[Congressional Record Volume 140, Number 122 (Tuesday, August 23, 1994)]
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]
VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994--CONFERENCE
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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.
Alexandria, VA, August 23, 1994.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on the Judiciary, U.S. Senate,
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
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
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
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
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
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
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
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.
[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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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\
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,
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.
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.
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
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
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
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.
74. Morgan v. Zant, 743 F.2d 775, 780 (11th Cir. 1984).
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
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
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,
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.
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
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.
128. Parker v. State, 587 So. 2d 1071, 1100-03 (Ala. Crim.
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).
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.).
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:
THE RECORD AFFIRMATIVELY SHOWS THAT THE APPELLANT WAS
CONVICTED OF THE SAME OFFENSE, WHICH IS PRECISELY THE SAME IN
LAW AND FACT IN VIOLATION OF THE 5th AMENDMENT OF THE UNITED
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.
LARRY W. RONEY, ATTORNEY AT LAW, P.C.
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.
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
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
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.
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.
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,
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
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
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,
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
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,
235. Model Code of Professional Responsibility, EC 2-25, 2-
27, 2-29 (1980); Model Rules of Professional Conduct, Rule
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
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
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
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
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
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:
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
Mr. DOMENICI. I will not have any. I will just state my own case, I
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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
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
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.