacy of the conversation and the public debate on the floor. They 
would tell you that family made a difference to them, Mr. President. 
They would tell you that parents who taught them, led them, goaded 
them, and disciplined them made a difference. They would tell you that 
teachers made a difference. They would tell you that sports programs 
and learning personal discipline and teamwork made a difference. They 
would tell you that the tranquility of their neighborhoods and 
communities and the fabric of that community made a difference. They 
would tell you that the absence of violence and the absence of an 
overdose from the daily culture of this country made a difference. They 
would tell you that they personally, because of all these other things, 
had a stake in the world around them and in themselves, and that they 
came to have some sense of worth and some sense of esteem. And they 
would tell you that growing out of all of the above, Mr. President, 
there was that reinforcement that came from a brother, or a sister, or 
a parent, or uncle, or a grandparent--little things.
  I picked up the Boston Globe today when I was flying down from 
Massachusetts, and on the front page of the Boston Globe today there is 
a story relevant to this, a story of a Little League team, which is 
about the Middleboro Little Leaguers who are playing in the Little 
League World Series. They lost the game. Let me read from one 
paragraph. It said:

       From near and far, fathers, mothers, neighbors and friends 
     gathered to watch the game on cable television cheering. 
     Though ultimately they had to reconcile a wrenching loss, all 
     along they knew that defeat was as temporary as the day. 
     ``There is more at stake,'' they said, ``than the score.'' 
     ``Every one of us has a connection with those boys out 
     there,'' said Bob Gillis, a liquor retailer in town.

  And the story goes on.
  Well, Mr. President, it is not just a one-way street; it is not just 
that a lot of people had a connection with those boys out there. Those 
boys had a connection with the people back home. Those boys had a 
connection with each other. They had a connection with something that 
reinforced a sense of worth and value in themselves, so they began to 
get a stake in community.
  In America today, Mr. President, there are literally millions of kids 
who never get any of this kind of input. I am talking about any of this 
kind of input. They do not have a family; they do not have the stake; 
they do not play in any of these leagues; they do not get the good 
teacher, or the reinforcement; they do not have the input. Do you know 
where they get it, Mr. President? They get it from a gang, from each 
other, from alternative choices. They get it by feeling macho, or big, 
or by being a member of something, or by picking up a gun or a knife 
and going along with the initiation, and playing into the fabric of 
life that is a counterculture. That is where they get it. You can see 
the difference.
  You can walk into any Boys or Girls Club in America and you can see 
the kids who are getting hold of something, and then you can go back 
out into the streets of Chicago, Boston, Washington, all over this 
country, and you can quickly see the kids who are in trouble. These 
children are abandoned, Mr. President. They are abandoned not just 
physically, but they are abandoned morally, ethically and spiritually, 
and they get none of the input that makes a difference in their lives. 
They are abandoned by the very community that then turns around and 
holds them accountable for not living up to the standards that that 
community never was willing to try to spend some money to imbue in them 
in the first place. That is what happens, Mr. President, and we turn 
around and wonder why we incarcerate more people in this country than 
anywhere else on the face of the planet. We can keep on doing that, and 
we can keep on taking tax dollars and building prisons. We can keep on 
putting cops on the street forever and ever. It will make no 
  So we have come to inherit a country in which all over this Nation a 
kid will stab or shoot another kid to wear his sneakers or hers, to 
grab a bluejean jacket, or to take their jewelry. That is where we have 
come. And we are raising more and more of those kids because they have 
inherited a kind of primitive--a society inherited from the failure of 
adult America that knows better. Adult America knows better.
  Here we are adults, the elected 100 U.S. Senators about to struggle 
over a point of order that is calculated to kill this bill and deprive 
us of some of those programs that make a difference in these kids' 
lives, and people have the temerity, the gall, to come out here and 
call it pork because it is one of those nice little labels that grabs 
everything and reduces politics to the simplest, lowest common 
denominator. That is where we are heading.
  How is it now that the gun people, who make so much of the qualities 
of judgment needed to control behavior with a gun, are willing to 
abandon the very efforts to help teach the judgment that controls that 
  There is a kind of know-nothingism loose in America today, Mr. 
President, a willingness to let slogans substitute for substance and 
ideas, a willingness to turn each debate or any dialog into a mere 
political exercise for short-term gain.
  We see today some behaving as if pretending that something will not 
be or is not going to happen, means it is not going to be and it is 
going to go away. The new governing doctrine of America and American 
politics today is avoidance, illusion, and irresponsibility.
  I have news for those folks, Mr. President, and for America. It does 
not matter how many prisons we go on building or how many cops we put 
on the street if we do not do something about the children we raise. We 
will simply put up more prisons and overwhelm the cops, and ultimately 
we will surround ourselves with mayhem and chaos.
  There is an alternative to all of this. It is an alternative to the 
violence we see in our streets and to the deprivation of our young, and 
many of us have experienced that alternative, Mr. President, which is 
why we feel we have a stake in things around us. But we seem to be 
unwilling to try to help to guarantee that we are going to get that 
alternative for those to whom it makes a difference in breaking the 
absurd cycle of violence that consumes this country today.
  Mr. President, it is the difference I talk about for those kids from 
Middleboro. It is the difference of creating a program that somehow 
gives these kids a connection with the life around them.
  Let me give you a couple examples. These are the programs that our 
friends want to call pork. There is a police athletic team in 
Birmingham, AL. The Birmingham Police Department sponsors softball, 
baseball, basketball, golf teams for kids from disadvantaged 
  Is that not amazing, Mr. President? The cops themselves in 
Birmingham, AL, are sponsoring the very programs that these folks on 
the other side of the aisle want to call pork. Do you know what the 
catch is? The kids have to study for at least an hour every night. The 
program supplies tutors, and you have to maintain a C average in order 
to be able to play ball.
  The police department reports that juvenile crime has dropped by 30 
percent in neighborhoods served by the program.
  Mr. President, it works. I can go through program after program. 
Senator Biden has done a remarkable job of shepherding this bill, 
guiding it and nurturing it, and his staff have done equally as fine a 
job of pulling together information. Here is a ``Catalog of Hope, Crime 
Prevention Programs for At-Risk Children,'' pages upon pages of stories 
that make a difference in peoples' lives, and each of them has proven 
that the percentage of kids who stay out of trouble as a consequence of 
having these programs available is enormous.
  That is an investment in the future. Mr. President, I would rather 
put $1,000 into this kid at age 11 or 12 or 13 than $30,000 a year for 
the rest of his or her life when they are sentenced for murder or 
manslaughter, whatever it is going to be, when they are aged 19. I 
think most Americans on reflection would not call this pork. They would 
call this an investment in America's future.
  This should not be trivialized and reduced to sloganeering and petty 
politics. This works.
  Let me share another example with you, Mr. President. The juvenile 
diversion program of Pueblo, CO. This is a program for nonviolent 
first-time offenders. It requires kids to sign a behavioral contract, 
and they become involved with a nonprofit agency. The kids are also 
tutored. They are counseled. They are required to pay restitution to 
their victims. The program reports--important, Mr. President--the 
program reports that 83 percent of its graduates are not rearrested.
  Now, we can go on and on through the entire country finding thousands 
of these kinds of programs. This is what is in this bill, not in the 
law enforcement part of it for which we spend $13.35 billion for 
community policing, rural law enforcement, drug enforcement, courts and 
prosecutors, police corps, the Local Partnership Act. It is not in the 
prison section for which we spend $9.7 billion to build State prisons--
State prisons--incidentally, the first time in history. But it is in 
only the $6.1 billion, less than we are spending on either of the other 
two components, $90 million for an ounce of prevention to coordinate 
the crime prevention efforts, $567 million for after-school, weekend, 
and summer safe-haven programs to provide kids with positive activities 
and alternatives to crime in the streets.
  I was in New Bedford, MA, a few weeks ago, and I had a meeting with 
the police right out in front of the school. They told me that that 
school has to shut at 3 o'clock in the afternoon because they do not 
have the money for the custodian for the school. So here is this 
enormous building right in the center of this community, shut. Where 
are the kids? Out on the street, around the drug dealers, prostitutes, 
pimps. Whose fault is it, Mr. President? Whose fault is it later on 
when those are the role models that they have assumed?
  Well, we have $567 million in here for after school. That is not 
  The Violence Against Women Act, $1.6 billion, to fight violence 
against women, to train police, prosecutors, judges and others. That is 
in prevention, but it is not pork, Mr. President.
  There is the community economic partnership for lines of credit to 
community development corporations for businesses for employment 
opportunities for low-income employed and underemployed individuals.
  There is $383 million for drug treatment programs for Federal 
prisoners. You know, we have been letting about 200,000 people a year 
out of jail addicted to drugs. The system is so crazy and without 
common sense today that we actually know they are getting drugs in 
prisons. They get smuggled in. We all know they are actually leaving 
prison addicted to drugs, and we give them an allowance to get on a bus 
and go home. And what are they going to do? If there is any community 
within which you ought to be able to get people off of drugs, it is 
when you have them incarcerated under your control.
  I have been in a jail recently in Ludow, MA, where the sheriff, Mike 
Ash, has an extraordinary program of reaching out to his prisoners, 
bringing them into drug treatment, helping them get off drugs. I sat 
and listened to those prisoners tell me that this is the first time in 
16 years or 20 years that they have ever had the availability of a 
program to go straight and that it has made all the difference to them. 
I have had a kid who was in jail for 15 years tell me what put him in 
jail was drugs, what kept him in jail was drugs, and it was not until 
they had this chance that he thought there might be a future for him.
  Is that pork? That is what our friends want to call pork. That is 
what they want to mislabel for the American people and is somehow what 
ought to stop this crime bill from going forward. I know Charlton 
Heston does not know that program is in there, Mr. President.
  I can go through dozens of other stories, but there are others who 
are waiting. I simply want to say this bill is a critical bill for this 
country. I have not been a prosecutor now since the 1970's. I can claim 
to be one of those in the Senate, along probably with Arlen Specter and 
Pat Leahy and maybe Joe Biden, and a few others, who actually stood up 
in front of the judge and asked for someone to go away for the rest of 
their life.
  So I am not going to take a second seat to anybody on the other side 
of the aisle about what is important to fight crime.
  I had the privilege of administering one of the 10 largest district 
attorneys offices in America. I fought organized crime, violent crime, 
drugs, we had an arson task force, you name it.
  Mr. President, we are dying on the vine in the criminal justice 
system in this country because it has been stripped of resources for 15 
years. We have been going through a slow process of disarmament, of 
taking away cops, city for city, of unwillingness to face up to 
building prisons, but simultaneously an unwillingness to have drug 
treatment and deal with the problems that we face in this country.
  It has taken us 20 years to get where we are today. And I say to my 
colleagues, this bill is not the end. This is the beginning. This is a 
downpayment on what we are going to need to begin to reclaim the 
streets and communities of this country. It is a downpayment on what we 
are going to need to deal with the number of kids who are growing up 
listening to gunfire or planning their funerals, as we remember reading 
about in the Washington Post a few months ago.
  I hope my colleagues on the other side of the aisle will think very 
carefully before they ask us, on a technicality, to try to defeat the 
crime bill.
  This vote, America, is not to save money. This is not a deficit vote. 
The truth is, the only reason there is a technical point of order that 
might lie is not because this bill spends more money than we are 
allowed to, but it actually lowers what is called the cap. We have a 
cap we live under. We are only allowed to spend x amount of money in 
discretionary funding. And instead of lifting that amount of money, 
this lowers the amount of money.
  So our Republican friends, who are the great deficit hawks who say we 
are wasting too much money in Washington, are actually raising, if they 
raise it, a point of order that lies only because we are lowering that 
cap, spending less money. How ironic it would be that the very people 
who lauded this trust fund, the very people who praised this effort, 
the very people who voted for this bill, the very people who helped 
bring us to this moment are now going to complain because we are 
lowering the amount of money that we are spending. And that is the 
reality of what is contained here.
  Mr. President, you just look around this country right now and you 
will see violence, drug-ridden reality. We know it. We have seen the 
institutions of civilized life breaking down around us. We see 
disintegrated families.
  I hear some of my friends say, ``Well, the problem is that there 
really are so many illegitimate births.'' Yes, there are. You can go to 
some places in South Side Chicago, in Washington, little parts of 
Roxbury, Dorchester, Los Angeles, Miami, Detroit and you will find a 
rate of illegitimate birth at 70 to 80 percent. As a whole, among 
whites in America it has gone up to about 23 percent. So you have 
literally millions of kids who are growing up maybe with one parent 
around, often with both of them gone, and it is no wonder that these 
kids are out there wandering around without any influence in their 
lives that makes a difference.
  We see crack houses replacing some communities as the focus of life. 
And I think we see a reality now where we have more young men dying in 
America today at a rate that exceeds--this is young black men--dying at 
a rate that exceeds any American war in history.
  So these are the stakes. I hope my colleagues on the other side of 
the aisle will hold back from trying to kill this bill on 
technicalities and will understand that the real concerns of the 
American people are to do something serious in the first comprehensive, 
broad-based, ballistic approach to dealing with crime in this country 
in 20 years.
  Mr. SIMON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. SIMON. Mr. President, there are two issues here. The first is 
whether, on a technical point, we will not have the chance to vote on 
the crime bill. And on that issue, I have no hesitancy in saying I hope 
we do the right thing. We play party politics around here too often. 
Democrats do it; Republicans do it. We do not serve the national 
interest when we do that.
  And, on the basis of a technicality, to say we are going to keep the 
U.S. Senate from voting on a crime bill, that really is a great 
mistake. It is a technicality because of the trust fund.
  Mr. President, here are the people who cosponsored the amendment on 
the trust fund: Senators Byrd, Mitchell, and Biden our side of the 
aisle; and Senator Robert Dole, Senator Phil Gramm, Senator Orrin 
Hatch, Senator Pete Domenici, and Senator Connie Mack on the other side 
of the aisle.
  And now, with five Republican Senators as cosponsors, they want to 
stop the bill because of an amendment that was put on at their request. 
That point of order should not prevail, and I hope and trust we will do 
the right thing.
  There is a second question, where I am not sure how I am going to 
vote, and that is on the bill itself, on the conference report. It is a 
better bill, ironically, despite all the noise that we are hearing, it 
is a better bill than when it emerged from the Senate.
  But I cast one of four votes against that bill. The good things in 
it--this is the positive side--it does do something about assault 
weapons in our society. If I end up voting for it, one of the reasons I 
am going to be voting for it is my friends in the National Rifle 
Association have made such a great noise against it, they have 
convinced me that there really is merit to this.
  But, frankly, I do not see any justification for these assault 
  I live, as the Presiding Officer knows, down in deep southern rural 
Illinois, a lot like rural Minnesota. We have a home, 12 acres, right 
next to the Shawnee National Forest. I spent part of this last weekend 
at my home. I saw more deer than people when I was there this weekend. 
I am around hunters all the time. I have never seen a hunter with an 
Uzi or an AK-47. We do not need those kinds of weapons for a sports 
person. So, this really does not make sense.
  The Street Sweeper. Why do they call it a Street Sweeper? Do they 
call it a Street Sweeper because it sweeps the street of 
garbage? Obviously not. It is because it sweeps the streets of human 
beings. Why should the Street Sweeper not be made illegal?

  Let me just give two more examples. Sydney, Australia--very similar 
to Los Angeles, CA, in many ways; very similar crime rates. The 
burglary rate in Sydney, Australia is slightly higher than in Los 
Angeles. There is one crime dramatically different in Sydney, 
Australia, and that is murder by firearms. There are 7 percent as many 
in Sydney, Australia, as in Los Angeles. Why? Because of the gun laws.
  Seattle, WA, and Vancouver, BC--very close to each other, very 
similar ethnic composition, very similar crime rates--with one 
exception: Murder by firearms. There are 4.8 times as many in Seattle 
as in Vancouver, BC, just a few miles away. Why? Because of gun laws. 
That is one of the positive things here.
  Drug treatment is stressed--that is one of the positive things--in 
prisons. A few weeks ago, I went to the Cook County jail. I went 
voluntarily, I want to assure the Presiding Officer, because they were 
concerned about the health care bill and what it would do to their 
health care program. But I went around and visited a number of the 
prisoners. In one of the minimum security areas where you had about 40 
people on cots, a dormitory kind of situation, as I was walking along, 
one of the prisoners said to me, ``I want to get into the drug 
treatment program and I cannot get in.'' I turned to the group there 
and of the 40 prisoners, I said, ``How many of you want to get into the 
drug treatment program?'' And about 25 raised their hands.
  So I turned to the person who was taking me around and I said, ``How 
many prisoners do you have and how many people are in the drug 
treatment program?'' Well, they had 9,000 prisoners, and 300 in the 
drug treatment program. We obviously have to do much better than that.
  The gun dealer licensing provision that I was able to get into the 
bill requires applicants to certify that they are in compliance with 
State and local laws. It permits the Bureau of Alcohol, Tobacco and 
Firearms to have more time to do an inspection and it requires them 
also to notify local law enforcement agencies about who the licensees 
are. Mandatory minimums for people who have been convicted on low-
level, nonviolent offenses--give some flexibility to Federal judges. 
Virtually all the Federal judges favor that. You have everyone from 
Chief Justice Rehnquist to many, many others who talked about that.
  Cash bail reporting--this is a provision I got in at the suggestion 
of the mayor of Chicago, Richard Daley, who said when someone comes up 
with a cash bail of $10,000 or more, that ought to be reported to the 
prosecuting attorneys because frequently that means some drug 
involvement--that is part of this.
  DNA--I held the first hearings on DNA some years ago and got the 
first authorization for the FBI on this. This puts $65 million in to 
improve the ability of State and local crime laboratories to perform 
DNA analysis. And it authorizes the FBI to establish standards. We have 
standards for fingerprinting; we do not have standards yet for DNA.
  The Violence Against Women Act, the chief sponsor is Senator Biden, 
but I have a little piece in there that says judges, who are 
overwhelmingly male, ought to have sensitivity sessions where they can 
learn about problems of domestic violence and rape and some of the 
other problems that women have.
  Those are the positive things. Let me mention just two things on the 
negative side.
  One is the imposition of the death penalty for 56 additional causes. 
It is going to do absolutely nothing to stop crime. It is great speech 
material for politicians when they get back home to our home States and 
say, ``Oh, we really did something about crime.'' Canada does not have 
a death penalty. Mexico does not have a death penalty. None of the 
Western European nations has a death penalty provision. Only six 
nations permit the death penalty for people 18 and younger: Iraq, Iran, 
three other nations--and the United States of America. We are not in 
very good company on that.
  Colman McCarthy had a column on the death penalty. I ask unanimous 
consent to have it printed in the Record at this point.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Aug. 13, 1994]

                         Justice by the Dollar

                          (By Colman McCarthy)

       If you were arrested on a homicide charge--as are more than 
     20,000 people a year--and had a choice of hiring a $600-an-
     hour defense lawyer or a $15-an-hour one, which would you 
       The question contains an assumption--that you have the 
     wealth to buy the high-priced lawyer and the celebrated 
     competence and legal shrewdness he or she is known for. For 
     O.J. Simpson, a millionaire with pockets that go as deep as 
     his knees, paying for quality counsel was never a question. 
     He could hire an entire front line of lawyers, as if he were 
     still a star fullback with the law's Pro Bowl linesmen--
     Robert Shapiro, F. Lee Bailey, Alan Dershowitz, Johnny 
     Cochran--running legal interference.
       What lay people see as slick attorneys skilled in courtroom 
     trumps and adept at playing to the media is no more than a 
     fulfillment of Canon Seven of the bar's Code of Professional 
     Responsibility: ``A lawyer should represent a client 
     zealously within the bounds of the law.''
       As the Simpson litigation unfolds, the professionalism of 
     the defense attorneys is certain to magnify graphically what 
     everyone in the legal system knows and, regrettably, more 
     than a few condone: Justice is a commodity, with the rich 
     able to buy the finest and the poor often stuck with the 
     worst. For every exquisitely defended Simpson, thousands of 
     accused or convicted murderers are laxly defended. Some have 
     no representation. In Texas, out of 370 inmates on death row, 
     about 60 have no lawyer.
       An anthology of horror stories is available about men and 
     women wrongly or sketchily represented by court-appointed 
     lawyers who, if they were car mechanics, couldn't fix flats 
     or change the oil:
       In a 1992 Texas murder case, a defendant complained to the 
     judge that his lawyer was sleeping during the trial. The 
     judge ruled: ``The Constitution does not say that the lawyer 
     has to be awake.'' The defendant received the death penalty.
       In one-fourth of Tennessee's death penalty cases, court-
     appointed lawyers lacked the knowledge or experience to offer 
     evidence in mitigation.
       Alabama paid two defense lawyers at the rate of $4.05 and 
     $5.32 an hour for their pretrial preparation. Another Alabama 
     defense lawyer asked the judge for a time-out--to read the 
     state's death penalty statute.
       A study of lawyers appointed by judges in Philadelphia 
     homicide cases found incompetence so rampant that ``even 
     officials in charge of the [legal] system say they wouldn't 
     want to be represented in traffic court by some of the people 
     appointed to defend poor people accused of murder.''
       These examples and others were cited in the May 1994 Yale 
     Law Journal by Stephen Bright of the Southern Center for 
     Human Rights in Atlanta. In many states, he writes, ``the 
     lawyers appointed may not want the cases, may receive little 
     or no compensation for the time and expense of handling them, 
     may lack any interest in criminal law, and may not have the 
     skill to defend those accused of a crime. As a result, the 
     poor are often represented by inexperienced lawyers who view 
     their responsibilities as unwanted burdens, have no 
     inclination to help their clients and have no incentives to 
     develop criminal trial skills. Lawyers can make more money 
     doing almost anything else.''
       The media have had a hand in prolonging this imbalance. The 
     reporting of non-celebrity homicide trials rarely reveals the 
     quality of lawyering, the compensation, pretrial 
     investigatory work or the skill of the judge toward ensuring 
     a fair trial. Instead of that kind of reporting, many in the 
     media focus on trivia. When Arkansas put to death three men 
     on Aug. 3--a serial execution--USA Today devoted 20 lines in 
     a 114-line story to what the men ate for their last meals.
       Nothing in the pending federal crime bill deals with the 
     breakdown of defense law in homicide cases for the poor. 
     Legislatures, courts and bar associations have few qualms in 
     sanctioning two legal systems: one for the moneyed, another 
     for the poor.
       If all those accused of capital homicide had the 
     Shapiro-Bailey-Dershowitz-Cochran team defending them, 
     America would have no death rows.

  Mr. SIMON. Let me just mention two small paragraphs from it.

       In a 1992 Texas murder case, the defendant complained to 
     the judge that his lawyer was sleeping during the trial. The 
     judge ruled: ``The Constitution does not say that the lawyer 
     has to be awake.'' The defendant received the death penalty.
       * * * Alabama paid two defense lawyers at the rate of 
     $4.05, and $5.32 an hour for their pretrial preparation. 
     Another Alabama defense lawyer asked the judge for a time-
     out--to read the State's death penalty statute.

  What is clear as you look at the death penalty is, if you have enough 
money and can get the finest attorneys, you will never receive the 
death penalty. The death penalty is a penalty we reserve for people of 
limited means. Any of the people who are in the gallery here today, if 
they are loaded with money, do not need to worry about ever having the 
death penalty imposed upon them. But if not, then watch out. It may be 
imposed upon you.
  I ask unanimous consent to have printed in the Record an article by 
Stephen Bright in the Yale Law Journal of May of this year. It is 
titled, ``Counsel for the Poor: The Death Sentence Not for the Worst 
Crime but for the Worst Lawyer.''
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SIMON. Let me read from this: ``Poor people accused of capital 
crimes are often defended by lawyers who lack the skills, resources, 
and commitment to handle such serious matters.'' It goes into great 
detail. I will not read all these things.

       The National Law Journal, after an extensive study of 
     capital cases in six Southern states, found that capital 
     trials are ``more like a random flip of a coin than a 
     delicate balancing of the scales'' because the defense lawyer 
     is too often ``ill-trained, unprepared * * * [and] grossly 

  The Yale Law Journal article continues:

       State trial judges and prosecutors--who have taken oaths to 
     uphold the law including the Sixth Amendment--have allowed 
     capital trials to proceed and death sentences to be imposed 
     even when defense counsel fought among themselves or 
     presented conflicting defenses for the same client, referred 
     to their clients by a racial slur, cross-examined a witness 
     whose direct testimony counsel missed because he was parking 
     his car, slept through part of the trial, or was intoxicated 
     during trial.

  In the footnote it refers to one case in California, ``Counsel, an 
alcoholic, was arrested en route to court one morning and found to have 
a blood alcohol level of 0.27''--more than twice the stage you are 
considered drunk--``yet the court was unwilling to create a presumption 
against the competence of attorneys under the influence of alcohol.''
  I could go on. One final point here, Mr. President. We have--and my 
friend, Senator Domenici, was on the floor just a little bit ago. We 
have worked on this whole problem of deficits. I see Senator Hatch on 
the floor, and he and I have worked and cosponsored the balanced budget 
  What we are doing in this bill is also, for prisons, handing out $9.7 
billion to States for prisons. To my knowledge, there has been not a 
single hearing on this question. If the Federal Government had all 
kinds of surplus money, it might be a very fine thing to do. We do not 
have all that surplus money. Aaron Rappaport, from my staff, today gave 
me the latest statistics. We now have 530 people per 100,000 in our 
prisons--far more than any other country. South Africa is second with 
310 per 100,000.
  Venezuela is third at 157 per 100,000. Canada has 109 per 100,000. If 
putting people away in prison made a country crime free, we would have, 
by far, the least crime of any country on the face of the Earth.
  This bill accepts as the theory that we can just lock them up and 
throw away the key and we are going to do something. That is one of the 
things I am concerned about. If you really wanted to do something about 
crime, then, for example, take a look at the statistics that 82 percent 
of those in our prisons and jails today are high school dropouts. You 
do not need to be an Einstein to figure out that you ought to do 
  A majority of those in our prisons today were unemployed when they 
were arrested. You show me an area with high unemployment, I will show 
you an area with high crime.
  Again, there are two issues. One is the technical issue: Are we going 
to, because of a technical point of order, keep the U.S. Senate from 
voting on this conference report on crime? And here I cannot even 
believe that my friends on the other side of the aisle are going to 
make any points with the public. I think it is poor politics; it is 
certainly poor Government. We ought to be able to vote on this and we 
ought to be able to vote promptly.
  The second question is the merits of the legislation itself. As I 
indicated in my opening remarks, I was one of four to vote against it 
when it passed the Senate. I am not sure how I am going to vote on it. 
It is improved from when it passed the Senate. But there are enough 
good things and bad things in it that I am going to weigh that 
decision. But the first decision I hope we will make is in the interest 
of our country and not play political games. Let us let the Senate vote 
on this legislation.
  I yield the floor.

                               Exhibit 1

                 [From the Yale Law Journal, May 1994]

 Counsel for the Poor: The Death Sentence Not for the Worst Crime but 
                          for the Worst Lawyer

                        (By Stephen B. Bright*)

       After years in which she and her children were physically 
     abused by her adulterous husband, a woman in Talladega 
     County, Alabama, arranged to have him killed. Tragically, 
     murders of abusive spouses are not rare in our violent 
     society, but seldom are they punished by the death penalty. 
     Yet this woman was sentenced to death. Why?
     Footnotes at end of article.
       It may have been in part because one of her court-appointed 
     lawyers was so drunk that the trial had to be delayed for a 
     day after he was held in contempt and sent to jail. The next 
     morning, he and his client were both produced from jail, the 
     trial resumed, and the death penalty was imposed a few days 
     later.\1\ It may also have been in part because this lawyer 
     failed to find hospital records documenting injuries received 
     by the woman and her daughter, which would have corroborated 
     their testimony about abuse. And it may also have been 
     because her lawyers did not bring their expert witness on 
     domestic abuse to see the defendant until 8 p.m. on the night 
     before he testified at trial.\2\
       Poor people accused of capital crimes are often defended by 
     lawyers who lack the skills, resources, and commitment to 
     handle such serious matters. This fact is confirmed in case 
     after case. It is not the facts of the crime, but the quality 
     of legal representation,\3\ that distinguishes this case, 
     where the death penalty was imposed, from many similar cases, 
     where it was not.\4\
       The woman in Talladega, like any other person facing the 
     death penalty who cannot afford counsel, is entitled to a 
     court-appointed lawyer under the Supreme Court's decision in 
     Powell v. Alabama.\5\ But achieving competent representation 
     in capital and other criminal cases requires much more than 
     the Court's recognition, in Powell and in Gideon v. 
     Wainwright,\6\ of the vital, importance of counsel and of 
     ``thoroughgoing investigation and preparation.''\7\ Providing 
     better representation today than the defendants had in 
     Scottsboro in 1931 requires money, a structure for providing 
     indigent defense that is independent of the judiciary and 
     prosecution, and skilled and dedicated lawyers. As Anthony 
     Lewis observed after the Gideon decision extended the right 
     to counsel to all state felony prosecutions:
       ``It will be an enormous task to bring to life the dream of 
     Gideon v. Wainwright--the dream of a vast, diverse country in 
     which every person charged with a crime will be capably 
     defended, no matter what his economic circumstances, and in 
     which the lawyer representing him will do so proudly, without 
     resentment at an unfair burden, sure of the support needed to 
     make an adequate defense.''\8\
       More than sixty years after Powell and thirty years after 
     Gideon, this task remains uncompleted, the dream unrealized. 
     This Essay describes the pervasiveness of deficient 
     representation, examines the reasons for it, and considers 
     the likelihood of improvement.

      i. the difference a competent lawyer makes in a capital case

       Arbitrary results, which are all too common in death 
     penalty cases, frequently stem from inadequacy of counsel. 
     The process of sorting out who is most deserving of society's 
     ultimate punishment does not work when the most fundamental 
     component of the adversary system, competent representation 
     by counsel, is missing.\9\ Essential guarantees of the Bill 
     of Rights may be disregarded because counsel failed to assert 
     them, and juries may be deprived of critical facts needed to 
     make reliable determinations of guilt or punishment. The 
     result is a process that lacks fairness and integrity.
       For instance, the failure of defense counsel to present 
     critical information is one reason that Horace Dunkins was 
     sentenced to death in Alabama. Before his execution in 1989, 
     when newspapers reported that Dunkins was mentally retarded, 
     at least one juror came forward and said she would not have 
     voted for the death sentence if she had known of his 
     condition.\10\ Nevertheless, Dunkins was executed.
       This same failure of defense counsel to present critical 
     information also helps account for the death sentences 
     imposed on Jerome Holloway--who has an IQ of 49 and the 
     intellectual capacity of a 7-year old--in Bryan County, 
     Georgia,\11\ and William Alvin Smith--who has an IQ of 65--in 
     Oglethorpe County, Georgia.\12\ It helps explain why Donald 
     Thomas, a schizophrenic youth, was sentenced to death in 
     Atlanta, where the jury knew nothing about his mental 
     impairment because his lawyer failed to present any evidence 
     about his condition.\13\ In each of these cases, the jury was 
     unable to perform its constitutional obligation to impose a 
     sentence based on ``a reasoned moral response to the 
     defendant's background, character and crime,''\14\ because it 
     was not informed by defense counsel of the defendant's 
     background and character.
       It can be said confidently that the failure to present such 
     evidence made a difference in the Holloway, Smith, and Thomas 
     cases. After each was reversed--one of them for reasons 
     having nothing to do with counsel's incompetence--the 
     pertinent information was presented to the court by new 
     counsel, the death sentence was not imposed. But for many 
     sentenced to death, such as Horace Dunkins, there is no 
     second chance.
       Quality legal representation also made a difference for 
     Gary Nelson and Frederico Martinez-Macias, but they did not 
     receive it until years after they were wrongly convicted and 
     sentenced to death. Nelson was represented at his capital 
     trial in Georgia in 1980 by a sole practitioner who had never 
     tried a capital case.\15\ The court-appointed lawyer, who was 
     struggling with financial problems and a divorce, was paid at 
     a rate of only $15 to $20 per hour.\16\ His request for co-
     counsel was denied.\17\ The case against Nelson was entirely 
     circumstantial, based on questionable scientific evidence, 
     including the opinion of a prosecution expert that a hair 
     found on the victim's body could have come from Nelson.\18\ 
     Nevertheless, the appointed lawyer was not provided funds for 
     an investigator\19\ and, knowing a request would be denied, 
     did not seek funds for an expert.\20\ Counsel's closing 
     argument was only 255 words long.\21\ The lawyer was later 
     disbarred for other reasons.\22\
       Nelson had the good fortune to be represented pro bono in 
     postconviction proceedings by lawyers willing to spend their 
     own money to investigate Nelson's case.\23\ They discovered 
     that the hair found on the victim's body, which the 
     prosecution expert had linked to Nelson, lacked sufficient 
     characteristics for microscopic comparison.\24\ Indeed, they 
     found that the Federal Bureau of Investigation had previously 
     examined the hair and found that it could not validly be 
     compared.\25\ As a result of such inquiry, Gary Nelson was 
     released after eleven years on death now.
       Frederico Martinez-Macias was represented at his capital 
     trial in El Paso, Texas, by a court-appointed attorney paid 
     only $11.84 per hour.\26\ Counsel failed to present an 
     available alibi witness, relied upon an incorrect assumption 
     about a key evidentiary point without doing the research that 
     would have corrected his erroneous view of the law, and 
     failed to interview and present witnesses who could have 
     testified in rebuttal of the prosecutor's case.\27\ Martinez-
     Macias was sentenced to death.
       Martinez-Macias received competent representation for the 
     first time when a Washington, D.C., firm took his case pro 
     bono. After a full investigation and development of facts 
     regarding his innocence, Martinez-Macias won federal habeas 
     corpus relief.\28\ An El Paso grand jury refused to re-indict 
     him and he was released after nine years on death row.\29\
       Inadequate representation often leaves the poor without the 
     protections of the Bill of Rights. An impoverished person was 
     sentenced to death in Jefferson County, Georgia, in violation 
     of one of the most basic guarantees of our Bill of Rights--
     the right to a representative jury selected without 
     discrimination on the basis of race.\30\ African-Americans 
     make up 54.5% of the population of that county, but the jury 
     pool was only 21.6% black, a severe underrepresentation of 
     over 50%.\31\ But this issue was not properly raised and 
     preserved by the court-appointed lawyer for the accused. The 
     defendant had the extreme misfortune of being represented--
     over his protests--by a court-appointed lawyer who, when 
     later asked to name the criminal law decisions from any court 
     with which he was familiar, could name only two: ``Miranda 
     and Dred Scott.''\32\ As a result of the lawyer's failure to 
     challenge the racial discrimination at or before trial, the 
     reviewing courts held that the defendant was barred from 
     vindication of his constitutional rights.\33\
       The difference that representative juries and competent 
     counsel make in capital cases is illustrated by the cases of 
     two codefendants, John Eldon Smith and Rebecca Machetti. They 
     were sentenced to death by unconstitutionally composed juries 
     within a few weeks of each other in Bibb County, Georgia.\34\ 
     Machetti's lawyers challenged the jury composition in state 
     court; Smith's lawyers did not because they were unaware of 
     the Supreme Court decision prohibiting gender discrimination 
     in juries.\35\
       A new trial was ordered for Machetti by the federal court 
     of appeals.\36\ At that trial, a jury which fairly 
     represented the community imposed a sentence of life 
     imprisonment.\37\ The federal courts refused to consider the 
     identical issue in Smith's case because his lawyers had not 
     preserved it.\38\ He was executed, becoming the first person 
     to be executed under the Georgia death penalty statute upheld 
     by the U.S. Supreme Court in 1976.\39\ Had Machetti been 
     represented by Smith's lawyers in state court and Smith by 
     Machetti's lawyers, Machetti would have been executed and 
     Smith would have obtained federal habeas corpus relief.
       In these examples, imposition of the death penalty was not 
     so much the result of the heinousness of the crime or the 
     incorrigibility of the defendant--the factors upon which 
     imposition of capital punishment supposedly is to turn--but 
     rather of how bad the lawyers were. In consequence, a large 
     part of the death row population is made up of people who are 
     distinguished by neither their records nor the circumstances 
     of their crimes, but by their abject poverty, debilitating 
     mental impairments, minimal intelligence, and the poor legal 
     representation they received.
       A member of the Georgia Board of Pardons and Paroles has 
     said that if the files of 100 cases punished by death and 100 
     punished by life were shuffled, it would be impossible to 
     sort them out by sentence based upon information in the files 
     about the crime and the offender.\40\ A justice of the 
     Mississippi Supreme Court made the same observation about the 
     imposition of death sentences in his state in testimony 
     before the U.S. Senate Judiciary Committee:
       ``I dare say I could take every death sentence case that we 
     have had where we have affirmed, give you the facts and not 
     tell you the outcome, and then pull an equal number of murder 
     cases that have been in our system, give you the facts and 
     not tell you the outcome, and challenge you to pick which 
     ones got the death sentence and which ones did not, and you 
     couldn't do it.''\41\
       Although it has long been fashionable to recite the 
     disgusting facts of murder cases to show how deserving of 
     death particular defendants may be,\42\ such renditions fail 
     to answer whether the selection process is a principled one 
     based on neutral, objective factors that provide a 
     ``meaningful basis for distinguishing the few cases in which 
     the [death] penalty is imposed from the many cases in which 
     it is not.''\43\ Virtually all murders involve tragic and 
     gruesome facts. However, the death penalty is imposed, on 
     average, in only 250 cases of the approximately 20,000 
     homicides that occur each year in the United States.\44\ 
     Whether death is imposed frequently turns on the quality of 
     counsel assigned to the accused.

 ii. the pervasive inadequacy of counsel for the poor and the reasons 
                                 for it

       Inadequate legal representation does not occur in just a 
     few capital cases. It is pervasive in those jurisdictions 
     which account for most of the death sentences. The American 
     Bar Association concluded after an exhaustive study of the 
     issues that ``the inadequacy and inadequate compensation of 
     counsel at trial'' was one of the ``principal failings of the 
     capital punishment systems in the states today.''\45\ Justice 
     Thurgood Marshall observed that ``capital defendants 
     frequently suffer the consequences of having trial counsel 
     who are ill equipped to handle capital cases.''\46\ The 
     National Law Journal, after an extensive study of capital 
     cases in six Southern states, found that capital trials are 
     ``more like a random flip of the coin than a delicate 
     balancing of the scales'' because the defense lawyer is too 
     often ``ill trained, unprepared . . . [and] grossly 
     underpaid.''\47\ Many observers from a variety of 
     perspectives and from different states have found the same 
     scandalous quality of legal representation.\48\
       These assessments are supported by numerous cases in which 
     the poor were defended by lawyers who lacked even the most 
     rudimentary knowledge, resources, and capabilities needed for 
     the defense of a capital case. Death sentences have been 
     imposed in cases in which defense lawyers had not even read 
     the state's death penalty statute or did not know that a 
     capital trial is bifurcated into separate determinations of 
     guilt and punishment.\49\ State trial judges and 
     prosecutors--who have taken oaths to uphold the law, 
     including the Sixth Amendment--have allowed capital trials to 
     proceed and death sentences to be imposed even when defense 
     counsel fought among themselves or presented conflicting 
     defense for the same client,\50\ referred to their clients by 
     a racial slur,\51\ cross-examined a witness whose direct 
     testimony counsel missed because he was parking his car,\52\ 
     slept through part of the trial,\53\ or was intoxicated 
     during trial.\54\ Appellate courts often review and decide 
     capital cases on the basis of appellate briefs that would be 
     rejected in a first-year legal writing course in law 
       There are several interrelated reasons for the poor quality 
     of representation in these important cases. Most fundamental 
     is the wholly inadequate funding for the defense of 
     indigents. As a result, there is simply no functioning 
     adversary system in many states. Public defender programs 
     have never been created or properly funded in many 
     jurisdictions. The compensation provided to individual court-
     appointed lawyers is so minimal that few accomplished lawyers 
     can be enticed to defend capital cases. Those who do take a 
     capital case cannot afford to devote the time required to 
     defend it properly. As a result, the accused are usually 
     represented by lawyers who lack the experience, expertise, 
     and resources of their adversaries on the prosecution side.
       Many state court judges, instead of correcting this 
     imbalance, foster it by intentionally appointing 
     inexperienced and incapable lawyers to defend capital cases, 
     and denying funding for essential expert and investigative 
     needs of the defense. The minimal standard of legal 
     representation in the defense of poor people, as currently 
     interpreted by the Supreme Court, offers little protection to 
     the poor person stuck with a bad lawyer.
     A. The lack of a functioning adversary system
       Many death penalty states have two state-funded offices 
     that specialize in handling serious criminal cases. Both 
     employ attorneys who generally spend years--some even their 
     entire careers--handling criminal cases. Both pay decent 
     annual salaries and provide health care and retirement 
     benefits. Both send their employees to conferences and 
     continuing legal education programs each year to keep them up 
     to date on the latest developments in the law. Both have at 
     their disposal a stable of investigative agencies, a wide 
     range of experts, and mental health professionals anxious to 
     help develop and interpret facts favorable to their side. 
     Unfortunately, however, in many states both of these offices 
     are on the same side: the prosecution.
       One is the District Attorney's office in each judicial 
     district, whose lawyers devote their time exclusively to 
     handling criminal matters in the local court systems. These 
     lawyers acquire considerable expertise in the trial of 
     criminal cases, including capital cases. There are, for 
     example, prosecutors in the District Attorney's Office in 
     Columbus, Georgia, who have been trying death penalty cases 
     since the state's current death penalty statute was adopted 
     in 1973.
       The other office is the state Attorney General's office, 
     which usually has a unit made up of lawyers who specialize in 
     handling the appeals of criminal cases and habeas corpus 
     matters. Here, too, lawyers build expertise in handling 
     capital cases. For example, the head of the unit that handles 
     capital litigation for the Georgia Attorney General has been 
     involved in the work since 1976, the same year the Supreme 
     Court upheld Georgia's death penalty statute. She brings to 
     every case a wealth of expertise developed in seventeen years 
     of litigating capital cases in all the state and federal 
     courts involved in Georgia cases. She and her staff are 
     called upon by district attorneys around the state for 
     consultation on pending cases and, on occasion, will 
     assist in trial work. It is the normal practice in Georgia 
     that briefs by both the district attorney and the attorney 
     general are filed with the Georgia Supreme Court on the 
     direct appeal of a capital case.
       The specialists in the offices of both the district 
     attorneys and the attorneys general have at their call local, 
     state, and, when needed, federal investigative and law 
     enforcement agencies. They have a group of full-time experts 
     at the crime laboratory and in the medical examiner's offices 
     to respond to crime scenes and provide expert testimony when 
     needed. If mental health issues are raised, the prosecution 
     has a group of mental health professionals at the state 
     mental facilities. No one seriously contends that these 
     professional witnesses are objective. They routinely testify 
     for the prosecution as part of their work, and prosecutors 
     enjoy longstanding working relationships with them.
       In Alabama, Georgia, Mississippi, Louisiana, Texas, and 
     many other states with a unique fondness for capital 
     punishment, there is no similar degree of specialization or 
     resources on the other side of capital cases. A poor person 
     facing the death penalty may be assigned an attorney who has 
     little or no experience in the defense of capital or even 
     serious criminal cases,\56\ one reluctant or unwilling to 
     defend him,\57\ one with little or no empathy or 
     understanding of the accused or his particular plight,\58\ 
     one with little or no knowledge of criminal or capital 
     punishment law, or one with no understanding of the need to 
     document and present mitigating circumstances.\59\ Although 
     it is widely acknowledged that at least two lawyers, 
     supported by investigative and expert assistance, are 
     required to defend a capital case, some of the jurisdictions 
     with the largest number of death sentences still assign only 
     one lawyer to defend a capital case.\60\
       In contrast to the prosecution's virtually unlimited access 
     to experts and investigative assistance, the lawyer defending 
     the indigent accused in a capital case may not have any 
     investigative or expert assistance to prepare for trial and 
     present a defense. A study of twenty capital cases in 
     Philadelphia in 1991 and 1992 found that the court ``paid for 
     investigators in eight of the twenty cases, spending an 
     average of $605 in each of the eight'' and that the court 
     ``paid for psychologists in two of them, costing $400 in one 
     case, $500 in the other.''\61\ It is impossible even to begin 
     a thorough investigation or obtain a comprehensive mental 
     health evaluation for such paltry amounts.
       Although the Supreme Court has held that indigent 
     defendants may be entitled to expert assistance in certain 
     circumstances,\62\ defense attorneys often do not even 
     request such assistance because they are indifferent or know 
     that no funds will be available.\63\ Courts often refuse to 
     authorize funds for investigation and experts by requiring an 
     extensive showing of need that frequently cannot be made 
     without the very expert assistance that is sought.\64\ Many 
     lawyers find it impossible to maneuver around this ``Catch 
     22,''\65\ but even when a court recognizes the right to an 
     expert, it often authorizes so little money that no competent 
     expert will get involved.\66\
       An indigent accused facing the death penalty in Columbus, 
     Georgia, was assigned counsel by the local trial judge, a 
     former district attorney who had tried high profile capital 
     cases on the way to becoming a judge.\67\ Neither of the two 
     lawyers appointed had ever tried a capital case before. The 
     lawyers were denied any funds for an investigator or expert 
     assistance. The case was prosecuted by an assistant district 
     attorney with over fifteen years of experience in trying 
     capital and other criminal cases. The defense was unable to 
     investigate the case or present any expert testimony in 
     response to the state's fingerprint and identification 
     technicians, ballistics expert, coroner, and medical 
       An Alabama attorney, appointed without co-counsel and 
     granted only $500 for expert and investigative expenses to 
     defend a highly publicized capital case, facing three 
     prosecutors and an array of law enforcement agencies and 
     expert witnesses, described his situation:
       ``Without more than $500, there was only one choice, and 
     that is to go to the bank and to finance this litigation, 
     myself, and I was just financially unable to do that. It 
     would have cost probably in excess of thirty to forty 
     thousand dollars, and I just could not justify taking those 
     funds from my practice, or my family at that time.''\68\
       Not surprisingly, the attorney was simply unable to 
     investigate the case properly:
       ``I could not take days at a time out of my office to do 
     essentially non-legal work. And investigation is necessary, 
     certainly, to prepare a case, but it is non-legal. . . . 
     You're actually pounding the pavement, trying to come up with 
     the same information that a person who is paid substantially 
     less per hour could take care of, I mean, whether it be the 
     investigator for the Sheriff's Department or the District 
     Attorney's office or the F.B.I., or the U.S. Attorney's 
     office. You don't find the U.S. Attorney pounding the 
     pavement, trying to investigate facts. . . . And it just 
     creates a terrible situation when you have to do everything 
     for yourself.''\69\
       As a result, much of the investigation simply was not done 
     and critical evidence was not presented.\70\ With regard to 
     the lack of funds for expert witnesses, the lawyer testified 
     that in civil cases, which constituted ninety percent of his 
     caseload, he would have hired the required experts because 
     failure to do so would have constituted malpractice.\71\
       An attorney involved in the defense of many capital cases 
     in Arkansas has described how lawyers in that state are 
     forced to perform ``a sort of uninformed legal triage,'' 
     ignoring some issues, lines of investigation, and defenses 
     because of the lack of adequate compensation and 
     resources.\72\ He described the costs of such an approach: 
     ``The lawyer pays some in reputation, perhaps, but it is his 
     client who must pay with his liberty or life.''\73\
       The adversary system often breaks down at the appellate 
     level as well. The poor defendant usually does not receive 
     representation equal to that of the prosecution in a state 
     like Georgia, where on direct appeal of capital cases, 
     specialists in the offices of the Attorney General and 
     District Attorney both file briefs for the state. The poor 
     person sentenced to death may be represented by a lawyer with 
     little or no appellate experience, no knowledge of capital 
     punishment law, and little or no incentive or inclination to 
     provide vigorous advocacy. For example, in one Georgia case, 
     the court-appointed attorney filed a brief containing only 
     five pages of argument, and that only after the Georgia 
     Supreme Court threatened to impose sanctions.\74\ The lawyer 
     did not raise as an issue the trial court's charge to the 
     sentencing jury, which was later found by the U.S. Court of 
     Appeals to have violated the Constitution, did not appear for 
     oral argument, and did not file a supplemental brief on the 
     jury instruction issue even after requested to do so by the 
     court.\75\ Nevertheless, the Georgia Supreme Court did not 
     appoint other counsel or require adequate briefing. Instead, 
     with nothing more before it than counsel's deficient 
     performance, the court upheld the conviction and death 
     sentence.\76\ The death sentence was later set aside by the 
     U.S. Court of Appeals.\77\ There have been numerous other 
     instances of grossly deficient representation on appeal in 
     cases of those condemned to die.\78\
     B. The Lack of indigent defense programs
       In many jurisdictions where capital punishment is 
     frequently imposed, there are no comprehensive public 
     defender systems whose resources can parallel the 
     prosecutorial functions of the district attorney's 
     offices.\79\ There are no appellate defender offices that 
     parallel the function of the capital litigation sections of 
     the attorneys general's offices. In fact, there is no 
     coherent system at all, but a hodgepodge of approaches that 
     vary from county to county.
       In many jurisdictions, judges simply appoint members of the 
     bar in private practice to defend indigents accused of 
     crimes.\80\ The lawyers appointed may not want the cases,\81\ 
     may receive little or no compensation for the time and 
     expense of handling them,\82\ may lack any interest in 
     criminal law, and may not have the skill to defend those 
     accused of a crime. As a result, the poor are often 
     represented by inexperienced lawyers who view their 
     responsibilities as unwanted burdens, have no inclination to 
     help their clients, and have no incentive to develop criminal 
     trial skills. Lawyers can make more money doing almost 
     anything else. Even many lawyers who have an interest in 
     criminal defense work simply cannot afford to continue to 
     present indigents while also repaying their student loans and 
     meeting their familial obligations.
       Some counties employ a ``contract system'' in which the 
     county contracts with an attorney in private practice to 
     handle all of the indigent cases for a specified amount. 
     Often contracts are awarded to the lawyer--or group of 
     lawyers--who bids the lowest.\83\ The lawyer is still free to 
     generate other income through private practice. Any money 
     spent on investigation and experts comes out of the amount 
     the lawyer receives. These programs are well known for the 
     exceptionally short shrift that the poor clients receive and 
     the lack of expenditures for investigative and expert 
       A third system is the employment of a group of lawyers or 
     an organization to handle all indigent criminal cases while 
     not engaging in any outside practice. These lawyers are 
     usually called ``public defenders,'' although in some 
     jurisdictions they lack the investigative and support staff 
     that is considered part of a genuine public defender program. 
     Some of these offices employ remarkably dedicated attorneys, 
     whose jobs are nonetheless made almost impossible by 
     overwhelming caseloads and low funding.
       For example, the Fulton County Public Defender program, 
     which serves the courts in Atlanta, has achieved nationwide 
     notoriety for its high caseloads--an average of 530 felony 
     cases per attorney for each year plus extraditions, probation 
     revocations, commitment, and special hearings--and grossly 
     inadequate funding.\85\ A public defender in Atlanta may be 
     assigned as many as forty-five new cases at one arraignment. 
     At that time, upon first meeting these clients--chained 
     together--for a nonprivate, nonconfidential ``interview'' in 
     a holding area near the courtroom, she may plead many of them 
     guilty and have them sentenced on the spot. As one public 
     defender described disposing of seventeen indigent 
     defendants: ``I met `em, pled `em and closed `em--all in the 
     same day.''\86\ This system of criminal procedure is known as 
     ``slaughterhouse justice.'' When one lawyer in the office, 
     after closing 476 cases in ten months and still carrying a 
     caseload of 122, asserted her ethical obligation to limit her 
     caseload, she was berated by the trial judge, who refused her 
     request; she was eventually demoted to juvenile court by the 
     director of her office.\87\
       A public defender in New Orleans represented 418 defendants 
     during the first seven months of 1991.\88\ During this time, 
     he entered 130 guilty pleas at arraignment and had at least 
     one serious case set for trial on every single trial date 
     during the period.\89\ In ``routine cases,'' he received no 
     investigative support because the three investigators in the 
     public defender office were responsible for more than 7000 
     cases per year.\90\ No funds were available for expert 
     witnesses. The Louisiana Supreme Court found that, because of 
     the excessive caseloads and insufficient resources the public 
     defender office, the clients served by this system are ``not 
     provided with the effective assistance of counsel the 
     [C]onstitution requires.''\91\
       The structure of indigest defense not only varies among 
     states, it varies within many states from county to county. 
     Some localities employ a combination of these programs. All 
     of these approaches have several things in common. They 
     evince the gross underfunding that pervades indigent defense. 
     They are unable to attract and keep experienced and qualified 
     attorneys because of lack of compensation and overwhelming 
     workloads.\92\ Just when lawyers reach the point when they 
     have handled enough cases to begin avoiding basic mistakes, 
     they leave criminal practice and are replaced by other young, 
     inexperienced lawyers who are even less able to deal with the 
     overwhelming caseloads. Generally, no standards are employed 
     for assignment of cases to counsel or for the performance of 
     counsel. And virtually no resources are provided for 
     investigative and expert assistance or defense counsel 
       The situation has further deteriorated the last few years. 
     This is largely due to the increased complexity of cases and 
     the increase in the number of cases resulting from expanded 
     resources for police and prosecution and the lack of a 
     similar increase, and perhaps even a decline, in funding for 
     defense programs.\93\ The quality and funding for defense 
     programs often varies greatly from one county or judicial 
     district to another in the same state. Texas, which has 
     one of the largest death row populations and has carried 
     out the most executions since the resumption of capital 
     punishment in 1976,\94\ is one of eight states in which 
     indigent defense is handled at the county level with no 
     state funding.\95\ Funding for indigent defense varies 
     significantly from county to county.\96\ In Louisiana, the 
     indigent defense system is funded by assessments from 
     traffic tickets. As a result, there have been ``wide 
     variations in levels of funding,'' adding to a ``general 
     pattern . . . of chronic under-funding of indigent defense 
     programs in most areas of the state.''\97\ Alabama 
     finances its indigent defense system through a tax on all 
     civil and criminal filings in the court system.\98\
       The deficiencies in representation resulting from such 
     haphazard and underfunded approaches have been acknowledged. 
     The vice president of the Georgia Trial Lawyers Association 
     once described the simple test used in that state to 
     determine whether a defendant receives adequate counsel as 
     ``the mirror test.'' ``You put a mirror under the court-
     appointed lawyer's nose, and if the mirror clouds up, that's 
     adequate counsel.''\99\ It is not surprising that such a 
     dysfunctional system is incapable of providing legal 
     representation in capital cases. Unlike the offices of the 
     district attorneys and attorneys general, there is no 
     structure in many states for training and supervising young 
     lawyers in their initial years of practice to develop a cadre 
     of attorneys who specialize in the defense of complex cases. 
     There are no job opportunities in indigent defense for the 
     young law graduates who want to become criminal lawyers. And, 
     because of the financial incentives, most of those who have 
     or develop good trial skills quickly move on to personal 
     injury work or, if they remain in criminal law, the more 
     lucrative defense of drug, pornography, and white collar 
     C. Compensation of attorneys: The wages of death
       The United States Court of Appeals for the Fifth Circuit, 
     finding that Federico Martinez-Macias ``was denied his 
     constitutional right to adequate counsel in a capital case in 
     which [his] actual innocence was a close question,'' observed 
     that, ``The state [Texas] paid defense counsel $11.84 per 
     hour. Unfortunately, the justice system got only what it paid 
     for.''\100\ What is unusual about the case is not the amount 
     paid to counsel, but the court's acknowledgement of its 
     impact on the quality of services rendered.
       As we have seen, in many jurisdictions poor people facing 
     the death penalty are not assigned specialists who work for 
     indigent defense programs, but individual attorneys, often 
     sole practitioners. In some jurisdictions, the hourly rates 
     in capital cases may be below the minimum wage or less than 
     the lawyer's overhead expenses.\101\ Many jurisdictions limit 
     the maximum fee for a case. At such rates it is usually 
     impossible to obtain a good lawyer willing to spend the 
     necessary time.
       Alabama limits compensation for out-of-court preparation to 
     $20 per hour, up to a limit of $1000.\102\ In one rare 
     Alabama case where two lawyers devoted 246.86 and 187.90 
     hours respectively to out-of-court preparation, they were 
     still paid $1000 each, or $4.05 and $5.32 per hour.\103\
       In some rural areas in Texas, lawyers receive no more than 
     $800 to handle a capital case.\104\ Generally, the hourly 
     rate is $50 or less.\105\ Attorneys appointed to defend 
     capital cases in Philadelphia are paid an average of $6399 
     per case.\106\ In the few cases where a second attorney has 
     been appointed, it is often at a flat rate of $500.\107\ A 
     study in Virginia found that, after taking into account an 
     attorney's overhead expenses, the effective hourly rate paid 
     to counsel representing an indigent accused in a capital case 
     was $13.\108\ In Kentucky, the limit for a capital case is 
       Sometimes even these modest fees are denied to appointed 
     counsel. A capital case in Georgia was resolved with a guilty 
     plea only after the defense attorneys, a sole practitioner 
     and this author, agreed not to seek attorneys fees as part of 
     the bargain in which the state withdrew its request for the 
     death penalty.\110\
       In cases involving financial as opposed to moral 
     bankruptcy, Atlanta law firms charge around $125 per hour for 
     their associates, $200 per hour for partners, and $50 to $80 
     per hour for paralegals.\111\ In civil rights and other civil 
     litigation, courts routinely order attorneys fees much higher 
     than those paid to appointed lawyers in capital cases.\112\ 
     Paralegals and law clerks in civil rights cases may be 
     compensated at rates equal to or better than what experienced 
     attorneys are paid in capital cases.\113\ A new attorney at 
     the Southern Center for Human Rights, straight out of law 
     school, was awarded $65 per hour by a federal court in 1990 
     for work on a prison conditions case.\114\ More experienced 
     lawyers on that case were paid at rates of $90, $100, and 
     $150 per hour. Attorneys appointed to death penalty cases in 
     state courts can never expect compensation at such rates.
       A justice of the Georgia Supreme Court recently criticized 
     that court's limitation of attorneys fees in an employment 
     discrimination case.\115\ Limiting the attorney to $50 per 
     hour\116\ instead of providing the opportunity to recover 
     reasonable attorneys fees would, the justice argued, make it 
     unduly difficult to find lawyers for those who were victims 
     of discrimination and ``effectively den[y] many Georgians the 
     key to the courthouse door.''\117\ At lower rates it is 
     even more difficult to find attorneys for capital cases.
       Thus, it is unlikely that lawyers will seek appointments in 
     capital cases when they can earn more handling other types of 
     cases. It is undeniable that ``[i]n our pecuniary culture the 
     caliber of personal services rendered usually has a 
     corresponding relationship to the compensation 
     provided.''\118\ Lawyers who have been appointed to defend 
     the poor in capital trials often vow never to handle another. 
     It is financially disastrous, emotionally draining,\119\ and, 
     for the small-town sole practitioner, it may be very damaging 
     to relations with paying clients. Even at $200 an hour, it 
     would be difficult to attract lawyers to handle these cases.
       Not surprisingly, a recent study in Texas found that ``more 
     experienced private criminal attorneys are refusing to accept 
     court appointments in capital cases because of the time 
     involved, the substantial infringement on their private 
     practices, the lack of compensation for counsel fees and 
     expert expenses and the enormous pressure that they feel in 
     handling these cases.''\120\ ``In many counties, the most 
     qualified attorneys often ask not to be considered for court 
     appointments in capital cases due to the fact that the rate 
     of compensation would not allow them to cover the expense of 
     running a law practice.''\121\ The same unwillingness to take 
     cases because of the low fees has been observed in other 
     states.\122\ Consequently, although capital cases require 
     special skills,\123\ the level of compensation is often not 
     enough even to attract those who regularly practice in the 
     indigent defense system.
     D. The role of judges: Appointment and oversight of 
         mediocrity and incompetence
       Even if, despite the lack of indigent defense programs and 
     adequate compensation, capable lawyers were willing to move 
     to jurisdictions with many capital cases, forego more 
     lucrative business, and take appointments to capital cases, 
     there is still no assurance that those lawyers would be 
     appointed to the cases. It is no secret that elected state 
     court judges do not appoint the best and brightest of the 
     legal profession to defend capital cases.\124\ In part, this 
     is because many judges do not want to impose on those members 
     of the profession they believe to have more important, 
     financially lucrative things to do. But even when choosing 
     from among those who seek criminal appointments, judges often 
     appoint less capable lawyers to defend the most important 
       Judges have appointed to capital cases lawyers who have 
     never tried a case before.\125\ A study of homicide cases in 
     Philadelphia found that the quality of lawyers appointed to 
     capital cases in Philadelphia is so bad that ``even officials 
     in charge of the system say they wouldn't want to be 
     represented in Traffic Court by some of the people appointed 
     to defend poor people accused of murder.''\126\ The study 
     found that many of the attorneys were appointed by judges 
     based on political connections, not legal ability. 
     ``Philadelphia's poor defendants often find themselves being 
     represented by ward leaders, ward committeemen, failed 
     politicians, the sons of judges and party leaders, and 
     contributors to the judge's election campaigns.''\127\
       An Alabama judge refused to relieve counsel even when they 
     filed a motion to be relieved of the appointment because they 
     had inadequate experience in defending criminal cases and 
     considered themselves incompetent to defend a capital 
     case.\128\ Georgia trial judges have repeatedly refused to 
     appoint or compensate the experienced attorneys who, doing 
     pro bono representation in postconviction stages of review, 
     had successfully won new trials for clients who had been 
     sentenced to death.\129\ In several of those cases, the 
     Georgia Supreme Court ordered continued representation at the 
     new trials by the lawyers who were familiar with the case and 
     the client. Despite those precedents, a Georgia judge refused 
     to appoint an expert capital litigator from the NAACP Legal 
     Defense and Educational Fund to continue representation of an 
     indigent defendant, even though the Legal Defense Fund lawyer 
     had won a new trial for the client by showing in federal 
     habeas corpus proceedings that he had received ineffective 
     assistance from the lawyer appointed by the judge at the 
     initial capital trial.\130\ And the lower court judges who 
     have been reversed for failing to allow continuity in 
     representation are still appointing lawyers when new cases 
     come through the system. Those new defendants have no one to 
     assist them in securing competent representation.
       A newly admitted member of the Georgia bar was surprised to 
     be appointed to handle the appeal of a capital case on her 
     fifth day of practice in Columbus, Georgia. Two days earlier 
     she had met the judge who appointed her when she accompanied 
     her boss to a divorce proceeding. Only after she asked for 
     help was a second attorney brought onto the case. Another 
     lawyer in that same circuit was appointed to a capital case, 
     but after submitting his first billing statement to the judge 
     for approval was told by the judge that we was spending too 
     much time on the case. He was summarily replaced by another 
     lawyer and the defendant was ultimately sentenced to death. 
     For a number of years, judges in that circuit appointed a 
     lawyer to capital cases who did not challenge the 
     underrepresentation of black citizens in the jury pools for 
     fear of incurring hostility from the community and alienating 
     potential jurors.\131\ As a result, a number of African-
     Americans were tried by all-white juries in capital cases 
     even though one-third of the population of the circuit is 
       The many other examples of exceptionally poor legal 
     representation documented by the American Bar Association 
     (ABA), the National Law Journal, and others indicate that 
     judges either are intentionally appointing lawyers who are 
     not equal to the task or are completely inept at securing 
     competent counsel in capital cases. The reality is that 
     popularly elected judges, confronted by a local community 
     that is outraged over the murder of a prominent citizen or 
     angered by the facts of a crime, have little incentive to 
     protect the constitutional rights of the one accused in such 
     a killing. Many state judges are former prosecutors who won 
     their seats on the bench by exploiting high-publicity death 
     penalty cases. Some of those judges have not yet given up the 
     prosecutorial attitude.
       United States Congressman William J. Hughes, a former New 
     Jersey prosecutor and leader on crime issues in the Congress, 
     observed: ``With some of the horror stories we've heard--
     lawyers who didn't call witnesses, who waived final 
     argument--it is incredible that the courts allowed these 
     cases to move forward.''\132\ What is even more incredible is 
     that in most of these instances the judges appointed the 
     lawyers to the case.
     E. The minimal standard of legal representation tolerated in 
         capital cases
       This sad state of affairs is tolerated in our nation's 
     courts in part because the United States Supreme Court has 
     said that the Constitution requires no more. Instead of 
     actually requiring effective representation to fulfill the 
     Sixth Amendment's guarantee of counsel, the Court has brought 
     the standard down to the level of ineffective practice. 
     Stating that ``the purpose of the effective assistance 
     guarantee of the Sixth Amendment is not to improve the 
     quality of legal representation,'' the Court in Strickland v. 
     Washington\133\ adopted a standard that is ``highly 
     deferential'' to the performance of counsel.\134\ To prevail 
     on a claim of ineffective assistance of counsel, a defendant 
     must overcome ``a strong presumption that counsel's conduct 
     falls within the wide range of reasonable professional 
     assistance,'' show that the attorney's representation ``fell 
     below an objective standard of reasonableness,''\135\ and 
     establish ``prejudice,'' which is defined as a reasonable 
     probability that counsel's errors affected the outcome.\136\
       As Judge Alvin Rubin of the Fifth Circuit concluded:
       ``The Constitution, as interpreted by the courts, does not 
     require that the accused, even in a capital case, be 
     represented by able or effective counsel . . . . 
     Consequently, accused persons who are represented by ``not-
     legally-ineffective'' lawyers may be condemned to die when 
     the same accused, if represented by effective counsel, would 
     receive at least the clemency of a life sentence.\137\''
       Much less than mediocre assistance passes muster under the 
     Strickland standard. Errors in judgment and other mistakes 
     may readily be characterized as ``strategy'' or ``tactics'' 
     and thus are beyond review.\138\ Indeed, courts employ a 
     lesser standard for judging the competence of lawyers in a 
     capital case than the standard for malpractice for doctors, 
     accountants, and architects.\139\
       The defense lawyer in one Texas case failed to introduce 
     any evidence about his client at the penalty phase of the 
     trial. The attorney's entire closing argument regarding 
     sentencing was: ``You are an extremely intelligent jury. 
     You've got that man's life in your hands. You can take it or 
     not. That's all I have to say.''\140\ A United States 
     district court granted habeas corpus relief because of the 
     lawyer's failure to present and argue evidence in 
     mitigation, but the Fifth Circuit, characterizing 
     counsel's nonargument as a ``dramatic ploy,'' found that 
     the attorney's performance satisfied Strickland.\141\ The 
     lawyer was later suspended for other reasons.\142\ The 
     defendant was executed.
       Numerous other cases in which executions have been carried 
     out demonstrate that the minimal standard for attorney 
     competence employed in death penalty cases provides little 
     protection for most poor persons accused of capital crimes. 
     The case of John Eldon Smith, the first person executed in 
     Georgia since the death penalty was restored,\143\ is not 
     exceptional. Smith's sentence was upheld and he was killed 
     despite a constitutional violation because of his lawyer's 
     ignorance of the law, while his codefendant won a new trial 
     due to the same constitutional violation and later received a 
     life sentence. The second person executed in Georgia after 
     Smith was a mentally retarded offender, convicted despite a 
     jury instruction that unconstitutionally shifted the burden 
     of proof on intent; he was denied relief because his attorney 
     did not preserve the issue for review.\144\ The more culpable 
     codefendant was granted a new trial on the very same 
     issue.\145\ Again, as with Smith and Machetti, switching the 
     lawyers would have reversed the outcomes of the case.
       John Young was sentenced to death in the same county as 
     Smith. Young was represented at his capital trial by an 
     attorney who was dependent on amphetamines and other drugs 
     which affected his ability to concentrate. At the same time, 
     the lawyer was physically exhausted, suffering severe 
     emotional strain, and distracted from his law practice 
     because of marital problems, child custody arrangements, 
     difficulties in a relationship with a lover, and the 
     pressures of a family business.\146\ As a result, the lawyer 
     made little preparation for Young's trial, where his 
     performance was inept. Young was sentenced to death. A few 
     weeks later, Young met his attorney at the prison yard in the 
     county jail. The lawyer had been sent there after pleading 
     guilty to state and federal drug charges.\147\ Georgia 
     executed John Young on March 20, 1985.
       James Messer was ``represented'' at trial by an attorney 
     who, at the guilt phase, gave no opening statement, presented 
     no defense case, conducted cursory cross-examination, made no 
     objections, and then emphasized the horror of the crime in 
     some brief closing remarks that could not be fairly described 
     as a ``closing argument.'' \148\ Even though severe mental 
     impairment was important to issues of mitigation at both the 
     guilt and penalty phases, the lawyer was unable to present 
     any evidence of it because he failed to make an adequate 
     showing to the judge that he needed a mental health 
     expert.\149\ He also failed to introduce Messer's steady 
     employment record, military record, church attendance, and 
     cooperation with police. In closing, the lawyer repeatedly 
     hinted that death was the most appropriate punishment for his 
     own client.\150\ This too was good enough for a capital case 
     in Georgia. Messer was executed July 28, 1988.
       In light of Messer's case, one cannot help but wonder what 
     progress has been made since the Supreme Court held that 
     there is a right to counsel in capital cases in Powell v. 
     Alabama. The nine black youths tried in Scottsboro. Alabama, 
     in 1931 for the rapes of two white girls were represented by 
     a lawyer described as ``an able member of the local bar of 
     long and successful experience in the trial of criminal as 
     well as civil cases'' who conducted ``rigorous and rigid 
     cross-examination'' of the state's witnesses.\151\ That is 
     more than James Messer received at his capital trial.
       Another case in which the attorney did nothing was that of 
     Billy Mitchell, executed by Georgia on September 1, 1987. 
     Following a guilty plea, Mitchell was sentenced to death at a 
     sentencing hearing at which defense counsel called no 
     witnesses, presented no mitigating evidence, and made no 
     inquiries into his client's academic, medical, or 
     psychological history.\152\ A great deal of information of 
     this kind was available and, if presented, could well have 
     reduced the sentence imposed on Mitchell. In postconviction 
     proceedings, new counsel submitted 170 pages of affidavits 
     summarizing the testimony of individuals who could have 
     appeared on Mitchell's behalf. Among them were family 
     members, a city council member, a former prosecutor, a 
     professional football player, a bank vice president, and 
     several teachers, coaches, and friends.\153\
       The same ineptitude is frequently tolerated on appeal. The 
     brief on direct appeal to the Alabama Supreme Court in the 
     case of Larry Gene Heath, executed by Alabama on March 20, 
     1992, consisted of only one page of argument and cited only 
     one case, which it distinguished.\154\ Counsel, who had filed 
     a six-page brief on the same issue in the Alabama Court of 
     Criminal Appeals,\155\ did not appear for oral argument in 
     the case. Although the United States Court of Appeals later 
     found counsel's performance deficient for failing to raise 
     issues regarding denial of a change of venue, denial of 
     sixty-seven challenges for cause of jurors who knew about the 
     defendant's conviction in a neighboring state arising out of 
     the same facts, and use of the defendant's assertion of his 
     Fifth Amendment rights against him, it found no 
       While such incompetence as has been described here passes 
     muster as ``effective assistance of counsel'' under the 
     Supreme Court's view of the Sixth Amendment, counsel's 
     performance often fails to satisfy the increasingly strict 
     procedural doctrines developed by the Supreme Court since 
     1977. Failure of counsel to recognize and preserve an issue, 
     due to ignorance, neglect, or failure to discover and rely 
     upon proper grounds or facts, even in the heat of trial, will 
     bar federal review of that issue.\157\ A lawyer whose total 
     knowledge of criminal law is Miranda and Dred Scott may be 
     ``not legally-ineffective'' counsel under Strickland,\158\ 
     but such a lawyer will of course not recognize or preserve 
     many constitutional issues. The result has been what Justice 
     Thurgood Marshall described as an ``increasingly pernicious 
     visegrip''\159\ for the indigent accused: courts refuse to 
     address constitutional violations because they were not 
     preserved by counsel, but counsel's failure to recognize and 
     raise those issues is not considered deficient legal 
       Together, the lax standard of Strickland and the strict 
     procedural default doctrines reward the provision of 
     deficient representation. By assigning the indigent accused 
     inadequate counsel, the state increases the likelihood of 
     obtaining a conviction and death sentence at trial and 
     reduces the scope of review. So long as counsel's performance 
     passes muster under Strickland, those cases in which the 
     accused received the poorest legal representation will 
     receive the least scrutiny on appeal and in postconviction 
     review because of failure of the lawyer to preserve issues.
       In applying Strickland, courts indulge in presumptions and 
     assumptions that have no relation to the reality of legal 
     representation for the poor, particularly in capital cases. 
     One scholar has aptly called the idea that bar membership 
     automatically qualifies one to defend a capital case ``lethal 
     fiction.''\161\ The reality is that most attorneys are not 
     qualified to represent criminal defendants and certainly not 
     those accused of capital crimes.\162\
       There is no basis for the presumption of competence in 
     capital cases where the accused is represented by counsel who 
     lacks the training, experience, skill, knowledge, 
     inclination, time, and resources to provide adequate 
     representation in a capital case. The presumption should be 
     just the opposite--where one or more of these deficiencies 
     exist, it is reasonable to expect that the lawyer is not 
     capable of rendering effective representation.\163\ Indeed, 
     the presumption of competence was adopted even though the 
     Chief Justice of the Supreme Court, who joined in the 
     majority in Strickland, had written and lectured about the 
     lack of competence of trial attorneys.\164\
       Another premise underlying Strickland is that ``[t]he 
     government is not responsible for, and hence not able to 
     prevent, attorney errors.''\165\ However, the notion of 
     government innocence is simply not true in cases involving 
     poor people accused of crimes. The poor person does not 
     choose an attorney; one is assigned by a judge or some other 
     government official. The government may well be responsible 
     for attorney errors when it appoints a lawyer who lacks the 
     experience and skill to handle the case, or when it denies 
     the lawyer the time and resources necessary to do the job. In 
     addition, as observed by Justice Blackmum:
       ``The county's control over the size of and funding for the 
     public defender's office, as well as over the number of 
     potential clients, effectively dictates the size of an 
     individual attorney's caseload and influences substantially 
     the amount of time the attorney is able to devote to each 
     case. The public defender's discretion in handling individual 
     cases--and therefore his ability to provide effective 
     assistance to clients--is circumcised to an extent not 
     experienced by privately retained attorneys.\166\''
       The assumption that deficient representation makes no 
     difference,\167\ which underlies a finding of lack of 
     prejudice under Strickland, is also flawed.\168\ In cases 
     where constitutional violations were not preserved and the 
     defendant was executed while an identically situated 
     defendant received relief for the same constitutional 
     violation, it is apparent that the ineptitude of the lawyer 
     did make a difference in the outcome of the case. In other 
     more subtle but equally determinative ways, competent legal 
     assistance can make a difference in the outcome which may not 
     be detectable by reviewing courts.\169\
       A lawyer may muddle through a case with little or no 
     preparation, but it is impossible to determine how the case 
     might have been handled differently if he had investigated 
     and prepared. Other difficulties may be even more difficult 
     to detect. Rapport with the client and the family may lead to 
     cooperation and the disclosure of compelling mitigating 
     evidence that might not be found by a less skillful 
     attorney.\170\ Good negotiating skills may bring about a plea 
     offer to resolve the case with a sentence less than death, 
     and a good relationship with the client may result in 
     acceptance of an offer that might otherwise be rejected.\171\ 
     Nor are reviewing courts able to determine after the fact the 
     difference made by other skills that are often missing in the 
     defense of criminal cases--such as conducting a good voir 
     dire examination of jurors, effective examination and cross-
     examination of witnesses, and presenting well-reasoned and 
     persuasive closing arguments.
       The prejudice standard is particularly inappropriate for 
     application to deficient representation at the penalty phase 
     of a capital case. It is impossible for reviewing courts to 
     assess the difference that investigation into mitigating 
     circumstances and the effective presentation of mitigating 
     evidence might make on a jury's sentencing decision.
       The Supreme Court has consistently reaffirmed that in a 
     capital case any aspect of the life and background of the 
     accused offered by the defense must be considered as 
     ``mitigating circumstances'' in determining punishment.\172\ 
     Those who have tried capital cases have found that the 
     competent presentation of such evidence often results in 
     sentences less than death.\173\ But the right to have any of 
     the ``diverse frailties of humankind''\174\ taken into 
     account is meaningless if the accused is not provided with 
     counsel capable of finding and effectively presenting 
     mitigating circumstances.
       A court-appointed defense lawyer's only reference to his 
     client during the penalty phase of a Georgia capital case 
     was: ``You have got a little ole nigger man over there that 
     doesn't weigh over 135 pounds. He is poor and he is broke. 
     He's got an appointed lawyer. . . . He is ignorant. I will 
     venture to say he has an IQ of not over 80.''\175\ The 
     defendant was sentenced to death.
       Had that lawyer done any investigation into the life and 
     background of this client, he would have found that his 
     client was not simply ``ignorant.'' Instead, he was mentally 
     retarded. For that reason, he had been rejected from military 
     service. And he had been unable to function in school or at 
     any job except the most repetitive and menial ones. His 
     actual IQ was far from 80; it was 68. He could not do such 
     basic things as make change or drive an automobile. After his 
     death sentence was set aside because of failure to grant a 
     change of venue,\176\ an investigation was conducted, these 
     facts were documented, and the defendant received a life 
       In another case, an attorney, obviously under the influence 
     of alcohol, came to the Southern Center for Human Rights, in 
     Atlanta, after business hours on a Friday evening. He was 
     clutching part of a trial transcript and said that he needed 
     help preparing his brief to the Georgia Supreme Court for the 
     direct appeal of a mentally retarded man he had represented 
     at trial who had been sentenced to death. The brief was due 
     the following Monday. Nothing had been written for the 
     appeal. It was impossible even to assemble the entire record 
     by Monday. Fortunately, an extension of time was obtained and 
     eventually the case was remanded to the trial court. New 
     counsel subsequently negotiated a life sentence.\178\
       In these and other cases previously discussed in Section I, 
     once the facts were discovered and brought out, life 
     sentences were obtained for people previously sentenced to 
     death. But these were cases where by sheer luck the 
     defendants later received adequate representation on appeal 
     or in postconviction proceedings. Many of these cases were 
     returned for retrials for reasons having nothing to do with 
     the poor legal representation at the original trials. But, as 
     shown by the many cases summarized here in which executions 
     were carried out, many of those facing the death penalty 
     never receive the representation that would make such a 

             iii. the failure to keep the promise of gideon

       The right to counsel is essential to protect all other 
     rights of the criminally accused. Yet this most fundamental 
     right has received the least protection. Nevertheless, many 
     members of the judiciary and the bar--who have a special 
     responsibility to uphold the rule of law in the face of 
     public outrage and revulsion--stand by year after year, case 
     after case, looking the other way, pretending that nothing is 
     amiss, or calling upon someone else to solve the problem, but 
     never engaging in a concerted and effective effort to change 
     the situation. The United States Department of Justice, the 
     state District Attorneys, and state Attorneys General, all of 
     whom should have some concern about the fairness and 
     integrity of the judicial process, use their power and 
     influence to make the situation even worse. As a result, 
     although some solutions to the problem are apparent, the 
     situation continues to deteriorate and, tragically, to be 
     increasingly accepted as the inevitable lot of the poor.
     A. Minimal reforms in response to major crisis
       Over ten years ago, the ABA and the National Legal Aid and 
     Defender Association found the funding for indigent defense 
     inadequate and deemed the promise of Gideon v. Wainwright 
     unrealized, stating: ``we must be willing to put our money 
     where our mouth is; we must be willing to make the 
     constitutional mandate a reality.''\179\ However, despite 
     many reports with similar warnings,\180\ another ABA report 
     in 1993 still found that ``long-term neglect and underfunding 
     of indigent defense has created a crisis of extraordinary 
     proportions in many states throughout the country.''\181\
       In Alabama, ten reports over eleven years pointed out the 
     many defects in representation of indigent defendants.\182\ 
     Judges, court administrators, and the bar have recommended 
     reform. A commission proposed in 1988 that the limits on 
     attorneys fees in capital cases be eliminated or raised,\183\ 
     but the legislature has done nothing to change the limit on 
     compensation for out-of-court time expended by attorneys in 
     capital cases.\184\ As a result, and despite repeated 
     acknowledgement of the problem, the quality of indigent 
     defense in Alabama remains a disgrace.
       Limits on compensation have been struck down by courts in a 
     number of states.\185\ However, even as courts have 
     recognized the unreasonableness of the low fees, the adverse 
     impact of such low fees on the right to counsel and a fair 
     trial, and their own constitutional duty to do something 
     about it,\186\ they have often ordered only minimal, 
     inadequate reforms.
       A challenge to Mississippi's limit of $1000 for 
     compensation to lawyers appointed to defend capital cases was 
     rejected by the state's supreme court.\187\ The court held 
     that lawyers were entitled to reimbursement for actual costs, 
     including the overhead cost of operating a law office, so 
     that ``the attorney will not actually lose money,''\188\ but 
     characterized the $1000 fee as ``an `honorarium' or pure 
     profit.''\189\ One justice published a dissent, which had 
     initially been prepared as the majority opinion, that 
     carefully analyzed how the statutory limit on compensation 
     adversely affected the right to counsel and the 
     administration of justice in violation of the 
     Constitution.\190\ However, because that opinion was not 
     supported by a majority of the court, an attorney appointed 
     to defend a capital case in Mississippi, while no longer 
     required to lose money, may still make less than the minimum 
       The Louisiana Supreme Court, considering a capital case in 
     which assigned counsel was neither compensated nor reimbursed 
     for expenses, held that counsel were entitled to 
     reimbursement for out-of-pocket and overhead costs, 
     overruling contrary state precedent,\192\ but held that a 
     ``fee for service need not be paid'' as long as the time 
     required to defend the case does not reach ``unreasonable 
       The South Carolina Supreme Court struck down that state's 
     statutory limitations on compensation of appointed counsel in 
     capital cases.\194\ The statutes provided for $15 per hour of 
     in-court time and $10 per hour of out-of-court time for 
     attorneys, with a limit of $5000 per case for attorneys fees, 
     expert and investigative services, and costs.\195\ Even in 
     doing so, however, the court discussed the fee limitations in 
     the context of ``the legal profession's traditional and 
     historic role in the general society. It is a role anchored 
     to the postulate that the practice of law is not a 
     marketplace business or commercial venture but, rather, a 
     profession dedicated primarily to service.''\196\ The court 
     accordingly held that ``[t]he appointed attorney should not 
     expect to be compensated at market rate, rather at a 
     reasonable, but lesser rate'' to be fixed in the court's 
     discretion at the conclusion of the trial.\197\
       One would hope that such an undesirable assignment as 
     defending a person in a capital case would be compensated at 
     rates greater than market rates, not less. In civil rights 
     cases, the undesirability of a case is a factor used to 
     multiply or enhance an attorneys fee award.\198\ For example, 
     prison conditions cases have been found to be ``undesirable'' 
     for purposes of determining whether to enhance attorneys 
     fees.\199\ However, legislatures and courts have simply been 
     unwilling to pay sufficient rates to attract lawyers to 
     handle capital cases.
       There have been few systematic challenges to the inadequacy 
     of legal representation for the poor, and they have produced 
     only limited results.\200\ Some hope of reforming Georgia's 
     indigent defense system appeared when a federal court of 
     appeals held that a challenge to deficiencies in the system 
     stated a claim and should not have been dismissed.\201\ 
     However, after a change in the composition of the court, the 
     case was dismissed on abstention grounds.\202\ The federal 
     courts also refused on abstention grounds to examine 
     Kentucky's limit on attorneys' compensation in capital 
       Despite abundant documentation of the enormity of the need 
     for substantive changes, some continue to suggest that the 
     burden of providing counsel to the poor--even in capital 
     cases--may be satisfied by the conscription of members of the 
     legal profession.\204\ However, it is the constitutional duty 
     of the state,\205\ not of members of the legal profession, to 
     provide indigent defendants with counsel. Responses to the 
     problems posed by ineffective assistance of counsel should be 
     conceived in a way that gives effect to this principle. 
     Georgia, a state in which there have been numerous egregious 
     examples of deficient representation, has no difficulty 
     coming up with local, state, and federal money to prepare for 
     the Olympic Games, but it does not secure or appropriate 
     funding to assure competent representation and equal justice 
     in its courts.\206\
       Though it is desirable for more members of the legal 
     profession to shoulder their ethical obligations to provide 
     legal assistance for the poor, the defense of capital cases 
     often requires more expertise, commitment, and resources than 
     individual lawyers are able to offer. And there are too many 
     cases for the lawyers who do respond. Moreover, the absence 
     of indigent defense programs limits the opportunity for 
     young, committed lawyers to enhance their skills and learn to 
     do the job properly. Beyond these difficulties, even the most 
     conscientious lawyer needs proper investigative and expert 
     assistance to defend a capital case.
       Moreover, to ask for such major sacrifices for such an 
     overwhelming and thankless job as defending a capital case 
     from a few members of the profession is unreasonable. Judges 
     are not presiding without compensation, and district 
     attorneys are not prosecuting without decent salaries. And 
     most members of the legal profession--particularly those at 
     the high income law firms which have the litigation skills 
     and resources equal to the task--are not being asked to share 
     the burden of defending the poor. The supply of lawyers who 
     are willing to make the sacrifice has never come close to 
     satisfying the desperate needs of the many poor who face the 
     death penalty throughout the country today.
       Georgia Chief Justice Harold Clarke's description of 
     Georgia's response to the need for indigent defense applies 
     to most other states as well: ``[W]e set our sights on the 
     embarrassing target of mediocrity. I guess that means about 
     halfway. And that raises a question. Are we willing to put up 
     with halfway justice? To my way of thinking, one-half justice 
     must mean one-half injustice, and one-half injustice is no 
     justice at all.''\207\
     B. The politics of crime and the lack of leadership to remedy 
         the situation
       At this time, there appears to be little prospect of 
     achieving even the level of mediocrity that Chief Justice 
     Clarke described. What is needed to provide competent legal 
     representation to any litigant, rich or poor, is no secret. 
     But significant improvement in the quality of representation 
     for the poor is unlikely because of the unpopularity of those 
     accused and the lack of leadership and commitment to fairness 
     of those entrusted with responsibility for the justice 
       A properly working adversary system will never be achieved 
     unless defender organizations are established and properly 
     funded to employ lawyers at wages and benefits equal to what 
     is spent on the prosecution, to retain expert and 
     investigative assistance, to assign lawyers to capital cases, 
     to recruit and support local lawyers, and to supervise the 
     performance of counsel defending capital cases. Judges are 
     not equipped to do this. Management of the defense is not a 
     proper judicial function. And, as previously described, all 
     too often political and other improper considerations 
     influence elected state court judges in their appointment of 
     lawyers to defend those facing the death penalty.
       What is needed is a system in which defense counsel's 
     loyalty is to the client and not the judge; and in which 
     defense counsel, as well as the prosecutor, understands the 
     scientific and legal issues in the case and has access to the 
     investigative and expert assistance needed to prepare and 
     present the case. The ABA has promulgated standards for the 
     appointment and performance of counsel in capital cases,\208\ 
     which are seldom followed today, but standards mean nothing 
     without capable attorneys and well-funded defender 
     organizations to implement them.\209\
       Moreover, it must be recognized that defending capital 
     cases is a most unattractive responsibility for most members 
     of the legal profession. With the increasing number of state 
     and federal capital prosecutions, it will be more and more 
     difficult to find enough capable lawyers willing to defend 
     the cases. It should be recognized that, as in other 
     difficult and undesirable areas of practice, a significant 
     financial incentive, considerably beyond what lawyers receive 
     for far less demanding legal work, will be required.
       Such a system would require a substantial commitment of 
     resources. The argument has been made that some jurisdictions 
     do not have the money to attract qualified lawyers and that 
     in some areas, particularly rural areas, qualified counsel is 
     simply not available.\210\ But these considerations should 
     not excuse the lack of adequate legal representation in 
     capital cases. There are communities that have no 
     pathologists, hair and fiber experts, evidence technicians, 
     and others needed for the investigation and prosecution of 
     homicide cases. However, when a murder occurs in those 
     communities and is followed by a capital prosecution, the 
     prosecution invariably brings in the experts needed and pays 
     what it costs to do so.
       There was a time when many localities did not have capable 
     law enforcement agencies or pathologists, fingerprint 
     examiners, ballistics experts, serologists, and other 
     forensic scientists needed to investigate and prosecute 
     crime. Thee deficiencies were remedied in most places, often 
     with funding from the Federal Law Enforcement Assistance 
     Administration as well as state and local governments. Crime 
     laboratories were built, local police officers were sent to 
     FBI training programs, and pools of experts were developed 
     who travel around states to investigate crime scenes and 
     testify in local prosecutions.
       These jurisdictions could also establish defender 
     organizations to provide lawyers with the expertise required 
     to defend capital cases, and the investigators and expert 
     assistance needed to prepare the defense of these cases. What 
     is lacking is not money, but the political will to provide 
     adequate counsel for the poor in capital and other criminal 
     cases. Adequate representation and fairness will never be 
     achieved as long as it is accepted that states can pay to 
     prosecute a capital case without paying to defend one. 
     Adequate representation and fairness will never be achieved 
     until ensuring justice in the courts becomes a priority equal 
     to public concern for roads, bridges, schools, police 
     protection, sports, and the arts.
       But the leadership needed to help bring about justice is 
     missing. There was a time when the Attorney General of the 
     United States and the attorneys general in many of the states 
     were concerned not just with getting convictions, but also 
     with fairness, integrity, and the proper functioning of the 
     adversary system.
       In that spirit, Attorneys General Walter F. Mondale of 
     Minnesota and Edward J. McCormack, Jr. of Massachusetts, and 
     twenty-one of their fellow attorneys general filed a brief in 
     support of Clarence Earl Gideon's right to counsel in Gideon 
     v. Wainwright.\211\ It was out of that same concern that 
     Attorney General Robert F. Kennedy helped secure passage of 
     the federal Criminal Justice Act in 1963. But those days are 
       Today, the United States Department of Justice, state 
     district attorneys, and state attorneys general use their 
     power and influence to make this shameful situation even 
     worse. They take every advantage of the ignorant, incompetent 
     lawyers foisted upon the poor.\212\ They have defended in the 
     courts even the most outrageous instances of incompetence on 
     the part of defense counsel previously described and used the 
     ineptness of counsel as a barrier to prevent courts from 
     addressing constitutional violations in capital cases.
       Despite abundant evidence of poor lawyering and egregious 
     constitutional violations in capital cases, the Justice 
     Department and many prosecutors have proposed shortcuts and 
     procedural traps to paper over the problems and speed up the 
     process of sending those sentenced to death at 
     unconstitutional trials to their executions. In response to 
     findings by federal courts of constitutional violations in 
     state capital cases, prosecutors have urged stricter 
     enforcement of procedural default rules to avoid dealing with 
     the violations,\213\ not better counsel to avoid those 
     unconstitutional trials in the first place. Justice James 
     Robertson of the Mississippi Supreme Court described as 
     ``unseemly'' the arguments of that state's attorney general 
     that the court ``should hold [the defendant's] claims 
     procedurally barred, not because such would promote the 
     interests of justice, but rather that such would pull the rug 
     out from under [him] when he ultimately seeks federal review 
     of his case.''\214\ An accommodating Supreme Court has been 
     willing to cut back drastically on the availability of the 
     once great writ of habeas corpus,\215\ and prosecutors have 
     supported even more drastic legislative proposals to restrict 
     it further.\216\
       Many prosecutors have been unwilling to agree to even the 
     most minor reforms to improve the quality of legal 
     representation received by the poor. Federal legislation was 
     proposed in 1990 that would have restricted imposition of the 
     procedural default doctrines unless states improved the 
     quality of defense counsel. One proposal would have required 
     the establishment of an appointing authority for counsel in 
     capital cases composed either of a statewide defender 
     organization or of a death penalty resource center.\217\ The 
     appointing authority would have been responsible for securing 
     qualified counsel and engaging in periodic review to ensure 
     the competence of representation. The legislation would also 
     have set standards for counsel and required payment for 
     counsel ``at a reasonable rate in light of the attorney's 
     qualifications and experience and the local market for legal 
     representation in cases reflecting the complexity and 
     responsibility of capital cases.''\218\
       This modest proposal evoked vehement opposition from the 
     U.S. Department of Justice and state prosecutors. William P. 
     Barr, then-Deputy Attorney General and later Attorney 
     General, characterized the counsel provisions as ``an 
     elaborate and expensive system for appointing counsel'' that 
     were ``inimical to the principles of federalism inherent in 
     our constitutional system, and to the need for reasonable 
     finality of state criminal judgments.''\219\ A letter signed 
     by the attorneys general of twenty-three states which have 
     the death penalty described the provisions as ``so extreme as 
     to be absurd.''\220\ The twenty-three attorneys general 
     asserted: ``The current problems which beset capital cases 
     are not caused by the qualify of representation they 
     receive'' and that ``the focus in capital cases should be on 
     the guilt or innocence of the defendant and the sentence he 
     should receive'' and not ``how many seminars a defense 
     attorney has attended, how well he is paid, and other 
     collateral matters.''\221\ The National Association of 
     District Attorneys adopted a resolution opposing the 
     legislation, reiterating its support for the procedural 
     default doctrines and ``strongly oppos[ing] any legislation'' 
     which would ``create new requirements concerning the 
     experience, competency, or performance of counsel'' beyond 
     Strickland v. Washington.\222\
       A bill introduced in 1993 would have required only a 
     ``certifying'' authority to identify lawyers to defend 
     capital cases, allowing judges to continue to appoint counsel 
     and setting only minimal standards measured in terms of years 
     of practice and number of cases with no inquiry into quality 
     of work.\223\ Although representatives of the state attorneys 
     general and district attorneys associations were involved in 
     drafting the legislation,\224\ which would, in fact, do 
     little to improve the quality of representation and could 
     even worsen the situation,\225\ it was opposed by many 
     prosecutors.\226\ One letter circulated among Senators 
     criticized its ``expansive and costly appointment of 
     counsel provisions'' and quoted the Attorney General of 
     Georgia as saying that, if enacted, the bill would 
     ``effectively repeal the death penalty.''\227\
       Such hyperbolic statements have repeatedly greeted order 
     efforts to improve the quality of legal representation in 
     capital cases. When the Georgia legislature, after years of 
     refusing to appropriate any funds for indigent defense.\228\ 
     finally responded grudgingly to the eloquent appeals of the 
     chief justice of the state's supreme court\229\ by creating 
     in 1992 a small capital defender program that employed only 
     four attorneys.\230\ one district attorney criticized it as a 
     step toward abolishing the death penalty in Georgia.\231\ 
     When a report to the Texas Bar described the serious 
     deficiencies of the representation in capital cases in that 
     state, the district attorney in Houston dismissed it as an 
     argument against the death penalty.\232\
       The enthusiasm of prosecutors to continue to take every 
     advantage has not been tempered by the poverty and 
     powerlessness of those accused of capital crimes. Nor has the 
     situation motivated a new presidential administration or a 
     new Attorney General to rein in the assaults on the Bill of 
     Rights and habeas corpus or question the power that state 
     courts should be allowed to exercise over the lives of 
     persons who are not provided adequate representation.\233\ 
     Instead, the country is engaged in a crime debate in which 
     politicians try to outdo one another in proposing crime bills 
     which simultaneously expand the use of the death penalty and 
     other severe penalties while restricting or eliminating 
     procedural protections. Those who are supposedly leaders 
     dismiss the Bill of Rights as a more collection of 
     technicalities. The debate is exceptionally one-sided. For, 
     as Robert K. Kennedy said long ago, the poor person accused 
     of a crime has no lobby. No member of Congress or a state 
     legislature is likely to receive complaints about the quality 
     of counsel for poor people accused of crimes. But lost in the 
     effort to get tough on crime is concern about the fairness 
     and integrity of the criminal justice system.
       Completely missing from the crime debate and from the 
     courts is the notion that if it is too expensive or 
     impractical for some jurisdictions to provide competent 
     counsel and the fairness and reliability that should 
     accompany a judicial decision to take a human life, their 
     power should be limited. If a local trial court cannot comply 
     with the most fundamental safeguard of the Constitution by 
     providing a capable attorney to one whose life is at stake, 
     it should not be authorized to extinguish life. The solution 
     is not to depreciate human life and the Bill of Rights by 
     accepting what is available. Many small communities do not 
     have surgeons, yet they do not rely on chiropractors to 
     perform heart surgery.
       Pronouncements about the importance of and the need for 
     counsel do not make quality representation a reality. It has 
     become apparent that the legislatures of most states, 
     particularly those where the death penalty is frequently 
     imposed, are not going to discharge their constitutional duty 
     to appropriate funds and provide competent legal assistance 
     for poor persons in criminal cases. It is also unlikely that 
     the judiciary and bar, after years of neglect, punctuated by 
     occasional moments of hand wringing, will respond effectively 
     to this worsening situation.

 iv. the need for individual responses and limits on the power of the 

       The quality of legal representation in capital cases in 
     many states is a scandal. However, almost no one cares. Those 
     facing the death penalty are generally poor, often members of 
     racial minorities, often afflicted with substantial mental 
     impairments, and always accused of serious, terrible crimes. 
     The crimes of which they are accused bring out anger, hatred, 
     and a quest for vengeance on the part of most people, 
     including judges, prosecutors, and quite often, even those 
     appointed to represent the accused. All of this leads to, at 
     best, indifference and, more often, hostility toward the 
     plight of those accused. And many outside the criminal 
     justice system are indifferent because they are unaware of 
     what passes for justice in the courts. There is a growing 
     cynicism about the importance of due process and the 
     protections of the Bill of Rights. Many of those who hold or 
     aspire to public office find it impossible to resist the 
     temptation to resort to demagoguery to exploit these 
       But this reality does not excuse the constitutional 
     responsibility of the judiciary and members of the legal 
     profession to ensure that even the most despised defendants 
     still receive the highest quality legal representation in 
     proceedings that will determine whether they live or die. 
     Justice William Brennan, with his usual eloquence, once 
     observed in another context,
       ``It is tempting to pretend that [those] on death row share 
     a fate in no way connected to our own, that our treatment of 
     them sounds no echoes beyond the chambers in which they die. 
     Such an illusion is ultimately corrosive, for the 
     reverberations of injustice are not so easily confined. . . . 
     [T]he way in which we choose those who will die reveals the 
     depth of moral commitment among the living.''\234\
       Unfortunately, what has been revealed about the depth of 
     moral commitment among legislators, members of the bar, and 
     the judiciary is very discouraging. It is unlikely that the 
     promise of Powell and Gideon will ever be fulfilled for most 
     of those accused of criminal violations. Legislatures are 
     unwilling to pay the price for adequate representation, most 
     courts are unwilling to order it, and most members of the bar 
     are unwilling or unable to take on the awesome responsibility 
     of providing a vigorous defense without adequate 
       The best hope for most of those facing the death penalty is 
     that capable lawyers will volunteer to take their cases and 
     provide proper representation regardless of whether they are 
     paid adequately or at all. A member of the New York Court of 
     Appeals, citing the ethical obligation of lawyers to 
     recognize deficiencies in the legal system and initiate 
     corrective measures,\235\ has urged lawyers to respond to 
     the challenge of seeing that those who face the worst 
     penalty receive the best representation.
       ``During the civil rights movement of the fifties and 
     especially the sixties, inspired attorneys, not all young 
     neophytes, travelled often at great personal expense and real 
     risk, including their own deaths, to make a difference. That 
     spirit needs to be revived. Right now, it fuels only a few 
     who are to be commended for what they are trying to do, but 
     it has not motivated a sufficient number of people in our 
     profession to do their needed parts, too. Until that 
     conversion comes about, Lady Justice may as well keep her 
     eyes blindfolded so as not to notice with shame the grotesque 
     imbalance in the scales of justice that hang from her 
     fingertips, because of the growing numbers of death penalty 
     cases in this great country that are finally, really finally, 
     resolved under such disproportionate odds and 
       Such spirit and commitment are desperately needed. When 
     achieved, they will undoubtedly make a difference for those 
     persons represented. Indeed it is hard to imagine how a 
     member of the legal profession could make a greater 
     difference than by saving a client from execution. But the 
     response of individual lawyers will not be nearly enough to 
     end the systemic problems previously described and provide 
     adequate representation to the thousands of people facing the 
     death penalty in this country.
       Lawyers must not only respond, but in doing so they must 
     litigate aggressively the right to adequate compensation, to 
     the funds necessary to investigate, and for the experts 
     needed to prepare and present a defense. Lawyers must also 
     bring systemic challenges to indigent defense systems. 
     Attorneys for the poor--whether in assigned counsel, 
     contract, or public defender systems--must refuse 
     unreasonable caseloads and insist upon the training and 
     resources to do the job right. Where these problems make it 
     impossible for attorneys to discharge their constitutional 
     and ethical obligations, attorneys should frankly declare 
     their inability to render effective assistance.
       And lawyers must continue to bear witness to the shameful 
     injustices which are too routine in capital cases. The 
     uninformed and the indifferent must be educated and reminded 
     of what is passing for justice in the courts. The substandard 
     quality of counsel for the poor and the lack of a structure 
     and funding for indigent defense must become part of the 
     debate on crime. The state and federal legislatures should 
     not continue to enact capital crimes without considering the 
     costs of adequate representation for the defendant and, even 
     if the costs are met, whether there is anyone to defend those 
     accused. Lawyers and law students need to be reminded that 
     there continue to be people with desperate, unmet needs for 
     competent representation.\237\ They need to be informed that 
     the protections of the Bill of Rights are often denied those 
     most in need of them--poor, minority, and disadvantaged 
     persons facing the death penalty. The danger of silence is 
     not only that lawyers will be unaware of the need, but also 
     that many in society will mistakenly assume that there is a 
     properly working adversary system in the criminal courts.
       It is only by the witness of those who observe the 
     injustices in capital cases firsthand that others in society 
     can be accurately informed. This knowledge may prompt 
     questions abut the system and its limits such as: whether the 
     quest for vengeance receives too high a priority over the 
     pursuit of justice in the courts; whether criminal courts 
     should be allowed to dispatch people to their deaths without 
     providing capable lawyers or even one penny for the 
     investigators and experts necessary to present evidence that 
     is constitutionally indispensable to the punishment decision; 
     whether indigent and often mentally limited persons accused 
     of crimes should continue to be denied the protections of the 
     Bill of Rights under the procedural default doctrines because 
     of the ineptness of lawyers they had no voice in choosing; 
     whether the assignment of lawyers to defend the poor should 
     be made by judges who must keep one eye on the next election 
     and, with the other, often wink at the Constitution; and 
     whether courts should continue to demean the Sixth Amendment 
     by employing the Strickland v. Washington standard for 
     ``legally effective counsel.''
       These questions must be raised vigorously until courts and 
     leaders of the bar realize that the judgments of the criminal 
     courts cannot be seen as legitimate and entitled to respect 
     so long as such poor quality of representation is tolerated. 
     It is only by dealing squarely with these questions that 
     there is hope that the courts will face reality and deliver 
     on the promise of Powell and Gideon instead of indulging in 
     wishful thinking and hollow pronouncements about the right to 
     counsel. One must hope that a frank discussion of the 
     deficiencies of the system will prompt courts to take their 
     eyes off the embarrassing target of mediocrity and take aim 
     at a full measure of justice for all citizens, especially 
     those whose lives and freedom hang in the balance. One must 
     also hope that some prosecutors, who recognize a higher 
     calling in seeing that justice is done and making the 
     adversary system work than in simply getting convictions and 
     death sentences against inept lawyers, will add their voices 
     regarding the need for adequate representation and limits on 
     the power of the courts. And finally, some law schools must 
     respond and prepare students better for defending criminal 
       The Louisiana Supreme Court recently faced reality and 
     created a presumption of incompetence of counsel where 
     provision of indigent defense services are so lacking that 
     defendants are not likely to be receiving effective 
     representation.\238\ Unless the state is able to rebut the 
     presumption at a pretrial hearing, a trial court is not to 
     let the prosecution go forward until the defendant is 
     provided with reasonably effective counsel.\239\ This 
     approach responds much better to the reality of 
     representation for indigents than Strickland. Nevertheless, 
     Justice Dennis pointed out that the court could have done 
       ``This court should establish standards by setting limits 
     on the number of cases handled by indigent defense attorneys, 
     by requiring a minimum number of investigators to be assigned 
     to each [public] defender, and by requiring specified support 
     resources for each attorney. If a defendant demonstrates 
     further error due to funding and resource deficiencies, the 
     courts should be instructed to view the harm as state-imposed 
     error, which would require reversal of the conviction unless 
     the state demonstrates that the error was harmless.\240\''
       If systemic reforms are not attainable, other state courts 
     could follow the example of the Louisiana Supreme Court and 
     prohibit the prosecution from going forward in the absence of 
     competent counsel. In addition, as long as trial judges 
     remain in the business of appointing defense counsel, 
     conscientious judges who are concerned about fairness can 
     order the appointment of experienced, competent lawyers, and 
     just compensation at enhanced rates for those lawyers. Trial 
     judges could obtain the services of the best members of the 
     profession, those equal to the task of handling the highest 
     stakes in our legal system, but whose time generally is spent 
     in more lucrative pursuits. The appointment of the top 
     litigators, managing partners, and bar leaders from firms in 
     Atlanta, Birmingham, Jackson, New Orleans, Philadelphia, 
     Houston, and Dallas to defend capital cases would undoubtedly 
     change the quality of indigent defense representation in 
     those areas. It is remarkable that courts do not call upon 
     those lawyers to respond to the need.\241\ In addition to 
     introducing litigation skills to the cases, the involvement 
     of such lawyers might also result in some of them bringing 
     their considerable power and influence to bear upon the 
     systemic problems, if for no other reason than to avoid 
     future appointments.
       Such efforts, while urgently needed, will assure competent 
     representation to only a small percentage of those facing 
     death and, at best, may prompt reforms that will take years 
     to accomplish. In the meantime, many will continue to be 
     sentenced to death at trials where they will receive only 
     perfunctory representation by lawyers who are not equal to 
     the task of defending a capital case and are denied the 
     resources to do the job properly. It is those poor people who 
     will suffer the consequences of the failure of the 
     legislatures and the judiciary to discharge their 
     constitutional responsibilities.
       The death penalty will continue to be imposed and new 
     capital statutes enacted with the continuing promise that 
     efforts will be made to improve the quality of counsel in the 
     future. But this is surely backwards. A very high quality of 
     counsel--instead of minimal representation--should not only 
     be the goal, but the reality before a jurisdiction is 
     authorized to take life. Moreover, the promise of adequate 
     counsel is continually broken. It has been over sixty years 
     since the Supreme Court held in Powell v. Alabama that those 
     accused in Scottsboro and all poor people were entitled to a 
     higher level of representation in capitol cases than merely 
     being accompanied to their trials by a member of the bar. Yet 
     the representation in many trials today is no better than 
     that provided to the accused in Scottsboro in 1931. This 
     longstanding lack of commitment to counsel for the poor is 
     one of the many reasons that the effort to achieve fairness 
     and consistency in the administration of the death penalty is 
     ``doomed to failure.''\242\

                             v. conclusion

       Courts have issued many pronouncements about the importance 
     of the guiding hand of counsel, but they have failed to 
     acknowledge that most state governments are unwilling to pay 
     for an adequate defense for the poor person accused of a 
     crime. Unfortunately, the Supreme Court has not been vigilant 
     in enforcing the promise of Powell and Gideon. Its acceptance 
     of the current quality of representation in capital cases as 
     inevitable or even acceptable demeans the Sixth Amendment. It 
     undermines the legitimacy of the criminal courts and the 
     respect due their judgments. No poor person accused of any 
     crime should receive the sort of representation that is found 
     acceptable in the criminal courts of this nation today, but 
     it is particularly indefensible in cases where life is at 
     stake. Even one of the examples of deficient representation 
     described in this Essay is one more than should have occurred 
     in a system of true justice.
       Providing the best quality representation to persons facing 
     loss of life or imprisonment should be the highest priority 
     of legislatures, the judiciary, and the bar. However, the 
     reality is that it is not. So long as the substandard 
     representation that is seen today is tolerated in the 
     criminal courts, at the very least, this lack of commitment 
     to equal justice should be acknowledged and the power of 
     courts should be limited. So long as juries and judges are 
     deprived of critical information and the Bill of Rights is 
     ignored in the most emotionally and politically charged cases 
     due to deficient legal representation, the courts should not 
     be authorized to impose the extreme and irrevocable penalty 
     of death. Otherwise, the death penalty will continue to be 
     imposed, not upon those who commit the worst crimes, but upon 
     those who have the misfortune to be assigned the worst 


     *Director, Southern Center for Human Rights, Atlanta, 
     Georgia; J. Skelly Wright Fellow and Visiting Lecturer in 
     Law, Yale Law School; B.A. 1971, J.D. 1975, University of 
     Kentucky. The author has been involved in representation of 
     those facing the death penalty at trials, on appeals, and in 
     post conviction proceedings since 1979. This Essay draws upon 
     those experiences as well as the authorities cited. The 
     author is most grateful to Charlotta Norby for her helpful 
     comments and assistance.
     1. Record at 846-49, State v. Haney, No. 7 Div. 148 (Ala. 
     Crim. App. 1989).
     2. Nevertheless, both the Alabama Court of Criminal Appeals, 
     Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), and 
     the Alabama Supreme Court, Ex parte Haney, 603 So. 2d 412 
     (Ala. 1992), upheld the conviction and death sentence in the 
     3. The defendant's other court-appointed lawyer was later 
     disciplined by the Alabama Bar for neglect in two worker's 
     compensation cases, allowing the statute of limitations to 
     run in both cases. Disciplinary Report, Ala. Law., Nov. 1993, 
     at 401.
     4. See, e.g., Mullis v. State, 545, So. 2d 205 (Ala. Crim. 
     App. 1989) (person who hired others to rob, kidnap, and kill 
     victim, sentenced to life in prison); Busby v. State, 412 So. 
     2d 837 (Ala. Crim. App. 1982) (woman charged with capital 
     murder for hiring others to kill her husband, but convicted 
     of noncapital murder); see also Thacker v. State, 556 N.E.2d 
     1315 (Ind. 1990) (woman who asked three men to kill her 
     husband, gave them money and ammunition, and formed plan with 
     them, not sentenced to death); Murder Victim's Family Settles 
     Case for Cash, Huntsville Times, Aug. 7, 1990, at B1 (charges 
     dropped against woman charged with capital murder for having 
     hired somebody to kill boyfriend when she agreed to surrender 
     $30,000 in retirement benefits to the victim's family).
     5. Powell v. Alabama, 287 U.S. 45 (1932). Powell involved 
     seven young African-Americans sentenced to death in 
     Scottsboro, another Alabama community north of Talladega. The 
     Supreme Court concluded that the defendants ``did not have 
     the aid of counsel in any real sense'' based upon the casual 
     way in which the responsibility for defending the case had 
     been handled, the lack of preparation and investigation by 
     the two lawyers who defended the accused, and community 
     hostility toward the defendants. Id. at 51-57.
     6. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).
     7. Powell v. Alabama, 287
     8. Anthony Lewis, Gideon's Trumpet 205 (1964).
     9. This Essay deals primarily with the problem at trial and 
     on direct appeal where the state is required to provide 
     counsel for the indigent accused. It does not analyze the 
     equally serious crisis regarding lack of representation and 
     inadequate representation in postconviction review. For such 
     a review, see American Bar Ass'n, Toward a More Just and 
     Effective System of Review in State Death Penalty Cases, 40 
     Am. U. L. Rev. 1, 79-02 (1990). The Supreme Court has held 
     there is no right to counsel, even in capital cases, in 
     postconviction review. Murray v. Giarratano, 492 U.S. 1 
     (1989) (plurality opinion).
     10. Peter Applebome, Two Electric Jolts in Alabama Execution, 
     N.Y. Times, July 15, 1989, at A6.
     11. Holloway v. State, 361 S.E.2d 794, (Ga. 1987).
     12. Smith v. Kemp, 664 F. Supp. 500 (M.D.Ga. 1987) (setting 
     aside death sentence on other grounds), aff'd sub nom. Smith 
     v. Zant, 887 F.2d 1407 (11th Cir. 1989) (en banc).
     13. Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir. 1986), 
     cert. denied, 479 U.S. 996 (1967).
     14. Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting 
     California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., 
     15. David Lundy, Bondurant's Costly Death Appeal, Fulton 
     County Daily Rep., Aug. 18, 1989, at 6.
     16. Id.; see also Affidavit of Howard A. McGlasson, Jr. at 6, 
     8, Nelson v. Zant (Super. Ct. Butts County, Ga. 1989) (No. 
     5387), rev'd, 405 S.E.2d (Ga. 1991).
     17. McGlasson Affidavit, supra note 16, at 7.
     18. Id. at 6, 15.
     19. Id. at 7.
     20. Id. at 8.
     21. Lundy, supra note 15, at 6.
     22. Id.
     23. Id. Georgia does not provide counsel for condemned 
     inmates in postconviction proceedings. Nelson was represented 
     first by a lawyer recruited by the NACCP Legal Defense and 
     Educational Fund who sent the record to a lawyer at another 
     firm, which stood the case for postconviction proceedings. 
     Id. Because of his poverty, Nelson was completely at the 
     mercy of these forces with regard to whether he would be 
     represented and the quality of that representation. Many are 
     not as fortunate as Nelson.
     24. Id.
     25. Nelson v. Zant, 405 S.E.2d at 252.
     26. Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 
     27. Martinez-Macias v. Collins, 810 F.Supp. 782, 786-87, 796-
     813 (W.D. Tex. 1991), aff'd, 979 F.2d 1067 (5th Cir. 1992).
     28. Id. at 823.
     29. Gordon Dickinson, Man Freed in Machete Murder Case, El 
     Paso Times, June 24, 1993, at 1.
     30. U.S. Const. amends. VI, XIV; Strauder v. West Virginia, 
     100 U.S. 303 (1879); see also Whitus v. Georgia, 385 U.S. 545 
     31. Birt v. Montgomery, 725 F.2d 587, 598 n.25 (11th Cir. 
     1984), cert. denied, 469 U.S. 874 (1984).
     32. Transcript of Hearing of April 25-27, 1988, at 231, State 
     v. Birt (Super. Ct. Jefferson County, Ga. 1988) (No. 2360). 
     The lawyer referred to Miranda v. Arizona, 384 U.S. 436 
     (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
     (1857). Dred Scott was not a criminal case.
     33. Birt v. Montgomery, 725 F.2d at 601.
     34. Georgia's ``opt-out'' provision allowing women to decline 
     jury service was found to result in the unconstitutional 
     underrepresentation of women. Machetti v. Linahan, 679 F.2d 
     236, 241 (11th Cir. 1982), cert. denied, 459 U.S. 1127 (1983) 
     (applying Duren v. Missouri, 439 U.S. 357 (1979), and Taylor 
     v. Louisiana, 419 U.S. 522 (1975)).
     35. Because Smith and Machetti were tried within a few weeks 
     of each other in the same county, ``the Georgia provision 
     applied to both juries.'' Smith v. Kemp, 715 F.2d 1459, 1469 
     (11th Cir.), application for cert. denied, 463 U.S. 1344, 
     1345, cert. denied, 464 U.S. 1003 (1983). Smith's lawyers 
     were unaware of the Supreme Court's decision in Taylor v. 
     Louisiana, 419 U.S. 522 (1975), decided six days before 
     Smith's trial started. Smith v. Kemp, 715 F.2d at 1470.
     36. Machetti v. Linahan, 679 F.2d at 242.
     37. Smith v. Kemp, 715 F.2d at 1476 (Hatchett, J., concurring 
     in part and dissenting in part).
     38. Id. at 1469-72; see also id. at 1476 (Hatchett, J., 
     concurring in part and dissenting in part).
     39. Gregg v. Georgia, 428 U.S. 153 (1976).
     40. Tracy Thompson, Once `Unfit To Live,' Ex-Death-Row 
     Inmates Winning Parole, Atlanta Const., Mar. 12, 1987, at A1.
     41. Habeas Corpus Reform: Hearings Before the Comm. on the 
     Judiciary, 101st Cong., 1st & 2d Sess. 349 (1989-90) 
     (statement of Justice James Robertson of the Supreme Court of 
     42. See, e.g., Callins v. Collins, 62 U.S.L.W. 3546 (U.S. 
     Feb. 22, 1994) (Scalia, J., concurring in the denial of 
     43. Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980) (quoting 
     Gregg v. Georgia, 428 U.S. 153, 188 (1976) (quoting Furman v. 
     Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring))).
     44. Fewer than 300 death sentences have been imposed each 
     year in the United States over the last 20 years. U.S. Dep't 
     of Justice, Bureau of Justice Statistics, Criminal Justice 
     Sourcebook 673, Table 6.132 (1992). There have been 
     approximately 20,000 homicides in each of those years, Id. at 
     357, Table 3.122; see also id. at 539, Table 5.72 (death 
     imposed in one percent of murder cases in 75 largest 
     45. American Bar Ass'n, supra note 9, at 16. The ABA's report 
     illustrates the pervasiveness of the problem:
     Georgia's recent experience with capital punishment has been 
     marred by examples of inadequate representation ranging from 
     virtually no representation at all by counsel, to 
     representation by inexperience counsel, to failures to 
     investigate basic threshold questions, to lack of knowledge 
     of governing law, to lack of advocacy on the issue of guilt, 
     to failure to present a case for life at the penalty phase. * 
     * *
     * * * Defense representation is not necessarily better in 
     other death penalty states. In Tennessee, for another 
     example, defense lawyers offered no evidence in mitigation in 
     approximately one-quarter of all death sentences affirmed by 
     the Tennessee Supreme Court since the Tennessee legislature 
     promulgated its current death penalty statute.
     Id. at 65-67. Among the cases cited by the ABA in support of 
     its description of the inadequate representation in Georgia 
     are: Thomas v. Kemp, 796 F.2d 1322, 1324-25 (11th Cir. 1986) 
     (counsel failed to present any evidence in mitigation), cert. 
     denied, 479 U.S. 996 (1986); Blake v. Kemp, 758 F.2d 523 
     (11th Cir. 1985), cert. denied, 474 U.S. 998 (1985) (counsel 
     failed to present any evidence in mitigation); Tyler v. Kemp, 
     755 F.2d 741 (11th Cir. 1985) (counsel had been a member of 
     the bar for only six months prior to his appointment), cert. 
     denied, 474 U.S. 1026 (1985); House v. Balkcom, 725 F.2d 608 
     (11th Cir. 1984) (counsel not even present during portions of 
     capital trial), cert. denied, 469 U.S. 870 (1984); Francis v. 
     Spraggins, 720 F.2d 1190 (11th Cir. 1983) (counsel conceded 
     guilt at closing argument of guilt phase); Goodwin v. 
     Balkcom, 684 F.2d 794, 817-20 (11th Cir. 1982) (counsel 
     unaware of law, distanced himself from client, and otherwise 
     failed to render effective assistance), cert. denied, 460 
     U.S. 1098 (1983); Young v. Zant, 677 F.2d 792, 795 (11th Cir. 
     1982) (counsel failed to provide ``even a modicum of 
     professional assistance at any time'' during capital trial); 
     Mathis v. Zant, 704 F.Supp. 1062, 1064 (N.D. Ga. 1989) (``In 
     addition to betraying his duty to present what evidence he 
     could on petitioner's behalf, [counsel] delivered a closing 
     argument that the Court in its prior order generously termed 
     an `apology for having served as [petitioner's] counsel.'''); 
     Johnson v. Kemp, 615 F. Supp. 355, 364 (S.D. Ga. 1985) 
     (counsel failed to present evidence in mitigation), aff'd 
     without opinion, 781 F.2d 1483 (11th Cir. 1986); Cury v. 
     Zant, 371 S.E.2d 647 (Ga. 1988) (counsel failed to get 
     independent psychiatric evaluation of defendant to determine 
     mental competency).
     46. Thurgood Marshall, Remarks on the Death Penalty Made at 
     the Judicial Conference of the Second Circuit, 86 Colum. L. 
     Rev. 1, 1-2 (1986). Justice Marshall noted that ``[t]he 
     federal reports are filled with stories of counsel who 
     presented no evidence in mitigation of their clients' 
     sentences because they did not know what to offer or how to 
     offer it, or had not read the state's sentencing statute.'' 
     47. Marcia Coyle et al., Fatal Defense: Trial and Error in 
     the Nation's Death Belt, Nat. L.J., June 11, 1990, at 30. 
     Twelve articles examining the quality of representation in 
     numerous cases in the six states appear in id. at 30-44.
     48. Witnesses before an ABA Task Force studying the capital 
     punishment system described the current state of affairs for 
     indigent criminal defendants as ```scandalous,' `shameful,' 
     `abysmal,' `pathetic,' `deplorable,' and `at best, 
     exceedingly uneven.''' American Bar Ass'n, supra note 9, at 
     69; see also Ruth E. Friedman & Bryan A. Stevenson, Solving 
     Alabama's Capital Defense Problems: It's a Dollar and Sense 
     Thing, 44 Ala L. Rev. 1, 32-37 (1992); Bruce A. Green, Lethal 
     Fiction: The Meaning of ``Counsel'' in the Sixth Amendment, 
     78 Iowa L. Rev. 433, 491-99 (1993); Tom Wicker, Defending the 
     Indigent in Capital Cases, 2 Crim. Justice Ethics 2 (1983); 
     Jeanne Cummings, Bad Lawyers Tip the Scales of Justice Toward 
     Death Row, Atlanta J.-Const., Apr. 1, 1990, at A1; Anthony 
     Lewis, Crime in Politics, N.Y.  Times, Oct. 1, 1990, at A21; 
     Andrea Neal, Death Row Inmates Point to Poor Quality of 
     Lawyers Who Defend Them, L.A. Times, Oct. 29, 1986, at 12; 
     Frederic N. Tulsky, What Price Justice? Poor Defendants Pay 
     the Cost as Courts Save on Murder Trials, Phila. Inquirer, 
     Sept. 13, 1992, at A1 [hereinafter Tulsky, What Price 
     Justice?]; Frederic N. Tulsky, Big-Time Trials, Small Time 
     Defenses, Phila. Inquirer, Sept. 14, 1992, at A1 [hereinafter 
     Tulsky, Big-Time Trials]; Andrew Wolfson & Susan Craighead, 
     Effectivness of Lawyers in Capital Cases Is Questioned, 
     Courier-J. (Louisville, Ky.), Nov. 18, 1990, at 1, 23.
     49. A lawyer in one Georgia case conceded his client's guilt 
     and argued for a life sentence at the guilt phase; he 
     continued to plead for mercy even after he was admonished by 
     the trial judge to save his argument on punishment for the 
     sentencing phase. Young v. Zant, 677 F.2d 792, 797 (11th Cir. 
     1982). A judge in a Florida case took a defense lawyer in 
     chambers during the penalty phase to explain what it was 
     about. The lawyer responded: ``I'm at a loss. I really don't 
     know what to do in this type of proceeding. If I'd been 
     through one, I would, but I've never handled one except this 
     time.'' Douglas v. Wainwright, 714 F.2d 1532, 1556 (11th Cir. 
     1983), vacated and remanded, 468 U.S. 1206 (1984), on remand, 
     739 F.2d 531 (11th Cir. 1984), and cert. denied, 469 U.S. 
     1208 (1985). An Alabama defense lawyer asked for time between 
     the guilt and penalty phases so that he could read the 
     state's death penalty statute. Record at 1875-76, State v. 
     Smith, 581 So. 2d 497 (Ala. Crim. App. 1990). The lawyer in a 
     Pennsylvania case tailored his presentation of evidence and 
     argument around a death penalty statute that had been 
     declared unconstitutional three years earlier because it 
     limited the arguments on which the defense could rely as to 
     mitigating circumstances. Frey v. Fulcomer, 974 F.2d 348, 359 
     (3d Cir. 1992) (reversing finding of ineffective assistance 
     of counsel).
     50. In one Alabama case, one defense lawyer sued co-counsel 
     over attorneys fees before trial and the attorneys were in 
     conflict over personal differences during trial, Daniel v. 
     Thigpen, 742 F. Supp. 1535, 1558-59 (M.D. Ala. 1990); 
     Friedman & Stevenson, supra note 48, at 34. In a Georgia 
     case, one attorney presented an incredible alibi defense 
     while the other asserted a mental health defense that 
     acknowledged the accused's participation in the crime, Ross 
     v. Kemp, 393 S.E.2d 244, 245 (Ga. 1990).
     51. Goodwin v. Balkcom, 684 F.2d 794, 805 n.13 (11th Cir. 
     1982) (defendant called a ``little old nigger boy'' in 
     closing argument by defense counsel); Ex parte Guzmon, 730 
     S.W.2d 724, 736 (Tex. Crim. App. 1987) (Mexican client 
     referred to as ``wet back'' in front of all-white jury by 
     defense counsel); Record Excerpts at 102. Dungee v. Kemp, No. 
     85-8202 (11th Cir.) (defendant called ``nigger'' by defense 
     counsel), decided sub nom. Isaacs v. Kemp, 778 F.2d 1482 
     (11th Cir. 1985), cert. denied, 476 W.S. 1164 (1986).
     52. House v. Balkcom, 725 F.2d 608, 612 (11th Cir. 1984), 
     cert denied, 469 U.S. 870 (1984).
     53. A judge in Harris County, Texas, responding to a capital 
     defendant's complaints about his lawyer sleeping during the 
     trial at which death was imposed, stated: ``The Constitution 
     does not say that the lawyer has to be awake.'' John Makeig, 
     Asleep on the Job; Slaying Trial Boring, Lawyer Said, Hous. 
     Chron., Aug. 14, 1992, at A35. Defense counsel was found to 
     have slept during a capital trial in Harrison v. Zant, No. 
     88-V-1640. Order at 2 (Super. Ct. Butts County, Ga. Oct. 5, 
     1990), aff'd, 402 S.E.2d 518 (Ga. 1991).
     54. People v. Garrison, 254 Cal. Rptr. 257 (1986). Counsel, 
     an alcoholic, was arrested en route to court one morning and 
     found to have a blood alcohol level of 0.27. Yet the court 
     was unwilling to create a presumption against the competence 
     of attorneys under the influence of alcohol.
     55. See e.g., Morgan v. Zant, 743 F.2d 775, 780 (11 Cir. 
     1984) (Georgia Supreme Court affirmed death sentence after 
     receiving brief that contained only five pages of argument 
     and was filed only in response to threat of sanctions against 
     the lawyer); Banda v. State, 768 S.W.2d 294, 297 (Tex. Crim. 
     App. 1989) (dissent notes that court-appointed counsel raised 
     a single point of error and the substantive portion of the 
     brief was 150 words); Modden v. State, 721 S.W.2d 859, 860 
     n.1 (Tex. Crim. App. 1986) (``The points of error are 
     multifarious, contain incomplete or no citations to the 
     record, and fail to state an adequate legal basis upon which 
     complaint is made.''); Brief and Argument in Support of 
     Petition for Writ of Certiorari, Ex parte Heath. 455 So. 2d 
     905 (Ala. 1984) (No. 4 Div. 134) (one page of argument, 
     raising a single issue and citing one case) (set out in full 
     in note 154 infra); Brief for Appellant, Thomas v. State, 266 
     S.E.2d 499 (Ga. 1980) (No. 36046) (six pages of poorly 
     written argument, citing only nine cases, which failed to 
     raise issues regarding mental incompetence of the defendant, 
     lack of any counsel at the preliminary hearing, mental 
     competency of the state's two key witnesses, vagueness of the 
     aggravating circumstance on which the death sentence rested, 
     and other issues that were later raised in a brief of 70 
     pages which cited 96 cases in the postconviction appeal of 
     the case to the Eleventh Circuit); see also In re Dale, 247 
     S.E.2d 246, 248 (N.C. Ct. App. 1978) (due to financial 
     considerations, attorney did not file appeal in capital 
     case); Docket Entry of July 8, 1983, of Clerk of Alabama 
     Court of Criminal Appeals. State v. Waldrop. 459 So. 2d 959 
     (Ala. Crim. App. 1984) (No. 7 Div. 133) (clerk wrote a letter 
     to appellate counsel, who had not cited any authority in his 
     brief, asking him to include some citation to authority; 
     counsel sent a list of cases); Brief of Appellant, Morrison 
     v. State, 373 S.E.2d 506 (Ga. 1988) (No. 45572) (two pages of 
     argument, citing two cases): Brief of Appellant, Newland v. 
     State, 366 S.E.2d 689 (Ga. 1988) (No. 45264) (62-page digest 
     of the transcript, followed by only three pages of argument, 
     citing not a single case); Brief of Appellant, Cohen v. 
     State, 361 S.E.2d 373 (Ga. 1987) (No. 44457) (four pages of 
     argument, citing two cases).
     56. See e.g., Paradis v. Arave, 954 F.2d 1483, 1490-91 (95h 
     Cir. 1992) (defendant represented at capital trial by lawyer 
     who had passed the bar six months earlier, had tried no 
     criminal cases, and had not taken any courses in criminal 
     law, criminal procedure, or trial advocacy in law school); 
     Tyler v. Kemp, 755 F.2d 741, 743 (11th Cir.) (defendant 
     represented at Georgia trial by attorney with little criminal 
     law experience who had been admitted to the bar just a few 
     months before trial), cert. denied, 474 U.S. 1026 (1985); 
     Bell v. Watkins, 692 F.2d 999, 1008 (5th Cir. 1982) 
     (defendant represented at Mississippi capital trial by 
     attorney who had recently graduated from law school and never 
     tried a criminal case all the way to verdict): State v. 
     Wigley, 624 So. 2d 425, 427 (La. 1993) (three of four 
     attorneys appointed to defend two defendants ``were civil 
     practitioners with little criminal law experience''); Parker 
     v. State, 587 So. 2d 1072, 1100-03 (Ala. Crim. App. 1991) 
     (defense lawyers asserted they were inexperienced in defense 
     of criminal cases and incompetent to handle a capital case in 
     unsuccessful attempt to withdraw); State v. Leatherwood, 
     Miss. S. Ct. No. DP-70 (trial transcript) (defendant in 
     capital case represented by third-year law student and 
     attorney), rev'd on other grounds, 548 So. 2d 389 (Miss. 
     57. See, e.g., Coleman v. Kemp, 778 F.2d 1487, 1494, 1495, 
     1503, 1516, 1522 (11th Cir. 1985) (one attorney appointed to 
     defend capital cases claimed the appointment was ``the worst 
     thing that's ever happened to me professionally''; another 
     stayed on the case because ``[t]o refuse would be contempt of 
     court''), cert. denied, 476 U.S. 1164 (1986).
     58. An African-American facing the death penalty in Walker 
     County, Georgia, was represented by a white defense attorney 
     whose attitudes on race were described as follows by a 
     federal district court before concluding that the lawyer had 
     not rendered ineffective assistance:
     Dobbs' trial attorney was outspoken about his views. He said 
     that many blacks are uneducated and would not make good 
     teachers, but do make good basketball players. He opined that 
     blacks are less educated and less intelligent than whites 
     either because of their nature or because ``my grand-daddy 
     had slaves.'' He said that integration has led to 
     deteriorating neighborhoods and schools, and referred to the 
     black community in Chattanooga as ``black boy jungle.'' He 
     strongly implied that blacks have inferior morals by relating 
     a story about sex in a classroom. He also said that when he 
     was young, a maid was hired with the understanding that she 
     would steal some items. He said that blacks in Chattanooga 
     are more troublesome than blacks in Walker County [Georgia] * 
     * *
     Dobbs v. Zant, 720 F. Supp. 1566 1577 (N.D. Ga. 1989) 
     (Denying habeas corpus relief), aff'd, 963 F.2d 1519 (11th 
     Cir. 1991), remanded, 113 S. Ct. 835 (1993). Defendants in 
     other cases have been referred to by their lawyers with 
     racial slurs. See supra note 51.
     59. See supra notes 10-13 and accompanying text.
     60. In Texas, which has the second largest death row in the 
     nation and has carried out more executions than any other 
     state, the accused is given only one lawyer in many cases. 
     The Spangenberg Group, A Study of Representation in Capital 
     Cases in Texas 156, 157 (1993) (prepared for the State Bar of 
     Texas). In Philadelphia, where the number of people sentenced 
     to death is greater than the combined death rows of 21 of the 
     36 states which have the death penalty, a capital case is 
     often defended by a single attorney. See Michael DeCourcy 
     Hinds, Circumstances in Philadelphia Consign Killers, N.Y. 
     Times, June 8, 1992, at K1; Tulsky, What Price Justice?, 
     Supra note 48, at A18.
     61. Tulsky, What Price Justice?, supra note 48, at A18.
     62. Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (indigent 
     defendant has a right to mental health expert where mental 
     health issues are a ``significant factor'' at trial); see, 
     e.g., Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1990) 
     (``The right to psychiatric assistance * * * means the right 
     to use the services of a psychiatrist in whatever capacity 
     defense counsel deems appropriate * * *'').
     63. A survey of lawyers and judges in Texas found that 
     approximately one-half of the attorneys who had handled a 
     capital case and 33% of judges who had recently presided over 
     a capital case indicated that resources were inadequate to 
     pay expert witnesses and attorneys. The Spangenberg Group, 
     supra note 60, at 159; see, e.g., Jeff Rosenzweig, The Crisis 
     in Indigent Defense: An Arkansas Commentary, 44 Ark. L. Rev. 
     409, (1991) (describing the dilemma of an Arkansas attorney 
     in a capital case who needed a psychiatrist to examine a 
     defendant who had previously been diagnosed as schizophrenic; 
     the lawyer was first told by the judge to find a mental 
     health expert closer to home and then denied funds after he 
     located a local psychologist).
     64. In response to the denial of expert assistance for 
     failure to make a sufficient showing in one case, Judge Frank 
     M. Johnson, Jr. pointed out for the dissenters: ``[H]ow could 
     [counsel] know if he needed a microbiologist, an organic 
     chemist, a urologist, or that which the state used, a 
     serologist? How further could he specify the type of testing 
     he needed without first hiring an expert to make that 
     determination?'' Moore v. Kemp, 809 F.2d 702, 743 (11th Cir. 
     1987) (Johnson, J., concurring in part and dissenting in 
     part); see also Stephens v. Kemp, 846 F.2d 642, 646 (11th 
     Cir.) (upholding denial of ballistics expert because of 
     insufficient showing by defense counsel of need for expert), 
     cert. denied, 488 U.S. 872 (1988); Messer v. Kemp, 831 F.2d 
     946 (11th Cir. 1987) (en banc) (although the only issue at 
     both guilt and penalty phases was insanity and defense 
     counsel made numerous motions for an independent 
     psychiatrist, denial of expert assistance was upheld because 
     of the vague nature of defense counsel's request and 
     counsel's failure to provide any factual basis for his belief 
     that defendant had psychiatric problems), cert. denied, 485 
     U.S. 1029 (1988).
     65. In dissenting in Moore v. Kemp, Judge Johnson observed: 
     ``[T]he majority's reading of Ake creates a proverbial `Catch 
     22,' making it impossible for all but the most nimble (and 
     prescient) defendant[s] to obtain expert assistance.'' 809 
     F.2d at 742 (Johnson, J., dissenting).
     66. For example, a review of capital cases in Philadelphia 
     suggested experts were unwilling to consult with defense 
     lawyers because of the meager compensation. Tulsky, What 
     Price Justice?, supra note 48, at A1, A18. One expert 
     observed to a group of defense lawyers that she made more 
     than they did. Id. Another, a University of Pennsylvania 
     professor who takes cases for defense lawyers outside 
     Philadelphia, explained his refusal to be retained by court-
     appointed counsel in capital cases in Philadelphia: ``I like 
     to choose my charities * * *. This is a bad system, and 
     unfair to the defendant.'' Id.
     67. State v. Walker, No. 89 CR 56742-2 (Super. Ct. Muscogee 
     County, Ga. 1991), rev'd on other grounds, 424 S.E.2d 782 
     (Ga. 1993).
     68. Deposition of Richard Bell at 24-25, Grayson v. State 
     (Cir. Ct. Shelby County, Ala. Oct. 10, 1991) (No. CV 86-193).
     69. Id. at 62-63.
     70. Id. at 56-59.
     71. Id. at 29-31, 46-48.
     72. Rosenzweig, supra note 63, at 412.
     73. Id.
     74. Morgan v. Zant, 743 F.2d 775, 780 (11th Cir. 1984).
     75. Id.
     76. State v. Morgan, 246 S.E.2d 198 (Ga. 1978), cert. denied, 
     441 U.S. 967 (1979).
     77. Morgan v. Zant, 743 F.2d 775 (11th Cir. 1984).
     78. For other examples of deficient representation on appeal 
     see supra note 55.
     79. Only 11 of the 36 states which have the death penalty 
     have statewide public defender programs. The Spangenberg 
     Group, Supra note 60, at 122, 125. Some of those state public 
     defender programs have specialized full-time capital 
     litigation groups that provide representation in capital 
     cases at trial. Id. Two of those states, New Hampshire and 
     Wyoming, have no one under death sentence. Id. at 119; NAACP 
     Legal Defense & Educational Fund, Death Row USA 1 (Winter 
     1993). Eight of the states with statewide defense programs 
     have death rows that are comparatively small: Connecticut 
     (5); Delaware (16); Maryland (14); New Jersey (9); New Mexico 
     (1). Id. at 17, 27, 25, 28, 29. This leaves two states with 
     large death row populations, Ohio (127) and Missouri (83), 
     with statewide programs and capital litigation sections. Id. 
     at 26, 29; The Spangenberg Group, supra note 60, at 122. 
     Florida and California, which have two of the country's three 
     largest death rows, have public defender programs, but many 
     capital cases in those states are handled by assigned counsel 
     outside of the public defender system. Florida has an elected 
     public defender in each judicial circuit. Id. at 122-23. 
     California has county public defender agencies in all of its 
     major counties. Id. at 123. Even though these programs cannot 
     handle the huge volume of capital cases in those states, they 
     have annual training programs and provide materials which 
     improve the quality of representation in those states. No 
     similar programs exist in Texas or many other states with 
     large death row populations.
     80. Richard Klein. The Eleventh Commandment: Thou Shalt Not 
     Be Compelled To Render the Ineffective Assistance of Counsel, 
     68 Ind. L.J. 363, 370 (1993).
     81. For example, indigent defense boards in Louisiana 
     maintain lists of ``volunteer'' and ``non-volunteer'' lawyers 
     and may appoint counsel from either list. La. Rev. Stat. Ann. 
     Sec. 15:145(A), (B)(1)(a) (West 1992); State v. Wigley, 624 
     So. 2d 425 (La. 1993) (involving four ``non-volunteer'' 
     attorneys, three of whom had little criminal law experience, 
     appointed without compensation to defend two defendants 
     facing the death penalty); State v. Clark, 624 So. 2d 422 
     (La. 1993) (finding attorney in contempt for refusing to 
     accept armed robbery case without compensation, his fifth 
     felony appointment in four months). In some judicial 
     circuits, it is a requirement that attorneys newly admitted 
     to practice take indigent appointments during their first 
     years in the bar. Jeanne Cummings, In Some Courts, It's ``No 
     Contest'' for Lawyers Given Indigent Cases, Atlanta Const., 
     Apr. 6, 1990, at A1 (noting requirement in Rome, Georgia, 
     that all attorneys with 15 years experience or less take 
     criminal appointments)
     82. ``In all too many jurisdictions, the total compensation 
     paid to court-appointed counsel does not even meet their 
     regular hourly overhead costs.'' Richard Klein & Robert 
     Spangenberg, The Indigent Defense Crisis 5 (1993) (prepared 
     for the American Bar Association Section of Criminal Justice 
     Ad Hoc Committee on the Indigent Defense Crisis). For 
     example, in Virginia, the maximum fee allowable for most 
     felonies is $350. Id. at 6.
     83. Richard Klein, The Emperor Gideon Has No Clothes: The 
     Empty Promise of the Constitutional Right to Effective 
     Assistance of Counsel, 13 Hastings Const. L.Q. 625, 679 
     84. Id. at 680. A contract arrangement in one Georgia county 
     required that the attorney pay any investigative and expert 
     expenses out of the $4,265 he was to be paid that year for 
     representing all of the county's indigent defendants. Not 
     surprisingly, often not one penny is spent on either 
     investigative or expert assistance in an entire year in some 
     Georgia counties.
     85. See The Spangenberg Group, Overview of the Fulton County, 
     Georgia Indigent Defense System (1990); Peter Appelbome, 
     Study Faults Atlanta's System of Defending Poor, N.Y. Times, 
     Nov. 30, 1990, at B5; Monroe Freedman, Third World Justice, 
     First world Shame, Fulton County Daily Rep., Feb. 8, 1991, at 
     6-7 (observing ``daily, active collaboration'' by judges in 
     the ``debasement of justice''); see also Sandra McIntosh & 
     Jeanne Cummings, Crisis in the Courts: Inmates Wait Months To 
     See a Lawyer, Atlanta J.-Const., Jan. 6, 1991, at A1.
     86. Trisha Renaud & Ann Woolner, Meet Em and Plead Em: 
     Slaughter house Justice in Fulton's Decaying Indigent Defense 
     System, Fulton County Daily Rep., Oct. 8, 1990, at 1.
     87. Appeibome, supra note 85, at B5; Trisha Renaud & Ann 
     Woolner, Borsuk Grilled in Fryer Firestorm, Fulton County 
     Daily Rep., Oct. 12, 1990, at 1; Richard Shumate, ``I Will 
     Not Acept Any More Cases.'' Barrister Mag., Winter 1991-92, 
     at 11.
     88. State v. Peart, 621 So. 2d 780, 784 (La. 1993).
     89. Id. A serious case was defined as ``one involving an 
     offense necessarily punishable by a jail term which may not 
     be suspended.'' Id. at 784 n.3.
     90. Id.
     91. Id. at 790.
     92. ``The caseload crisis can devastate the morale of often 
     idealistic and dedicated attorneys.'' Klein, supra note 80. 
     at 393-94. In some offices, caseloads make it impossible for 
     even the most competent and well-intentioned lawyers to 
     provide their clients with adequate representation. Klein & 
     Spangenberg, supra note 82, at 6, 7, 9.
     93. Klein, supra note 80, at 393, 398, 403-04, 407. For 
     example, Kentucky police and prosecutors received $4.6 
     million from civil seizure and forfeitures in drug cases and 
     $6 million from drug grants under the Federal Comprehensive 
     Crime Control Act in fiscal year 1990, resulting in an 
     increase of 114% in drug arrests, but the state's public 
     defender program received no money from either source. Edward 
     C. Monahan, Who Is Trying To Kill the Sixth Amendment? ABA 
     Crim. Just., Summer 1991, at 24, 27-28. When this money is 
     added to state funding, Kentucky's police and prosecutors 
     received $156 million compared to the public defenders 
     receiving $11.4 million. Id. at 28. Thus, Kentucky police and 
     prosecutors received $14 for every $1 provided for public 
     94. Texas had 365 people under death sentence and had carried 
     out 69 executions by October 1993. NAACP Legal Defense & 
     Educational Fund, supra note 79, at 9, 39. Since 1976, Texas 
     has carried out more than twice as many executions as any 
     other state. Id.
     95. The Spangenberg Group, supra note 60, at 151.
     96. Id. The same variations are also found in other states. A 
     report by a task force on indigent defense appointed by the 
     Governor of Kentucky found that funding per public defender 
     case in one Kentucky county was $44.22, while in another 
     county the funding was $296.44. The Governor's Task Force on 
     the Delivery and Funding of Quality Public Defender Service 
     Interim Recommendations, reprinted in Advocate, Dec. 1993, at 
     8 (published by Ky. Dept of Public Advocacy, Frankfort, Ky.) 
     [hereinafter Kentucky Task Force Report].
     97. State v. Peart, 621 So. 2d 780, 789 (La. 1993). A study 
     of the system found that there is a ``desperate need to 
     double the budget for indigent defense in Louisiana in the 
     next two years.'' Id. (quoting The Spangenberg Group, Study 
     of the Indigent Defender System In Louisiana 50 (1992)).
     98. Ala. Code Sec. 12-19-250 to 12-19-254 (1975).
     99. Hal Strauss, Indigent Legal Defense Called ``Terrible,'' 
     Atlanta J.-Const., July 7, 1985, at 12A.
     100. Martinez-Marcias v. Collins, 979 F.2d 1067 (5th Cir. 
     101. For the rates and maximums for each state, see Anthony 
     Paduano & Clive A.S. Smith, The Unconscionability of Sub-
     Minimum Wages Paid Appointed Counsel in Capital Cases, 43 
     Rutgers L. Rev. 281, 349-53 (1991).
     102. Ala. Code Sec. 15-21-21 (a) (Supp. 1992).
     103. Smith v. State, 581 So. 2d 497, 526 (Ala. Crim. App. 
     1990). An opinion of the Alabama Attorney General has since 
     concluded that the sentencing phase of a capital case is to 
     be considered a separate case, allowing a maximum payment of 
     $2000 for out-of-court time at a rate of $20 per hour. Op. 
     Ala. Att'y Gen. No. 91-00206 (Mar. 21, 1991).
     104. Marianne Lavelle, Strong Law Thwarts Lone Star Counsel, 
     Nat'l L.J., June 11, 1990, at 34.
     105. The Spangenberg Group, supra note 60, at 157.
     106. Tulsky, What Price Justice?, supra note 48, at A18.
     107. Tulsky, Big-Time Trials, supra note 48, at A1, A8. The 
     $500 fee was to encourage lawyers to get experience in 
     capital cases. However, only a handful of lawyers took on 
     cases because of the low compensation, Id.
     108. Klein, supra note 80, at 366.
     109. Kentucky Task Force Report, supra note 96, at 11.
     110. Mark Curriden, Fees for Pleas Called Improper, A.B.A. 
     J., May 1993, at 28; Hard Bargain, Nat'l L.J., Nov. 19, 1990, 
     at 12 (editorially); Marianne Lavelle, Cop Plea, But Forfeit 
     Your Fee, Nat'l L.J., Nov. 19, 1990, at 29. Counsel has been 
     forced to appeal to the Georgia Supreme Court to be appointed 
     because the local trial judge had refused to appoint the 
     lawyers who won the defendant a new trial in federal habeas 
     corpus. See Amadeo v. State, 384 S.E.2d 181 (Ga. 1989)
     111. Tim O'Reiley, Billing Rates Crept Upward in 1992. Fulton 
     County Daily Rep., Feb. 15, 1993, at 1B; Tim O'Reiley, 
     Lawyers Raised Prices Despite Slump, Fulton County Daily 
     Rep., Jan. 25, 1994, at 1. The rates charged are supposed to 
     be the attorneys' usual and customary prices.
     112. See, e.g., Brooks v. Georgia State Bd. of Elections, 997 
     F.2d 857 (11th Cir. 1993) (remanding voting rights case for 
     assessment of fees between $125 and $175 per hour); Davis v. 
     Locke, 936 F.2d 1208 (11th Cir. 1991) (affirming attorneys 
     fees of $150 per hour in civil rights action against prison 
     guards); Associated Builders & Contractors v. Orleans Parish 
     Sch. Bd., 919 F.2d 374 (5th Cir. 1990) (affirming award of 
     $165-$175 per hour for partners and $100 per hour for 
     associates in suit alleging equal protection violation in 
     connection with school system set-aside construction 
     program); Von Clark v. Butler, 916 F.2d 255 (5th Cir. 1990) 
     (affirming attorneys fees of $100 per hour for preparation 
     time and $200 per hour for in-court time in civil rights 
     claim of excessive use of force in arrest); Cobb v. Miller, 
     818 F.2d 1227 (5th Cir. 1987) (mandating $90 per hour in 
     civil rights litigation for damages resulting during 
     plaintiff's arrest and conviction); Knight v. Alabama, 824 F. 
     Supp. 1022 (N.D. Ala. 1993) (awarding attorneys fees ranging 
     from $275 per hour for lead counsel to $100-$200 per hour for 
     other attorneys in school discrimination action).
     113. See, e.g., Martin v. Mabus, 734 F. Supp. 1216, 1230 
     (S.D. Miss. 1990) (awarding $35 per hour for paralegal and 
     student law clerk work in voting rights action).
     114. Plyler v. Evatt, 902 F.2d 273, 276 (4th Cir. 1990).
     115. The court held that where a successful plaintiff was not 
     contractually obligated to pay any fees to her lawyer because 
     the lawyer had been appointed by the Office of Fair 
     Employment practices, the Georgia Fair Employment Practices 
     Act did not allow an award of ``reasonable attorneys fees.'' 
     Finney v. Department of Corrections, 434 S.E.2d 45 (Ga. 
     116. The attorney had contracted with the Commission on Equal 
     Opportunity to provide representation for $50 per hour, a fee 
     which had already been paid. Katie Wood, Court Limits Fees in 
     Bias Cases: Decision Restricting Attorneys Fees Divides High 
     Court, Fulton County Daily Rep., July 6, 1993, at 11.
     117. Finney v. Department of Corrections, 434 S.E.2d at 48 
     (Sears-Collins J. dissenting).
     118. Makemson v. Martin County, 491 So. 2d 1109, 1114-15 
     (Fla. 1986), cert. denied, 479 U.S. 1043 (1987) (quoting 
     MacKenzie v. Hillsborgouh County, 288 So. 2d 200, 202 (Fla. 
     1973) (Ervin, J., dissenting)).
     119. See, e.g., Michael A. Kroll, Death Watch, Cal. Law., 
     Dec. 1987, at 24-27 (describing unwillingness of some lawyers 
     in California to take capital cases because of emotional toll 
     and ``burnout'').
     120. The Spangenberg Group, supra note 60, at 152.
     121. Id. at 157.
     122. See, e.g., Friedman & Stevenson, supra note 48, at 30; 
     Paduano & Smith, supra note 191, at 333.
     123. ``Capital cases require perceptions, attitudes, 
     preparation, training, and skills that ordinary criminal 
     defense attorneys may lack.'' Gary Goodpaster, The Trial for 
     Life: Effective Assistance of Counsel in Death Penalty Cases, 
     58 N.Y.U. L. Rev. 299, 303-04 (1983); see also Welsh S. 
     White, Effective Assistance of Counsel in Capital Cases; The 
     Evolving Standard of Care, 1993 U. Ill. L. Rev. 323 
     (describing in detail the ``evolving standard of care'' for 
     the defense of capital cases).
     124. Trial and appellate judges are elected or face retention 
     elections after appointment in most states that have the 
     death penalty. Some of the difficulties that elected judges 
     have in protecting the rights of the accused are described in 
     Thomas M. Ross, Rights at the Ballot Box: The Effect of 
     Judicial Elections on Judges' Ability To Protect Criminal 
     Defendants' Rights, 7 Law & Ineq. J. 107 (1988).
     125. See supra note 56.
     126. Tulsky, Big-Time Trials, supra note 48, at A8.
     127. Id.
     128. Parker v. State, 587 So. 2d 1071, 1100-03 (Ala. Crim. 
     App. 1991).
     129. Davis v. State, 404 S.E.2d 800 (Ga. 1991); Birt v. 
     Montgomery, 387 S.E.2d 879 (Ga. 1990); Amadeo v. State, 384 
     S.E.2d 181 (Ga. 1989).
     130. Roberts v. State, No. S93A1857, 1994 Ga. LEXIS 200 (Ga. 
     Feb. 21, 1994).
     131. See Gates v. Zant, 863 F.2d 1492, 1497-1500 (11th Cir.), 
     cert. denied, 493 U.S. 945 (1989).
     132. Marcia Coyle et al., Washington Brief: High Noon for 
     Congressional Habeas, Nat. L.J., July 9, 1990, at 5.
     133. 466 U.S. 668, 689 (1984).
     134. Id.
     135. Id. at 688-89.
     136. Id. at 694.
     137. Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) 
     (Rubin, J., concurring).
     138. Klein, supra note 83, at 634. For an example of the 
     extraordinary lengths to which some courts will go to avoid 
     finding a lawyer ineffective, see Rogers v. Zant, 13 F.3d 384 
     (11th Cir. 1994), where the court, in reversing a finding by 
     the district court of ineffective assistance in a capital 
     case, stated: ``Even if many reasonable lawyers would not 
     have done as defense counsel did at trial, no relief can be 
     granted on ineffectiveness grounds unless it is shown that no 
     reasonable lawyer, in the circumstances, would have done 
     so.'' Id. at 386 (emphasis added). Rejecting other decisions 
     by other panels of the same court holding that strategic 
     decisions must be based on investigation, the panel in Rogers 
     concluded that ```strategy' can include a decision not to 
     investigate'' and that ``once we conclude that declining to 
     investigate further was a reasonable act, we do not look to 
     see what a further investigation would have produced.'' Id. 
     at 386-87, 388.
     139. Klein, supra note 83, at 640-41.
     140. Romero v. Lynaugh, 884 F.2d 871, 875 (5th Cir. 1989).
     141. Id. at 877.
     142. Suspensions, 56 Tex. B.J., Jan. 1993, at 73.
     143. See supra notes 34-39 and accompanying text.
     144. Stanley v. Kemp, 737 F.2d 921 (11th Cir. 1984), 
     application for stay denied, 468 U.S. 1220 (1984).
     145. Thomas v. Kemp, 800 F.2d 1024 (11th Cir. 1986).
     146. Affidavit of Charles Marchman, Jr. at 1-5, Young v. 
     Kemp, No. 85-98-2-MAC (M.D. Ga. 1985).
     147. Id. at 7.
     148. Messer v. Kemp, 474 U.S. 1008, 1090 (1986) (Marshall, 
     J., dissenting from denial of certiorari).
     149. Messer v. Kemp, 831 F.2d 946, 951 (11th Cir. 1987) (en 
     banc), cert. denied, 485 U.S. 1029 (1988).
     150. Messer v. Kemp, 760 F.2d 1080, 1096 n.2 (11th Cir. 1985) 
     (Johnson, J., dissenting), cert. denied, 474 U.S. 1088, 1090 
     (1986) (Marshall, J., dissenting from denial of certiorari).
     151. Powell v. Alabama, 287 U.S. 45, 75 (1932) (Butler, J., 
     dissenting) (quoting decision of Alabama Supreme Court).
     152. Mitchell v. Kemp, 483 U.S. 1026, 1026-27 (1987) 
     (Marshall, J., dissenting from denial of certiorari.).
     153. Id.
     154. What follows is the brief in its entirety. The only 
     parts of the brief not set out below are the cover page and 
     certificate of service:
     In the opinion of the Court of Criminal Appeals rendered on 
     July 5, 1983, the Court failed to address the issue as to 
     whether or not the Appellant was tried and convicted of the 
     same offense, which is precisely the same in law and fact as 
     the offense of which he was convicted in the State of 
     As the Court pointed out on Page 3 of it's (sic) opinion, 
     there were not cited cases to any Federal case law involving 
     jeopardy in multiple State prosecutions and because there are 
     no Federal cases cited, the Court apparently ignored the law 
     relative to multiple prosecutions for an offense, which are 
     precisely the same in law and fact.
     Apparently the Court relied on the case of Hare v State, 387 
     So. 2 d [sic] 299, 300 (Ala. Crim. App. 1980) in reaching 
     it's [sic] decision in this case. The Hare case can be 
     distinguished simply by looking at the facts in the Hare 
     case, wherein the court in Tennessee was dealing with the 
     offense of possession of drugs in the State of Alabama, which 
     are not precisely the same in law and fact.
     The Appellant plead guilty to the offense of murder, which 
     was a lesser included offense of the charge of murder caused 
     and directed by the Appellant under the laws of the State of 
     Georgia and received a life sentence. After the Appellant was 
     sentenced in the State of Georgia to life imprisonment, he 
     was returned to the State of Alabama for the murder of his 
     wife, Rebecca Heath.
     Apparently this case is one of first impression in the State 
     of Alabama, and this Court has not ruled on a similar case 
     involving the offense of murder where only one victim is 


     Appellant contends that his constitutional rights guaranteed 
     under the 5th Amendment of the United States Constitution and 
     his rights guaranteed by Article I Section 9 of the Alabama 
     constitution prohibiting Double Jeopardy and Double 
     Punishment have been violated. Further, Appellant contends 
     that he relied upon his guaranteed Constitutional rights as 
     set forth above in pleading guilty to a lesser included 
     offense of murder of his wife, in the state of Georgia, and 
     that the prosecution in the State of Alabama on the offense 
     of murder during the course of kidnapping [sic] of his wife, 
     should be barred.
     Therefore, after considering the facts, law and argument of 
     Appellant, a Writ of Certiorari should be issued from this 
     Court to the Court of Criminal Appeals correcting the errors 
     complained of and reversing the judgment of the Court of 
     Criminal Appeals and rendering such judgments as said Court 
     have [sic] rendered in addition to such other relief as 
     Petitioner may be entitled.
     Respectfully submitted,
     Appellant's Brief and Argument in Support of Petition for 
     Writ of Certiorari, at 1-2 Heath v. Alabama, 455 So. 2d. 905 
     (Ala. 1984). Alabama requires that the brief and petition for 
     certiorari be submitted at the same time. Ala. R. Crim. P. 
     32.2 (1990). Thus, the Alabama Supreme Court decided Heath's 
     case on the basis of this brief alone.
     155. Heath v. Jones, 941 F.2d 1126, 1131 (11th Cir. 1991), 
     cert. denied, 112 S. Ct. 981 (1992).
     156. Id. at 1131-37. However, Judge J.L. Edmondson, in 
     concurring, disagreed even with the court's comment regarding 
     counsel's performance. He stated, ``I cannot agree that the 
     quality of counsel's performance can be judged much by the 
     length of brief or the number of issues raised . . . . 
     Effective lawyering involves the ability to discern strong 
     arguments from weak ones and the courage to eliminate the 
     unnecessary so that the necessary may be seen most clearly.'' 
     Id. at 1141 (Edmondson, J., concurring). The brief in Heath, 
     however, and counsel's failure to appear for oral argument 
     hardly constitute sterling examples of such ability or 
     157. See Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle 
     v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 
     433 U.S. 72, 88-91 (1977); see also Richard J. Bonnie, 
     Preserving Justice in Capital Cases While Streamlining the 
     Process of Collateral Review, 23 U. Tol. L. Rev. 99, 109-13 
     (1991); Timothy J. Foley, The New Arbitrariness: Procedural 
     Default of Federal Habeas Claims in Capital Cases, 23 Loy. 
     L.A. L. Rev. 193 (1989).
     158. The lawyer who testified that those were the only two 
     ``criminal'' cases he knew has twice been found to satisfy 
     the Strickland standard. Birt v. Montgomery, 725 F.2d 587, 
     596-601 (11th Cir. 1984) (en banc), cert. denied, 469 U.S. 
     874 (1984); Williams v. State, 368 S.E.2d 742, 747-50 (Ga. 
     1988). See supra note 32.
     159. Marshall, supra note 46, at 44 (footnotes omitted).
     160. Justice Robert Benham of the Georgia Supreme Court was 
     ``struck by the powerful irony'' of the majority's refusal to 
     consider an issue of ``flagrantly improper'' prosecutorial 
     misconduct in one case because it was not preserved by 
     counsel, but holding that counsel was not ineffective. Todd 
     v. State, 410 S.E.2d 725, 735 n.1 (Ga. 1991) (Benham, J., 
     dissenting). The majority disposed of the ineffective 
     assistance claim in four sentences. Id. at 731. The 
     Mississippi Supreme Court refused to consider two issues on 
     direct appeal because they were not properly preserved by 
     trial counsel in Hill v. State, 432 So. 2d 427, 438-40 (Miss. 
     1983), over a dissent which argued, ``We can think of no more 
     arbitrary factor than having nimbleness of counsel on points 
     of procedure determine whether Alvin Hill lives or dies.'' 
     Id. at 449 (Robertson, J., concurring in part and dissenting 
     in part). The same court later rejected in a single paragraph 
     an assertion that counsel was ineffective. In re Hill, 460 
     So. 2d 792, 801 (Miss. 1984). The dissent argued: ``Where two 
     clear cut reversible errors were not available on direct 
     appeal to a condemned defendant solely because his lawyer 
     goofed, that would seem to make a prima facie case for 
     ineffective assistance of counsel.'' Id. at 811 (Robertson, 
     J., concurring in part and dissenting in part). Other 
     examples are collected in Friedman & Stevenson, supra note 
     48, at 16-20.
     161. Green, supra note 48, at 433, 454.
     162. Id. at 476-89.
     163. The Louisiana Supreme Court, relying upon its state 
     constitution and laws, has adopted such a presumption where 
     there is a likelihood of inadequate representation. Finding 
     that the ``provision of indigent defense services'' in one 
     section of court in Orleans Parish ``is in many respects so 
     lacking that defendants who must depend on it are not likely 
     to be receiving the reasonably effective assistance of 
     counsel,'' the court adopted a rebuttable presumption that 
     indigents in that section were not receiving constitutionally 
     required assistance. State v. Peart, 621 So. 2d 780, 791 (La. 
     1993). The court ordered pretrial hearings where there were 
     questions of adequate representation and instructed the trial 
     court ``not [to] permit the prosecution to go forward until 
     the defendant is provided with reasonably effective 
     assistance of counsel,'' Id. at 792.
     164. See, e.g., Warren E. Burger, Remarks on Trial Advocacy: 
     A Proposition, 7 Washburn L.J. 15 (1967); Warren E. Burger, 
     The Special Skills of Advocacy: Are Specialized Training and 
     Certification of Advocates Essential to Our System of 
     Justice, 42 Fordham L. Rev. 227 (1973).
     165. Strickland v. Washington, 466 U.S. 688, 693 (1984).
     166. Polk County v. Dodson, 454 U.S. 312, 332 (1981) 
     (Blackmun, J., dissenting).
     167. ``It is the belief--rarely articulated, but, I am 
     afraid, widely held--that most criminal defendants are guilty 
     anyway. From this assumption it is a short path to the 
     conclusion that the quality of representation is of small 
     account.'' David L. Bazelon, The Defective Assistance of 
     Counsel, 42 U. Cin. L. Rev. 1, 26 (1973).
     168. ``For a court to be required to engage in speculation 
     about how the trial might have gone if counsel had been 
     effective is to minimize the importance of the sixth 
     amendment right to counsel . . .'' Klein, supra, note 83, at 
     641, see also Ivan K. Fong, Note, Ineffective Assistance of 
     Counsel at Capital Sentencing, 39 Stan. L. Rev. 461, 477-80 
     169. For other shortcomings of the Strickland standard, see 
     Gary Goodpaster, The Adversary System, Advocacy and the 
     Effective Assistance of Counsel in Criminal Cases, 14 N.Y.U. 
     Rev. L. & Soc. Change, 59, 83-85 (1986); Green, supra note 
     48, at 500-05; Paduano & Smith, supra note 101, at 326-31; 
     Rodger Citron, Note, (Un)Luckey v. Miller: The Case for a 
     Structural Injunction To Improve Indigent Defense Services, 
     101 Yale L.J. 481, 486-88 (1991).
     170. See White, supra note 123, at 340-46.
     171. Id.
     172. Lockett v. Ohio, 438 U.S. 586, 604 (1978) (holding that 
     sentencer must consider ``any aspect of a defendant's 
     character on record . . . that the defendant proffers as a 
     basis for a sentence less than death''); Penry v. Lynaugh, 
     492 U.S. 302 (1989) (mental retardation must be considered in 
     mitigation); Hitchcock v. Dugger, 481 U.S. 393 (1987) (jury 
     instructions may not limit the jury's consideration of 
     mitigating circumstances); Skipper v. South Carolina, 476 
     U.S. 1 (1986) (good behavior in prison must be considered as 
     mitigating factor); Eddings v. Oklahoma, 455 U.S. 104 (1982) 
     (troubled childhood must be considered as mitigating factor); 
     Bell v. Ohio, 438 U.S. 637 (1978) (same holding as Lockett).
     173. White, supra note 123, at 325-29, 340-42.
     174. Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
     175. Transcript of Opening and Closing Arguments at 39, State 
     v. Dungee, Record Excerpts at 102, (11th Cir.) (No. 85-8202), 
     decided sub nom. Isaacs v. Kemp, 778 F.2d 1482 (11th Cir. 
     1985), cert. denied, 476 U.S. 1164 (1986).
     176. Id. The court did not address the issue of ineffective 
     assistance of counsel, which had been rejected by the 
     district court.
     177. Dungee v. State, No. 444 (Super. Ct. Seminole County, 
     Ga.), on change of venue, No. 87CR-5345 (Super. Ct. Muscogee 
     County, Ga. 1988).
     178. See also Paduano & Smith, supra note 101, at 331-33 & 
     nn.201-03 (other examples where life sentences have been 
     obtained for those previously sentenced to death at trials 
     where they were represented by incompetent counsel).
     179. American Bar Ass'n & The Nat'l Legal Aid & Defender 
     Ass'n, Gideon Undone! The Crisis of Indigent Defense Funding 
     3 (1982).
     180. Many of the reports are summarized in Klein & 
     Spangenberg, supra note 82, at 10; Klein, supra note 80, at 
     181. Klein & Spangenberg, supra note 82, at 25.
     182. Klein, supra note 80, at 402-03; Friedman & Stevenson, 
     supra note 48, at 23 n.112.
     183. Friedman & Stevenson, supra note 48, at 40 n.201. The 
     Alabama Court of Appeals has also urged the Alabama Supreme 
     Court to reconsider its decisions upholding the 
     constitutionality of the $1,000 limit on attorney 
     compensation in criminal cases, observing that ``[t]he real 
     value of $1,000 is considerably less today'' than when set in 
     1981 and is ``certainly unreasonable.'' May v. State, No. CR-
     92-350, 1993 Ala. Crim. App. LEXIS 1076 (1993). However, one 
     of the five members of the court disagreed, arguing that the 
     question of adequate compensation was a matter for 
     legislation. Id. (Montiel, J., dissenting); see also Ex parte 
     Grayson, 479 So. 2d 76 (Ala. 1985), cert. denied, 474 U.S. 
     865 (1985) (upholding against due process and equal 
     protection attacks Alabama's system for compensating 
     appointed attorneys); Sparks v. Parker, 368 So. 2d 528 (Ala. 
     1979) (holding that the limit does not constitute unlawful 
     taking of property), appeal dismissed, 444 U.S. 803 (1979).
     184. ``Many legislators seem to fear that support for funding 
     for defense services in capital cases is somehow the same as 
     support for violent crime.'' Friedman & Stevenson, supra note 
     48, at 41-42.
     185. DeLisio v. Alaska, 740 P.2d 437, 443 (Alaska 1987); 
     Arnold v. Kemp, 813 S.W.2d 770 (Ark. 1991); White v. Board of 
     County Comm'rs, 537 So. 2d 1376, 1379 (Fla. 1989); Makemson 
     v. Martin County, 491 So. 2d 1109, 1112, 1114 (Fla. 1986), 
     cert. denied, 479 U.S. 1043 (1987); State ex rel. Stephan v. 
     Smith, 747 P.2d 816 (Kan. 1987); State v. Lynch, 796 P.2d 
     1150 (Okla. 1990); Jewell v. Maynard, 383 S.E.2d 536, 547 (W. 
     Va. 1989).
     186. See, e.g., Wilson v. State, 574 So. 2d 1338, 1340 (Miss. 
     1990). There, in considering a challenge to the $1,000 limit 
     on attorney compensation in capital cases, the Mississippi 
     Supreme Court stated: ``[I]f the legislative branch fails its 
     constitutional mandate to furnish the absolute essentials 
     required for the operation of an independent and effective 
     court, then no court affected hereby should fail to act. It 
     is the absolute duty of a court in such latter circumstances 
     to act and act promptly.'' Id. (quoting Hosford v. State, 525 
     So. 2d 789, 797-98 (Miss. 1988)). Nevertheless, the court 
     refused to interfere with the legislature's right to expend 
     public funds and allowed Mississippi's limit of $1,000 in 
     compensation for the defense of capital cases to stand. Id.
     187. Id.; Pruett v. State, 574 So. 2d 1342 (Miss. 1990).
     188. Wilson, 574 So. 2d at 1341.
     189. Id.
     190. Pruett, 574 So. 2d at 1342, 1343-69 (Anderson J., 
     191. All of the attorneys in the Wilson and Pruett cases 
     received less than the minimum wage. The two attorneys for 
     Wilson documented 779.2 and 562 hours and the two attorneys 
     for Pruett documented 449.5 and 482.5 hours. Each attorney 
     was paid $1,000 for his time. Thus, the rates ranged from 
     $1.28 per hour to $2.22 per hour. Id. at 1348 n.7 (Anderson, 
     Jr., dissenting).
     192. State v. Wigley, 624 So. 2d 425, 428-29 (La. 1993) 
     (overruling in part State v. Clifton, 172 So. 2d 657 (La. 
     193. Id. at 429.
     194. Bailey v. State, 424 S.E.2d 503, 508 (S.C. 1992).
     195. Id. at 505.
     196. Id. at 504.
     197. Id. at 508.
     198. See, e.g., Johnson v. Georgia Highway Express, Inc., 488 
     F.2d 714, 719 (5th Cir. 1974).
     199. E.g., Alberti v. Sheriff of Harris County, 688 F. Supp. 
     1176, 1198-99 (S.D. Tex. 1987) (prison conditions litigation 
     per se undesirable), modified on other grounds, 688 F. Supp. 
     1210 (S.D. Tex. 1987), aff'd in part and rev'd in part sub 
     nom. Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), 
     opinion vacated in part on reh'g, 903 F.2d 352 (5th Cir. 
     1990) (per curiam).
     200. See, e.g., Tucker v. Montgomery Bd. of Comm'rs, 410 F. 
     Supp. 494 (M.D. Ala. 1976); Wallace v. Kern, 392 F. Supp. 834 
     (E.D.N.Y.), rev'd, 481 F.2d 621 (2d Cir. 1973), cert. denied, 
     414 U.S. 1135 (1974); State v. Smith, 681 P.2d 1374 (Ariz. 
     1984). These and other efforts to bring deficient indigent 
     defense systems into compliance with the Constitution are 
     described in Klein, supra note 80, at 410-13. 417-18. See 
     also Paul C. Drecksel, The Crisis in Indigent Criminal 
     Defense, 44 Ark. L. Rev. 363, 387-90 (1991); Caroline A. 
     Pilcher, Note, State v. Smith: Placing a Limit on Lawyers' 
     Caseloads, 27 Ariz. L. Rev. 759 (1985).
     201. Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988), 
     reh'g denied, 896 F.2d 479 (1989), cert. denied, 495 U.S. 957 
     202. Luckey W. Miller, 976 F.2d 673 (11th Cir. 1992), reh'g 
     en banc denied, 983 F.2d 1084 (11th Cir. 1993).
     203. Foster v. Kassulke, 898 F.2d 1144 (6th Cir. 1990).
     204. Martin County v. Makemson, 479 U.S. 1043, 1045 (1987) 
     (White J., dissenting from denial of certiorari) (``I discern 
     nothing in the Sixth Amendment that would prohibit a State 
     from requiring its lawyers to represent indigent criminal 
     defendants without any compensation for their services at 
     all.''); Wilson v. State, 574 So. 2d 1338, 1341 (Miss. 1990); 
     State v. Wigley, 624 So. 2d 425, 427-29 (La. 1993).
     205. State ex rel. Stephan v. Smith, 747 P.2d 816, 835-37, 
     841-42 (Kan. 1987); Wilson, 574 So. 2d at 1342 (Robertson J., 
     206. Another example of the low priority that states give to 
     their obligation to assure equal justice can be found in 
     Kentucky, where the indigent defense budget for 1990 of $11.4 
     million was four million less than the University of 
     Kentucky's athletic department for the same year. Edward C. 
     Monahan, Who is Trying to Kill the Sixth Amendment? A.B.A. 
     Crim. Just., 24, 52 (Summer 1991). Kentucky's funding for 
     indigent defense for one year would build but four miles of 
     two-lane highway. Id. at 51-52.
     207. Chief Justice Harold G. Clarke, Annual State of the 
     Judiciary Address, reprinted in Fulton County Daily Rep., Jan 
     14, 1993, at 5.
     208. American Bar Ass'n, Guidelines for the Appointment and 
     Performance of Counsel in Death Penalty Cases (1990).
     209. Standards for the appointment of counsel, which are 
     defined in terms of number of years in practice and number of 
     trials, do very little to improve the quality of 
     representation since many of the worst lawyers are those who 
     have long taken criminal appointments and would meet the 
     qualifications. Such standards can actually be 
     counterproductive because they may provide a basis for 
     denying appointment to some of the most gifted and committed 
     lawyers who lack the number of prior trials but would do a 
     far better job in providing representation than the usual 
     court-appointed hacks with years of experience providing 
     deficit representation.
     210. See, e.g., Report of Malcolm Lucas to ABA Task Force 
     Report on the Death Penalty, 40 Am. U. L. Rev., 195, 197 
     (1990). The expense of providing more qualified counsel is 
     repeatedly urged as a reason to defeat legislation aimed at 
     improving representation in capital cases.
     211. 372 U.S. 335, 336 (1963).
     212. At the urging of prosecutors, the federal courts and 
     many state courts have increasingly refused to consider 
     constitutional issues even where the failure to raise them as 
     the result of ignorance, neglect, or inadvertent failure to 
     raise and preserve an issue by a court-appointed lawyer. 
     Coleman v. Thompson, 111 S. Ct. 2546 (1991) (``[A]ttorney 
     ignorance or inadvertence is not `cause''' to excuse filing 
     of notice of appeal three days late, as indigent prisoner 
     ``must bear the risk of attorney error'') (quotation 
     omitted); Dugger v. Adams, 489 U.S. 401, 406-08 (1989) 
     (barring relief because trial lawyer did not object to jury 
     instructions even though court of appeals had unanimously 
     concluded that death penalty was unconstitutionally imposed 
     due to those instructions); Smith v. Murray, 477 U.S. 527, 
     539 (1986) (Stevens, J., dissenting) (barring issue not 
     properly raised on appeal even though ``[t]he record . . . 
     unquestionably demonstrates that petitioner's constitutional 
     claim is meritorious, and that there is a significant risk 
     that he will be put to death because his constitutional 
     rights were violated'') Murray v. Carrier, 477 U.S. 478, 488 
     (1986) (holding that attorney ``ignorance or inadvertence'' 
     does not constitute cause to excuse failure to raise 
     Fourteenth Amendment claim in earlier proceeding). Three of 
     these cases--all except Murray v. Carrier--were capital 
     cases. In each of those cases, the defendant has been 
     executed without a determination of the constitutional issue 
     because of the attorney error.
     As a result of the complexity of the procedural rules and the 
     lack of familiarity with them by many of the lawyers 
     appointed to defend the poor, executions are now routinely 
     carried out without review by any court of significant 
     constitutional issues because of errors by counsel. See, 
     e.g., Whitley v. Bair, 802 F.2d 1487, 1496 n.17 (4th Cir. 
     1986) (finding that all 15 issues raised on behalf of Whitley 
     were barred because they had not been properly raised by his 
     trial lawyer), cert. denied, 480 U.S. 951 (1987). Today, it 
     is unusual to see a capital case in which one or more issues 
     presented in federal habeas corpus review is not found to be 
     procedurally barred.
     213. For example, the Mississippi Attorney General urged the 
     state's supreme court to invoke procedural bars as means of 
     preventing federal review--charactenzed by the Attorney 
     General as ``a Crash Upon the Rocky Shores of the Federal 
     Judiciary''--following findings of constitutional violations 
     in seven of the first eight Mississippi capital cases 
     reviewed by the federal courts. Wheat v. Thigpen, 793 F.2d 
     621. 626 n.5 (5th Cir. 1986), cert. denied, 480 U.S. 930 
     (1987) (quoting State's Response, Edwards v. Thigpen. 433 So. 
     2d 906 (Miss. 1983), cert, denied, 480 U.S. 930 (1987)). The 
     Mississippi Supreme Court adopted the state's position. 
     Edwards v. Thigpen, 433 So. 2d 906 (Miss. 1983).
     Similarly, after federal habeas corpus relief was granted to 
     a number of people in Georgia who had been sentenced to 
     death, Georgia amended its state postconviction statute in 
     1982 to prohibit consideration in state habeas proceedings of 
     issues not raised in compliance with Georgia's procedural 
     rules at trial and on appeal. Ga. Code Ann. Sec. 9-14-51(d) 
     (1993). The statute had previously provided that ``rights 
     conferred or secured by the Constitution of the United States 
     shall not be deemed to have been waived unless it is shown 
     that there was an intentional relinquishment or abandonment 
     of a known right or privilege * * * participated in by the 
     party and * * * done voluntarily, knowingly, and 
     intelligently.'' 1967 Ga. Laws 835. 836, Sec. 3; 1975 Ga. 
     Laws 1143-44, Sec. 1.
     214. Evans v. State, 441 So. 2d 520, 531 (Miss. 1983) 
     (Robertson, J., dissenting), cert, denied, 467 U.S. 1264 
     (1984); see also Hill v. State, 432 So. 2d 427, 444-51 (Miss. 
     1983) (Robertson, J., dissenting).
     215. Justice Stevens has expressed the view that the Supreme 
     Court has ``grossly misevaluate[d] the requirements of `law 
     and justice' that are the federal court's statutory mission 
     under the habeas corpus statute'' and instead ``lost its way 
     in a procedural maze of its own creation.'' Smith v. Murray, 
     477 U.S. 527, 541 (1986) (Stevens, J., dissenting). Justice 
     Blackmun, writing for four members of the Court in Dugger v. 
     Adams, accused the majority of ``arbitrarily impos[ing] 
     procedural obstacles to thwart the vindication of what 
     apparently is a meritorious Eighth Amendment claim.'' Dugger 
     v. Adams 489 U.S. 401, 412-13 (1989).
     In addition to the strict enforcement of procedural rules, 
     the Supreme Court has limited the availability of the writ to 
     vindicate constitutional rights by making it more difficult 
     to obtain an evidentiary hearing to prove a constitutional 
     violation, Keeney v. Tamayo-Reyes. 112 S. Ct. 1715 (1992); 
     adopting an extremely restrictive doctrine regarding the 
     retroactivity of constitutional law, Teague v. Lane, 489 U.S. 
     288 (1989); James S. Liebman, More than ``Slightly Retro:'' 
     The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in 
     Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); 
     reducing the harmless error standard for constitutional 
     violations recognized in federal habeas review, Brecht v. 
     Abrahamson, 113 S. Ct. 1710 (1993); and restricting when a 
     constitutional violation may be raised in a second habeas 
     petition. McCleskey v. Zant, 499 U.S. 467 (1991).
     216. The Justice Department and the association of district 
     attorneys and attorneys general have supported a statute of 
     limitations for habeas corpus cases since one was proposed by 
     a committee appointed by Chief Justice William Rehnquist and 
     chaired by retired Justice Lewis Powell in 1989. Report of 
     the Ad Hoc Committee on Federal Habeas Corpus in Capital 
     Cases, 45 Crim. L. Rep. (BNA) 3239 (Sept. 27, 1989). Senator 
     Joseph Biden introduced a bill in 1993 containing a statute 
     of limitations and other provisions regarding habeas corpus 
     which had been drafted in sessions with representatives of 
     the Justice Department, state attorneys general, and state 
     district attorneys, all of whom were said to support the 
     bill. 139 Cong. Rec. S10925-27 (daily ed. Aug. 6, 1993). The 
     bill appears id, at S10927-31.
     Some prosecutors have even proposed the virtual elimination 
     of habeas corpus review by extending to all issues the rule 
     of Stone v. Powell, 428 U.S. 465 (1976), which bars federal 
     habeas review of Fourth Amendment claims where there has been 
     a ``full and fair'' hearing in the state courts. See, e.g., 
     Hearings Before the Senate Comm. on the Judiciary, on S. 88, 
     S. 1757, and S. 1760, 101st Cong., 1st & 2d Sess. 759, 784 
     (1990) (Testimony of Ala. Assistant Attorney General Ed 
     Carnes, Feb. 21, 1990, urging passage of S. 1971 because that 
     one provision ``considered alone'' makes it preferable to 
     other legislation); Letter from Alabama Attorney General Don 
     Siegelman and 22 Other State Attorney General to Senator 
     Joseph Biden (Mar. 12, 199) (urging extension of ``full and 
     fair'' rule to all claims to ``accomplish true federal habeas 
     reform'') (on file with author); Hearings Before the Subcomm. 
     on Civil and Constitutional Rights of the House Comm. on the 
     Judiciary, 102d Cong., 1st Sess. 172-28 (1991) (Statement of 
     Andrew G. McBride, Associate Deputy Attorney General, 
     Department of Justice).
     The ``full and fair'' provision was included in Section 205 
     of the Bush Administration's Comprehensive Violent Crime 
     Control Act of 1991, S. 635, 102d Cong., 1st Sess. (1991), 
     sponsored by Senator Strom Thurmond, which was included in 
     the crime bill passed by the Senate on July 17, 1991. S. 
     1241, 102d Cong., 1st Sess. (1991). However the Senate and 
     House were unable to agree on a crime bill in 1991 so the 
     provision did not become law. Even Chief Justice Rehnquist, 
     who has led the judicial and legislative efforts to restrict 
     habeas corpus, opposed the ``full and fair'' proposal. Linda 
     Greenhouse, Rehnquist Urges Curb on Appeals of Death Penalty, 
     N.Y. Times, May 16, 1990, at Al. And the Supreme Court, which 
     has cut back repeatedly on the availability of habeas corpus 
     since 1977, refused, in Withrow v. Williams, 113 S. Ct. 3066 
     (1993), to extend the ``full and fair'' standard to issues 
     involving violations of Miranda v. Arizona, 284 U.S. 436 
     217. H.R. 4737, Sec. 8(b) (1990), reprinted in Hearings 
     Before Subcomm. on Courts, Intellectual Property and the 
     Administration of Justice of the House Judiciary Comm. on 
     H.R. 4737, H.R. 1090, H.R. 1953, and H.R. 3584, 101st Cong., 
     2d Sess. 3, 11 (1990) [hereinafter House Hearings].
     218. H.R. 4737, Sec. 8(e)-(g) (1990), House Hearings, supra 
     note 217, at 14-16; see also H.R. 5269. Sec. 1307(e)-(g) 
     (1990), House Hearings, supra note 217, at 486-91.
     219. Detailed Comments on H.R. 5269 Submitted with Letter 
     from William P. Barr to Thomas S. Foley, Speaker of the U.S. 
     House of Representatives (Sept. 10, 1990), reprinted in House 
     Hearings, supra note 217, at 723, 746-47.
     220. Letter from Don Siegelman, Attorney General of Alabama 
     et al., to Jack Brooks, Chairman of the House Judiciary 
     Committee (July 13, 1990), reprinted in House Hearings, supra 
     note 217, at 654, 656.
     221. Id. The letter suggests that ``delay'' and 
     ``relitigation'' are the major problems.
     222. Resolution Opposing Habeas Reform Legislation, reprinted 
     in House Hearings, supra note 217. at 649.
     223. The Habeas Corpus Reform Act of 1993, S. 1441, 103d 
     Cong., 1st Sess. Sec. 8 (1991) (introduced by Senator Biden 
     on August 6, 1993, 139 Cong Rec. S10925-31 (daily ed. Aug. 6, 
     1993)). The bill also contained a statute of limitations and 
     other restriction on habeas corpus.
     224. 139 Cong. Rec. S10925-27 (daily ed. Aug. 6, 1993). No 
     one involved in the defense of capital cases or 
     representation of petitioners in habeas corpus actions was 
     included by Senator Biden or his staff in the meetings which 
     led to the bill.
     225. The bill did not remove the judge as the appointing 
     authority. Most of the incompetent lawyers providing 
     representation would still qualify under the bill's 
     requirements of a certain number of years of practice or 
     trials, but many conscientious and capable young lawyers 
     would be excluded.
     226. California Attorney General Daniel E. Lungren asserted 
     that the bill ``could appropriately be called the `Capital 
     Defense Attorney Employment Act of 1993''' and urged its 
     defeat because it would ``raise the overall cost of capital 
     litigation by imposing new federal standards'' and result in 
     additional litigation. Letter from Daniel E. Lungren to 
     Senator Diane Feinstein (Aug. 13, 1993) at 15 (on file with 
     author). The California District Attorneys Association 
     adopted a resolution opposing any legislation which would:
     ``[C]reate new requirements concerning the experience, 
     competency, or performance of counsel beyond those required 
     by the United States Constitution as interpreted in 
     Strickland v. Washington. . . .''
     ``[D]ictate new federal standards concerning the appointment 
     of counsel for state court proceedings or take away the 
     traditional authority to appoint counsel from state court 
     judges. . . .''
     ``[E]stablish stringent federal qualifications for the 
     appointment of counsel (including the appointment of at least 
     two attorneys beginning at the state trial stage) which would 
     delay death penalty cases by the inability to locate a 
     sufficient number of attorneys who can meet all of the 
     mandatory standards. . . .''
     California District Attorneys Association, Resolution 
     Concerning Federal Habeas Corpus Reform Legislation (adopted 
     Aug. 12, 1993) (on file with author).
     227. Letter from Senators Orrin G. Hatch, Strom Thurmond, 
     Diane Feinstein, and Richard Shelby to Colleagues (Nov. 2, 
     1993) (on file with author).
     228. Georgia State Senator Gary Parker explained to an 
     American Bar Association committee: ``Although many of my 
     colleagues in the legislature realize what is needed--a 
     centralized, truly independent capital defender office 
     staffed by experienced capital trial counsel--they are 
     unquestionably unwilling, as they have demonstrated year 
     after year, to appropriate the funds. . . . Quite to the 
     contrary, support for indigent defense is viewed by many in 
     this state as being soft on crime.''
     Testimony of Gary Parker to the ABA Task Force on Death 
     Penalty Habeas Corpus, quoted in American Bar Ass'n, supra 
     note 9, at 221 n.38.
     229. Harold G. Clarke, Money v. Justice in Georgia (``State 
     of the Judiciary Address'' to the Georgia General Assembly), 
     reprinted in Fulton County Daily Rep., Jan. 22, 1992, at 8; 
     Harold G. Clarke, State of the Judiciary (Address to the 
     State Bar of Georgia), reprinted in Ga. St. B.J., Aug. 1991, 
     at 70.
     230. Ga. Code Ann. Sec. 17-12-91 (1992). There are over 120 
     capital indictments pending in Georgia at any given time, so 
     the program can handle only a small portion of the cases.
     231. Kimball, Perry, Poor People To Get Added Help in Courts, 
     Columbus Ledger-Enquirer, Oct. 6, 1992, at B1.
     232. Gary Taylor, Texas Death-Penalty Study Hit, Nat'l. L.J., 
     Apr. 26, 1993, at 3, 50. Taylor quoted Harris County District 
     Attorney John B. Holmes, Jr., as saying: ``If you're against 
     the death penalty, argue against the issue. But don't come in 
     the back door with so much financial baggage that the law 
     can't work. That just promotes more disrespect for the law.'' 
     Id. at 50. Holmes also said that there was ``too much 
     habeas.'' Id.
     233. President Clinton used the death penalty to establish 
     his credentials as a ``new Democrat'' who was tough on crime 
     by returning to Arkansas during the presidential campaign to 
     deny clemency and allow the execution of a severely brain 
     damaged man. See Marshall Frady, Death in Arkansas, New 
     Yorker, Feb. 22, 1993, at 105. President Clinton has 
     supported legislation to make over 50 federal crimes 
     punishable by death.
     234. McCleskey v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, 
     J., dissenting).
     235. Model Code of Professional Responsibility, EC 2-25, 2-
     27, 2-29 (1980); Model Rules of Professional Conduct, Rule 
     6.1 (1983).
     236. Joseph W. Bellacosa, Ethical Impulses from the Death 
     Penalty: ``Old Sparky's'' Jolt to the Legal Profession 29 
     (Dyson Distinguished Lecture, Oct. 26, 1993) (unpublished 
     manuscript, on file with the Pace University School of Law).
     237. See, e.g., Stephen B. Bright, In Defense of Life: 
     Enforcing the Bill of Rights on Behalf of Poor, Minority, and 
     Disadvantaged Persons Facing the Death Penalty, 57 Mo. L. 
     Rev. 849 (1992).
     238. State v. Peart, 621 So. 2d. 780, 791 (La,. 1993).
     239. Id. at 791-92.
     240. Id. at 795 (Dennis, J. dissenting); see also Citron, 
     supra note 169, at 501-04.
     241. Judges in Knoxville, Tennessee, issued a decree 
     mandating all of the licensed lawyers who reside there to be 
     ready to accept appointment of indigent defendants; even the 
     Knoxville mayor, who had not practiced law for years, was 
     assigned a case. Klein, supra note 80, at 420, 427, 427 
     n.420. However, it appears that no effort was made to see 
     that those appointed had any litigation skills.
     242. Callins v. Collins, 62 U.S.L.W. 3546 (U.S. Feb. 22, 
     1994) (No. 93-7054) (Blackmun. J., dissenting from denial of 
     certiorari). Justice Blackmun concluded that 20 years of 
     ``tinker[ing] with the machinery of death'' by the Supreme 
     Court had failed to achieve ``the constitutional goal of 
     eliminating arbitrariness and discrimination from the 
     administration of death.'' He observed ``a system that we 
     know must wrongly kill some defendants, a system that fails 
     to deliver the fair, consistent, and reliable sentences of 
     death required by the Constitution.'' As we have seen, all 
     too often accused does not receive the process that Justice 
     Blackmun hoped would accompany a decision to impose death:
     We hope, of course that the defendant whose life is at risk 
     will be represented by competent counsel--someone who is 
     inspired by the awareness that a less-than-vigorous defense 
     truly could have fatal consequences for the defendant. We 
     hope that the attorney will investigate all aspects of the 
     case, follow all evidentiary and procedural rules, and appear 
     before a judge who is still committed to the protection of 
     defendants' rights even now, as the prospect of meaningful 
     judicial oversight has diminished. In the same vein, we hope 
     that the prosecution, in urging the penalty of death, will 
     have exercised its discretion wisely, free from bias, 
     prejudice, or political motive, and will be humbled, rather 
     than emboldened, by the awesome authority conferred by the 
     State. Id.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER (Mrs. Murray). The Senator from Utah is 
  Mr. HATCH. Madam President, I have been listening to some of the 
comments of our colleagues on the other side. If they are concerned 
about money, and if they are concerned about excessive spending, then 
they ought to be concerned about this bill, because this bill once was 
$22 billion, which we had jumped from $12 billion. The reason we went 
to $22 billion is because we decided that that is how much could be 
saved by the reduction of 250,000 Federal employees over a period of 
  Lo and behold, it goes to the House and they come up with $27 
billion. All of a sudden, it goes to conference committee between the 
House and the Senate, and the committee was stacked with nothing but 
liberals and it went to $33 billion that the taxpayers are going to 
have to pay.
  Then last week--and I remember when a combination of Democrats and 
Republicans rejected the rule in the House. How many of us remember 
back when a House rule of the dominant party that has run the House for 
most of the last 60 years was rejected on the floor of the House of 
Representatives? Why, you really have to stretch to remember when it 
was. It could have been this year. Maybe there was one, but I do not 
remember one. It was a monumental thing, and I remember that when that 
rule was rejected, the President found all kinds of fault with 
Republicans for using a technical procedural advantage.
  Let us think about it. They are so used to being crunched into the 
ground by rules run by a Rules Committee that is overwhelmingly 
composed of liberal Democrats who get their way on every issue that 
comes to the House floor and prevents debates, full and open debates on 
issues. Every issue that comes over there is stacked in advance. 
Everybody knows it is going to be a liberal Democrat win, and they 
rejected the rule and the President condemned the Republicans for 
rejecting it. It could not have happened without Democrats.
  More importantly, the Republicans spent, along with some good 
Democrats and, I might add, Mr. Panetta, Mr. Gephardt, Mr. Foley, and 
virtually every liberal Democrat on the House Judiciary Committee, they 
went into long-term negotiations all day Friday, all night Friday, all 
Saturday morning, all day Saturday, all Sunday morning, from Saturday 
evening to Sunday morning, all day Sunday, and they came up with a cut 
of $2 billion in pork.
  I remember Democrats saying that, ``My goodness gracious, there is no 
pork in this bill, it is all essential, it is all for fighting crime.'' 
But when that $2 billion came out, plus another $1.3 billion, the 
President said, this is a better crime bill.
  That is all we are trying to do here. We do not want to delay this. 
We are going to provide a means where we can vote on this finally. I 
presume the gun language will stay in it because we only had, last 
time, 43 votes to take it out. And we are going to try and cut the rest 
of the pork out of this bill, plus we want to strengthen it. By the 
way, that Senate bill passed with the gun ban in it, so all this talk 
about guns here today, that is just all baloney and everybody knows it. 
It is pure poppycock because we lost on that issue and we know it.
  It is going to be in a final crime bill if the Democrats want it 
there, and they seem to want it there. So that is not the issue. The 
issue is pork, pork, pork. We want to kill the hog. And, frankly, it is 
strengthening, strengthening, strengthening this bill.
  When we passed that Senate bill, that passed here 95-4. I have been 
saying 94-4. Actually, it is 95-4. Only two Republicans voted against 
it and two Democrats voted against it. But everybody else supported it, 
even with the gun language in it, as much as those of us from the West, 
and other areas of the country, feel that is a horrendously dumb, 
stupid thing to do, to take away the guns from decent, law-abiding 
citizens. But we voted for it. The reason we did is because it was a 
tough-on-crime bill and, on balance, it did more against crime and we 
were willing to eat the gun aspects. It was tough for us to do, but it 
was a good bill.
  In the process of going to the House and through the conference 
committee, they took out about 30 tough-on-crime provisions, like 
mandatory minimum penalties for the sale of drugs to minors. Now who 
could be against that? But our liberal friends over in the House took 
it right out of there.
  Like mandatory minimum penalties for people who employ a minor in the 
commission of a crime, of a drug crime. Who could be against that? Who 
wants minors to be employed in the commission of crimes? But our 
liberal Democrat friends took that out, too.
  Like mandatory minimum penalties for the use of a gun. These people 
who have been talking about the gun problems of this bill all day long 
are countenancing in this bill having tough language taken out that 
would really do something about people who use guns in the commission 
of crimes. That was taken out by our liberal friends in the House of 
  Deportation of illegal aliens: Why do we not want to deport them when 
they have committed crimes in our country? Deportation of aliens who 
have committed crimes in our country. That means the judge can sentence 
them and at the same time enter an order for deportation and get rid of 
them in our country so we do not have them out committing more crimes.

  No, our liberal friends in the House took that out. And I could go 
through another 26 or more similar provisions that should be in this 
bill. They even took out restitution to the victims. Can you believe 
it? They even took that out of this bill, a simple little thing. When 
somebody gets harmed and hurt, why can we not give restitution to them?
  And they are saying this a tough on crime bill? Let me tell you 
something. There is $11 billion in this bill in discretionary grants. 
That includes the prison money because not one single penny of it, not 
one cent has to go for building prison cells, which is what we thought 
it was for when it left the Senate. The language is so soft they can 
use it for almost anything that applies to prisons. They do designate 
that the States are going to have to comply with all kinds of 
preconditions that the Federal Government wants, and you can bet what 
those are. Why, those are liberal social welfare conditions. It is 
  What we want is this. There are 40 Senators who have sent a letter to 
Senator Dole saying we want you to negotiate with Senator Mitchell, and 
we want to take out the pork in this bill and increase the strength of 
the anticrime provisions. If we can do that, we will agree to a time 
agreement on each and every amendment. We will lay out the approach 
that could be taken, and you can have a crime bill. But it is going to 
be a lot tougher crime bill, and there is going to be a lot less pork 
in it unless the Democrats want to vote to keep the pork. That is what 
it comes down to. It is a fair offer.
  I might add, we know that we have lost on the gun issue. We would 
have to have a motion to strike that. But we presume we will lose 
because the most votes we got last time was 43. But we want a tougher 
bill. Frankly, we are willing to fight to get that tougher bill. We are 
tired of the American people being ripped off by programs that are just 
social welfare spending programs hidden in a crime bill that everybody 
used to support. Supporters of social spending boondoggles cannot come 
here legitimately to the floor with a straight face and get those 
social welfare spending programs, those boondoggles, passed straight 
up. So they hide them in this crime bill because the media and 
everybody else has built this as a moral issue in America, thinking we 
are just going to let the American people get ripped off one more time 
when we are now almost $5 trillion in debt, and we are going to let it 
go by just because it is a crime bill. But it is not even that.
  And by the way, we are willing to let a number of prevention programs 
in here. Violence against women, $1.6 billion is going to be in here. 
No matter what, we are going to do that.
  There are a number of other prevention programs. We are willing to 
have other provisions that are prevention programs that will help here, 
that we have agreed to. So it is not just scuttling every prevention 
program. It is scuttling programs like--let me just give you three 
illustrations, and then I will be happy to yield. I know my colleague 
wants to speak.
  Here is the National Community Economic Partnership. This is in the 
bill. I am going to read the bill now, right from the bill, something 
that is not done very often around here. ``Subtitle K. National 
Community Economic Partnership.'' Madam President, 270 million taxpayer 
dollars are going to be spent on this. Listen to this:

       It is the purpose of this chapter to increase private 
     investment in distressed local communities and to build and 
     expand the capacity of local institutions to better serve the 
     economic needs of local residents through the provision of 
     financial and technical assistance to community development 

  Can you imagine that? That is in a crime bill. Why could they not 
pass that straight up if it is such a good thing. This does not belong 
in this crime bill, but this bill is filled with that kind of stuff.
  Take this one here, which is only another $50 million: Community-
Based Justice Program for Prosecutors:

       Grants made by the Attorney General under this section 
     shall be used--
       (1) to fund programs that require the cooperation and 
     coordination of prosecutors, school officials, police, 
     probation officers, youth and social service professionals, 
     and community members in an effort to reduce the incidence, 
     and increase the successful identification and speed of 
     prosecution of, young violent offenders.
       (2) to fund programs in which prosecutors focus on the 
     offender, not simply the specific offense and impose 
     individualized sanctions, designed to deter that offender 
     from further antisocial conduct * * *
       (3) to fund programs that coordinate criminal justice 
     resources with educational, social service, and community 
     resources to develop and deliver violence prevention 
     programs, including mediation and other conflict resolution 
     methods, treatment, counseling, educational, and recreational 
     programs, that create alternatives to criminal activity.

  That is wonderful. Let us do it straight up as a social program. Let 
us not hide it in here. The reason they do it this way is because we 
have got hundreds of these programs. We have got billions of dollars of 
programs. The GAO says we are doing an adequate amount of work in this 
  Why do we do this? Because our liberal friends want to spend some 
more of your money, and then they want to go home and say how 
compassionate they are in spending your money. I would be a lot more 
impressed if they dug into their own pockets and spent their own money.
  None of that has much to do with crime. I suppose that if you want to 
give everybody a free hamburger every day, you could say is an 
anticrime activity because it feeds people. Some believe almost any do-
good approach will benefit us from a crime standpoint.
  No, we have got to get serious about crime. We do not have enough 
prison cells in this country to keep in the violent criminals, and we 
have a continual revolving door letting them out into our streets to 
commit crime again. And that is what we thought we were addressing when 
we sent the crime bill over there with a 95-to-4 vote.
  Had we stayed close to that, my gosh, I would be out here fighting 
for it with every fiber in my being, but we are not even close to it in 
  Let me give you another illustration. Local Partnership Act. This is 
$1.62 billion--not million, billion. I do not mean to get so intense 
about this. Let me just say something here. I will read right out of 
the bill. It is called the Local Partnership Act:

       Payment. The Secretary of Treasury shall pay to each unit 
     of general local government which qualifies for a payment * * 

  The sums of money for these three things.
  This is all the direction that is given.

       Education to prevent crime.

  Oh, my goodness, we have all kinds of programs out there to do that 
now already paid for.
  Oh, let us see if the second one works.

       Substance abuse treatment to prevent crime.

  We are spending billions on that today. Billions.

       Or job programs to prevent crime.

  We have 154 Federal job training programs in existence right now, and 
we are spending close to $25 billion--billion dollars, not million, 
billion--and they want to spend another 1.62 billion of your dollars 
instead of putting it into prisons or into helping the police or 
putting cops on the street.
  By the way, you have heard the President in every press conference 
saying we are going to get 100,000 new cops out there for you.
  Give me a break. Even at 33 billion bucks, which is how high they 
went on this, you could not get more than 20,000 police officers out 
there. And then who inherits the debt? Why, you and me and everybody in 
our respective States. We are going to have to pay for them when the 
money runs out here. We will get stuck with them. But we will only have 
at most 20,000. So what? But why then do they keep saying 100,000? They 
know that is not true. How can they do that?
  I suspect the reason the President says it all the time and believes 
it is because he did not write this bill. His administration did not 
send it up. They did not send any crime bill up here. I am not sure 
anybody down there even knows what is in this bill. In fact, hardly 
anybody up here does because it was just written Sunday.
  But if you read some of the reasoning behind this, you have got to 
say to yourself, ``My gosh. Don't we have enough social programs? Don't 
you think it is time to start getting tough on criminals?''
  I could go on and on, and I know that others want to speak. I will 
come back and speak later about the discretionary spending in this bill 
which amounts to $11 billion, and that is not counting the Violence 
Against Women Act. That is not counting the Local Partnership Act. They 
are not discretionary. The Violence Against Women is, but the Local 
Partnership Act is not.
  The fact is you are talking about $11 billion they can just spread 
around almost any way they want to as long as they live within these 
very generalized items and categories. This is the usual joke of 
legislation that we go through around here because one party has 
dominated both bodies for most of our lives.
  Let us not even talk party. Let us talk about philosophy. One 
philosophy has dominated, and that is the liberal philosophy in both 
parties. That is what we inherit. Instead of getting an anticrime bill 
with real force and impact, we inherit a bunch of social spending. When 
Charlton Heston says there are two social workers for every cop that is 
going to be on the street, that is probably wrong. I think social 
workers are wonderful people, but we employ as a Federal Government 
literally hundreds of thousands, if not millions, of them.
  But the fact of the matter is this is a bill that ought to go to beef 
up our police, our prisons, the apprehension, incarceration, and the 
punishment of criminals. To the extent that we can come up with real 
prevention programs like the Violence Against Women Act, which is $1.6 
billion, I am for it. Anybody who looks at what we are trying to do 
with the problems in this country would be for it, or for some of the 
other programs that are in the block grant provision which are 
basically good programs. There is about $400 million for block grants. 
We are for those. We can be for real prevention.
  But to just throw duplicative programs in here and misleading the 
American people and talking like we are doing something against crime 
and having $11 billion in discretionary programs, to just throw money 
around for whatever they may want to, I think is obscene, and it is 
wrong. And it is time for us to stand up against it.
  That is what the Republicans are doing here. We will show our friends 
on the other side a way whereby they can face these problems and make 
their own choices. They have a majority. They can make their own 
choices, whatever they want. We will show them how to dispose of this 
bill one way or the other, with time agreements--nobody wants to 
filibuster it--with straight up votes in a matter of maybe a couple of 
days. We are willing to roll the dice and see what we can do to cut 
this fat out of the bill and to increase the anticrime strength of the 
bill. If we can, we are all going to feel good.
  What I would like to see happen is that we make these changes, and I 
would like to see the President say he would support it, and I think he 
would. I think he would honestly say, by gosh, they improved the bill 
again. And if he would do that, I would be really happy. So would we 
all because we would have been through with the bill. That is what we 
would like to do. That is what we are here for.
  Here in my hands right now are 300 spontaneously generated faxes 
received today opposed to the crime bill. This is just what I have 
received. You can imagine the thousands of them all over Capitol Hill 
from all over our country. They oppose this bill for a wide range of 
issues. Here is just one example.
  Here is one that comes from Paulette J. Murphy in Greenville, from a 
group called United We Stand America.

       As a member of United We Stand America and interested in 
     the debt, deficit, and government reform, I would urge you to 
     turn down this crime bill--

  She underlines this.

     --and not agree to anything that does more than strengthen 
     our existing laws and approach potential funding for police, 
     prisons, and border guards with no, I repeat ``no'' Federal 
     strings attached.

  I think the people out there are not stupid. They understand what is 
going on here. I think the game should be over. We have been spending 
this country into bankruptcy for far too long. There are many of us who 
are willing to spend more money to really fight crime. But we are 
unwilling to throw money down the drain on duplicative spending social 
programs emphasizing social workers over police in this crime bill. We 
are just unwilling to do it. Even so, at best, even if we get our way 
here, we will still have some of it because of some of the more liberal 
approaches toward crime in our society and in our Congress today.
  There is a lot more I would like to say. I know there are other 
Senators who would like to speak.
  So I yield the floor at this point.
  Mr. STEVENS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska [Mr. Stevens].
  Mr. STEVENS. Madam President, reluctantly I have to state that I 
cannot support this bill in its present form. I think the Senate should 
realize that, if this bill passes as it has come to us, we have really 
seen a change in procedure in the House that will haunt the Senate. We 
are entitled to participate in the conferences.
  This bill went to conference. There was a conference report. It was 
then defeated in the House and the House has sent us a bill. But it is 
a bill so dissimilar from the one we sent to the conference, there have 
been so many things deleted from it, and so many changes made in it 
that are unfair to the smaller population States, that none of us 
should support this bill.
  I think we have a right to raise this point of order under the Budget 
Act, and it should be sustained. One of the things that haunts me about 
the future of this country is the increasing deficit. We have in fact 
appointed a commission now to deal with entitlements. Yet here we are 
creating one of the largest entitlements over a 6-year period that we 
have created in a long time. The estimate of this bill is that it is 
greater than the estimate we had at the time we approved Medicare. Yet, 
we are told to ignore the point of order under the Budget Act, to give 
up the right we have to insist that the Budget Act be complied with.
  I just cannot understand that. I see people all over this floor who 
have talked to me about the increasing deficit and the menace of that 
deficit to our children and grandchildren, and they are willing to say, 
let this go because it is crime. What is going to be the next big 
headline that comes across, gets into conference? A bill pertaining to 
the health bill, and people say forget about the Budget Act because it 
is such a big issue? Lately we only deal with big issues.
  What about the health bill? Are we to forget the Budget Act in the 
health bill? That is why we are waiting now. It is to get the numbers 
from the Congressional Budget Office. No one is waving numbers on this 
from the Congressional Budget Office. They are ignored entirely.
  My good friend from New Mexico is here and can talk about that in a 
few minutes. I urge everyone to listen to him because I think Peter 
Domenici is one of the leaders in this country trying to--pardon me; it 
is Pete Domenici--trying to deal with the problems of the deficit in 
the future.
  I say, if we do not recognize that the House is changing the 
procedure to deal with ways to avoid the Budget Act, we do so at our 
peril. The House bill was sent to us originally as a crime bill and had 
$27 billion in it. The Senate bill contained $22 billion, was dedicated 
mostly to law enforcement and prison building, and it, too, was subject 
to a point of order which was not raised. We had already taken $5 
billion off the House version, and it was going to conference. We had 
some commitments from the people going to conference that they would 
try to get it back within the Budget Act. And, besides that, we 
reminded everybody when this bill passed the Senate that the point of 
order was still there if it did not comply with the Budget Act when it 
came back. That was ignored by those who went to conference. And now, 
with the House action, we have a bill that does not look like either 
the Senate bill or the House bill. It is $30 billion now, Madam 
President; not the $27 billion, not the $22 billion we reduced it to, 
but $30 billion. And the distinguished Senator from New Mexico will 
explain how that involves the most serious breach of the Budget Act 
that we have seen during this Congress. It is worse than the budget 
breach that would have been brought about by the stimulus package. It 
is almost equal to the total of the stimulus package that was defeated 
on the floor of the Senate.
  For those who are really worried about this coming election, they had 
better sit up and listen because I hear more about the deficit and the 
growing problem of our national debt than anything even in a small 
State like my State of Alaska.
  I believe we should preserve the rights of the Senate under the 
Budget Act. That is my first reason for saying I cannot support this 
bill in its present form.
  Mr. DOMENICI. Will the Senator yield for a question?
  Mr. STEVENS. I am happy to yield.
  Mr. DOMENICI. I was going to call you Theodore.
  Mr. STEVENS. I corrected it, Madam President. I did not call him 
Peter twice. His name is Pete.
  Mr. DOMENICI. So now his name is Senator Ted Stevens.
  May I ask the Senator a question? Some Members on that side of the 
aisle have said this budget point of order is technical. Might I ask 
the Senator from Alaska, when the Senator from New Mexico proposed that 
we put the firewall back for defense spending and we got 56 votes but 
we lost because it was subject to a point of order and needed 60 
votes-- you are an expert in defense; you know what it means to subject 
the defense budget to the claims of all domestic programs that can take 
money from it, but the firewall would prohibit it. Do you think that is 
a technical point of order?

  Mr. STEVENS. I answer my good friend that I do not think it was 
technical then--it certainly destroyed the protection for the defense 
budget in the future--and it is not technical now. There is no question 
that this bill increases the deficit over a period of years. I just do 
not see any reason why we should forgo--as a matter of fact, I think we 
ought to state categorically that we are going to raise a budget point 
of order in the future on any bill it applies to. Why should we have a 
commission to deal with the problem of future budget deficits and stand 
here and say we are not going to enforce the existing law?
  The law says that if you exceed the budget restrictions, you must 
have the 60 votes to overcome the budget point of order. I think that 
we are in a different position here. It has been done, but it should 
not be done in the future, in my opinion.
  Secondly, the House stripped from this bill what I considered to be 
critical crime-fighting tools that were in the Senate bill. When this 
bill was in conference, the Republican conferees were successful in 
getting the conference to shift $3.6 billion in social spending to 
State and local law enforcement grants, representing a sixfold increase 
in current spending. The Alaska law enforcement officials told me that 
local law enforcement grants are their No. 1 priority.
  Twenty-four hours after that provision was put back in the bill, the 
conference reversed itself. The social spending was restored and the 
critical grants to the local law enforcement, the $3.6 billion, was 
cut. That $3.6 billion was to be distributed under a formula that was 
fair to small States. The $3.6 billion now, in my judgment, will go 
largely to urban areas for urban programs, and I believe that provision 
is unfair to the smaller States. It certainly is not going to provide 
the moneys that the Senate bill would have provided to local law 
enforcement in the States that have the smaller populations.
  Another part of this conference report, Madam President--and I agree 
with the Senator from Utah on this that it is very difficult to try to 
examine this bill that was agreed to in such haste. I saw the 
conference report myself just a minute ago. Others have had it 
available sooner. But it is a difficult thing to go over. We had an 
advance release that was examined by my staff yesterday. The final was 
here on the desk this morning.
  Part of the conference report that I also thought should not be in 
this bill was the model intensive grant program. That part of the 
conference report, the model intensive grant program, will let the 
administration take another $625 million and spend it in 15 big cities. 
Once again, that was part of the money that was in the bill--in the 
Senate bill--on a fair distribution in all 50 States. Under this 
program, small States do not even get an opportunity to compete for a 
nickel of that money, because the House version of this bill 
specifically earmarks it to 15 large cities.
  I thought that is what the Senate is for. If for no other reason, I 
would raise a point of order to see to it that the Senate has a right 
to distribute the money provided for these programs fairly among the 
  The Senator from Utah has already spoken about the Local Partnership 
Act, which was part of that stimulus package in 1992. It was not 
intended to fight crime. It has just been stuck in this bill as part of 
the crime bill because everybody knew in that conference--particularly 
the conference in the House that did not include any Senate Members--
that it was going to be a challenge to the Senate not to raise the 
point of order on the budget because this was for crime fighting, 
  Yet, here is part of the stimulus measure that the President sent to 
us in 1992 which was taken out of that before we finally approved a 
restricted portion or part of that program. And now this Local 
Partnership Act, as put in the version that came to us from the House, 
spends $1.6 billion in a series of new social programs that were part 
of the stimulus program. That is why they were taken out of the 
stimulus program. It did not have to do with stimulating the economy; 
it had to do with spending money locally for political purposes. This 
will be spent on a whole host of social programs as the administration 
determines, this $1.6 million.
  That is pork. The Senator from Utah is absolutely right that that is 
pork. Pork, for my money, is money spent by the administration for 
political purposes.
  In addition to that, much has been made of the promise of this bill 
to put 100,000 police officers on the street. Even without regard to 
the argument of whether it will put 100,000 on the street--because it 
does not put 100,000 full-time people out there; it adds up to about 
20,000--this program means nothing to a State like mine. Its sparse 
population will mean we will get shortchanged on the money that is 
available. The minimum amount of money which Alaska would have had from 
the Senate bill was cut by these conferees by 17 percent. Can you 
imagine that? A small State loses 17 percent, and the large population 
States just get money by the billions.
  Under the Senate version, again, which was done at $22 billion--and 
this is at $30 billion--we would have received about $53 million for 
assistance for crime fighting in our State, true crime fighting. This 
conference report that we have received now reduces Alaska's share to 
$44 million. In other words, as it has gone up from $22 to $30 billion, 
Alaska is one of the small population States, and our total under this 
bill for crimefighting has come down from $53 million to $44 million.
  In addition to that, however, if you look at the $44 million we get, 
the program contains a hidden unfunded mandate to State and local 
governments. I think this is another penchant now--particularly of the 
House, and coming to be of the Senate majority--which I think the 
public ought to awaken to. It promises 100,000 police officers, but the 
bill, as I said, really fully funds only 20,000, for 6 years. The 
States will have to come up with $33 billion because of the mandate, 
because the commitment is that officers that are hired will be employed 
for 6 years. States will have to shoulder completely the burden of 
those new officers after that.
  That is, all of the costs involved for the States under this mandate 
is greater than the total bill before us, Madam President. The State's 
mandate is to pay $33 billion to keep those officers. But watch the 
catch-22. The bill will allow the State and local governments not to 
spend the money for police officers, and if they do not, they do not 
have the mandate. In other words, if they spend the money for example 
on social spending and not to meet law enforcement needs, there is no 
mandate to keep additional people on the streets to fight crime.
  I see the distinguished Republican leader here. He wants to make a 
statement, and I will be happy to continue mine later.
  I yield the floor.
  Mr. DOLE. Madam President, we have been meeting today on our side, 
and I think maybe Senator Mitchell has been meeting with some of his 
colleagues on the Democratic side, to determine how we may dispose of 
the pending business, the so-called crime conference report.
  Under the Budget Act, the conference report is subject to a point of 
order. A point of order can be waived.
  We can make the point of order. The motion for the point the order is 
fully debatable. Sixty votes are needed on a waiver.
  I will include in the Record a letter signed by 41 of my colleagues 
on the Republican side. Excuse me. It is 40. The letter is to me. I am 
No. 41.
  I think just to summarize the letter without reading it, because it 
will be in the Record, we want a crime bill. We believe there is an 
opportunity for all of us to come together as we did when we voted on 
the previous bill here months ago. The vote was 94 to 4. The crime bill 
left this Chamber at $22 billion. Then it went to $27 billion in the 
House, and then to $33 billion in the conference.
  Most of the additional items, billions and billions of dollars in 
programs, are social programs, not even prevention programs, and have 
nothing to do with crime. Some were taken out of the so-called stimulus 
package, which failed last year, $1.8 billion in a Local Partnership 
Act that has nothing to do with crime, but it was stuck in there on the 
House side by someone in the conference without any hearings. None of 
this billions and billions of dollars of what some would call pork ever 
had 1 minute of hearings.
  The taxpayers wonder: ``Have you had hearings on this thing before 
you spend $2 billion, not $2--$2 billion?''
  ``No, we do not have hearings on those items like that,'' because in 
conference they load it up.
  So a number of our colleagues, I think all of the 41 who signed this 
letter, are concerned about excessive spending. That is the primary 
concern. And if you are picking up your telephone and you are trying to 
get into someone's office and cannot, people from all over are calling 
in about the crime conference report and excessive spending. They are 
Democrats, Republicans, and Independents. They are from the Midwest, 
the Far West. They are from the Northeast. They are from everywhere.
  There is also concern about some of the provisions which did not 
survive the conference. I would say there was a modest attempt made by 
some of the Republicans on the House side which is of some assistance, 
but the bill is still $30 plus billion, which is about $8 billion more 
than it was when it left this Chamber.
  So we are trying to find some resolution on this side. We hope we 
might be joined by some of our colleagues on the other side.
  Madam President, I ask unanimous consent that the letter be printed 
in the Record with the names of the 41 who signed the letter.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                  U.S. Senate,

                                  Washington, DC, August 23, 1994.
     Hon. Robert J. Dole,
     Republican Leader, U.S. Senate, Washington, DC.
       Dear Bob: As you know, we are deeply concerned about the 
     escalation of violent crime in our country. We want to pass a 
     tough crime bill, believing that strong federal legislation 
     can make a real difference in the lives of all Americans.
       Unfortunately, in its current form, the conference report 
     is seriously deficient in a number of important areas. The 
     conference report, for example, still earmarks billions of 
     dollars for wasteful social programs. It also fails to 
     include a number of important tough-on-crime proposals 
     adopted by the Senate last November.
       Bob, we are writing to urge you to initiate negotiations 
     immediately with the Administration and with the Democratic 
     Leadership of the Senate. Unless most of our concerns are 
     resolved, we will support you and vote against the motion to 
     waive the budget point-of-order.
       The American people deserve the toughest crime bill 
     possible. We should not lose this opportunity to fix what is 
     wrong with the conference report and make the crime bill even 
         Don Nickles, Strom Thurmond, Larry Pressler, Paul 
           Coverdell, Thad Cochran, Orrin G. Hatch, John Warner, 
           Larry E. Craig, Lauch Faircloth, Robert F. Bennett, --
           ----, Connie Mack, Dirk Kempthorne, Alan Simpson, Kay 
           Bailey Hutchison, Pete V. Domenici, Dan Coats, Mark O. 
           Hatfield, Bob Smith, Jesse Helms, Richard G. Lugar, 
           Slade Gorton, Bob Packwood, Nancy Landon Kassebaum, 
           Judd Gregg, Alfonse D'Amato, Frank H. Murkowski, 
           Christopher S. Bond, Hank Brown, Conrad Burns, Mitch 
           McConnell, Dave Durenberger, Trent Lott, Phil Gramm, 
           Malcolm Wallop, Ted Stevens, John McCain, Chuck 
           Grassley, John H. Chafee, John C. Danforth.

  Mr. DOLE. Madam President, I indicated that I went to visit Senator 
Mitchell because if a point of order is sustained or if the motion to 
waive is defeated, then the bill, the House message, is open to 
amendment, where you have assault gun bans are out of the package and 
racial justice is in the package.
  So we had a long discussion this morning, about a 2-hour conference, 
and I will ask the Senator from Utah [Mr. Hatch], the ranking 
Republican, to speak following my statement here giving additional 
  We proposed to Senator Mitchell, the majority leader, that we would 
put the language of the conference report before the Senate as a motion 
to recede from our disagreement with the House amendment and to concur 
therein with an amendment. In other words, the guns would be in there. 
That is a concern of many of my colleagues. Then we agreed to a limited 
number of amendments with time limits on each one of the amendments--
and I will ask my colleague in a second to discuss those.
  We agreed to a time limit, and then we agreed there will be a cloture 
vote at a time certain.
  I think it is fair to say the majority leader looked at it carefully 
but suggested an alternative. The alternative would be to go ahead and 
pass the conference report and send it to the President. It would be 
signed, and then sometime in September, which is not far away--and I 
assume we will still be here, having not recessed--there be another 
bill brought up, and that we could offer these amendments we would like 
to offer now and Democrats could offer amendments, both sides could 
offer amendments, and there would be time agreements and there would be 
a vote, and then that vote would go to the House. And the majority 
leader was not even smiling when he made this proposal. I thought he 
surely would be smiling when he made this proposal, but he was not. We 
had absolutely zero leverage, zero. The House would never take it up. 
Oh, I guess we could have some votes here in September if it did not 
take too long.
  But I guess the point is we are still hopeful that we can reach some 
agreement. If not, the point of order will be made, and we will have 
the vote, and we will see what happens.
  I promised everyone in our conference, including the three who did 
not sign the letter but who may yet join us depending on whether there 
are good-faith efforts here to negotiate--that is my hope--I promised 
everyone in that conference that we would make a good-faith effort and 
a good-faith effort means precisely what it means. If we are playing 
games on this side, then I do not expect my colleagues on this side to 
keep their word they gave when they signed the letter.
  But I do hope that they will take a look at the proposal, the 
counterproposal of the distinguished majority leader, and I think if 
they do, they will understand that I think we are in good faith because 
if the motion is not waived, then we have a whole different scenario on 
the Senate floor.
  So I take this time so that my colleagues will know precisely what 
happened. We hope we may have a conference yet later this evening. I 
had a discussion with the Senator from Utah, Senator Hatch; the 
Republican whip, Senator Simpson; the Senator from Arizona, Senator 
McCain; Senator Gorton from Washington; and others who were in my 
office, and I have had a phone conversation with Senator Cohen from 
  So we will have a conference. We will consider the leader's proposal, 
and then I will report back to the majority leader. But I must say, 
based on preliminary discussions with smaller numbers, I do not think 
it will be acceptable.
  In addition, I gave to the majority leader a list of possible 
amendments--they have not been decided upon--so he would have 
everything that we discussed and everything that would be out on the 
  So it seems to me that maybe we are making progress. Maybe we are 
not. But I want my colleagues to know on this side of the aisle we are 
making an effort in the best way that we can to carry out the wishes of 
the Republican conference this morning.
  I think I previously asked that the letter be made a part of the 
  I ask unanimous consent to print in the Record the ``Proposal for 
Negotiated Crime Bill,'' that I referred to of which I gave a copy to 
the majority leader and the distinguished Senator from Delaware [Mr. 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Proposal for Negotiated Crime Bill

       1. Agreement to put the language of the conference report 
     before the Senate as a motion to recede from our disagreement 
     to the House amendment and to concur therein with an 
       2. Agreement to limit the amendments to this language.
       3. Agreement to limit time on these amendments.
       4. Agreement that there will be a cloture vote at a time 

  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. MITCHELL. Madam President, I did not hear the entire statement by 
the distinguished Republican leader, but I understand it was a 
restatement of the proposal which he made to me just a short time ago 
and a report on the discussion that we had at that time, and I would 
like, if I might, to add my comments in that regard.
  The proposal which the Republican leader presented to me contained 
four points.
  First was that by agreement we present to the Senate the current 
conference report in a form that would make it amendable. As all 
Senators know, the conference report is the culmination of the 
legislative process, and under the rules of the Senate, a conference 
report is not amendable. The legislation which was originally passed in 
the Senate was fully amendable. That, then, went to a conference with 
the House and when the conference report returns to the Senate, it is 
not in amendable form.
  The second point was an agreement to limit the amendments to that 
legislation. And Senator Dole presented me with a list of 13 proposed 
Republican amendments.
  Third is an agreement to limit the time on these amendments.
  And the fourth was an agreement that there will be a cloture vote on 
the bill at a time certain.
  I then responded to the Republican leader by proposing that the 
Senate be permitted to vote on the crime bill. We are not asking any 
Senator to vote for or against it, just to permit a vote to occur. And 
then, in addition to that, that I would commit to bringing up as a 
separate bill all of these proposed Republican amendments, with the 
time limits that were proposed, and let the Senate debate and vote on 
that and other possible amendments that Democratic Senators may wish to 
take up.
  That way, both sides would have achieved what they want. We would 
have gotten a vote on the crime bill, which is what we want; just a 
vote. Let us vote on it. They would have had the opportunity to have a 
full and ample discussion and debate and votes on the amendments or 
other provisions which they believe the Senate should address.
  One of the concerns that I have with the proposal which the 
Republican leader made is, of course, the mirror image of the concern 
that is expressed in my proposal. His response, understandably enough, 
was, ``Well, if we take this bill up separately and pass it, how do we 
know what will happen in the House?'' And, of course, the same thing is 
true for the proposal which he is making. If we take this bill up as 
proposed and amend it and change it, how do we know what will happen to 
that in the House? So the same objection applies on each side to the 
other's proposal.
  Second, I pointed out that the proposal made by the Republican leader 
says to us that, in order to avoid a 60-vote requirement at this time, 
we agree to a lengthy amendment process, at the end of which we would 
still have to get 60 votes. That reduces its attractiveness somewhat, 
since what we are saying is that we want to have a vote. Our colleagues 
are saying, ``No, we want to make the point of order which will require 
you to get 60 votes.'' So what they were saying is, ``Well, all right, 
you won't have to get 60 votes at the beginning, but if you accept our 
offer and go through this whole process, at the end you will have to 
get 60 votes.''
  And so, it does, as I say, reduce its attractiveness for the reasons 
  I indicated to the distinguished Republican leader that I would 
discuss the matter with Senator Biden, the manager of the bill. We want 
to be accommodating.
  But, basically, all we are asking is to let us vote; simply let the 
Senate vote on the crime bill. That is our request, as clearly and 
simply as can be stated.
  In order to achieve that, we are willing to take up separately all of 
the proposals that our Republican colleagues say they wish to address, 
all of the amendments and any more that may be added to this list, at a 
time and in a circumstance where Senators will have the chance to offer 
and debate their amendments and vote on them.
  I hope that we will be able to reach an agreement on this matter. I 
think the crime bill is a very important measure, one which has been in 
the works for a period of several years and which I believe has 
substantial majority support in the Senate. I think it is rather clear 
that if we have a vote on the crime bill, a majority of the Senate will 
vote for it. The question is whether it will be possible to have a vote 
on it, whether the minority, who opposes it, or others will permit that 
vote to occur. I hope it will.
  We will continue to work together and discuss the matter in good 
faith. At this time, I think it is required that we have a consultation 
on both sides and then get back together.
  Mr. BIDEN. Will the Senator yield?
  Mr. MITCHELL. I yield the floor.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER (Mrs. Feinstein). The Senator from Delaware.
  Mr. BIDEN. Madam President, I am a little confused by this offer. And 
I acknowledge I was not part of the discussion and I have just listened 
to the Republican leader and the majority leader. I want to make sure I 
  No. 1--and, by the way, I heard the Republican leader talk about 
telephones. Well, the telephones in the State of Delaware are ringing 
off the hook--I only speak for Delaware-- and they are saying, ``Pass 
the crime bill.'' They are not talking about pork or pork chops or ribs 
or anything else. They are saying, ``Pass the crime bill. Give me 
100,000 cops, build more prisons, and get on with it.''
  Now that may be different in other States, I acknowledge that. Mine 
is a small State. And because I have been so involved with this issue, 
maybe that is the reason that is happening. But in Delaware, it is 
ringing off the hook in the other way.
  No. 2--and I will go back to this point on this budget point of 
order, which my friend from New Mexico spoke to before I got to the 
  But No. 3, as I understand this proposal, if we would agree to it, is 
that we take up what is essentially the thing we want to vote on anyway 
now, the so-called conference report. This is all kind of confusing to 
all but we Senators who know about this stuff. But we take up the bill 
that the House just passed and everybody watched debate it all week and 
that they passed, and we make that, through an unusual procedure, 
amendable. And we agree to the things that we will list as amendments 
and a time agreement on them. And then that becomes, as I understand 
it, I ask the majority leader, a brand-new bill that has to make its 
way down the hallway here and go all the way over to the House again. 
They have to vote on it again. They can amend it, if they want to. They 
can amend it and then it goes back into a conference and then it comes 
back here to us after all of that and we are sort of back to square 
  So it takes all that time for that to happen.
  So what we are doing is, we are talking about--granted it narrows the 
process of what we are going to end up sending back--but the House is 
going to have to decide whether or not they are going to amend it 
  Now I see my distinguished friend from Utah here. And I see two of 
the brightest staff people in this place here sitting next to him, Mr. 
Manus Cooney, who is the chief man on the Judiciary Committee, working 
for Senator Hatch, and Mr. Dennis Shea, who is the guy who always 
handles the crime issues for Senator Dole.
  And if I am not mistaken, I saw them all weekend; all weekend, I saw 
them in every meeting I was at in the House of Representatives.
  So no one misunderstands here, they negotiated this and the leader of 
the Republicans under the Judiciary Committee negotiated every one of 
the amendments that are listed here.
  Mr. HATCH. Will the Senator yield?
  Mr. BIDEN. Sure; without losing my right to the floor.
  Mr. HATCH. We did not negotiate. We were invited over by the House 
leadership to answer questions and help some of the people to 
understand these issues. Naturally, we did not feel that they cut 
enough of the pork out of this bill or strengthened the bill enough.
  Mr. BIDEN. I see.
  Mr. HATCH. So we were there to lend resources and assistance. And in 
our own humble and feeble way, we tried to do that.
  Mr. BIDEN. Madam President, the Senator from Utah or the two staff 
members, they have always been humble, but I never found them feeble.
  To put it another way, let us be real straight about this. I sat in 
as an invited guest of the Democratic leadership; you all sat in as 
invited guests of the Republican leadership. We ended up with each 
other in a room.
  You would say things like, ``Now, we can't agree with that.'' Even 
though you were there with the House Members, you would say or Dennis 
Shea would say to me, ``No, no, the leader can't go along with that.'' 
And I would say, ``Well, look, we will have trouble passing this 
through the House.''
  Mr. HATCH. Will the Senator yield?
  Mr. BIDEN. I will.
  Mr. HATCH. If we did say that, and I do not recall doing that, but if 
we did, we did because we, as Senators, could go along with that. We 
did not, in our meeting with the House people, tell them what to do. 
They would have resented that, and rightfully so. But when we were 
asked, ``What do you think about this?'', I always candidly gave, like 
I say, my humble opinion.
  Mr. BIDEN. Madam President, that I respectfully suggest is a 
distinction without a difference. What I am being told by some of the 
Republicans is that one of the problems is a deal was cut on the House 
side and the Senate Republicans were not in on it. Well, if they were 
not in on it I do not know who I was sitting with. What I am not saying 
is they could control the outcome. All I am saying is--and I am not at 
liberty, I guess, to list the amendments--every one of the amendments 
here that are listed, every single one, was the subject of a 72-hour 
marathon negotiation, every one of them, with the Republicans in the 
House of Representatives; every single one of these amendments.
  Maybe these Republicans in the Senate were not part of it. But I 
doubt, if I came over here and said, you know, I was no part of the 
negotiation; I, Joe Biden, was no part of the negotiation this 
weekend--every press person in this place would look and say, ``Hey, 
Biden, I saw you at every meeting. You were mouthing off at every 
meeting what could be accepted and not. You were in there, saying the 
Senate will not accept that, the Democrats in the Senate will not 
accept that, we cannot agree to that.'' Granted, it was the House who 
had to make the deal with the House.
  Mr. HATCH. Will the Senator yield on that?
  Mr. BIDEN. Sure.
  Mr. HATCH. The fact of the matter is that we did not sign the 
conference report. I was there at 2:30, 3 in the morning on Sunday 
morning, and I refused to sign the conference report and vote for it. 
All Republican conferees also refused to sign the conference report. We 
turned it down.
  Let me not mislead. We were pleased that the House, basically 
freshman Congresspeople, negotiated $2.5 billion of pork out of this 
bill. That pleased me no end. Now there is only $5.3 billion left of 
real pork in this bill; $5.3 billion does not mean much to some of my 
colleagues around here, but, you know, in Utah that is a lot of money. 
I suspect it is in California, too. I know it is in Delaware.
  Mr. BIDEN. Madam President, I believe I have the floor. I would say 
sarcasm does not become my friend as well as----
  (Disturbance in the Visitors' Galleries)
  The PRESIDING OFFICER. The Chair will ask the galleries to understand 
that you are guests of the Senate, and will ask you not to register 
your opinions on the debate that is ongoing.
  The Senator from Delaware.
  Mr. BIDEN. The point I want to make is this is being characterized as 
somehow these House folks over there, they just got together and they 
did this thing and, golly, no one knew what the heck was going on here 
and nothing happened here. I mean, one of the amendments listed on here 
is the Gorton amendment, the sexual predator amendment. I pushed to 
accept the Gorton amendment. I convinced the Democrats to accept the 
Gorton amendment. The Republicans in the House rejected the Gorton 
amendment, so help me God, for example.
  There are other things in here: Strike assault weapons ban. We spent, 
all of us who were over in that body for Friday, Saturday, and Sunday--
endless hours debating with Democrats who were against the assault 
weapons ban, as well as Republicans. My point is, all of this has been 
  I say it for the following reason. Not to suggest that my friends on 
the Republican side--the minority of the minority who accept or want 
all these amendments, or some of these amendments--not that they were 
happy with every agreement. But a lot of the agreements they were happy 
with. A lot they were not. That is called compromise.
  But that is not the point. The point I wish to make is this. Whatever 
we do here on the floor as we readdress these amendments, which the 
majority leader is agreeing to allow to happen, but not on this 
conference report that requires it to go all the way back to the House 
and be redebated--they just finished. The Republicans and Democrats 
finished 3 weeks--and 2 marathon nights until 5 o'clock in the 
morning--on these very things. They have already told us what they 
think, Democrats and Republicans, in the House.
  Now my friends want us to take this same bill, come up with a--which 
is legitimate, which we have not that I know of done before--take the 
conference report, which is not amendable, make it the new business as 
if it were a new bill, and start the process all over again from 
scratch--from scratch. And then, even if the House, after accepting 
this changed law--assuming they won these amendments on this side, in a 
new bill sent back to the House--they then can debate it, amend it, do 
whatever they want with it. And if they pass a bill, which surely will 
be different than the one we pass--House and Senate always is that 
way--then we go back to conference again.
  I love my friend from Utah, but I would so much rather get to see my 
wife for a change instead of him.
  We will then sit in a conference until 12 and 1 in the morning, maybe 
2 in the morning.
  Mr. HATCH. Will the Senator yield?
  Mr. BIDEN. I will not yield at this point. I will be happy to yield 
in a moment.
  Mr. HATCH. All right.
  Mr. BIDEN. We will go through this whole process again, Madam 
President, and then we will come back here again. And then we may be 
faced with the exact same thing--another budget point of order. Which 
takes me to the budget point of order.
  The reason this is a mildly disingenuous exercise is if we do exactly 
what the Republican leadership wants us to do, there will still be a 
budget point of order that will lie. Let me explain why this budget 
point of order--this is dangerous to do with the knowledgable former 
chairman and ranking member of the Budget Committee--but the reason why 
there is a budget point of order that lay in the first place is as 
follows. We established a trust fund. That is a way, I say for those 
who are listening, to guarantee that there is money there so it does 
not have to be subjected every year to a new authorization and 
appropriations process.
  We can argue whether or not there is enough money from cuts to go in 
the trust fund but the trust fund is a principle we do not often use. 
To the best of my knowledge, we have never used it before, other than 
the highway trust fund. That is a different thing.
  So, we set up this trust fund. The thing that violates the Budget Act 
is that act, in and of itself. If we decided to put 50 cents in a trust 
fund, it violates the Budget Act--50 cents. So my friends here--not my 
friends; some of the press and some of the public and some of the 
membership here--are a little confused. They think the reason there is 
a point of order in order is because we passed a $23 billion bill, they 
passed a $28 billion bill, and we have a $30 billion bill here. That 
has nothing to do with it. This is a technical point--an important 
technical point, but a technical point. It is not about spending too 
much money. It is about us changing the way in which we do business, of 
establishing a trust fund without it having gone through the Budget 
Committee first.
  The principle: Because, to get technical, it lowers the caps and when 
you lower the cap--this is all technical jargon no one understands 
except a few of the people on the floor here, but the bottom line is, 
it is not about having spent more or less money.
  The second point I would like to make about that is, keep in mind, 
even if we did everything the Republican leader said, even if somehow 
all this could be done, we are still back here faced with the exact 
same problem. What happens if, after all this new compromising going 
on, a bill comes back. And if I add it up, and I guess I am not at 
liberty to say what the proposed amendments were, but if I add up the 
amendments, there is a $1.2 billion further cut in prevention programs. 
That will still leave us with a bill, by the way, that is $6 billion 
more than the one passed out of here.
  If we passed every single Republican amendment that was shown to me, 
we would still end up with a bill that is close to $30 billion. As I 
read it--and it is a quick calculation, Madam President--we would end 
up with a bill that was $29 billion or $28.888 billion. I may be off a 
  Mr. HATCH. Will the Senator yield?
  Mr. BIDEN. I will yield when I finish these points.
  Mr. HATCH. You are off by $2.8 billion.
  Mr. BIDEN. We can debate that. If I have permission, at the 
appropriate point, I will be happy to enter into the Record the list of 
proposed amendments that were given to me. But I am told that is not 
appropriate yet, so I will not.
  Now, what happens is this budget point of order. The point of order 
arises because the trust fund is within the jurisdiction of the Budget 
Committee but was not considered by the committee before being added to 
the crime bill. Of course, the Senate as a whole carefully considered 
the trust fund at the time we passed the crime bill on the floor, where 
it enjoyed overwhelming bipartisan support, and no one raised a point 
of order.
  But every Senator on the floor at the time we did this awful thing of 
violating the Budget Act--which is a technical change--every Senator on 
the floor was told that the trust fund was subject to a point of order 
at that time, back in November, by none other than my friend from New 
Mexico. On the evening the Senate passed the Byrd amendment that 
established the trust fund, Senator Domenici said:
       I am sure the distinguished chairman--

  Referring to Senator Byrd.

     --agrees with me that the pending amendment violates section 
     306 of the Congressional Budget Act.

  Said another way, ``Listen up, everybody in this body, you like the 
trust fund, you like the idea, but I want you all to know that it 
violates the Budget Act.''
  Then Senator Byrd responded:

       I do concur. I wanted to be clear that a 60-vote point of 
     order does lie against the pending amendment--

  The Byrd amendment, that is, the trust fund.

     the distinguished Senator from New Mexico and I discussed 
     this earlier today, and we both agreed that it did, that it 
     would lie. May I say to the Senator, I will just as zealously 
     guard the legislative process in the future as I have in the 
     past. It was only because of very extenuating circumstances 
     throughout this country today that I think cry out for 
     solutions that I have taken this approach.

  And after this recognition, Senator Domenici joined Senator Byrd in 
an amendment as an original cosponsor and stated:

       I think this is historic. From my standpoint, as money is 
     saved from reducing the work force of the United States, I 
     join in saying that we are going to spend it, and we probably 
     ought to spend it for the most serious domestic issue in the 

  So this thing that we are now raising a point of order on everybody 
knew existed but because, as Senator Byrd said, there was an 
overwhelming emergency--crime in our streets--and an overwhelming need 
to get police and prisons and the rest out there on our streets, 
everybody at that time said, ``Well, we are, in this extenuating 
circumstance, by implication going to waive the Budget Act because a 
point of order was''--anybody could have said, ``Hey, you need 60 votes 
to do this.'' But it was clear that everybody wanted to do this and 
everybody thought it was appropriate to do this.
  Indeed, since the Senate acted, Republican Senators have insisted 
that the trust fund be a part of the crime bill. In fact, Senator Gramm 
went to the floor of the Senate and offered a motion to instruct 
conferees to insist that the trust fund be put in place prior to the 
House-Senate vote.
  Why would Republican supporters of the trust fund who on five 
occasions, after having been told since November, having been told that 
a point of order lies, having been told that, technically, we are not 
supposed to do this, having been told by Senator Byrd that crime is 
such a problem we must do this and not waste any time, having agreed 
with Senator Byrd that the urgency required that, and then having voted 
five times--five times--and let me be very precise on what the votes 
were five times.
  The first vote was the Gramm amendment locking in the Federal 
bureaucracy for fiscal year 1994 to 1999 on October 28, 1994, violating 
the Budget Act. That was voted 82-14. Almost all the Republicans that I 
am aware of voted for it, to violate the Budget Act.
  Then the Byrd amendment establishing the violent crime reduction 
trust fund of 1994. That is when Byrd acknowledged, Domenici, Biden, 
Dole and everyone acknowledged, that a point of order lay but no one 
was going to raise it because this was such an important deal and we 
voted 95 to 4 to not insist on this technicality.
  Then the Gramm amendment to add the violent crime reduction trust 
fund to the Federal Work Force Restructuring Act of 1993. We voted on 
that on March 11, 1994, knowing that it violated the Budget Act, just 
like this does, but knowing it was important to do, and we voted 90-2 
to do it, with almost all the Republicans voting.
  Then we had a fourth vote, a Gramm motion, because Senator Gramm, who 
was one of the authors of this trust fund--it was one of his ideas, he 
and Senator Byrd--he was worried because the House of Representatives 
did not have a trust fund mechanism in their bill; that they did it by 
the normal authorization process, which means there is no guarantee the 
money would be there. He stood up and he said, ``When you go to 
conference, Biden, we, the Senate, instruct you to insist that you 
don't bring back any bill that doesn't have a trust fund,'' which--
parentheses--violates the budget point of order, violates the Budget 
Act and a point of order lies.
  Mr. WARNER. Madam President, will the Senator yield?
  Mr. BIDEN. I will not yield.
  Mr. WARNER. Will the Senator yield for a question?
  Mr. BIDEN. Not until I finish this point. Then, again, for a fifth 
time on May 19, 1994, we voted again. This time on a Biden motion to 
instruct the crime conferees to support the trust fund. That was May 
19, 1994. That passed 94 to 4.
  To this list, we could add the vote on final passage of the Senate 
crime bill, which occurred November 19, 1993. That passed 95 to 4. And 
we could also add the fact that the Federal Work Force Restructuring 
Act of 1993 passed by unanimous consent on March 11, 1994.
  Mr. HATCH. Will my colleague yield?
  Mr. BIDEN. I do not yield. In every instance, every single instance, 
everybody on this floor knew that they violated the Budget Act. Every 
one of those votes violated the Budget Act. Everybody here knew they 
violated the Budget Act because my distinguished friend from New Mexico 
in November said, ``By the way''--and I will not go back and read the 
quote again--``By the way, everyone should know that what we are doing 
violates the Budget Act.''
  Mr. HATCH. Will my chairman yield?
  Mr. BIDEN. I will not yield. Very clearly, I will not yield.
  Now, let me read a few more quotes about this horrendous thing that 
we are going to vote on where we violated the Budget Act and now they 
want 60 votes on a point of order because of this terrible thing we did 
in violating the Budget Act which five times--seven if you count the 
two votes on setting up, passing the bill out of here, and on the bill 
to pass by unanimous consent, the Federal Work Force Restructuring Act 
of 1993.
  Mr. DOMENICI. Except that one is not subject to a point of order, I 
say to my friend.
  Mr. BIDEN. I correct myself.
  Six times, six times, six times. Now, all of a sudden, we come back 
with a bill, the same bill, same principle--more money, but keep in 
mind, as when the Republican Senator from New Mexico gets the floor, he 
will point out to you it does not matter whether we spent 10 cents in 
the trust fund or $10 hundred million or $60 billion. The number is 
irrelevant. It is the establishment of that fund. That is what violates 
the Budget Act.
  That is what requires us to vote, requires me as the manager of this 
bill to get a crime bill now in America after 6 years of this, requires 
me not to get 51 votes to do the people's will, because everybody knows 
there is not only 51 here--I predict to you, if we ever get to it, a 
straight up or down vote, I predict to you 65 Members of this body vote 
for it. But I know 55 are for it. I do not guess about it. I know 55 
are for it, and they know it. And so instead of allowing us to vote on 
the crime bill, they are now raising, 6 months--what, November--6 
months, 7 months, 8 months later, ``Point of order, point of order, 60 
votes, Biden, don't get by with 51, 60 we want now.''
  Now, let me go on. Let me read some of the quotes at the time.
  Mr. HATCH. Will the Senator yield?
  Mr. BIDEN. I will not yield the floor. I will not yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware has the floor.
  Mr. BIDEN. I will be delighted to yield the floor when I am finished.
  Now, on November 4, 1993, one of the distinguished Members of this 
body said:


  Referring to Senator Byrd.

     was the one who came up with the funding mechanism--

  That is, trust fund.

       I just want to personally compliment him for it, plus the 
     ability to put this together in the way we are putting it 

  Senator Orrin Hatch, November 4, 1993.
  Senator Dole:

       From day one, Republicans have insisted that any crime bill 
     we pass must be fully paid for. Security has a price and it 
     is a price that we at least attempt to pay by establishing a 
     violent crime reduction trust fund. In the months ahead, we 
     will see whether it lives up to its trust fund commitment.

  November 9, 1993.
  Point of order lay then requiring 60 votes. Not asked for but pointed 
out a trust fund is necessary. Then the following quote.

       On a motion to instruct, the crime bill conferees, first of 
     all, asked our conferees to stay with the funding mechanism 
     that Senator Byrd offered.

  That is, trust fund.

       I was a cosponsor of it. It was a broadly supported, 
     bipartisan effort. So the first thing I want our conferees to 
     do is stay with our funding mechanism.

  That is, the thing that violates the Budget Act. It says, ``In was.'' 
It must be, ``It was.''

       It was endorsed earlier in the House and has been adopted 
     three times in the Senate. Every time we have gotten down to 
     the goal line trying to make it law of the land, it ended up 
     being killed. I do not want it to die this time. Without it, 
     there are no prisons, no additional police officers on the 
     street, and no effective crime bill.

  ``It'' meaning the trust fund. Senator Phil Gramm of Texas, November 
19, 1994.
  Mr. DOMENICI. Will the Senator yield?
  Mr. BIDEN. I will not yield.
  Mr. DOMENICI. Will the Senator yield for a question?
  Mr. BIDEN. I will not yield for a question. I will be happy to yield 
for the questions and/or the floor when I finish this larger point I 
wish to make.
  Now, to my Republican colleagues, some of whom--I have not heard 
anyone in particular--I am sure will say this is such an extraordinary 
thing we have done, the Republicans proposed and passed several times 
motions to waive a point of order on the budget.
  The Treasury-Postal Service appropriations bill. Senators all agreed 
that this was necessary--72 Senators all agreed that this was necessary 
based on some changes in the tax structure that were made as part of 
the repeal of the luxury tax on boats. But this added to the deficit, 
CBO scoring $6 million for fiscal year 1994, $25 million for fiscal 
year 1995, because establishing a new system costs more than the tax 
revenue corrected. Yet on a Republican motion, we waived the Budget 
Act, even though it did not go through the Budget Committee.
  We did it again on Senator Nickles' motion to waive a section 305(b) 
point of order prohibiting nongermane amendments, expressing the sense 
of the Senate that the Senate should adopt a balanced budget 
constitutional amendment.
  Mr. DOMENICI. Will the Senator acknowledge that the previous point of 
order was not even under the provision that we are talking about?
  Mr. BIDEN. But it was a motion to waive the budget point of order.
  Mr. DOMENICI. But it was 306.
  Mr. BIDEN. But it was a motion to waive the Budget Act.
  I would ask unanimous consent that the other one, two examples where 
Republicans asked to waive a point of order and Democratic proposals 
that passed, one, two, three, to waive a budget point of order, and 
several passed during the unemployment compensation debate--one, two, 
three, four, additional times--I ask unanimous consent that they be 
placed in the Record, and I will be happy to give--I do not have a copy 
now--a copy without having to wait for the Record, to my friend.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Other Budget Points of Order

       Republican-proposed and passed:
       Treasury-Postal-Service Appropriations, 1995 (June 22, 
     1994): Gorton Motion to Waive to Permit Consideration of the 
     Gorton Amendment Which Prohibits the Use of Any Funds to 
     Enforce an I.R.S. Prohibition against selling dyed diesel 
     fuel to recreational boaters where the person selling the 
     fuel collects the tax and requires IRS to establish 
     collection system to allow the sale of dyed diesel fuel to 
     recreational boaters. 72 Senators all agreed that this was 
     necessary based on some changes in tax structure that were 
     made as part of the repeal of the luxury tax on boats. But, 
     this added to the deficit, CBO-scoring $6 million FY94 and 
     $25 million in FY94, because establishing the new system cost 
     more than the tax revenue collections. (Passed 79 to 20, 42 
     Republicans and 37 Democrats voted to waive Point of Order.)
       Senator Nickles' motion to waive Section 305(b) point of 
     order (prohibiting non-germane amendments), expressing Sense 
     of Senate that Senate should adopt balanced budget 
     Constitutional Amendment. (Passed 63 to 32, All 40 
     Republicans voting voted for the motion, and were joined by 
     23 Democrats.)
       Republican proposed, to waive Section 306, but none passed:
       Senator Craig motion to waive Section 306 to permit 
     consideration of Senator Murkowski amendment expressing Sense 
     of the Senate to eliminate Presidential Election Campaign 
     Fund checkoff and use funds for natural disaster trust fund. 
     (February 10, 1994; Motion defeated, 58 nay to 37 yea; 36 
     Republicans voted to waive.)
       Senator Dole (for Senator Durenberger) motion to waive 
     Section 306 to permit consideration of Senator Durenberger 
     amendment expressing to establish Natural Disaster Relief 
     Trust Fund. (February 10, 1994; Motion defeated, 54 nay to 41 
     yea; 34 Republicans voted to waive.)
       Budget Points of Order have been waived by Unanimous 
       Waiver of Point of Order Regarding Senator Heinz' Amendment 
     Regarding Congressional Action to Remove Social Security 
     Trust Funds From the Definition of the Deficit. (Passed by 
     U.C., June 19, 1990)
       Waiver of Point of Order Prospectively for a Senator Chafee 
     Amendment Creating a Refundable Tax Credit. (Passed by U.C., 
     September 23, 1992)
       Democratic proposed, and passed:
       Omnibus Budget Reconciliation Act of 1993: Bumpers Motion 
     to Waive to Permit Consideration of the Bumpers Amendment 
     which Allows States to Withhold a Portion of AFDC Benefits 
     for Families Whose Preschool Children are not Immunized (June 
     25, 1993, Passed, 69 to 29; Supported by 39 Republicans and 
     30 Democrats.)
       Senator Ford motion to waive Budget Act directing Secretary 
     of Transportation to establish a National Noise Policy, and 
     other changes. (October 18, 1990; Passed 69 to 31; Supported 
     by 30 Republicans and 39 Democrats.)
       Supplemental Appropriations Bill for 1990: Motion to Waive 
     Point of Order to Permit Consideration of Hollings-Rudman 
     Amendment to Increase Spending for the State Department. (39 
     Republicans Support the Motion to Waive, motion passed--62 to 
     30, April 26, 1990).
       Several passed relating to unemployment compensation:
       October 27, 1993, motion waived 61 to 39; 8 Republicans 
     voted to waive.
       February 4, 1992, Senator Daschle motion to waive agreed to 
     88 to 8; 34 Republicans voted to waive.
       October 1, 1991, Senator Sasser motion to waive agreed to 
     65 to 34; 8 Republicans voted to waive.
       April 26, 1990, Senator Hollings motion to waive agreed to 
     62 to 30; 2 Republicans voted to waive.

  Mr. BIDEN. Madam President, we are in a situation where now we are 
told we have this great offer made available to us.
  Think about this now. If my friends are so concerned about the budget 
point of order, how can they make an offer to us to amend a conference 
report--we cannot do that, but amend the thing that is the same as the 
conference report--that by their own amendment, unless they have other 
ones they are going to add that I do not know about, will not take the 
number back down to the 22-point-something we passed out of here and 
not be willing to say at this point, by the way, before we do this we 
should send this all back to the Budget Committee.
  How can it be OK in this offer to again violate the Budget Act when 
they want to amend it because it did not turn out quite the way the 
Republicans in the Senate, although at least 40 Republicans in the 
House thought it was OK, the crime bill did not turn out exactly the 
way they wanted? It is OK not to have a budget point of order when it 
is written the way they want it, even though it violates the Budget Act 
in section 306, I believe it is, the same way as the present conference 
report does.
  Mrs. BOXER. Will the Senator yield on that point?
  Mr. BIDEN. I will not yield to anyone.
  The PRESIDING OFFICER. The Senator from Delaware has the floor.
  Mr. BIDEN. Now, so here we are. We have a proposal made to us, a good 
faith proposal by the Republican leader saying if you do the following 
four things--and the majority leader listed them and the minority 
leader listed them--the end result of which we do them all, we still 
are in violation of the Budget Act and a budget point of order would 
still lie.
  Now, why is it OK to avoid the budget point of order and the Budget 
Act when it is a proposal made by the Republicans and it is not OK to 
avoid the technical point on the Budget Act when it is a proposal 
debated here, sent over to the House, debated in the House, sent to a 
conference, rejected in a conference, back to the House, negotiated in 
the House, back to a conference, passed by a conference, back to the 
House, passed by the House, and then sent over here for the last action 
required before your assault weapons ban becomes law, Madam President. 
Why is it, among many other things, why is it that now, now a budget 
point of order would lie?
  Mr. MITCHELL addressed the Chair.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. MITCHELL. Without losing his right to the floor, will the Senator 
yield to permit me to make a brief announcement?
  Mr. BIDEN. I would be delighted to yield.
  The PRESIDING OFFICER. The majority leader is recognized, without 
  By unanimous consent, the remarks of the majority leader appear at a 
later point in the Record.
  Mr. BIDEN. Madam President, do I still have the floor?
  Mr. DOMENICI. Maybe the majority leader could ask if we might have an 
opportunity to ask questions from the floor. Would he ask that for us?
  Mr. BIDEN. Madam President, I have never failed to answer questions. 
I will, but I will not be interrupted until I finish making these 
points. I will stay here until 3 o'clock in the morning attempting to 
answer any questions my Republican friends may have, all of which I 
probably will not know the answer to but I will stay here and answer 
your questions.
  Mr. DOMENICI. I will not have any. I will just state my own case, I 
am afraid.
  Mr. BIDEN. That is fair enough. That is not a problem.
  Mr. WARNER. Madam President, I do have a question when the time 
  The PRESIDING OFFICER. The Senator from Delaware does not wish to 
yield. He has the floor.
  Mr. BIDEN. Madam President, the other point I would like to make 
here, that I have heard about, beyond the budget point of order, is 
that this bill is so radically different, radically different from the 
conference report, from the bill that we passed out of here. This is a 
radically different bill and what happened in here is all this pork got 
added to the bill.
  Well, let me point out, when the bill left--first of all, the bill, 
when it left here, was roughly $24 billion total authorization, $22 
billion roughly in the trust fund. OK. Now, the part that made up 
prevention was roughly 23 percent of that bill that we passed out of 
here, the part that made up prisons was roughly 27 percent, and the 
part that made up law enforcement, Federal and State, was roughly 50 
  Now, after all this 6 months of debating and negotiating and pleading 
and cajoling on both sides, House, Senate, Republicans, Democrats, 
interest groups, the handgun control lobby, the NRA, everybody, after 
all of that we finally bring back from the House of Representatives a 
new conference report with one last yard to make to have a crime bill 
before it goes to the President's desk.
  This particular bill for the last 6 or 8 months, this issue for the 
last 6 years, we are that close to putting 100,000 cops on the street 
in the next 6 years, 125,000 new prison cells, and you know the rest of 
the list.
  Now, what came back? Well, what did we do? People say, ``Well, Joe, 
how in the devil did you get from our $24 billion figure up to a $30 
billion figure? How did you do that? You old, big spending, porky 
liberal, how did you do that? You just piled pork onto this thing.''
  First of all, there is no pork in this bill. But that is how--how did 
you do this?
  Well, let me tell you how we did it. The House Members, Republicans, 
Republican House Members insisted that we spend more money for prisons. 
We voted out of here, 94 to something, a bill that had $6.5 billion in 
prisons. We brought back a bill, the House sent back a bill that has 
$9.7 billion in prisons.
  That is over $3 billion more in prisons. So now if you take the trust 
fund and authorization figure that went out of here, we went from $24 
billion to $27.2 billion just by adding prisons.
  Now what else did we do? We added more money for cops. Pork? Right? 
Prisons and cops are pork. We added a total of $1.3 billion for more 
police. Now that gets you up roughly to--what would that be? That would 
be $27.2 billion, $28.2 billion, almost $28.5 billion. The new bill is 
$30 billion. So that got us from $24 billion in total authorization and 
trust fund up to over $28 billion just by the insistence that we have 
3.1-something billion more dollars in prisons, and $1.3 billion in more 
cops. I support both of those things. Does anybody here not want to do 
more prisons and cops?
  Then it is a process. This is called compromise, you know. This is a 
body made of up 535 people representing hundreds of millions of 
Americans with different points of view. Some people in the House said, 
OK, you are going to do that. Then we want to spend more money on 
prevention. So it went from $4.3 billion to $6 billion. But when the 
day was done, one other point had to be made. The bill we passed out of 
here was for 5 years. The bill that was sent back by the House is for 6 
  So if you take the bill we sent out of here and add the authorization 
and the trust fund, it is $24 billion for 5 years. That is roughly 
4.7--what is 5 into 24; 4.7 or something like that? That is $4.7 
billion a year. So if you added a sixth year, if it makes sense to do 
it for 5 years, then it makes sense to do it for 6, if we are willing 
to commit to it. So just that alone would get up to $28.7 billion just 
adding the extra year.
  All this pork, all these horrible things we have done, these giveaway 
programs that, I might add, every police agency in America that I am 
aware of endorses this conference report. The mayors, the Governors, 
Democrats, Republicans, Rudy Giuliani, I believe, Mr. Riordan of Los 
Angeles, Republicans from two of the largest cities in America support 
this. I know Giuliani does. I think Riordan does.
  This whacko notion, these liberal, wide-eyed Johnsonian Democrats 
that came out here to spend in a prolific way all the hard-earned tax 
dollars of the American people on pork?
  Let us talk about some of the ``pork.'' There is $100 million of Dole 
pork in this bill, $100 million for gang--in fact, it is a pretty good 
idea he had. There are several billion dollars of Domenici and Danforth 
pork in this bill. There are millions of dollars of Durenberger pork in 
this bill. What is one man's pork is another man's--I do not know--
  So, all this stuff about how this changed so radically, just factor 
in 6 years, not 5. And factor in the increase of $3 billion in prisons 
plus $3 billion and more than $1 billion in police, and it answers your 
pork question pretty fast.
  This notion that I heard, because people have raised it with me, is 
we have done all of these things. For example, you hear on the floor 
that we want to make mandatory sentences for the commission of a crime 
with a gun, the implication being we do not. It is a mandatory sentence 
in the Federal system if you commit a crime with a gun. That is not the 
debate. The debate is whether the Federal Government should tell every 
State in the Union not what their State laws should be, but federalize 
  What happened to our States rights, friends? Where have they gone? I 
guess they went with Joe DiMaggio somewhere. Where are they? Where have 
they gone? They have gone to town because now what they want to do is 
federalize every gun offense, and get tough.
  Let us tell the States of the Union that we want to get tough, and 
tell them to write their own law. Forget local government. But we have 
mandatory sentences for the possession of a gun in the commission of a 
crime at the Federal level, Madam President.
  We are told, OK, we want mandatory truth in sentencing for our prison 
money. That means that right now 41 percent of the States on average 
only keep their prisoners in 41 percent of the time.
  So my Republican friends in a compromise we reached on the Senate 
floor back in November--seems like 100 years ago--said no State can get 
any prison money unless they keep their people in jail for 85 percent 
of the time just like we do at the Federal level in a law written by 
yours truly and several others.
  The Federal Government: You go into a Federal court, and you get 
convicted. You get hard time, and the judge has no discretion beyond 15 
percent. If it is a 10-year sentence, you go to jail for 10 years 
unless the judge finds mitigating circumstances, in which case you get 
lucky and you go 8.5 years; or, unless the judge finds aggravating 
circumstances in which case you get unlucky and you go for 11.5 years. 
But you go to jail. That does not happen in the States.
  So they said, OK, let us make the States get tougher. In order to get 
any of this money, we want them to keep their people in 85 percent of 
the time. Crazy idea, because you require the States to have to spend 
roughly $12 for every dollar they would have gotten from the Federal 
Government. But let us assume it was a good idea.
  You all voted. You, the Senate, voted to instruct me to make sure in 
conference that we insisted on our position. Guess what? In the 
conference, the House did not like that idea. But I insisted. And I 
insisted on a vote. And guess what? Every one of the Republicans voted 
against this. Then I get a list saying we want 85 percent. People have 
to stay until 85 percent. Yet the Republicans in the conference, 
Senator Hatch voted against it, Senator Grassley voted against it, and 
Senator Simpson voted against it. I voted for it. Me, I voted for it. 
Screwy idea, but I made a promise.
  Why do you think they did not vote for it if they wanted it so badly? 
Because all the Republican Governors called, and said, ``Whose whacko 
idea was this? I will not be able to use the money because I cannot go 
to my legislature.'' And in a Senate bill in order to get $3 billion to 
dive into that pot to build new prisons, I have to spend $60 billion 
  But, talk about a red herring. But yet we had a vote on the floor 
instructing Biden to go to conference and insist on truth in 
sentencing. I did, and they voted against it. Is not that strange? Is 
not that the strangest thing you ever heard of?
  We are also told that we do not have a sexual predator law in here. 
We sure do have a sexual predator law in here. We passed the bill that 
is really something else. It is in the conference report. Do you know? 
We passed out of here a bill that was a Gorton amendment. The Gorton 
amendment said that if you are a sexual predator, or judged to be one 
by a board of experts, then you would have to go in this registry, and 
then the localities would have to be notified if you did anything 
against a child or a person under the age of 18. We did better than 
that. We passed this conference report. If you commit any sexual crime 
against anyone of any age at any time, and you serve your sentence in 
jail, you get out of jail, the State must set up a registry of sexual 
offenders, and for the next 10 years of your life you are branded. And 
in every neighborhood you walk into, the police must be told you are 
there, and the public must be notified. That is what is in this bill. 
And then if you are adjudged to be a sexual predator, which this board 
determines, you are then on that registry for the rest of your natural 
life--not 10 years.

  I look down here, and they want the Gorton amendment. I will go back 
to the weak Gorton amendment and water down this bill if they want to 
do that. I am all ready for that, if they want. Guess what, they all 
told me in the conferences--and the Republicans do show up at these 
conferences--that they wanted a stronger bill. Yet, I see a list 
saying, wait a minute, we want the Gorton amendment as written.
  I happen to think the Gorton amendment makes more sense. It does not 
brand everyone with a scarlet ``A'' the rest of their lives. If you 
committed any crime, the rest of your life you are in this box. It says 
if you are a sexual predator and you are adjudged to be that by 
psychiatrists and psychologists, you should be branded. I agree. But 
what we have before the desk is tough as can be. Maybe they are just a 
little soft on crime. Maybe they just do not want everybody to be 
branded. I do not like the idea of branding everybody forever. But they 
tell me they want to be tough. Well, this is tough. This is tough.
  I am also told that what they want is they want to make sure that we 
have the craziest rule I have ever heard of, the one thing I do not 
like. I fought against it on this floor, I fought against it in the 
conference, I fought against it in the second conference, and I fought 
against it when we were in that marathon session with the House 
  You know what it says? It is called the Dole-Molinari rule of 
evidence. It says that if you are accused of any crime of sex, of 
violence against a woman, that for the first time at a Federal level in 
our entire history, anyone who ever made an accusation against you, 
even if they kept it silent, never told the police, never swore out a 
complaint, never were indicted, never were tried, never were convicted, 
never were spoken to, that prosecutor can go out and find anybody in 
your past, 6 months to 60 years earlier, who will say: You know he kind 
of did the same thing to me, too. And you can bring that person in, put 
them on the witness stand and they can say, yes, he kind of did the 
same thing to me, too, or the same kind of thing to me, too.
  That is revolutionary. But, guess what? It is in this bill--to my 
great shame, but it is in this bill. You know how it is in this bill? 
It is in this bill the following way: The Molinari--or I guess they 
want to call it the Hatch-Dole-Molinari, or Dole-Molinari-Hatch, or 
whatever they want to call it--that provision is in the bill. When the 
overall crime bill passes, within 150 days the Judicial Conference, who 
I think probably thinks this is a crazy idea, has to write a report. 
They are the experts, the judges who do all this stuff. Once they write 
the report, we have to wait until we get to that. After that report 
comes in, if it disagrees with the Molinari provision, then somebody 
has the burden--I guess it would be me, because I am the only one out 
of 535 people who feels this way, or one of few. I get to stand up on 
the floor and say we should not do this. We should do it a different 
way. And anybody here can filibuster my attempt to change the law. If 
at the end of another 150 days I do not get a chance to vote, like I 
have not gotten a chance to vote on final passage of the crime bill for 
6 years, I do not get a chance to vote, a highly unusual process takes 
place: Dole-Hatch-Molinari, et al, becomes the law. And people are 
saying they want the Dole provision in the bill. Maybe they should read 
the bill before us. I wish it were not in the bill, but it is in the 
bill. I could--and I will not--go on with my frustration about this for 
another hour. But, Madam President----
  Mr. DOMENICI. Are you or are you not?
  Mr. BIDEN. I am not going to, but I think I have enlightened my 
friend a little bit. I think a lot of people have not read this 
conference report. The things I hear about it are pure fiction--
fiction. For example, I turn on the TV and Moses is on TV--Charlton 
Heston--paid for by the NRA. It never mentioned guns, but that is who 
pays for his ads. I expect we have seen them. They spent millions of 
dollars. He stands there and is much better looking than I am, sounds a 
lot better than I do, knows how to look at a camera and says, ``This 
crime bill out there, it does not have 100,000 police in it. It has 
only 22,000 police officers.'' My wife says, ``Joe, I thought you told 
me there were 100,000 cops in that bill. Moses says there is not, there 
are only 22,000.'' I tried to figure, how can he say that? How could he 
come up with that? Everybody knows that is simply not true. How could 
he do that?
  I finally figured it out. I do not think he deliberately misled 
anybody. I think he just read a bad script. What happened was the crime 
bill--the one before us on the desk here that we are being prevented 
from voting on; or we are being required to get 60 votes to get a 
chance to vote on--it has $8.8 billion total funding for implementing 
community policing programs, $7.5 billion to cover the $75,000 per year 
cost for 100,000 new officers over 6 years, and the remaining $1.3 
billion to cover the cost of implementing and administering the 
community policing program, which the Republicans said, along with the 
mayors, they needed more flexibility to implement this. That is why it 
is there.
  The distinguished Presiding Officer wanted more flexibility, and she 
was right because her cities are better off and community police are 
better off. So now the basis of this 22,000 as opposed to 100,000 
fiction is, I assume, based on an estimate that police officers get 
paid an average of $70,000 per year, because at that rate the $8.8 
billion would pay over 6 years for only 22,000 police officers. I 
assume that is how they get 22,000. Divide $70,000 per year over a 6-
year period into the $8.8 billion and you get roughly 22,000. But, of 
course, few police make that kind of money. Nationwide, the average is 
$30,000 per year, not $70,000 per year.
  The conference report does require what we have always required--that 
States, cities, and localities match the commitment in Federal dollars 
with their own dollars. But this is neither an unfunded mandate, 
because no city, State or county is required to ask for the money, nor 
is it an unworkable requirement. Indeed, under President Clinton's 
fiscal year 1994 police supplemental budget, the exact same matching 
requirements are in place. And the cities and towns and States stood in 
line to participate in the program. In fact, the Justice Department 
could only fund 1 in every 10 cops that the cities applied for with 
that $150 million.
  Mayors and local officials of both parties strongly support this 
program, because they want real help in putting more cops on the 
street, more cops on the street to fight crime. So let me tell you how 
Moses got 22,000 cops, which is mildly disingenuous if he knew better, 
if he knew the facts. That assumes that we are paying $70,000 per cop 
and paying the entire salary and we are doing it for 1 year. That will 
use up all the $8.8 billion. That is not how we fund any of these local 
programs. That is not how we fund any of the cops. Are my Republican 
friends saying that they want to fund the total salary, benefits, and 
retirement of every local police officer? If they do, fine. To get 
100,000 cops then, we would have to have roughly $50 billion.
  Mr. DOMENICI. Thirty.
  Mr. BIDEN. My friend says 30-some. He is better at numbers. I have 
not added it up. It may be true.
  I have not heard anybody stand up here and say we have $37 billion 
that the States, cities, and counties have to chip in nothing for, not 
Federal cops, local cops--in Wilmington, blue uniforms; in New Castle, 
two-tone brown uniforms; in the State, two-tone blue. They will work 
for the Government, the county, the city, the mayor, the State 
legislature, the city council, and the county council. They will not 
answer to me, the Senator from New Mexico, the President of the United 
States, nor anyone else. Nor should they.
  But the Federal taxpayers are saying because crime is such a big 
problem, we will pay half the salary for the next 6 years for these 
cops. That adds up to 100,000 cops, Madam President.
  Now, my friends can argue whether or not the trust fund money is real 
and whether or not the reduction of the work force will be equal to 
that and whether it comes out of this, that, or that--blah, blah, 
blah--all of which are arguments we love in this city. It just reminds 
me of when I was a kid in high school. I went to a school where there 
was a priest named Father Brunick. We studied Aquinas' ``Summa 
Thelogiae.'' To make the theological point, the argument was how many 
angels can dance on the head of a pin.
  That is what these kinds of arguments are. But $8.8 billion funded 
half by the cities and half by the Federal Government, with the Federal 
Government kicking in $75,000 per new officer hired, adds up to 100,000 
  But, as I said, I hear ``Moses'' and others saying it is only 22,000, 
knowing full well that is not the funding mechanism in here, knowing 
full well the localities are supposed to come up with half the money 
for the 6-year period for these police officers.
  Since when, if we federalized the police force, name me a time ever, 
rhetorically speaking, ever in the history of the United States we ever 
made that kind of commitment to local law enforcement, ever.
  Madam President, I was just handed a note. I just received a call 
from Mayor Riordan, a Republican mayor of one of your cities, your 
largest city, I believe--Los Angeles--from Mayor Riordan's office, 
saying that he strongly supports the conference report. He was in town 
last week lobbying in the House and has been calling Senators urging 
them to support the bill that is before us that we are required to get 
60 votes to even get to vote on that.
  The reason I cite that, not that it means every mayor is for it--I 
was not sure when I said mayors were for it, like Mayor Giuliani, where 
I picked two of I think the number one and number two largest cities in 
America with two Republican Mayors for this.
  If this is so bad, and they are only going to get, I heard--I think 
the rest of that ad goes, where Charlton Heston says 22,000 cops, that 
is less than one cop per precinct. I think they kind of know. I think 
that is what he says, is it not? One cop per department, not even 
  Let me ask you another question, Madam President. I remember the days 
when you were a mayor. Let us assume, which it is not, that it only was 
22,000 cops; would that not be a good thing to do for the cities and 
the States? If we want to pay for the entirety of the salary, we can 
get more than 22,000 because the average salary is $30,000.
  People here visiting Washington, once they go back home and live in 
any town under the size of 50,000 people, you go in and ask the police 
officers how much money they make and come back, or write me and tell 
me, anybody listening to this, how many of them make $70,000 a year. I 
want to know. I would like to know.
  So even if you take their silly calculation, which says we should pay 
everything for the cop's salary, if you look at the average salary, and 
I think we have to look at the average salary, even that would get you 
to something like 66,000 cops, or 50,000 cops. But this is what you 
call creative accounting --$70,000 per cop, with the Federal Government 
paying every penny of it, which was never done before, by the way.
  I want to emphasize again, for the $150 million supplemental that 
everybody in this body, to the best of my knowledge, pled for us and 
through the leadership, many people on this floor, we got to the 
appropriations process, and the supplemental appropriation for every 
one application they got, every one application they could fill 
responding to the problems of the States for new cops, where they have 
to put up 50 percent of the money, the localities, they got 10 
  So what does that tell you? Do you think when we put this money out 
and say we will give you 75,000 bucks as long as you match it, that we 
are not going to get people knocking down the door?
  When we pass this bill, God willing and the creek not rising, when we 
pass this bill, I am prepared to say to any Senator here, any State 
that does not want their share of this money that has to be matched, 
send it to Delaware. Send it to Delaware. I promise you, we will use 
it. Send it to my neighboring State of Pennsylvania, my home State, 
which I know well. I promise you, they will use it. Send it to New 
Jersey, my neighboring State, that I know well, where my wife is from. 
I promise you, they will use it. And I will feel safer because I live 
in a metropolitan area. I will live in a tri-State area. I live in the 
Delaware Valley. Anybody who does not want cops, then do not ask for 
them; send them my way. Send them to Philadelphia, Wilmington, Trenton, 
the area I live in. And my daughter will be safer, my wife will be 
safer, my mother will be safer, and I will be safer. And I will be 
  Now, Madam President, I hear so many of these astounding claims of 
what is not in this bill and what is in this bill.
  At least they stopped talking about midnight basketball. That was a 
saying. They liked that for awhile, until they found out it was George 
Bush's 247th point of light, and it was his idea; until they started 
looking at it and found out that this midnight basketball is going to 
get the jive folks--black, white, and Hispanic--who live in the inner 
city, who to try to see if they can be Michael Jordan; when they found 
out they were keeping schools open, so gangs could come off the street 
and instead of being out raping my mother, marauding me, robbing the 
local store, they are in a gymnasium, where the crime rates according 
to George Bush--in the program he spoke about, he estimated a 60 
percent reduction in crime. I do not believe that.
  But assume it is only 20 percent. Assume it is 10 percent. If we 
could reduce juvenile crime in the areas where we had these programs by 
10 percent, would we not, out of a multitrillion dollar budget, spend 
$40 million? I wonder how many people do not want it in their 
  Guess what? You do not just play basketball. You have to be involved. 
You have to be involved in sports. You have to be in school. You have 
to be in counseling. Whether you win or lose or draw, depending on what 
your grade-point average of your team is, whether you are involved in 
extra-curricular activities, kids who do not belong to anything, have 
no families, and join gangs for identity when they are very young have 
a different identity.
  My folks in here want to call fat putting Girls Clubs and Boys Clubs 
in public housing projects, where there is overwhelming evidence, 
empirical data, where you put a Boys Club in a public housing project 
and not one in another--the same public housing project, same 
demographics--crime drops 13 percent.
  This is not fiction, Madam President. This is how it has worked for 
the last 10 years. This is not rocket science, which I have said 20 
times on this floor. God bless my mother. My mother's expression--your 
mother probably had a similar expression and every one of our mothers 
did. My mother being Irish Catholic, going through schools with the 
nuns, as I did up to eighth grade, and then priests, my mother put it 
in semi-Biblical terms. My mother always said literally, not 
figuratively, when some kids get in trouble because the parents were 
not home or because they were not supervised or no one was watching, 
and I said, ``Mom, can I go over and play with Smitlap--`` I pick a 
name that hopefully no one has--``Can I go over and play with him?'' 
``No, no; those boys are just hanging on the corner together. They have 
nothing to do.'' I said, ``Mom, but I am not going to do anything 
  My mother would look at me, and I am sure Italian mothers and Polish 
mothers and every ethnic mother in the world has done this, and say, 
``Joey, remember, an idle mind is the Devil's workshop.'' Stated 
another way, ``If you ain't got nothing to do, you are going to get in 
  My friend from New Mexico has a truly enlightened program in this 
bill totalling $525 million. They are really good. I strongly support 
them, and I fought for them in there in this conference. One of them is 
$125 million for sporting and recreation equipment, meals, and initial 
physical examination and first aid and nutrition guidance.
  It is a good idea. Is that not the Senator's? Well it was a 
Republican proposal. I thought he cosponsored it. That was, I think, 
the Senator from Alaska's proposal on Olympic Development Centers. I 
think the Senator from New Mexico is a cosponsor, if I am not mistaken.
  Now, that is three times as much as midnight basketball. But what is 
it for? Sporting and recreation equipment, meals, an initial basic 
physical examination, first aid, and nutrition guidance.
  What is that? Is that pork or is that chicken or is that fish? Or is 
that what it really is, useful and real?
  Or the other one, $400 million for child-centered activities; $400 
million for supervised sports programs, work force preparation and, 
because it is Republican, entrepreneurship, tutorial and mentoring 
programs, sporting and recreational equipment, meals, an initial basic 
physical examination, first aid, and nutrition guidance--$400 million; 
10 times midnight basketball, 10 times.
  So my friend from New Mexico sponsored, as the chief sponsor or 
cosponsor, $500 million for physical examinations, $500 million for 
first aid, $500 million for nutrition guidance, $500 million for meals, 
$500 million for sporting and recreational equipment.
  I guess we are going to buy the best clubs. Rawlings, I used to like 
Rawlings. I played center field. My Walter Mitty dream was to be a 
professional ballplayer. I hope we are going to buy professional 
Rawlings gloves, not some of the cheap Spaulding gloves. And because I 
have not played for so long, the Spaulding gloves may be more expensive 
than the Rawlings gloves.
  What are we talking about here? This is politics. These are good 
programs. They are all designed to do the same thing, same principle--
give these kids something to say yes to. As the former First Lady used 
to say, she said, ``Just say no.'' What do they say yes to?
  Well, my friend from New Mexico, who is--and I am not being facetious 
when I say this. He is an expert on children. He has an incredible 
family. I mean, I truly do not feel like flattering him because he and 
I are in an argument now, but he has a number of children who are 
exceptionally talented. I mean that sincerely--doctors, lawyers, worked 
their way through school on scholarships, the best schools in America.
  How did they do it? By unconditional love, genetic inheritance, being 
bright, and guidance and supervision.
  Well, Mr. President, almost 30 percent of all the children born in 
America last year have no father and they are not likely to ever have a 
father. They are born out of wedlock, without any possibility of a 
father ever darkening their doorway. And they are born into poverty, 
because of a single mother. They need a little help.
  And my friend from New Mexico figured that out. Now, granted he might 
not like one of the other programs. He does not like the Chris Dodd 
portion of this program. I think that is the one he does not like. He 
will tell us which ones he does not like.
  But since when did he or any Republican somehow get a license on 
wisdom where their half billion on recreational equipment is not as 
good as the Democratic $40 million spent on basketball and tutoring? It 
is amazing to me around this place.
  Granted, he has more experience with children than I do, because he 
has had two or three times as many. But I am not a bad father, I do not 
think. It does not take a rocket scientist to figure out how to give a 
kid something to do.
  So I ask all of you who are listening on C-SPAN, is that what Bob 
Dole is talking about in writing in to your Congressman talking about 
pork? Why is Republican attempts to deal in this to help these children 
somehow not pork, but the Democratic attempts to do this is somehow 
this barbecued pork?
  It is poppycock is what it is. It is politics is what it is. It is 
partisan politics is what it is. It is gridlock is what it is.
  Well, what other little pork programs do we have over here that we 
can talk about?
  We have a Senator Dole-Senator Hatch pork program. But it is not 
pork, I might add. It happens, I agree it is a good program, I say to 
my friend from California. It is $100 million. Let me read what it 

       To develop and provide parenting classes to parents of at-
     risk youth, to develop and provide training in methods of 
     nonviolent dispute resolutions in youth of junior high school 
     and high school age, to establish sports mentoring and 
     coaching programs in which athletics serve as role models for 
     juveniles to teach that athletics provide a positive 
     alternative to drug and gang involvement.

  That is from my good, tough, nonpork-eating friend, Senator Dole.
  But midnight basketball, 2\1/2\ times less money than that, that is 
  Or we have $36 million for the Secretary of Housing and Urban 
Development, in consultation with the Attorney General, to enter into 
contracts with the Boys and Girls Clubs of America, to establish Boys 
and Girls Clubs in public housing, [and for] a report, that details, 
the effectiveness of the program in reducing drug abuse and gang 
  That is a Republican House provision, along with a Democratic House 
provision, a very solid provision.
  Is that pork?
  (Mr. MATHEWS assumed the chair.)
  Mr. BIDEN. I wonder how many of the men in here work as Scoutmasters, 
as Cub Scoutmasters, as Explorers, give their time to Little League, 
Pop Warner League, Babe Ruth League, provide their time and energy to 
raise money for Boys Clubs, Girls Clubs, YMCA's.
  Ask them why they do it? Is it because they just have a lot of time 
on their hands? Is it because they want to go back to their childhood? 
Is it because they just like spending other people's money, whether it 
is tax money or volunteer money? Is it because they are frustrated 
baseball players? Why do they do this?
  For the same reason the Federal Government is trying to help 
localities that do not have the money and do not have the fathers out 
there to do it. They do it because they know it helps the young boys. 
And the ones they try to get are who?
  Mr. President, you have been involved in every charitable 
organization in your State. Why did you raise all the money you did 
when you belonged to outfits like, and I do not know precisely which 
ones, but like Kiwanis or the chamber of commerce and all these other 
things? Why did you do that? You did it because you cared about that 
kid who is left alone. You cared about that kid that has nothing to do.
  Is this pork? Well, I can find some Democrats over here that will 
think Bob Dole's nonviolent dispute resolution is pork. I am going to 
have a hard time selling that one in Alabama.
  I am going to have a hard time selling that one in Alabama. I am 
going to have a hard time selling that one to some of my Democratic 
  But what is the legislating process all about? Since when did anybody 
get a monopoly on what is good for our children? When did that happen? 
When did it become a Republican monopoly, and Democrats know nothing 
about our children?
  I want to point out when I wrote the original bill that started this 
whole process, the so-called Biden crime bill that passed out of here 
that had the violation of the trust fund, about which the Senator from 
Utah stood up and said, as it was going out the door, ``Can we call it 
the Biden-Hatch bill?'' --do you know how I wrote that bill? I asked 
the police organizations in this Nation, the Fraternal Order of 
Police--give me the list, because I invited them all in before I wrote 
the bill.
  But I invited the police organizations in and I said, ``What do you 
need? You guys and women out in the street are getting the living devil 
beaten out of you.'' In the last 10 years we have increased the number 
of urban police by less than 1.1 percent, I say to my friend from 
California. They are getting beat up. They are putting their lives on 
the line for us and they are getting beat up.
  We needed to have a special bill passed through here, Mr. President, 
to allow enough money to let the FBI agents buy weapons as powerful as 
the drug cartels have. They are getting beat up.
  So I invited them in. I did not sit up in a room and write this. I 
did not go visit with the ACLU--which I have great respect for--and 
write it. I did not call a liberal confab and write it. I did not call 
Johnsonian liberals, if there are any still alive, and write it. I did 
not call any big society people and write it.
  I called the cops. And they sat in my office, at my conference table, 
the Fraternal Order of Police, Dewey Stokes and Don Oakhill, the 
National Association of Police Organizations, Mr. Skully and his 
executive assistant, the International Brotherhood of Police Officers, 
national sheriffs, International Association of Chiefs of Police, 
National Organization of Black Law Enforcement Executives, national 
troopers, major cities chiefs, International Union of Police 
Organizations, the Police Foundation, Police Executive Research Forum, 
and Federal law enforcement officers.
  I called them all and they came in and sat in my office and I said, 
``What do you need?''
  They said, ``The first thing we need is we need more cops.'' And they 
said, ``The second thing we need is we need more prisons.'' They did 
not raise the exclusionary rule. They did not talk about all these 
other things. And then they said something interesting to me. If anyone 
doubts this, go ask them. They said, ``We cannot do this job alone. You 
have to do something about changing attitudes. You have to do something 
about keeping these kids from getting into drugs and crime in the first 
place. You have to do something about strengthening the family, 
because''--how many times did we hear this phrase?--``we are at the end 
of the funnel. We are at the end of the funnel'' the police said.
  So I started asking them what works? And we went around the country 
and we listed, for illustrative purposes, this so-called ``Catalog of 
Hope,'' listing programs that the police, among others, told us about 
that in their communities work, that help reduce juvenile crime. We put 
together this whole book, the Judiciary Committee, majority staff--to 
be very blunt, I do not want anybody to take blame for it--me. And we 
listed them all--not all. We listed 180 programs the police told us 
about. Because, guess what they answer if you go home to your hometown 
and you ask the local police the following question. Say, ``I can give 
you 10 more cops or I can give you 5 more squad cars, or I can give you 
more weapons, or I can put in this community five drug rehab programs. 
I can put in this community major recreational activities to take kids 
off the street at night.'' Go home and ask your cops--not your social 
workers, cops--which they prefer. And come back to me and tell me if 
they do not say, given the choice, ``I want those drug rehab centers. I 
want those facilities that take kids off the street. I want something 
to keep kids in school.'' Because what do we do? We give the police and 
the schoolteachers remnants of the problems that parents do not solve 
because of the breakdown of the American family.
  So, this pork everybody talks about, this thing they talk about--not 
only do they have their pork in it, but in there are things that the 
law enforcement communities of our States and cities talk about.
  I am going to say something outrageous. I do not think there is 
anybody in here--there are many people in here have as good a 
relationship--but I defy anybody in here to show me they have a better 
relationship with the police organizations of this country --who, I 
might add, for the last decade have uniformly endorsed this--I am 
characterized as a wide-eyed liberal Johnsonian Democrat.
  Why do they endorse me if I am such a whacko liberal who put this 
together? Because I listen to them. They told me what they needed. I 
may be wrong about what is in here. They may be wrong. But let us make 
it clear the bill that went out of here with billions of dollars worth 
of prevention programs that 94 of you voted for, that money got in 
there not by speaking to any social scientist, not by speaking to any 
social worker, that went out of here because I spoke to the police. I 
spoke to the prison officials who run the prisons.
  How many of you have been in as many prisons as I have--as a visitor, 
I might add? How many of you have been out there and talked to as many 
cops? I suspect the one person, many have, but I know the Senator from 
California has. Probably more than I have. They say they want cops, 
they say they want guns, they say they want equipment, they say that 
want more jails, they say they want tougher sentences. But they also 
say that will not do it. They need some help in the community called 
prevention. Like what my friend from New Mexico wanted to spend a half 
a billion dollars on. Like my friend from Utah, who wanted to spend 
hundreds of millions of dollars on. That is what they want. And I hear 
this pablum about, ``Well, if you pass this bill you are going to get 
more social workers than you will police.''
  Do they not realize--maybe I am wrong. Do they not realize people are 
smarter than that? They know this is malarkey. It is so discouraging. 
It is so discouraging.
  I did an interview on this the other day and somebody said to me--a 
well-known reporter said, ``Boy, you sure are angry.'' The one thing we 
are all told when we enter public life is never get angry. It is not 
becoming of a leader to be angry.
  I must tell you, though, I have never been as frustrated in my whole 
life--never been as frustrated in my whole life, to come this close 
after 6 years of working with every police organization in this Nation, 
putting together a bill they have endorsed every time, to be stopped by 
the NRA and politics.
  I want my friends--because I am going to yield the floor and they can 
have the next 5 hours, and tomorrow they can have another 5 hours. I 
want them to answer: Why is Senator Domenici's program not pork and 
Senator Dodd's program is pork? Why is Senator Bradley's program pork 
and Senator Dole's program, to have parenting classes and conflict 
resolution classes, not pork?
  Why is that? Why is it that when the cops tell us what they need, we 
do not pay attention to them? I know, one of my colleagues on the floor 
last year, when this was being debated, said, ``Of course, the cops 
want it. All they want is money.'' That is what he said, ``All they 
want is money. Biden has bought them out.''
  Well, go out and ride in squad cars with them. Go up that two-story, 
three-story walk up, to that family feud that is going on. Pull over 
that car on the New Jersey Turnpike or on a California freeway at night 
and not be sure when that person rolls down the window they are not 
going to put a Mack-9 in your head and blow you away. These women and 
men put their lives on the line for us.
  Why is it that when we pass a major banking bill everybody knows we 
have a compromise? Everybody knows when you reorganize the banking 
institutions of America, you are going to have compromise. We are going 
to have a big bill that is either thick as this or thick as that 
because it is complicated stuff that you are going to compromise on.
  As my mother would say, where does it say in fine print that nothing 
can pass unless you agree with 100 percent of it? Where does it say 
that? I am not talking about fundamental principles.
  I see my friend who has spoken on this bill at some length, 
rightfully so. Senator Wellstone is here. There are a lot of parts of 
this bill he does not like on principle, and I admire him for it. But 
he fought like the devil to get in this bill money to protect women. He 
fought like the devil to get in this bill places where mothers and 
fathers who literally beat each other up and cannot even exchange their 
children in a divorce settlement when it comes time for visitation, 
where a child will have a safe place to be. Is he out here saying, 
``You didn't do it all my way, therefore, you don't get any of it''? 
Why is it that this is the only bill that we get to and people do that?
  I want to give you a clue as to why I think why, and I admit, I have 
no data to support this. I have data to support other things I just 
said, but I have no data to support what I am about to say. But let me 
tell you what I think.
  I think it is because crime is very important to the American people 
and dealing with it is very important to the American people. And I 
think it is because--I am not speaking of my two colleagues on the 
floor, I am speaking about this generically--I think it is because for 
the first time, the American people are over what sort of got laid in 
stone during the Nixon era: The Democrats were soft on crime and 
Republicans were tough on crime.
  Just like during the seventies, I think the Democrats unfairly said: 
``The Republicans don't like Social Security and we love it.'' Social 
Security was automatically--all through the thirties and forties, 
during the thirties and forties the Republicans opposed it, it was easy 
to make the public believe when you would stand there in 1975 and say, 
``You know, if you elect that Republican, you're going to lose your 
Social Security.''
  Some Democrats said that, and some of the Republicans they pointed to 
were as committed to Social Security as any Democrat was. But because 
the Republican Party historically had been against Social Security, it 
was an easy hit, it was a cheap shot and it had some resonance out 
  Just like when I first got into politics, even though I come from 
this background and ran on a law and order platform, I remember the 
liberals used to say, ``Biden is an iconoclast.'' That was what my 
newspaper called me, an iconoclast because how can he really be 
progressive and want to lock these people up? I am sure my friend from 
California gets hit with that all the time. How can you be a 
progressive and be tough on crime?
  I was not wedded to the notion. Every time Richard Nixon, when he was 
running in 1972, would say law and order, the Democratic match or 
response was law and order with justice, whatever that meant. And I 
would say, ``Lock the SOB's up.''
  Just as it is no longer legitimate to say the Republican Party is 
against, as a matter of course, Social Security, the Republicans are 
finding out it is no longer legitimate to say the Democrats are soft on 
crime. Because guess what? What has every major crime bill that has 
gotten this far been? A Democratic crime bill. A Democratic crime bill. 
That is the secret. A Democratic crime bill. A Democratic President 
wants 100,000 cops. A Democratic President wants to build 125,000 new 
prison cells. That is the secret. And, boy, is that bothersome.
  I do not care whether this is a Democratic crime bill or Republican. 
I really thought it was a bipartisan crime bill. I really thought 
Senator Hatch signed on. I really thought we had a bipartisan approach 
to this because I heard all these speeches. Why was it OK to vote 95-4 
for a bill that had 23 percent of its money in prevention and then they 
require us to get 60 votes to vote for another bill that has 23 percent 
of its money in prevention, with an extra year added on? Geez. I am 
sure there are parts of this bill, if they are voted on individually, 
my colleagues would want to vote against.
  I told you the ones I want to vote against. I will do all in my 
power--which probably will not be enough--to stop this crazy notion 
that you can let accusations into a trial. That is in this bill. I have 
to acknowledge that. It is in the bill. I hate it. It offends me. It 
offends my sense of what the Constitution is about. I hate some of the 
provisions in this bill. But guess what? This bill is a big bill. It 
does things that cops wanted done. Not everything they wanted done, but 
I do not know anything here that is done that they did not want done. 
Maybe something.
  Mr. President, this bill, this bill here is imperfect, and it is 
imperfect. I think it is imperfect. If we pass this bill, a year from 
now, there will be scores of women who are not raped that would have 
been raped. There will be anywhere from 10,000 to 20,000 violent 
criminals who were not in jail last year that will be in jail next 
year. There are thousands of children who might have gone the route of 
drugs that may be playing basketball or in Senator Domenici's program, 
being mentored by a caring, nurturing adult. There are, over the period 
of time of this bill--how many people will get in in the first year of 
the drug courts, would you guess? One hundred thousand kids, young 
people who today are arrested and convicted for drugs that are now 
walking the streets accidents waiting to happen, who will be subject to 
random drug testing, who will be subject to drug rehabilitation, and if 
they do not do that, they go to jail. Now they are just walking the 
street, accidents waiting to happen.
  There will be women in this country who will be able to take that 
vicious person they live with, if that is the case, and put him in 
jail. There will be thousands of women in this country who have been 
victimized by so-called domestic violence who will be able to take that 
person to Federal court and sue them and take their car and take their 
house and take their bank account and have their freedom.
  Will it stop crime? No. Will it end it? No. Because one thing 
conservatives and Democrats agree upon, until we end the Nation's 
appetite for drugs, there will be drugs. Until we rebuild the American 
family, not as a Government but within the family, our churches, our 
neighborhoods, our communities, we will not have children who do 
anything other than lack an identity, lack a sense of self-worth. Until 
we better our education so we have fewer illiterate people, we will not 
have a more wholesome environment in which to live. Until we let those 
200,000 people out of jail last year addicted to drugs as they walk out 
of the jail after serving their time, until we make a dent in the 
number of them that are in fact still addicted, they will on average 
commit 154 crimes each over a period of a year.

  Mr. President, I hesitate to say this because this should not be the 
reason to pass it, but it is a way of explaining my frustration. I have 
never worked on anything so hard in my entire life. I have never been 
more committed to something I truly believe can make a difference in 
the lives of average Americans. I have never cared so much about 
anything than the violence against women legislation that is in this 
bill to change attitudes about how we treat women in this country in my 
whole life.
  I may be wrong. There may be a better way. There may be wasteful 
money. There will be money wasted in this bill. Name me any endeavor, 
any company, any family, any undertaking that deals with 250 million or 
anything approaching that--250 people, not million--where there is not 
some ability to point out some waste.
  But, my Lord, are we going to deny because of some procedural, mildly 
disingenuous effort to require 60 votes when we are literally on the 
threshold--if we were able to vote on this tonight, requiring just a 
majority, just on the bill, we would pass this bill overwhelmingly and 
by tomorrow the bill would be on the President's desk. It would be law. 
And by Christmastime applications would have come in, new police would 
be recruited in the cities, in the States, in the counties, new prison 
construction would begin.
  But, no, they are probably going to kill this bill, Mr. President. 
They are probably going to kill it. If I had to tell you right now, as 
best I count, I am at least a vote away. And you know how this place 
works. That could end up being four votes if it looks like it is going 
to pass and losing by four votes if it looks like it is going to fail. 
And you know what that means.
  Let no one make any mistake about it. I challenge anyone to stand on 
this floor and with a straight face say they believe in their heart, 
not that it is possible but that it is probable if we turn this bill 
down that there is any possibility that this calendar year we will have 
not only not 100,000, even if you take Moses' proposal, ``Moses'' 
Heston, 22,000, 2,000, 1 additional cop on the street funded by Federal 
  Does anybody believe that? Look, we are all grown women and men in 
this body. We did not get here--we were not hatched here. We did not 
get dropped out of the ether to get here. We are very different. We 
have very different perspectives on lives, on families, on histories, 
on what is right and what is wrong.
  But nobody can tell me, nobody can tell me that they believe if we do 
not waive the point of order that anything, not only meaningful, 
anything even marginal will get done for another entire year, because 
the Senator from Maryland knows we come back and it is a brand-new 
Congress next year. Were I up for reelection, I might not come back. 
Maybe my voters could conclude they are tired of me. They may conclude 
in 2 years they are. But it will be a different Senate. It will be a 
different Congress. Maybe my friend from Utah will be the chairman of 
the committee because maybe the Republicans will take over the 
committee, and then they will try it their way. Maybe. But at least it 
is going to take a whole additional year.
  So I hear this sort of plaintive plea, give us a chance just to make 
it a little bit better, just a little bit better. Just give us that 
chance. That is all we want to do, just a little bit better.
  Do you know what this is kind of like? It is kind of like negotiating 
a contract for baseball. We got all the different teams and--I do not 
know how many--players in baseball, and every one of them had their say 
what the contract should be between the owners and the players. They 
spend 6 years negotiating it. They go through all the hurdles, get down 
to the last point, and 41 of them say, ``Let's reopen this. I just want 
to make a few little changes. That's all. Just a few.'' As if, by 
making any one of those changes, that will not set a whole series of 
dominoes in place and have all baseball teams, all the players back at 
the bargaining table right where they started.
  That is what this is, Mr. President. I do not doubt the sincerity of 
my friends about their willingness to have some of the--I do not doubt 
some of the sincerity, for example, in truth in sentencing.
  I doubt the sincerity. They voted against it in the conference. That 
I doubt. But of the other amendments I have seen, I do not doubt their 
sincerity. I do not doubt the sincerity, honesty or integrity of my 
friend from Utah, who would like to see to it that the Senator from 
California does not prevail on her desire to get military-style assault 
weapons off the street not because he wants to see people shot, because 
he does not believe that causes people to die and he believes it is a 
violation of the second amendment and he believes it does not work.
  I believe in his sincerity, but we have been up and down that hill 
scores of times and now we are just about to reach the pinnacle and 
they say, ``Wait. Time out. Time out. Let's start all over. We want to 
go back and try again this thing that was down here at the base 
mountain lodge. We want to renegotiate that. So climb down off that 
mountain now, come back down here in the beginning and let us decide 
which kind of equipment we are going to use to climb the mountain.''
  I do not doubt his sincerity on the merits of what is in the bill. 
But I tell you, this is not the way that we should work for the 
American people. Let me remind everybody in this body that 6 years ago, 
5 years ago, 4 years ago, 3 years ago, 2 years ago, the core bill the 
Senator from Delaware wrote, which had the input from all of you--it 
was not my bill. I was not the original author. I am just the guy that 
put it all together because I have talked to all of you for so many 
years on this. Some were my personal ideas; most were your ideas, 
Democrats and Republicans. But I put this bill together, or bills like 
it, and guess what? I always get them passed out of here the first 
time. They have always gotten to passing the House--changed. I have 
always gotten them to conference. I have always worked out that 
haggling between the House and the Senate, 435 Democrats and 
Republicans over there, 100 Democrats and Republicans here, worked that 
out. Then we have gotten it back to the House and the House has said 
OK--close votes--we will go for it.
  Then I literally go home and I say to my sons, ``I did it. I did it. 
It's almost there.'' And then it gets mugged right about the doorway 
here. What does it get mugged by? It gets mugged by the NRA, who I have 
always underestimated.
  Let me tell you--and I mean this sincerely--I have an incredible 
amount of regard for their prowess. And they are totally entitled to do 
what they do. But I never thought I would see a multimillion-dollar NRA 
campaign on television never mentioning guns. They have gotten smart. 
They know the American people do not agree with them on guns. They know 
the American people think we should have a right to own weapons. They 
know the American people think the second amendment means something. 
But they know the American people think they are kind of crazy in some 
of their stands like the one on assault weapons.
  So they do not argue about guns anymore. They argue about pork or 
liberalism or socialism. I do not know what else they are going to 
argue about. They will probably argue about what school you went to, 
before it is all over.
  Mr. SARBANES. Will the Senator yield for a question?
  Mr. BIDEN. I will.
  Mr. SARBANES. On this issue of pork, which is the prevention money--
they say that is pork--I would like to ask the Senator this question. 
Is the money to fund the Violence Against Women Act part of the 
category of prevention that is being labeled as pork?
  Mr. BIDEN. Yes.
  Mr. SARBANES. In fact, it is 30 percent of the total, is it not?
  Mr. BIDEN. Yes, $1.6 billion worth, for battered women's shelters, 
lighting in parking lots, lighting in bus stops. I mean, yes.
  Mr. SARBANES. This I think demonstrates--I think the Senator has made 
an extraordinarily powerful statement on this bill. I must commend the 
Senator for the tremendous work he is doing.
  But is not almost 80 percent of the money in this bill for law 
enforcement and prisons?
  Mr. BIDEN. Yes; I say yes. Excuse me--77 percent.
  Mr. SARBANES. Is for law enforcement?
  Mr. BIDEN. Prisons and cops.
  Mr. SARBANES. Another 3 percent is for drug enforcement.
  Mr. BIDEN. That is right.
  Mr. SARBANES. Twenty percent is for prevention.
  Mr. BIDEN. That is right.
  Mr. SARBANES. The prevention money, a huge chunk of the prevention 
money, is to fund the Violence Against Women Act. Is that correct?
  Mr. BIDEN. Yes, $1.6 billion out of $6 billion is for the Violence 
Against Women Act.
  Mr. SARBANES. Another large chunk of it, as I understand it, is for 
the Local Partnership Act, a lot of which will be used for drug 
treatment and drug education.
  Mr. BIDEN. That is correct.
  Mr. SARBANES. That is another $1.6 billion. Is that correct?
  Mr. BIDEN. That is correct.
  Mr. SARBANES. Another part of it, as I understand it--I ask the 
distinguished chairman this--is in excess of about $800 million to 
create safe havens at our schools and to have school-based programs to 
try to provide young kids with a safe place to go when they live in a 
dangerous neighborhood?
  Mr. BIDEN. I say to my friend $810 million. That is sponsored by--it 
is called the Child Centered Activities--Senators Bradley, Dodd, 
Danforth, and Domenici.
  Mr. SARBANES. Let me ask a further question: Is not almost about $400 
million of this, which would represent about 7 percent of the money, to 
provide drug treatment for prisoners in Federal and State prisons who 
have a drug habit, and you want to get them over the drug habit before 
you put them out in the community so they do not go out in the 
community with a drug habit and end up committing crimes to sustain 
their drug habit and go back into prison again? Is that not also under 
what is called prevention money?
  Mr. BIDEN. I say to my friend it is. Make sure you emphasize that 
they do not get out of jail a day earlier. This is drug prevention. The 
implication is that with this drug treatment program, you are letting 
these folks out of jail. They are in jail. They are behind bars going 
through this drug treatment.
  Do you know what we found out? We found out it took us a while--
``we'' meaning the academic, the professional community, and the 
medical community--that the success rate for, if you will, forced drug 
treatment, that is, going to prison and taking drug treatment, and 
voluntary drug treatment where the person raises their hand and says, 
``Please help me, I want treatment,'' is essentially the same.
  Mr. SARBANES. Is there not also money in this bill to get at youth 
gangs, to try to address youth gangs in a way that will shift these 
young people off of a path that is taking them down the road to crime 
and violence and get them on a more positive path? Is that not also 
part of this legislation?
  Mr. BIDEN. Yes. It is now, because a number of my colleagues raised 
issues about too many individual programs, it is now part of a $300 
million-plus block grant program.
  Mr. SARBANES. To the local government.
  Mr. BIDEN. To the local government so they can utilize it for that 
purpose and the other purposes that are named in that act, which are 
parts of other programs I expect the Senator is going to mention.
  Mr. SARBANES. They can be used as they choose at the local level. Is 
that is right?
  Mr. BIDEN. That is correct.
  Mr. SARBANES. As long as they stay within the parameters of the 
various programs.
  Mr. BIDEN. That is correct.
  Mr. DOMENICI. Mr. President, I wonder if you might call on the same 
approach you did when we asked questions. I have been waiting 2 hours 
now. The Senator will not yield for a question for anything. I do not 
want to ask a question. I am wondering whether I will be able to speak 
before the night is over.
  Mr. SARBANES. I say to the Senator I did not realize he had been 
waiting here for 2 hours. I just came to the floor. I really wanted to 
press an elaboration from the distinguished chairman of the committee 
about what is in this legislation. It is important, I think, to 
identify these very important programs that are under the category of 
prevention, which I think anyone across the country looking at them 
would regard as highly desirable programs.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. SARBANES. The Senator is entitled to speak at length. He has 
worked his heart out on this legislation over the years.
  Mr. BIDEN. The Senator from New Mexico makes a valid point. I 
acknowledge that I feel very strongly about it. I acknowledge that my 
frustration is intense. And it probably should not be. The first year 
it was not. The third year it was not. The fourth year it became so, 
and the sixth year it is.
  So I think in fairness to my friend from New Mexico, although we are 
going to have a lot of days to debate this, I will yield the floor to 
my friend from New Mexico and tell him that I expect we are going to 
debate this tomorrow, and the next day as well, and maybe the next day, 
and that I had committed to do a program on this very subject in a 
location that requires me to catch a train at 8 o'clock in order to get 
to the location to be on a program to debate this issue with one of my 
colleagues on the floor here, I believe, at 11:30 tonight.
  So I will yield the floor in this moment and suggest that I will come 
back to the floor any time my colleague from New Mexico, or anybody 
else, wishes me to answer any questions that they would like to ask me 
about my views on this bill.
  Let me merely conclude by suggesting to the floor the obvious. There 
is a lot of disagreement about this bill. This is the most far-
reaching, significant piece of anticrime legislation that has ever been 
offered. There is disagreement on all of the pieces of it. If there was 
agreement--I thought to finally end it--between liberals and 
conservatives, liberals saying the only thing that makes a difference 
is prevention, the conservatives saying the only thing that makes a 
difference is law enforcement, and the recognition of what most of the 
American people recognize, that we have to be able to walk and chew gum 
at the same time.
  We have to use enforcement, toughened penalties, and prevention. And 
we may disagree about whether our idea of community policing is the 
best way to spend the policing money. We may disagree whether or not we 
should put more money in Federal police and less in local police. We 
may disagree whether Senator Domenici's prevention programs that he 
sponsored or cosponsored are better or worse than the programs of the 
distinguished gentleman from the State of Michigan, Mr. Conyers, in the 
House of Representatives.
  But I hope we do not have any disagreement anymore that spending 
roughly 20 to 25 percent of the money we have on prevention is a 
worthwhile thing to do.
  I thank my colleagues for their patience and indulgence. I expect, 
because I do not know that I have 60 votes, we will be back doing this 
  I would be delighted now to yield the floor. I yield the floor to 
whomever seeks recognition.
  Mrs. FEINSTEIN. Will the Senator from New Mexico permit me to make 
one comment?
  Mr. DOMENICI. Certainly.
  Mrs. FEINSTEIN. I appreciate that very much.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I have been in this body a short time. 
I have been a mayor for a long time. I have worked with people on the 
streets. I have worked with kids. I have worked with criminals, and I 
have attended a lot of funerals.
  I have never in my time in this body heard a finer speech or a speech 
that was more real. And I just want the Senator from Delaware to know 
that, and to know that I think any mayor in this Nation that was 
listening to his speech knew it was an absolute 10, and absolutely 
correct. And I thank him.
  Mr. DOMENICI. Mr. President, Senator Biden, did I understand that you 
were going to have to leave shortly? I do not want you to stay. I was 
invited to the same event.
  Mr. BIDEN. I thought you and I were going to be debating on this 
program tonight.
  Mr. DOMENICI. I decided I would stay here. My wife called me a while 
ago and gave me advice about tonight, and I will share that with you. I 
am not going to be on that program, but somebody is going to be. I am 
still sure you have to be.
  Mr. BIDEN. I am relieved that you are not going to be, because you 
are a little too formidable for this debate. So I am delighted. I hope 
it is not Senator Hatch that is going to be on.
  Mr. DOMENICI. I do not think it is him, either.
  Mr. BIDEN. I thank you, and I give you my word that I will be back 
tomorrow, and any time, as long as you want me to answer any questions.
  (By unanimous consent the following remarks of Mr. Mitchell, though 
given earlier, appear at this point in the Record.)
  Mr. MITCHELL. Madam President, it is clear that we will not resolve 
this matter this evening. Discussions are continuing. Accordingly, 
there will be no rollcall votes today. Debate will continue for as long 
as the Senators wish to debate the matter. And we will return to the 
matter on the Senate floor tomorrow.
  I thank my colleague for his courtesy.
  Mr. DOMENICI. The only thing I regret is because I feel I ought to 
answer the questions on the point of order and you will not be here. 
Obviously, we will have more time to discuss that. I want to speak a 
little bit tonight in Senator Biden's absence. Let me say it is quite 
obvious that he is very sincere about this bill. It is quite obvious 
that in his own way, he painted one picture of the issue before the 
Senate. I do not believe that is the only approach to discussing with 
the Senators and the people what is the issue. I will choose, in the 
next 15 or 20 minutes--no more than that--to describe it the way I see 
  First, I firmly believe, contrary to my friend from Delaware, that we 
will get a crime bill. Second, I do not believe the Republicans who 
want to have an opportunity to amend this bill see it as a means of 
killing the crime bill. I have been at a Republican conference just 
this day for 2 hours, and I heard not one single comment about killing 
this bill.
  Third, just so everybody understands the lay of the field, House 
Members ultimately--and a very small number from our party, from the 
Republican Party--got to amend a conference report. As a matter of 
fact, they worked all these hours that my good friend from Delaware was 
talking about to get a conference report amended.
  Now, the entire argument tonight has been that we should not amend 
it, and that if we do amend it, it is dead. Frankly, I do not believe 
anyone in this country ought to believe that. Republican Senators, in 
spite of what was said about Senator Hatch's attendance at these 
meetings, had nothing to say or nothing to do about amending a crime 
bill. And the crime bill conference report had not even passed the 
Senate yet. We were going to pass on a bill that a set of conferees 
changed dramatically over what our bill was when it passed here.
  So I do not want anybody to think that in supporting our Republican 
leader and telling him in that letter that is in the Record that we 
hope he will approach the Democrat leader and ask for an opportunity to 
offer some real amendments, I do not think anybody ought to believe 
that that is going to kill this bill. There are plenty of powerful 
people, including most Republicans, who want a crime bill.
  I will make one other comment. On three different occasions, and 
again tonight, I heard my friend from Delaware talk about guns. He 
repeated it in his own way, the way only he can do. I do not believe 
guns is the issue in the U.S. Senate, and I believe before we are 
finished, we will show you that it is not. I mean, there is nothing we 
can do except tell you that it is not part of it. It is not listed in 
any of the amendments that we intend to offer. Nonetheless, to find a 
way to describe us in some manner that takes from us any reason that we 
might have to offer amendments, and ask that we be permitted to, and 
make that appear to be something that will kill this crime bill and my 
good friend Senator Biden's 6 years of effort, is overstating the case.
  Mr. President, let me talk tomorrow on pork. I will be glad to come 
down and talk in detail about pork tomorrow. But I am going to talk 
generally tonight about this idea called a point of order. The Budget 
Act point of order lies against this conference report, and while it 
will be described, as was described again tonight, as a procedural 
point of order, with no basis other than the fact that this legislation 
was not reported from the Budget Committee, let me just suggest that it 
is far more than procedural. It may be founded on procedure, but in 
this case, when we were on the floor, I say to the Republican leader--
and this Senator is very pleased that everybody on the other side 
called me an expert when I was on their side for something; that is 
very nice, and I appreciate that very much, as I know a little about 
the budget. But the truth of the matter is that I said let us waive the 
budget point of order under some very, very rigid circumstances. 
Anybody who thinks the point of order has not been used on that side of 
the aisle to defeat important legislation that we had on this side of 
the aisle, under the guise of procedure, let me just tell you one.
  One day not too long ago, the Senator from New Mexico, with Senator 
Nunn from Georgia, offered a very, very important amendment. In fact, 
if that amendment was adopted, the defense programs of this Nation 
would not be in the condition they are this year and next year and the 
year after, because we decided to offer a budget amendment that said 
there will be a wall between defense spending and all other spending, 
and once you set the number, you cannot steal from defense to pay for 
other things. It is called a wall. Guess how many votes we got when the 
point of order was raised that that had not gone to the Budget 
Committee? Do you have any idea? It was 58.
  So speaking of simple majorities winning things, we lost that because 
we could not get 60 votes. Frankly, I did not come to the floor and 
say: We just defeated America's defense posture for the next decade. I 
stated my case as forthrightly as I could, and I know I have the votes, 
but I do not have the votes to defeat the point of order. It was raised 
by the chairman of the Budget Committee, and it became a very, very 
important issue.
  Some 5\1/2\ months ago, on this floor, the history of this point of 
order is very, very simple. Literally, I walked in that door, right in 
here, to say to my good friend, Senator Biden: Senator Biden, you have 
another crime bill, the same old promises, and no money to pay for it. 
And there was no money to pay for it. Another big hoax, with all of 
these promises, just authorizing, but no money.
  About the time I said that, Senator Byrd walked onto the floor and 
Senator Biden said, ``Aha, here comes Senator Byrd. He will provide the 
money.'' And he had this very unusual trust fund concept. But let me 
make sure that everybody understands that then and there, that day, if 
any Senator did not think the crime bill was a good bill, they could 
raise the point of order. None chose to, because they thought that bill 
and that process was good enough for them.
  What we are saying now to our leader is what came back out of this 
conference is not good enough to waive the point of order, and some of 
us will raise it. There should be no concern on that side of the aisle, 
unless there are 41 votes on this side of the aisle.
  It just happens that from nobody opposing it on the point of order 
there is a ground swell on our side to oppose it.
  Now, what is different about the crime bill that we between Democrat 
and Republican budget-knowledgeable Senators and Senators not so 
knowledgeable now than when we said OK? Let me make the case as simply 
as I can and hopefully with no budgetese in it. I will try.
  First, the bill only covered 1995, 1996, 1997, and 1998. It stopped 
in 1998, and it provided $22 billion of money that only could be used 
for the crime bill.
  So everybody will know, it took the money out of all of the accounts 
of Government by reducing what we had to spend in each of the ensuing 
years of 1995, 1996, 1997, and 1998. We literally took $22 billion out 
and said you cannot spend it anywhere else but here.
  So in one swoop we lowered the amount of money available to spend on 
Government. It had not one single dollar effect on the deficit because 
what we spend here we did not spend anywhere else, and it was 
prohibited that it be spent anywhere else. So it was totally budget 
neutral for the American people. It would not add one penny to the 
deficit. So whatever you spend it for not one penny to the deficit, 22 
billion dollars' worth.
  Now, the second point, and this does go to the issue of what was in 
the bill, and quickly I will tell you what was in the bill that is not 
in the bill now. We are talking about pork. I do not like the word, but 
let us use it because everyone is using it. That Senate bill had $3.6 
billion in prevention. The bill before us has $7 billion, almost 
double. That is a big difference. Anybody that thought you could waive 
the budget point of order the first time may look at this and say why 
should I do it now; I am waiving the Budget Act on a bill that has $7 
billion in preventive spending when the one I voted for in the Senate 
only had $3.6 billion. That is a pretty big reason.
  Second, and equally as important, this new trust fund is not for 4 
years. It is for 6 years. And guess what? The $13 billion is spent in 
the years 1999 and 2000 and, yes, there is no assurance that it will 
not increase the deficit. As a matter of fact, that $13 billion has no 
caps on it. We can spend an additional $13 billion on it and increase 
the deficit and there is nothing prohibiting us from doing that.
  So I would say it is $3 billion more in prevention spending, and it 
is $13 billion more in deficit spending, and that is enough for one 
Senator, for two Senators, or for 41 Senators to decide they change 
their mind.
  That is plenty of grounds for anybody in this body to change their 
mind on the point of order, and frankly, if the leader had not offered 
to here are some amendments, let us strike a unanimous consent 
agreement, this bill could fall because 41 Senators might think there 
is too big a change in the bill to justify waiving the point of order 
  That is as best I can say. I do not have the blood in this bill that 
my friend from Delaware has, but I believe we ought to do something 
major in crime. I believe we will. And I misspoke. I said there was no 
nothing in the amendment list that had to do with assault weapons. I 
understand it is listed and to that extent on the 13 numbered items it 
is in there. I still maintain my position that it is not going to end 
up being the issue those people can say it is, but it is not.
  So in closing, Senator Biden raised so many issues that it is 
impossible for me to address tonight, but let us just get it straight 
with reference to the point of order.
  The point of order will lie unless 60 Senators decide they do not 
want it to lie. Yes, it can be raised at any time on a conference 
report, on anything, even if you have waived it one time before. That 
is not the issue.
  The issue is, are we justified in raising it now? And the answer I 
give is ``yes.'' Points of order have been raised for far less than 
this in terms of real dollars. The $13 billion in the last 2 years of 
this trust fund are not guaranteed in terms of not adding money to the 
deficit. What we passed here was absolutely deficit neutral.
  Second, the prevention programs have gone up $3 billion in this bill 
versus what we decided here that we would not raise the point of order 
  So, I only rise tonight because in this respect I have been quoted 
all day long on the floor about the exchange with Senator Byrd 
regarding this trust fund, and I said what I said then, and I am saying 
what I am saying tonight. I believe that I am totally justified in 
saying to the Senate the first time through, well, as far as I am 
concerned let us do not have the point of order. That did not mean we 
had to do that. Senator Warner could have raised it. Anybody could have 
raised it.
  Now with a bill that is substantially different to stand up and say 
Senators like Domenici helped us get this trust fund through, he ought 
to be for it now and not be talking about a point of order, unless 
someone is really saying I have some other motives, and frankly my 
motive is very simple. I believe we can amend this bill, take some 
money out on the expenditure side, and do not choose my program over 
others, just reduce the dollar amount and cut any program you want, put 
it back to the size it was when it left the Senate and in terms of the 
2 years 1999 and 2000, I do not know what you can do about it.
  But one might come to the floor and say I will raise a point of order 
unless you put the trust fund back to 4 years and $22 billion, which is 
what we really agreed to. We had that money to spend it and it would 
not break the budget. That would be a pretty logical approach. And if 
someone said, why do not you do that, Senator Domenici, since you 
agreed to that kind of approach the first time through, and frankly 
because I do not want to kill the bill.
  I want a crime bill. I believe we ought to have an opportunity to 
make amendments, and I think we will come up with a list of amendments 
that are not unreasonable, and I believe before we are finished with 
that, in spite of the impassioned plea of my good friend from Delaware 
about what is in this bill, that we will be able to say this is a great 
deal, we are passing the Senate, for all intents and purposes it is the 
best we ever have passed, and it will not necessarily be exactly the 
one that came out of the second conference through the nights 2 or 3 
days ago with a few House Members from each party and no Republican 
Senators, who had a lot to do with putting the bill together here, and 
I might say as much as any Senators in terms of getting the budget 
point of order out of the way.
  I believe this Senator had as much to do about that as anyone. I do 
not think Senator Byrd could necessarily got that through if some of us 
on our side said ``no, it violates the Budget Act. ''
  So, to accuse me of not wanting a bill now or trying to do something 
that will kill it is certainly misinterpreting my intentions, and I say 
that very forthrightly. I believe we need an opportunity to be 
reasonable in some amendments and we will pass a good bill and, lo and 
behold, the House will pass it, too.
  Mr. WARNER. Mr. President, will the Senator yield for a question?
  Mr. DOMENICI. I am pleased to.
  Mr. MITCHELL addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. WARNER. Mr. President, the Senator yielded for a question.
  Mr. MITCHELL. I thought the Senator yielded the floor.
  Mr. DOMENICI. No. I said nothing. He asked me if I would yield for a 
  Mr. WARNER. Mr. President, I will be very brief seeing the majority 
leader here. But I have worked throughout the day with the 
distinguished colleague from New Mexico, and I share his optimism that 
this Chamber can work together in a bipartisan way such as to fashion a 
  Early today I made reference to the fact that the President 
telephoned me last night. I was very pleased and indeed privileged to 
get that call. He is our President, and I am happy to work with him. I 
took it as a very constructive call. He was convivial and conciliatory.
  I felt today in the course of our conference rather than go into an 
immediate confrontation on the point of order that we would at least 
assemble and show our support for our leader in an effort to negotiate 
some package of amendments which would, as the Senator from New Mexico 
said, reduce the dollar amount and also strengthen some of those 
provisions that this Chamber adopted and incorporated in its own bill.
  That was the purpose of my joining with the distinguished Republican 
leader, the ranking member of the Judiciary Committee, and the Senator 
from New Mexico, and others, today in trying to bring about this 
  But my question is, Do you know of any reason why this Chamber cannot 
work its will in a manner comparable to the manner in which the House 
of Representatives worked its will?
  Should we deprive ourselves of the same rights--and indeed both 
bodies, in many respects, are coequal in their responsibilities--to 
work on this conference report in the same manner that the House did?
  That was the question I waited for an hour and a half to address the 
distinguished chairman of the Judiciary Committee, but, as he said, he 
was very frustrated and could not take any questions. Tomorrow morning 
I will propound that question. So I lodge the question and place it at 
the desk to be asked in the morning.
  So I ask it of my distinguished colleague.
  (Mr. WOFFORD assumed the chair.)
  Mr. DOMENICI. Mr. President, I say to the majority leader, I 
certainly did not intend to delay him indefinitely. I have waited for 2 
full hours and Senator Biden, perhaps properly, did not even let me ask 
a question. And I am not whining about that.
  I say to Senator Warner, first, let me compliment him for the idea of 
the letter that is forthcoming. It was his idea that, instead of going 
immediately to a point of order, we ought to try the letter and see if 
our two distinguished leaders might be able to work out a format for a 
list of amendments.
  My answer to his question is this: Leader Dole offered to the 
majority leader, as I understand it, an approach that said we could get 
a unanimous-consent agreement with time agreements referencing the 
number of amendments that we might have. Frankly, if that occurs, then 
there would not even be a lengthy debate in this body. That could be 
done within a time certain. So I believe we probably could do it easier 
than they did in reconvening their conference and going all night and 
being there for 3 days. I think we could do it in a half a day of time 
on the floor.
  I thank the Senator for the question.
  I yield the floor.
  Mr. WARNER. Mr. President, I see the distinguished majority leader. 
Could I pose the same question to him, as to why this body could not, 
in a manner comparable to the House, work its will on this critical 
piece of legislation?
  I am not prepared to accept this doomsday note that the bill is dead. 
Indeed, there have been efforts by many over a period of 6 years. What 
would a few more days mean? What would maybe just a few more weeks mean 
to such an important piece of legislation?
  Mr. President, I thank the distinguished leader for accepting the 
  Mr. MITCHELL addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. MITCHELL. Mr. President, let me make a statement which will 
include a response to the Senator's question.
  The Congress is made up of two different bodies--the House and the 
Senate--which operate under different rules. But the process is 
harmonized because the Senate takes up a bill separately in a 
circumstance in which the bill is open to unlimited amendments. The 
House takes up a bill separately in a process in which the amendments 
are generally limited. And then the two bodies act on the different 
legislation. If they both pass the bills and the bills are different, 
the bills are then considered in what is called a conference committee, 
comprised of some Members of the House and some Members of the Senate.
  They take the actions necessary to comply with the constitutional 
requirement which says that any bill, in order to become law, must pass 
both bodies in identical form. And then the conference report goes back 
to the two bodies for a final vote in a manner in which the conference 
report is not amendable.
  The reason for the rule and the constitutional requirement, of 
course, is to establish some degree of finality in the process; that is 
to say, you have to have a process which can ultimately be brought to a 
conclusion. Otherwise, of course, no action could ever occur.
  Mr. President, the Senate has considered major crime bills for 6 
years. There have not been 13 amendments, but hundreds of amendments. 
There have not been a few days of consideration, but months of 
consideration. And so, no one should be under any impression that any 
Senator or group of Senators have been deprived of the opportunity to 
amend the crime bill. We have had amendment after amendment after 
amendment after amendment, month after month, year after year. Every 
Senator has had full opportunity to offer any amendment to the crime 
bill, and many Senators availed themselves of that opportunity.
  Now we reach a point where, in order to meet the constitutional 
requirement of having a bill passed in identical fashion, after the 
House passed a bill and then the Senate passed a different bill, and 
after they went to conference and after they reached agreement, the 
conference report went back to the House. The House effort to vote on 
that failed on a procedural vote and the matter was reopened and some 
changes made.
  An erroneous statement, inadvertent, I am sure, was made earlier that 
no Republican Senators participated in the process. In fact, as Senator 
Biden pointed out earlier, Senator Hatch, the ranking Republican on the 
Judiciary Committee, the Republican manager, was present on the House 
side during all of the consideration, as was Senator Dole's assistant 
and Senator Hatch's assistant, as was Senator Biden and his assistant. 
That does not mean they controlled the process, but they certainly were 
present, participated in the negotiation and the discussion.
  Now the bill has passed the House and comes to the Senate and we are 
presented with a list of 13 amendments. Another erroneous statement was 
made, also inadvertent, I am sure, that that list of 13 amendments did 
not include any reference to the assault weapons ban. Well, of course, 
No. 12 on the list is to strike the assault weapons ban.
  What I have suggested to my Republican colleagues and I suggest to 
the Senator from Virginia is that all we want to do is to have a vote 
on the crime bill. Just let us vote. I am not asking the Senator to 
vote for it. Let us just have a vote. And then I will commit, using my 
authority as majority leader, to bring up all of these provisions in 
the list of 13 amendments and as many others as my Republican 
colleagues want to add--31, 61, 97--and present that to the Senate so 
that the Senate can then debate those and vote on those.
  Now the response I got was, ``But if we do that, we don't know what 
the House will do with that product.''
  But, of course, that is exactly true of the proposal that would open 
up the conference report and vote on these 13 amendments, and if any 
are adopted, we do not know what the House will do with that product.
  So it seems to me inconsistent to suggest on the one hand that a 
proposal to take this up in a manner that leaves some uncertainty 
because of what the House might do is unacceptable where we make the 
offer, but acceptable when Republicans make the offer.
  Mr. WARNER. Mr. President, there are two very different proposals. 
Our proposal is that those amendments be considered in the context of a 
conference report such that they would be incorporated if adopted by 
this Chamber.
  Whereas, Mr. President, the distinguished majority leader suggests 
two separate pieces of legislation and one may proceed on to the 
President's desk and the amendments which the distinguished leader has 
addressed could lie here forever.
  Mr. MITCHELL. But under the alternative suggested by the Senator, the 
one option he did not mention is that none could proceed to the 
President's desk-- which I suggest to my colleague is at least a part 
of the motivation here.
  It is true that under the procedure I proposed, two might go to the 
President's desk or one might go to the President's desk. But under the 
procedure suggested by my colleagues, none might go to the President's 
desk, and that is what we are trying to avoid.
  That is to say we do not know what the House is going to do. And the 
possibility exists--I do not know what the Senator's view is on this 
crime bill, but there are certainly some who would like to see some of 
these amendments adopted, go back to the House, and the House not 
accept it. Maybe they change it some more, maybe they send it back 
here. Now we have another request for more amendments. Then it goes 
back to the House and they have another request for amendments, and 
pretty soon nothing happens.
  I think the Senator will concede that is at least a possibility, and 
it may well be that some of our colleagues have that hope in mind.
  Mr. WARNER. Mr. President, I say to my good friend I do not detect on 
this side any scheme, politically motivated or otherwise. Our 
distinguished Republican leader in the conference today--he used no 
tactics of an iron fist. He knew well the tactics of the late Lyndon 
Johnson. They were not employed. He simply offered to listen to all 
options, and we settled as a group on the one to bring to you a 
proposal, which we feel is not unreasonable, to incorporate into this 
piece of legislation, which will go to the President, certain 
amendments, assuming they are acceptable on both sides of the aisle.
  Mr. MITCHELL. Mr. President--
  Mr. WARNER. Mr. President, the distinguished leader has to admit that 
the bill that passed this Chamber was roughly $22 billion. It then 
reached $33 billion, a 50 percent increase. That bore little 
resemblance to the bill on which this Chamber addressed the many 
amendments which the distinguished leader talked about.
  Mr. MITCHELL. Mr. President, if--
  Mr. WARNER. And the fact that Mr. Hatch, who then joined in this 
dispute, was in fact involved in this conference and a number of 
assistants--I cannot rely on what assistants may or may not have done. 
Indeed, it is my judgment that nothing less than the full participation 
by 100 U.S. Senators is going to meet my requirements. And I think we 
have given the distinguished leader and, indeed, that side of the aisle 
a very reasonable proposal.
  The President spoke about the need for bipartisanship, and I salute 
the President for crediting that measure of reduction in the House to 
bipartisanship. He acknowledged it.
  Mr. MITCHELL. Mr. President, I thought I had the floor and was 
responding to a question.
  Mr. WARNER. If I could proceed for 30 seconds?
  Mr. MITCHELL. Why do I not yield the floor and let the Senator give a 
speech, which I think is going to happen, and I will get the floor 
  Mr. WARNER. I do not wish to make a speech. I think the most valuable 
exchanges are when we have a colloquy and not a soliloquy, which we had 
here for 2 hours by the chairman.
  Mr. MITCHELL. I will be pleased to yield the floor to the Senator if 
he would like.
  Mr. WARNER. If I may just engage the leader for 30 more seconds? The 
President of the United States acknowledged the fact the bill was 
improved, I say to the distinguished leader. If the other body could 
improve the bill, there is no reason why this body could not improve 
the bill and, in due course, we reach a reconciliation and pass a 
strong bill to help deter crime in this Nation.
  I thank the distinguished leader.
  Mr. MITCHELL. I thank my friend. Let me say the Senator is denying 
assertions not made. I do not know where this reference to Lyndon 
Johnson and strong-arm tactics came from.
  Mr. WARNER. Mr. President, I was talking only about our conference 
and how our leader was very evenhanded in that conference.
  Mr. MITCHELL. I am certain of that. I have the greatest affection and 
admiration for your leader. We work together all the time.
  Mr. WARNER. Oh, he is here.
  Mr. MITCHELL. But I do not want any suggestion by the Senator denying 
an assertion to create the impression that I made such an assertion. 
The denial came out of thin air. There was no allegation of anything. 
It is as though, having listened to the Senator's speech now, I made a 
denial that he had committed a crime or something. There simply is no 
relationship between the denying and anything I said.
  Mr. WARNER. I regret if I misspoke. I simply tried to characterize 
our conference as a very democratic procedure in which all members 
participated and there was no heavy-handed tactic by our leader and we 
acknowledged among ourselves that the best course of action was not 
confrontation in terms of a point of order but to come and present to 
you through our leader a very reasonable proposal for a relatively 
small number of amendments to reduce the cost of the bill and 
strengthen certain provisions along the lines of measures adopted 
previously by this Chamber.
  The PRESIDING OFFICER. The majority leader.
  Mr. MITCHELL. I thank the Senator for his comments. Reasonableness, 
like beauty, is of course in the eye of the beholder. I have to think 
the proposal that I made is more than reasonable. But it was not 
accepted that way so it is a matter of judgment, highly subjective on 
both sides, as to what is reasonable.
  My feeling is that we have been at this for 6 years on this bill. We 
have gone through all of the required procedures. There have been 
hundreds and hundreds of hours of debate. Last November, I am advised, 
we debated it for 11 days. There were almost 100 amendments.
  There should be no suggestion or implication on anyone's part that 
there has not been the fullest opportunity for the debate of 
amendments. There has been hardly a subject that has been more debated 
and been the subject of more amendments than the crime bill. So no one 
should be persuaded by this discussion that somehow there has not been 
a chance for amendments. There have been hundreds of amendments over 
months of debate, bill after bill, on the crime bill.
  The question now is whether we bring this to a conclusion or whether 
we have continued delay, continued discussion in what may well result 
in no bill at all--no bill at all.
  Whether that is anyone's intention or not I do not know, but 
certainly that is one of the real, potential effects of the course of 
action that has been suggested--to change this bill in a way that makes 
it unacceptable to the House, produces no final action there; they 
change it, they send it back here. Then another demand for more 
amendments and more changes, and on and on until, of course, no bill 
passes. Everyone in the Senate knows that the Senate's rules permit 
delay by a variety of means. One of them is unlimited amendments. The 
Senate's rules permit any Senator to offer any amendments, as many as 
he or she wants for as long as he or she wants.
  My hope is that we can reach an agreement that would permit us to 
vote on the crime bill--simply to vote on it. And then I will be 
prepared to take up any list of amendments, any list of subjects that 
our Republican colleagues want to have debated and want to have voted 
on. It seems to me that is a reasonable request.
  What we are told is they want to have these subjects debated and 
voted on. If the Senate passes them, well, then the Senate passes them. 
If the Senate does not pass them, well, then the Senate does not pass 
them. That is to say, let us let the Senate work its will on both the 
amendments and on the bill itself.
  It seems to me that is a fair and reasonable request. I accept the 
fact that others would not find it attractive. But as I said earlier, 
what is reasonable or not reasonable depends upon your perspective.
  Mr. President, did the Senator wish to ask a question?
  Mrs. BOXER. I ask the majority leader--I thank the leader for 
yielding, Mr. President, for a question.
  I come from the House of Representatives--there for 10 years. I think 
when the Senator from Virginia asked the question, ``Why can the 
Senators not have the kind of input that those Republicans had in 
conference?'' I think the majority leader answered it. But I would like 
to bring that focus even stronger, which is this: In the House, is it 
not so that we have very strict rules which limit amendments? Sometimes 
bills are not amendable at all; sometimes they have just a few options. 
In the Senate, we have the right of unlimited amendments. So I think to 
say that Senators did not participate to the extent that House Members 
did, in my view, having served there for 10 years and I think--maybe 
the Senator from Maryland--he served there.

  Mr. SARBANES. Six years.
  Mrs. BOXER. So we do have a couple of us on the floor who remember 
those days. It is quite different. Here a Senator can amend a bill to 
death and, frankly, I think this is what is going on here. But I say to 
my friend, my leader, is it not so that the Senators had an unlimited 
chance, and indeed, offered many of these, such as trying to fight 
against assault weapons? This was fully debated, was it not, as were 
other amendments?
  Mr. MITCHELL. As the Senator was speaking, I received a note from 
staff that the Senate considered the crime bill last November for 11 
days, during which it considered close to 100 amendments. In that 
iteration, we had close to 100 amendments and, of course, we had a 
major crime bill, comprising many of the elements of this bill before 
the Senate in each Congress for the past three Congresses.
  So we have had, in the aggregate, I am certain--although I do not 
know the number--several hundred amendments that have been offered in 
the Senate and many, many days of discussion.
  Mr. SARBANES. Will the majority leader yield for a question?
  Mr. MITCHELL. Yes, certainly.
  Mr. SARBANES. As I understand the approach the majority leader has 
outlined, since we understand there is a majority for the crime bill, 
what precludes us from getting to it is the requirement of 60 votes 
rather than 51.
  Your approach, as I understand it, would ensure the passage of a 
crime bill and perhaps the passage of two crime bills, depending on 
subsequent action on the list of amendments. The approach that has been 
suggested by the other side carries with it the very real possibility 
that there will be no crime bill, because if the amendments are 
included in the conference--of course, the House has left--they go back 
to the House and then you are back and forth again. I mean, this 
process could go on forever.
  Obviously, once it is back there, they say, ``We're going to take 
that; we're going to modify that around,'' it will get changes, 
modified, come back, it will get modified around here, and we will not 
get a crime bill. This chance to put police on the street, beef up the 
prison system, and all the tough measures that are in this legislation, 
we would then run a very high risk of losing them altogether. It seems 
to me that is an important distinction between the two approaches.
  As I understand, the majority leader indicated that his approach 
would assure passage of a crime bill. The other approach leaves very 
much open that there will not be a crime bill; is that correct?
  Mr. MITCHELL. That is correct. If I might say, although none of us 
present in the Senate were here when the Senate's rules were written, 
it is obvious that the rules regarding conference reports represent an 
effort to bring finality to a process which otherwise could have no 
finality; that is to say, it would be virtually impossible ever to get 
legislation enacted if we are in a situation where in any form at any 
stage in the process unlimited debate and amendments were permitted. So 
I think it is a very important consideration.
  Mr. SARBANES. The other point I would make, I ask the majority 
leader, the House, when it then addressed redoing the conference 
report, did it in the context of not having been able to get a simple 
majority to move the legislation forward. The Senate has never been 
given, as yet up to this point with respect to this conference report, 
an opportunity to test that matter.
  In other words, we are precluded, as I understand the current 
situation, from getting to a straight up-or-down vote on the conference 
report, which could then pass by a simple majority by the assertion 
that there will be interposed a point of order which, to get beyond, 
will require 60 votes rather than 51 votes.
  Mr. MITCHELL. The Senator is correct.
  Mr. SARBANES. So the Senate is being denied an opportunity which was 
presented to the House. Now, it is possible if that opportunity were 
presented and we could not command a majority, then we would have to 
address the situation in which we found ourselves. But we are not being 
given the chance to test that.
  Of course, it is my strong conviction that if the Senate were allowed 
to vote on the substance of the conference report on this crime bill, 
that a majority of the Senate would support it. The only thing that 
prevents us from getting there is the interposition of this point of 
order and the requirement of the extraordinary 60 votes--60 out of 100. 
Not a majority, not a simple majority, but 60 out of 100.
  Forty-one people in effect can thwart or frustrate the majority of 
this body from working its will and passing this very important crime 
  Mr. MITCHELL. I thank my colleague. Mr. President, I just noted the 
presence of the distinguished Republican leader. And so as he would 
have ample opportunity to make any comments he wishes to make, I will 
yield the floor.
  The PRESIDING OFFICER. The Republican leader.
  Mr. DOLE. Mr. President, I will not take but a few minutes. I know 
the Senator from Texas has been waiting since 5:30 to speak. I think 
she has had a 3-hour wait here, so I will take just a few moments.
  I do not think the American people really care about how many times 
this goes back and forth because this is all inside baseball. What they 
want us to do is get it right and make certain it is a tough crime bill 
and that we are not wasting a lot of their money. I think that is what 
the average American--they do not understand this conference business 
and the fact that there was a rule and they could not get a majority so 
they had to go back to conference and they, in effect, amended the 
conference report. That was the net result. They had to change the 
conference report to get the votes.
  That is what we are saying. And we hope to demonstrate in framing the 
debate, we are going to be offering amendments that were offered and 
passed on this floor by Democrats and Republicans by 2 to 1, 3 to 1 
margins, and all these tough amendments were stripped out in 
  So we are suggesting, we are going to use the rules, section 306 of 
the Budget Act, which the Democrats have used 26 times in this 
Congress; Republicans have used it seven times. Twenty-six times, 79 
percent of the time it has been used, it has been used by the party on 
the other side of the aisle to stop legislation.
  Is it all right for that side to use it 26 times, and we cannot use 
it seven times or cannot use it the eighth time because the House has 
gone home?
  I say I do not think the majority leader and I finished our 
negotiation. We have a good relationship. We understand the leaders 
have to try our best to make things work. He made a proposal, or I made 
a proposal; he made a counterproposal. I since suggested another 
proposal which I will not discuss because we have not had a chance to 
discuss it privately, and we may have another idea.
  We have a conference, the Republicans, at 10:30 tomorrow morning. And 
I think, no question about it, once we resolve some of these issues, 
the conference report will pass. But I am not going to suggest we have 
to just say, ``Oh, well; we're powerless to act because we don't want 
to use the rules and we don't want to stand in anybody's way because 
the House has gone home.'' Or, if we send it back, they might not act.
  Oh, they will act. This is a very important piece of legislation. I 
must say, Republican House Members for the first time got a little 
piece of the action. They were treated like dogs in the conference, the 
Republicans. They were ignored in the House. And then the President had 
the gall to say, ``Oh, they used a procedural trick'' that the 
Democrats in the House use every time they bring up a rule in the 
  And finally, 58 Democrats said, ``We've had enough,'' and they voted 
with 100-some Republicans, and they did not get the rule. They were 
shocked, and they had no choice but to go back and reopen the 
  That is the way it works. That is the way the system works. Now and 
then, the minority--this year it happened to be the Republicans--exert 
their rights and now and then they are successful. Not very often. But 
now and then, they are successful.
  We are all equal in this body, whether you are from California or 
Texas, Kansas, or any other State. We all have equal rights in the U.S. 
Senate, and we all represent different groups of different people in 
different States.
  If you ask, in a survey, do you think we should spend $1.8 billion 
without a hearing in Congress, without even 5 minutes, without one 
witness, I bet most Americans would say no. They cannot spend $1.8 that 
they work hard for without saying, ``Jimminy, should I do this?'' And 
here they just blithely, on the House side, put in a $1.8 billion Local 
Partnership Act, without any hearings, which had nothing to do with 
crime. It was in the stimulus package last year, which was defeated. 
And we are supposed to say, ``Oh, well; that's fine. It's only $2 
billion here.''
  Maybe we should have had a little hearing. Maybe we should have 
rolled the dice. Maybe we should have said, well, at least we should 
let the American people know what it is.
  Then it is going to go to a lot of cities that have high tax rates. A 
city like Wichita, KS, may not qualify because it has a low tax rate. 
There are a lot of inequities in this bill.
  Now, I have not been here long--well, I have been here a long time, 
come to think of it. Generally, if you have a $22 billion bill in this 
House and a $27 billion bill in the other House, whatever it is, you 
get together and you split the difference. Well, in this case the $22 
billion went to $33 billion and neither House ever talked about a $33 
billion bill. They really porked it up--pork, pork, pork--$2 billion 
here, $700 million there, $300 million here.
  And, of course, all the mayors say this is great. The Senator from 
Delaware said he had a call from the mayor of Los Angeles. Well, I 
guess if I were the mayor of Los Angeles or the mayor of New York City, 
I would probably call in, too.
  But somebody has to pay for it. Someone has to pay for it. All we 
suggest in the alternative proposal I made to the majority leader, 
which we can discuss tomorrow, is that we have some opportunity to 
offer some of these amendments--some were adopted by big margins in the 
Senate--and see what happens in the House. They can come back.
  We are also willing to have a vote on the Mitchell substitute on the 
health care bill. Maybe we will have back-to-back votes on the 
conference report and the Mitchell substitute on health care.
  We get a little frustrated being accused of dragging our feet, 
gridlock, and all these things. We are ready right now to vote tomorrow 
morning on the Mitchell substitute on health care, and we will try to 
work out a vote on something here.
  So I just suggest that I think--I hope we are sincere on this side of 
the aisle. We seemed to be this morning. We had a 2-hour conference, 
very constructive conference, different views, different opinions, 
different ideas. We finally came together because the Senator from 
Virginia happened to have talked to the President of the United States 
last evening, 11 o'clock last night. And he came to the meeting saying 
is there any way we can do this, that might work it out that might be 
helpful to the President? And he suggested the letter, a letter to me, 
signed by 40 of my colleagues, suggesting we negotiate with the 
Democratic leadership and the administration.
  Now, let me also suggest for the Record--and the facts are there--my 
staff director talked to Leon Panetta. When all this came out in the 
House, he said, ``Don't forget Republicans in the Senate have some 
questions, too.'' And Mr. Panetta said, ``I will be at the Capitol 
tomorrow. I will come by and see you.'' I know he is very busy with all 
these things he has to do, and he was not able to do it.
  We also sent word through Newt Gingrich, the deputy leader, 
Republican leader in the House, and he raised it, as I understand, once 
at the White House and once at a meeting that ``don't think that this 
action is going to satisfy Republican Senators. You better make certain 
they are involved.''
  Now, Senator Hatch was there more or less as an observer. I had staff 
there as an observer. They were not voting. They did not participate. 
They did not reject anything, as the Senator from Delaware indicated 
earlier. They were not voting members. And I was notified what was 
happening on the House side. But there was never any agreement of any 
kind that, ``Oh, whatever the House does is fine with us.''
  The House has a habit--I have been in the House--of passing bills and 
saying, ``Just take it or leave it; we are going home.'' It has been 
fairly successful over the years.
  But I think in this case this bill is so important. We had an 
amendment taken by unanimous consent, an amendment by the Senator from 
Wyoming, on criminal alien deportation. If you have illegal aliens, 
criminals who have committed crimes, they ought to be deported.
  What happened to it? It got taken out in conference. We would like to 
have a vote on it. Let everybody here vote on it. It was accepted the 
last time that amendment was offered in this body.
  We had other amendments, as I said--I think maybe somebody suggested 
maybe too many amendments. We are prepared, as I told the majority 
leader informally 30 minutes ago, we will try and reduce the list. We 
are not trying to drag it out, protract it. We are trying to make a 
  The point is there is too much money in this bill. We left the Senate 
at what, 3.2? It went up to 9. Now it is 7. There is a lot in here for 
domestic violence, $1.8 billion, which I think most of us agreed on. 
That is something we did have hearings on in the Judiciary Committee; 
the distinguished chairman, Senator Biden had hearings. A lot of us 
participated. A lot of us had bills. So there is no quarrel with that 
money, and there is probably other parts in here where at least it was 
brought up in one of the committees and somebody had a chance to 
testify for or against the effort.
  So just so the record is correct, we are well within our rights, and 
we could exercise our rights just as they are exercised on both sides 
of the aisle almost on a daily basis. And nobody is saying we cannot.
  But we have a disagreement here. We have a President who wants this 
bill very badly. We do not quarrel with that. We want a good crime 
bill, too. We think it can be improved. We have got to keep reminding 
people who only deem it a Federal crime bill, only 5 percent is covered 
by this bill, only 5 percent of crime, and we are talking about a $30 
billion price tag.
  There is not any $30 billion trust fund. We were criticized earlier 
by the Senator from Delaware about how we proposed this trust fund. 
That was $22 billion. It was not $33 billion. It was $22 billion. The 
amendment was offered by the distinguished chairman of the 
Appropriations Committee, Senator Byrd, from West Virginia, because he 
wanted to make certain, if we were going to pass laws that affected 
crime, we were going to be tough on crime, we ought to have the money. 
And I think it was pretty widely supported by Democrats and 
Republicans. But because we voted for that does not mean we cannot 
raise questions about anything else in the bill. And that is precisely 
where we are right now.
  Mr. WARNER. Mr. President, will the Senator yield for a brief 
  Mr. DOLE. I will be happy to yield.
  Mr. WARNER. Much has been said tonight how 51 votes would carry it 
but you cannot reach 60. And I say to my distinguished leader, my 
recollection, when this Chamber acted on its bill, it was 94 to 4 or 5, 
showing that there was an overwhelming majority of Senators ready to 
act on a bill which we thought was proper. So this talk tonight about, 
well, we could do it with 51 but we cannot do it with 60 shows an 
inherent weakness in this bill and why we should be exercising the 
rights that we are.
  Mr. DOLE. I think that is correct, and again I would say it is 
suddenly discovered this rule out here, violation of section 306. 
Democrats discovered it 26 times in this Congress. I guess we have been 
asleep. We have only used it seven. And you were successful in 
defeating legislation. One, as the Senator from New Mexico pointed out 
earlier, was a very important amendment offered by himself and the 
Senator from Georgia, the chairman of the Armed Services Committee, 
Senator Nunn, that dealt with our defense. They lost because they could 
not get 60 votes. They got 58. They could not get 60.
  Mrs. HUTCHISON. Will the Senator yield?
  Mr. DOLE. I will just say one other thing. There has been an effort 
by some in the media and by the leaders of the Democrats to say, 
``Well, this is all NRA.''
  Mrs. HUTCHISON. Will the Senator yield?
  Mr. DOLE. I will be happy to yield and then I wish to close up.
  Mrs. HUTCHISON. I just wanted to ask the distinguished minority 
leader if he remembers another budget point of order on an amendment 
that I was sponsoring that would have taken the retroactivity out of 
the largest tax increase in the history of America. There were people 
sitting out there watching us debate who were paying taxes before we 
even finished the bill. And in fact, a point of order was raised on my 
amendment, and we got 58 votes. But we could not prevail because we did 
not have 60 votes.

  So I just wanted to ask the distinguished Republican leader if he 
remembers that that was another time when the majority did not rule in 
this body.
  Mr. DOLE. That was another time. In fact, we will make the entire 
list available for the Record. I have forgotten all the times it has 
been used successfully. It has only been used and only prevailed on 
three times that I recall.
  But I want to say one word about the so-called gun lobby, that 
somehow the NRA, the National Rifle Association, is out there, and that 
the Republicans are wrapped up in guns. We are all getting a lot of 
calls. I know a lot of NRA members are pretty decent people.
  Guns have never been an issue. It was not an issue in our conference 
this morning, I might say. But I guess when you sort of look at 
surveys, well, the Senate has wrapped the guns around the Republicans 
and they will cave in.
  I know the Gun Owners of America, another group, have a little 
different view. They are blaming me for the Brady bill that passed 
because I sat here with the majority leader and everybody else had gone 
home, and we made an arrangement. We let that bill pass. I was 
picketed, and they called me a traitor, and everything else, and some 
things I cannot repeat, because that happened. They said it was my 
fault. I could have stopped it. We are being deluged with calls now 
saying, ``Filibuster, don't cave in. You can do it, stop it. Stop this 
  I do not think there are enough votes to filibuster that provision. I 
think that was demonstrated when the crime bill was on the floor 
  But there are a lot of other people calling in too, calling in about 
pork. Maybe they do not understand what pork is. But they have heard 
the word. Whenever they think of the Capitol they think of the word. 
They think about their pocketbooks and who is going to pay for it.
  So I just suggest that maybe there are a lot of different agendas 
around here, a lot of different motives. But I have to think the bill 
that passed the Senate 94 to 4--I cannot remember the four who voted 
against it. I do not know who they are. But four voted against it. I 
think somebody voted ``no'' because of too many death penalties; two 
Members for that reason, and two others for the other reasons.
  Now, if we were not sincere about a crime bill, we would not have 
voted for that bill with $22 billion. A lot of these tougher provisions 
were taken out by the liberals, the House conferees. And that is what 
happens in these conferences.
  The Senator from Wyoming can tell you a story that will curl your 
hair--it will not curl his. But it will curl your hair. [Laughter]
  In 1992, they decided to have a little conference during a football 
game at half time. So they called the Senator from Wyoming in for the 
conference. The Democrats did, of course. They never let him do 
anything after he got there. He missed half the game, and did not have 
one ounce of input into the conference. I do not think that is the way 
people think the Government ought to work, that because you have a 
majority means you get your way, and we just stand aside. Maybe that 
works for awhile. But it will not work forever.
  So we are prepared, as I indicated to the majority leader, to 
continue to see if we cannot resolve this in a way that protects our 
rights, and does what he wants to do, to get the conference report to 
the President as quickly as we can. Hopefully, the section on the 
proposal which we will discuss tomorrow will be closer to reaching that 
objective. We will talk about that later.
  But I hope that people understand we are going to be in tomorrow at 
10:30. We have 41--contrary to an AP story saying someone signed a 
letter--not going to vote that way. As far as I know, they are. That is 
what they told us. We did not break any arms in the process. That is 
not my style, as the Senator from Virginia indicated earlier.
  But we are just determined that, even though the Republicans in the 
House made modest improvements--and I do not know how many voted for 
the bill finally; I think 50-some provided a margin of victory--we can 
make changes without throwing this thing off course, and still have a 
good crime bill which the President can sign hopefully in a matter of 
  Mr. MITCHELL addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. MITCHELL. Mr. President, I thank my colleague. I will of course, 
as always, be pleased to consult with him further on the matter and to 
receive and consider seriously and carefully any proposal which he 
makes. I would like, if I might, make a few comments about the point of 
order, and the spending in the bill.
  When this bill passed the Senate in 1993, it covered 5 fiscal years 
beginning with the fiscal year 1994. The bill as it returns to us is 
extended for 2 additional fiscal years. The amounts of money spent in 
each of the first 5 fiscal years are less under the conference report 
than were included in the bill as it passed the Senate. I repeat that. 
The amounts of money in the first 5 fiscal years covered under the bill 
are less than they were in the bill which passed the Senate. The 
increased amount is a consequence of the bill being extended into the 
fiscal years 1999 and 2000.
  So no one should be under any impression that this bill increases the 
spending in the period covered. It actually decreases it in the period 
covered, and the reason for the larger amount is that it covers 
additional years which were not included in the Senate bill.
  Second, the point of order which our Republican colleagues will make 
has nothing to do with the amount of money involved. I repeat. The 
point of order has nothing to do with the amount of money involved. The 
point of order relates to a provision of law which requires that any 
bill which includes a change in law under the jurisdiction of the 
Budget Committee must be reported out by that committee or a point of 
order lies.
  This bill does include such a provision which reduces the spending 
caps in discretionary spending so as to make certain that the amounts 
of money involved will go for crime and crime alone, and not for other 
purposes. That proposal was initially made by Senator Byrd and was 
approved by the Senate five times in votes; five times. And the very 
Republican Senators who are now making a point of order against that 
provision in the bill lavished praise upon that provision when it was 
proposed, and voted on, and voted on, and voted on, and voted on again.
  Indeed, there was vigorous competition for credit among many of the 
speakers at that time to try to take credit for the idea, the very idea 
which is now the object of a point of order against the bill.
  I repeat. It is not the amount of money that triggers the point of 
order. It is the provision reducing the spending caps on discretionary 
spending so as to ensure that these funds will be used only for crime, 
and not for other reasons. So I hope everyone understands that.
  Now reference is made to the assault weapons ban. First, let us be 
clear about the will of the American people on this subject. We have 
heard a lot of talk about telephone calls that have come into the 
offices, and let us do what the people want. Every one of us knows that 
organized telephone campaigns are a regular phenomenon in American 
political life, and we can all energize a group of our own supporters 
to call us up, and tell us what they think we should do so that we can 
come out and report that the phones are ringing off the hook, and I 
have gotten 383 calls today, or 979 calls tomorrow. Clearly in some 
cases they may be representative of the broader public will. In others, 
they may represent only an aggressive and energized minority trying to 
get their view across. We should listen to them, and give them weight. 
But obviously, ultimately the decision must be ours.
  With respect to assault weapons, it is very clear that a ban on these 
assault weapons is overwhelmingly favored by the American people. The 
latest public opinion poll shows 77 percent of the American people 
favor a ban on assault weapons. Previous polls showed as high as 80 
percent. That is why there is an obvious effort to downplay the assault 
weapons ban as a reason for trying to delay or kill this bill and to 
suggest as an alternative that it has to do with spending. But, in 
fact, that is a prime factor in the opposition on the part of many 
Senators, even though it is overwhelmingly favored by the American 

  If we are so concerned with acting in accordance with the will of the 
people, then should we not be passing a ban on assault weapons, which a 
most recent poll shows is favored by 77 percent of the American people?
  Mr. President, I will not prolong this, because I know the Senators 
from California, Texas, and Maryland may be waiting to speak.
  Finally, reference was made to the fact that some amendments which 
passed the Senate were dropped in conference. Well, Mr. President, that 
is a daily, regular part of our process. In fact, I will never forget 
when I came to the Senate and when I first got on the Finance 
Committee, Republicans were in control of the Senate, and Republican 
Senators brought out large tax bills, and I can remember the discussion 
about, ``Well, we will take this amendment and we will drop it in 
conference,'' as had Democratic managers of tax bills. Every single 
Senator stood right here where I am standing at some time in his or her 
career and heard that statement made. ``We will take that amendment 
now, and we will drop it in conference,'' so as to avoid a controversy, 
or to avoid delay, or for other reasons.
  No American should be under the impression that there is anything 
extraordinary or unusual about the fact that a conference report that 
results from a conference between the House and Senate are two 
different bills and is not identical to the bill which leaves the 
Senate. Otherwise, you could never have an agreement. The House passes 
a bill which has some provisions, the Senate passes a bill which has 
other provisions, and the only way you can ever get an agreement is to 
have a compromise, which means that the final result is almost always 
different from both the House and Senate bills. There is nothing new 
about that, nothing unusual about that, nothing extraordinary about 
that, nothing surprising about that. It happens on almost every bill 
that we discuss.
  Senators, of course, have a right to use the rules and to fight for 
their provisions. But no American should be under the impression that 
there is something sinister or sneaky or untoward about the fact that 
the final conference report that comes here is not identical to the 
Senate bill. Indeed it is not, and I do not ever remember seeing a 
conference report that was identical to the Senate bill. And the same 
is true from the House side. They pass a bill that is different, and 
they then negotiate with the Senate, and they get a conference report 
that reflects a compromise between the two.
  So, Mr. President, I apologize to my colleagues for taking such a 
long time. I know others wish to speak, and we will remain in session 
for as long as Senators wish to speak.
  I will simply conclude by saying that I hope we can get this done. I 
hope we can get this bill passed. I think the American people 
overwhelmingly favor passage of the crime bill. I think they cannot 
understand all of this delay. I think they cannot fathom why it is we 
cannot just vote on a bill. Here we have a bill, here we have an 
institution with Senators ready, willing, and able to vote, but we 
cannot vote.
  Our request is simple: Let us vote on the crime bill.
  Mr. President, I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER (Mr. Exon). The Senator from California, Mrs. 
Boxer, is recognized.
  Mrs. BOXER. Mr. President, I want to associate myself with the 
comments of my----
  Mrs. HUTCHISON. Will the Senator yield for a question?
  Mrs. BOXER. Yes; I yield for a question.
  Mrs. HUTCHISON. I realize the Senator now has the floor. I have been 
waiting since 5 o'clock to speak. I wonder how long the Senator might 
be going.
  Mrs. BOXER. I cannot tell the Senator. I do not think I will be too 
  Mrs. HUTCHISON. I will just mention that I have been here since 5 
  Mrs. BOXER. Many of us have been waiting to speak, and I assure the 
Senator I will not be too long.
  The PRESIDING OFFICER. The Chair simply says that he will try to move 
back and forth. The Chair had no way of knowing the Senator had been 
waiting. I recognized the Senator that I thought first sought 
  Certainly, the Senator from California has the floor and when she has 
completed, the Chair will proceed in the usual fashion. I am sure at 
that time the Senator from Texas will make her wishes known.
  The Senator from California has the floor.
  Mrs. BOXER. Thank you, Mr. President. As I started to say, I am very 
pleased to be following the majority leader, because I feel that he has 
presented a very eloquent case for why we should vote on this crime 
bill. It seems to me--and I believe to the people of this country--that 
for a minority to thwart the will of the majority in such a blatant way 
in such a huge issue as this is simply unfair.
  I listened with great interest to the distinguished Republican 
leader, and he said, ``Look, we are going to use the point of order. 
The Democrats have used the point of order.'' Indeed, the Senator from 
Texas intervened at that point and said: Remember, Mr. Minority leader, 
when I offered an amendment that would say to a group of people in 
America who were going to be taxed that they should not be taxed 
retroactively, many voted for a point of order and did not allow that 
amendment to go through.
  I want to address that because I proudly voted for that point of 
order because I believe that the wealthiest Americans should pay their 
fair share. I felt that the Senator from Texas was offering an 
amendment that would have adverse budget consequences and that this tax 
was hitting the very wealthiest of Americans, the top 1 percent, those 
who really, in my view, had not paid their fair share while middle-
class people had. So I was proud at that point to support that point of 
order against the Senator from Texas, who believed fervently that she 
was correct. So I am not ashamed that I have voted for a point of 
  So the point I want to make now is that I do not believe one 
Democratic Senator ever said to Republican Senators, ``You have no 
right to use the rules.'' I think what we are saying--or at least what 
I am saying--here tonight is that the American people have to 
understand the truth, and the truth is if they raise this point of 
order and they get their troops to stick together--and whether they 
will or will not, we do not know--that is in essence the end of the 
crime bill--the end of this crime bill--and it has taken years, I say 
to my friends, to get to this point. Frankly, we got to this point in a 
very bipartisan way, and suddenly to revert to the rules to shatter 
this incredible compromise, seems to me a very sorry state of affairs.
  But let me repeat that the Republicans have every right to use the 
rules to block the crime bill. But the American people have to 
understand it. I mean, the Senator from Texas was clear. She said, 
``When they used the point of order against me, that was it, my 
amendment was dead.'' So do not, for 1 minute, I say to the American 
people, think that this point of order is any different than that point 
of order. It was meant to kill that amendment, and this point of order 
is meant to kill this crime bill.
  I hope that the people from across this Nation will pick up the phone 
in the morning and call their Senators and say to these Republican 
Senators: ``Let us vote on the crime bill. Let us have an up-or-down 
  If the Senator from Texas wants to vote against the crime bill, if 
she wants to vote against--let us see here--$13.5 billion for law 
enforcement, for cops on the streets of Houston and Austin, that is 
fine; she can do it.
  If the Republican leader wants to vote against $9.7 billion for 
prisons for the most violent of criminals, and three-strikes-and-you-
are-out, let him do it. He has every right to do it. As a matter of 
fact, he has every right to bring this point of order.
  But let us get back to the basic points of what this bill is--I think 
the Senator from Delaware said it--let me bring up the issue of 
prevention. If the Senators want to vote against $6 billion of 
prevention, if they want to call that any name they want, if they want 
to make fun of recreational programs that they support over in the 
military budget--I might say, I never heard one Republican Senator come 
on the floor and say, gee, we should take away all the recreation that 
we give to our young men and women in the military--if they want to 
vote against the prevention in this bill, let them vote against it. Let 
them tell their mayors. Why, that is fine.
  One of the strongest voices for this bill has been Mayor Richard 
Riordan, Republican mayor of Los Angeles. He is not playing a partisan 
game. He is a Republican. He traveled from California to beg the 
Republican Members of the House to vote for this bill even before the 
so-called bipartisan compromise.
  You know, to me it is amazing to see the party that has always said 
they are the party of law and order stop this bill in its tracks. Could 
it be political, I ask you, Mr. President? Could it be that they do not 
want our President to have a victory?
  Let me tell you something. This bill is more than a victory for our 
President, it is a victory for the American people because crime is the 
No. 1 issue in this country. In almost every State of the Union, and I 
know certainly in my State--and my phones are ringing off the hook 
because it is early in California--they are saying: ``Senator, do what 
you can. Do what you can. Be tough. Tell the truth. Tell us what is in 
this bill. Stop this filibuster and get a chance to vote up or down.''
  You know, really, you can hide behind procedure, but the bottom line 
is if you do not like the bill, vote against it. If you do not like the 
bill, vote against it.
  There is $1 billion for drug courts to really take on the issue of 
drug pushers.
  Now, look. Are there things in this bill I would have done 
differently? Yes. I assure you, every Member of this Senate could write 
a bill that they would like better than this bill, but this is 
democracy in action. This bill has been debated and there have been 
unlimited amendments here. It went on and on for 11 days, let alone for 
the years before it had been debated, with Senator Byrd making the 
breakthrough in setting up the trust fund.
  Let me tell you where the money is coming from. The American people 
have to understand there is not a penny of tax in this bill. The money 
will come from reducing the Federal work force.
  So we have a bill that is pay-as-you-go, and it is paid for by a 
reduction in the Federal work force. Why? Because we all came together 
in this Senate--it came out of this Senate--and we said the crime 
situation is a national disgrace. We need a comprehensive response to 
it. It is expensive, and we are going to pay for it, and we are not 
going to tax the American people. We are going to cut down the Federal 
work force. We are going to put the savings in a trust fund. We are 
going to pay for these prisons. We are going to pay for necessary cops 
on the streets. We are going to pay for this prevention. And we are 
going to pay for these drug courts.
  So what I want the American people to understand is the reality here. 
You are going to hear talk about trust funds, conference reports, and a 
point of order. But the American people should focus on what is in this 
bill. It is what we all know we need, and it bears repeating so that 
when people get up to talk, the American people will know the truth on 
what is in this bill.
  No. 1, it is not more money than it was when it left the Senate. The 
majority leader explained it beautifully and clearly, and I will repeat 
it. When the bill left the Senate, it covered 5 years. Now it covers 6 
years, with actually less spending per year than when it left here. 
When they say it is so much more money, that is not true. That is not 
true. As a matter of fact, it is less spending on an annual basis.
  When they tell you it has nothing to do with assault weapons, I will 
tell you this: The one thing about the National Rifle Association is 
they are very straightforward and direct. They did not say that the 
Senate debate has nothing to do with assault weapons. You know what 
they said in public, in the newspapers? They said this is their last 
chance to kill the assault weapon ban. They are camping out here, 
absolutely. So when they tell you it is not about the assault weapon 
ban, just listen to what the NRA is saying.
  I also find it interesting, since it is not supposed to be an assault 
weapon ban--we have the list of proposed amendments that the 
Republicans want to look at. Guess what, folks? There it is, No. 12--it 
is down on the list--strike the assault weapon ban. That is the 
Republican amendment. That flies in the face of 80 percent of the 
people in this country. And I can assure you that 80 percent of the 
people in this country, when they get up in the morning, they are going 
to call their Senators--I hope they do; maybe not 80 percent, but some 
of those 80 percent--and say, ``We want to retain the assault weapon 
ban. Pass the crime bill. Stop playing games.''
  I have great respect for my colleagues, my Republican friends. As a 
matter of fact, I work with them on amendments all the time.
  I remember sitting in the chair where you are, Mr. President, when 
the Senator from New Mexico stood up and made a most eloquent speech 
about the need for recreation for our kids. As a matter of fact, it was 
so eloquent that when he finished his remarks, I asked if he would come 
up to see me, and I said, ``Please know that I am with you. You are 
right. We have to give our kids something to say yes to.''
  He was as eloquent as he could be, and I read on the floor of the 
Senate today his remarks. This bill reflects those sentiments that, 
yes, we do have a problem in America today. We have had 12 years of 
neglect, and of course nothing we can do could remotely replace a warm 
and caring and loving family. But we know when those kids are out on 
the streets at night and they do not have anything to do, there could 
be trouble, and we are addressing that in this bill. It is smart, it is 
wise, and if they go off the right track onto the wrong track, we will 
have the prisons for them. We will have the toughness for them. We will 
have the boot camps for them. That is what we have done in this bill.
  I have seen too many people killed in California from assault 
weapons. I have visited so many cities where the police tell me they 
are outgunned. And the Republicans, on a point of order, want to open 
up this whole debate and try to strike the assault weapon ban.
  I say if that is what they want to do, go to it. I hope they will 
rethink it. But if they want to do it, they have every right, I say to 
the minority leader. I wish he were here; he is right. He has every 
right to use the procedure to stymie this bill. But I think there is a 
price to be paid. People say to me, ``Senator, what is the difference 
between the Republican Senators and the Democrat Senators?'' And I talk 
to them about it.

  This is a lesson. This is a lesson, because, I think, as I look at 
what the Republicans are trying to do, they are trying to stop 
progress, stop progress on a very important issue that affects the 
daily lives of all Americans--stop progress. Why? They do not like 
everything in the bill.
  Well, neither do I, Mr. President; neither do I. I would write it 
differently. I had my chance. As a matter of fact, three of my 
amendments passed. A couple of them that I could not get support for, I 
did not even offer them. I could stand here and say I do not like this 
bill; I am not going to vote for this bill; I am going to use a point 
of order because I, the Senator from California, do not like everything 
in this bill; I want some changes.
  The majority leader has offered the Republicans, it seems to me, a 
very generous resolve here, a generous resolution here. He has stated 
that he would take all the amendments that they want and take them up 
at a date certain, at a time certain, and debate them, and, in the 
meantime, get this crime bill passed and stop what is going on in our 
country--the ravaging of people on our streets, the indiscriminate 
violence in workplaces.
  I said today on the floor, and I will repeat it, I had to see my 
young, 28-year-old son--and, at my age, that is young--I had to see him 
torn apart because one of his best friends in law school was shot dead 
in a law firm in a beautiful, safe building in San Francisco by a 
maniac who got an assault weapon. As a police lieutenant said to me, 
``A weapon that is meant for war.'' Blew him away, injured his wife, 
killed eight or nine other people.
  We have a ban on those weapons of war in this bill. But oh, no, the 
Republicans say it is not about assault weapons, not at all. It is too 
much spending, even though the majority leader has explained it is less 
spending on an annual basis, and even though they put it in their own 
words when we reopen this conference that they want us to reverse the 
ban--let me read you their words. ``Strike the assault weapons ban,'' 
remove it from the bill.
  But they do not talk about it. They will never talk about it, because 
80 percent of the people in America do not agree with them.
  So I say to my Republican friends--and I am going to be yielding the 
floor shortly--that you do whatever you want in terms of procedure. 
That is your right. I would defend your right to the end. I have made 
points of procedure myself. You have every right to do it.
  But do not say you are doing it to help the President. Do not say you 
are doing it to help the crime bill. Do not say you are doing it to 
make it so much better.
  Say the truth. And the truth is, this is a way to kill the bill. We 
know it. We know a point of order raised, when you need 60 votes to 
overcome it, is a way to kill a bill. Do not dance around it. Be honest 
about it. Say, ``We want to bring this bill down. We don't want this 
bill. We don't like the assault weapons ban. We don't like the fact 
that a Democratic President may get credit for building more prisons, 
building boot camps, preventing crime, setting up drug courts, and 
helping our mayors, Republican and Democratic alike.''
  I thought the mayor of New York was eloquent on the point and took a 
lot of heat--took a lot of heat for it.
  And I would give one more word of advice to my colleagues who claim 
that the assault weapon ban really is not so important to them. They 
ought to get courageous and look at the NRA people and say, ``Now, I'm 
usually with you, but this assault weapon thing, this goes too far. 
Those are weapons of war.''
  Do you know that our military doctors are being trained in city 
hospitals. When I heard that, I could not believe it. They are learning 
how to treat the wounds of war in city hospitals and county hospitals.
  So if you have to use a procedure to bring this bill down, that is 
your option. Go for it.
  But I say to the American people, you have about 24 to 48 hours, in 
there, to make your voices heard. I hope you will pick up the phone 
tomorrow before you go to work and give a message to your Senator, 
Democrat or Republican--but it looks to me like almost every Democrat 
is going to vote to move forward--but let them know that the crime bill 
is a priority; do not use procedures to block it.
  Let us allow a vote on the crime bill and let us attack an issue that 
is a national disgrace.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Texas.
  Mrs. HUTCHISON. Thank you. I am very glad to know that no one else 
has wandered on the floor and I will have my chance to speak.
  I do want to say, Mr. President, that this bill is a perfect example 
of why Americans are frustrated with the way we do business in 
  A good bill, costing $22 billion, paid for, passed the Senate. A 
watered-down version, costing more than $27 billion, not paid for, 
passed the House. In conference, it turns into a $33 billion bill, not 
paid for, which, after great hand wringing, turns into a $30 billion 
bill, not paid for. And we are asked to pass it so we will not be 
accused of gridlock.
  It is a strategy, Mr. President--pass a good bill in the Senate, a 
bad bill in the House, go to conference and produce an even worse bill, 
and then accuse those who oppose the final legislation of being 
  You know, I am new around here. There is no question about that. But 
I have seen the legislative process before. And the integrity of the 
conference process is that you pass a bill in the House, you pass a 
bill in the Senate, and you resolve the differences somewhere in the 
parameters of the bill. Because if you do not stay within the 
parameters of the bill, then you do not have any recourse. And you can 
witness that hour after hour after hour on this floor when they accuse 
us of gridlock because we are against a bill that is very different 
from a bill that we passed or the bill that the House passed.
  (Mrs. BOXER assumed the chair.)
  Mrs. HUTCHISON. Madam President, you cannot go from a $22 billion 
bill to a $27 billion in the House and compromise at $30 billion and 
say that you have resolved the differences within the two Houses.
  There was a new matter put in that conference committee report that 
had never been voted on by either House. That takes away the integrity 
of the conference process.
  The only recourse we have is to reopen the process so that we can say 
we think $30 billion, adding $13 billion to the deficit, should be 
addressed. And that is what we have asked to do.
  Now, my colleague, the Senator from California, said she was proud to 
have voted against my amendment, which had a point of order raised 
against it, that would have taken the retroactivity out of the largest 
tax increase in the history of America.
  Well, I happen to think that the majority did not rule then. Every 
American has a right to know that they will not be taxed retroactively. 
That is a principle, Madam President, that we must uphold. That is why 
we have a Constitution. And I believe the Constitution protects us from 
retroactive taxing. I think that is one of the principles that our 
Founding Fathers thought was very important.
  But the majority did not rule. Fifty-eight Senators supported my 
amendment, but I did not win because it was a point of order.
  But I find that my colleague from California says that we are trying 
to obstruct justice because we are raising a point of order. What we 
are trying to do is bring the bill back and amend it more along the 
lines of what the Senate bill was, which I supported.
  I supported the bill when it was a crime bill. But when it turned 
into social programs that increase the deficit, I could not support it 
anymore. But I would like to. That is why I am supporting the point of 
order so that we do have a chance to make it better so we can support 
it. Because every one of us in every one of our States has a crime 
problem and we would like to help our States and our local governments 
the best way we can at the Federal level. And the way to do that is to 
open this bill back up so it becomes a crime bill again. Americans 
should be under no delusions about the effect this legislation will 
have on crime. And taxpayers should make no mistake about the $13 
billion in deficit spending that is crammed into this bill.
  Madam President, I was one of a large majority of Senators who voted 
for the Senate anticrime measure passed last year. The foundation of 
that legislation was funds for new prisons, more police officers, and 
guaranteed tougher penalties for the worst criminal offenders. It was 
not perfect then. I would have liked to have seen more anticrime 
measures even back then. I would like to see habeas corpus reform to 
stop the endless appeals from people on death row. But we could not 
even bring up habeas corpus reform. That got killed before it made it 
to the floor. But I supported that bill because the good outweighed the 
  It would have provided some help, more police and more prisons for 
the local and State governments who are on the front lines fighting 
crime. It would have required stiffer penalties to those who sell drugs 
to children, those who commit crimes with guns, and violent repeat 
offenders. It would have kept them behind bars where they belong. And 
most of all, it was paid for. We did the responsible thing, we paid for 
  Now we have the conference report. The bill we are asked to support, 
instead of truth in sentencing--the requirement that felons serve at 
least 85 percent of their original sentences in order for the State to 
qualify for the Federal prison funds--the conference committee bill 
asks States to increase the percentage of violent offenders who serve 
any time in prison. In Texas we call that a very low fence.
  Instead of mandatory minimum prison sentences for those who sell 
drugs to minors or use a gun to commit a crime or use a minor to commit 
a crime, there is nothing--no set prison time, no mandatory minimum 
sentence. No matter how terrible a crime is, there is no mandatory 
minimum sentence in this bill for a first-time offender. That is 
different from the bill I voted for.
  According to its supporters, the pending legislation would put 
100,000 police officers on the streets. Do not believe it--$15,000 a 
year to recruit, train, equip, support, and pay the salary of a police 
officer? I do not think so, and neither do the mayors that I have 
talked to. The truth is there is money to hire 100,000 police officers 
only if local governments foot 80 percent of the cost. The truth is, 
even at 20 cents on the dollar, all the Federal money runs out in 3 or 
4 or 5 years, depending on how the local government might want to take 
the money.
  The Killeen Police Officers Association in my home State met last 
night, 50 of them. They voted unanimously not to support this bill 
because they knew that their city was not going to be able to use the 
money to fund police officers because it was not a Federal grant. It 
was Federal matching moneys and they knew that their cities could not 
afford to match. They knew they would lose the money after 3 years.
  Even in the one area of law enforcement where the Federal Government 
does have a direct role, immigration, the conference committee falls 
short. The Senate bill's requirement of expedited deportation for 
criminal aliens, people who have committed a crime in this country and 
they are illegal here anyway, has been deleted. What the conference 
committee bill contains in abundance is funding for a long list of 
programs: Art and dance classes, basketball, socialization--to name a 
few--that may be very worthwhile but which do not belong in an 
anticrime bill. Depending on whose ox you want to gore, the soft 
spending in the committee conference bill on these kinds of social 
programs is $5 to $6 billion.
  My constituents might wonder how I can be so casual when I talk about 
$1 billion. I am not casual about it. It is just that the list of 
experiments and pet projects and great ideas added to this bill by 
individual Members, some for the first time in conference committee, 
are so cleverly embedded in the bill that it is difficult to be precise 
and I have not been able to get a good number.
  Under the heading of big pork, take the Model Intensive Grant 
Program, $645 million. Under this program the Clinton administration 
will select 15 cities and they can use the 645 million taxpayer dollars 
just about however they want to.
  Then there are lots of little porks too. There is a provision that 
establishes standards in a product to be allowed to be labeled ``Made 
in America.'' Another authorizes a study of how best to introduce new 
plants and animals into one of our States. There is nearly $3 million 
to track down missing Alzheimer's patients.
  We fought over a lot of these programs last year when they were part 
of the President's economic stimulus package. They were defeated then. 
But maybe there are a number of worthwhile incentives that we ought to 
pursue now. If we want to reconsider all or some of the provisions from 
that stimulus package, maybe we should vote on them again as a package, 
or program by program. But let us do it out in the open. Let us not put 
it in a crime bill because it did not pass the test when it stood on 
its own. Let us not put it in a crime bill and say let us add to the 
deficit now. Let us make the decision with the facts. Let us decide 
that this is something that we are going to do and let us just do it.
  It is a dodge to hide behind the social welfare spending in a crime 
bill. And it is dishonest to level accusations of obstructionism when 
some of us want to insist on limiting this bill to crime fighting. 
Because you know what is going to happen.
  It has been said many times on this floor we have been working 6 
years in this body for a crime bill. When this bill is passed, Members 
are going to go home and say, ``We passed a crime bill.'' They are not 
going to take it up again because they are going to say we did it, 
when, in fact, we are not passing a crime bill that really is going to 
the heart of the issue. I would rather come back when we will have a 
real crime bill, when we will put habeas corpus reform in it--which is 
something the Federal Government can do that really will help our State 
and local governments--and let us pass a real crime bill so the people 
of America will know that we have done something that we said we did 
rather than hiding the ball and putting in social programs that have 
not made it into other bills but we put it in the crime bill because we 
know that sounds good.
  Madam President, I think Americans understand that the war against 
crime has to be waged at the local level. They do not expect Congress 
to send in all the troops to wipe out crime. But they do want some help 
from the Federal Government. That means investing in more police and 
more prisons, requiring tougher sentences, more time actually served in 
prison. The Senate bill passed last year was right on target but the 
conference committee bill that we are now considering, rejected once by 
the House of Representatives and narrowly approved not too many hours 
ago by the House, misses this mark. The money provided for police and 
prison funding in the conference committee measure can be spent on a 
whole lot more things than police and prisons. In fact, virtually all 
of the prison money can be spent for other programs--preventive 
programs, discretionary programs.
  We keep hearing on this floor, hour after hour, more prisons will be 
built. Yet virtually all of the prison money can be spent for other 
things. There is a lot of discretionary spending in this bill. When you 
compare it to the Senate bill, those who are sent to jail are going to 
be able to get out earlier.
  Senator Biden made a very effective speech. We could spend every 
dollar that comes in from our taxpayers on programs that would do good, 
that would help people with problems that are heartrending. We could do 
that. But what about the hardworking men and women of this country and 
the retirees living on fixed incomes? What about them? What about the 
people who are called on to pay for all of the programs that are very 
good programs?

  It just seems to me that our responsibility to them is to prioritize, 
to say this is the amount of Federal money we have coming in from our 
taxpayers, this is the amount we can spend. Let us put it all on the 
table, and let us decide what the priorities are, right out in the 
open, not with fancy names, and we are going to try to spend your 
taxpayer dollars wisely for you. I think that is a commitment that we 
should make to the American people.
  We should leave to State and local governments what is within their 
realm, and that is crime fighting. We should also let them have the 
money that they raise at the local level to fight crime instead of 
sending Federal mandates to the State and local governments with 
environmental regulations that are making local taxes go up year after 
year after year because of Federal mandates that are unfunded. Let us 
let the State and local governments keep the money that they get from 
the taxpayers, as we should, and let us divide up what our 
responsibilities are and let us protect the working people and the 
elderly on fixed incomes from taxes that they just cannot afford to 
pay--increasing and increasing and increasing--because of all of the 
good work that we would like to do but we just cannot do them all.
  Madam President, little time would be required to improve this bill. 
The conference committee could look to the original Senate bill's 
language and substitute it for what is there now. It could simply strip 
out the pages of irrelevant provisions and programs and restore this 
bill to its original purpose, and that is crime fighting, police on the 
streets. If we are going to put police on the streets, let us pay for 
them. Let us not ask the local communities to come up with more money 
than we are coming up with. If we are going to do that, let us pay for 
them. If we say we are going to build prisons, let us build prisons. 
That is not what this bill does. The American people want us to act, 
and they have a reason to believe we will act responsibly.
  It is more than 1 month before Congress adjourns for this year. We 
can fix this legislation. We can pass it and we can get it to the 
President's desk for signature. We can restore real crime fighting and 
at a pricetag we can afford.
  Some of my colleagues have said that a point of order will kill this 
bill. That is not true. It will not kill this bill. It is going to 
improve it.
  On the House side, they did not take up the bill. They used a rule to 
try to make it a better bill. They improved it a little bit. They cut 
$3 billion of pork out of a $33 billion bill. It started out as $22 
billion here in the Senate, and it was fully paid for. We can do that. 
It is not going to kill the bill. We can act responsibly. And then if 
we do and we can make this a real crime bill again, newspapers across 
this country will not be editorializing saying, ``Hold your nose and 
vote for it.'' I think we should have a higher standard than that, 
especially when we are talking about 30 billion, hard-earned taxpayer 
  So I ask my colleagues to sustain the point of order. It is a vote to 
keep integrity in our budgeting and a vote to keep faith with the 
American people. We can make this a good bill, a crime-fighting bill, 
and we can all be proud that we did it responsibly, that we paid for 
it, that we protected the taxpayer and we protected the innocent 
victims of our society, and we fulfilled our responsibilities to the 
American people.
  Thank you, Madam President.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. BOXER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Exon). Without objection, it is so 
ordered. The Senator from California.
  Mrs. BOXER. I thank the Chair.
  The hour is quite late here in the Senate, and I will be just a very 
few minutes. But I think this debate is very healthy and very good, and 
the Senator from Texas referenced my remarks and I referenced her 
remarks. I feel I need to place into the Record some of my thoughts 
briefly on her statement.
  Mr. President, when I made my statement, I said I thought the 
Republicans had every right to use the rules in any way they want to 
stop anything they want. That is their right. And I think the important 
thing, however, is that the American people know what is going on here.
  What I said in my remarks was that the American people should listen 
to what the Republicans, who support bringing this crime bill down, are 
saying. I said listen, they are going to say that this bill costs much 
more money than when it left the Senate. And sure enough, the first 
point of the Senator from Texas was that it cost more money. The 
majority leader has explained very patiently that in fact the bill 
covers a longer span of time so on an annual basis it is in fact less 
money. So let us listen to what the Republicans are saying.
  Second, my friend from Texas, the Republican Senator, said that when 
this bill left the Senate, it spent more on prisons and it spent more 
on law enforcement, and I would like to correct the record. When the 
bill left the Senate, $12.2 billion was spent on law enforcement, now 
it is $13.5 billion. When the bill left the Senate, $6.5 billion was 
going to be spent on prisons, now it is $9.7 billion. Yes, it is over a 
greater period of time. But in actuality those numbers went up, not 
  So how someone can say that they supported it when it left the 
Senate, and that is their most important priority, prisons and law 
enforcement, now turn around when it is more money and say it is not 
enough money, it just does not make any sense to me.
  So I think it is important to listen to the substance of the 
arguments of the Republicans.
  And I also said--and this is really my last point, Mr. President--
listen to the Republicans speak because they will never mention assault 
weapons. They never say that is why they want to bring the crime bill 
down. And guess what, my friend from Texas never mentioned it once even 
though in the list of amendments that was submitted to the majority 
leader, the Republicans said we want to reverse the assault weapon ban. 
But they do not talk about it because 80 percent of the American people 
want an assault weapon ban.
  So as I say to my friends, I hope they will do whatever they have to 
do, follow their conscience, but I want the American people to know in 
this Senator's view there are two reasons why they are using this 
procedure. One is political: do not let this President have a victory. 
And two is assault weapons. It is the National Rifle Association. And I 
say to my friends, look them in the eye; tell them they are wrong. They 
have gone too far. Weapons of war do not belong on our streets.
  Thank you very much, Mr. President.
  I yield the floor. I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll. The bill clerk 
proceeded to call the roll.
  Mr. EXON. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Boxer). Without objection, it is so 
  Mr. EXON. Madam President, as my distinguished colleague from 
California has just said, the hour is, indeed, late. I am just going to 
make a few brief remarks, and reserving additional time for myself to 
become engaged in the debate on the crime bill probably on tomorrow 
morning or sometime tomorrow.
  I have listened with keen interest to the debate, I think, if not 
every word of it, most of the words of the debate so far. I think it 
has been very enlightening.
  I rise tonight simply to say a very few words, I hope kind words 
about my friend and colleague, Senator Joe Biden, the leader in the 
Chamber of the crime bill that is before us.
  Certainly our distinguished colleague from territory adjoining the 
District of Columbia has been well-known for a long, long time as not 
only a very excellent orator but a very dedicated person who chairs, 
among his other important duties here, the Senate committee of 
jurisdiction over the crime bill.
  I think he has done a totally outstanding job. I have been in the 
Senate now for 16 years, and I must tell you that I have heard lots of 
very outstanding presentations, speeches, arguments and rhetoric. I 
must say that I listened to every word of the remarks made by the 
chairman of the Judiciary Committee. My heart goes out to him for all 
the work that he has put in over the years in trying to get a crime 
bill passed.
  Now, I do not agree with all of the positions stated by the chairman 
of the Judiciary Committee, Senator Biden, but I must say that his 
arguments are most persuasive. And whether you agree totally with him 
or not, I am just one Member of the Senate who wishes to thank, to 
salute, to compliment the talented Senator from Delaware for his 
outstanding address today.
  I would hope that the people of the Nation listened with keen 
interest to what this talented Senator had to say on a problem, the 
crime problem, that I suspect the Senator from Delaware has as much 
firsthand knowledge of and what we must do to begin to correct the 
crime problem as anyone else on either side of the aisle in the Senate.
  So I would simply say, Madam President, that while not endorsing 
everything that has been said by my distinguished colleague from 
Delaware, I must say his presentation was forceful. It was very direct. 
I thought it was tremendously interesting because in personal 
conversations I have had with the Senator from Delaware, parts of this 
crime bill that he stood at this podium and spoke to eloquently he does 
not agree with at all and wishes that it could be changed. But when 
there are 535 of us in the Congress of the United States trying to 
write a crime bill, it is a foregone conclusion that if any one of us 
had been writing the crime bill, it would not receive unanimous consent 
and opinion by the other 534 members of the Congress.
  So I simply want to say that any of the Members of the Senate who did 
not hear the address, which was on point, direct, and forceful, then 
they missed I think one of the great orations at least this Senator in 
16 years has ever heard on the floor of the U.S. Senate.
  I compliment my colleague from Delaware, Senator Joe Biden, the 
chairman of the Judiciary Committee. I thank him for his insightful 
statement and for getting right to the point on many of the problems 
that trouble many of us on this very important piece of legislation.
  With that, Madam President, I will proceed with the duties of this 
desk to finish up the session of the Senate this day.