[Congressional Record Volume 142, Number 127 (Monday, September 16, 1996)]
[Senate]
[Pages S10576-S10578]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            CRIME IN AMERICA

  Mr. COVERDELL. Mr. President, undoubtedly, Senator Dole's emphasis on 
taking crime head-on is an outgrowth of a circumstance over the last 3 
years that has just turned sour on us. It has been alluded to, but I 
want to cite some of the facts that have developed in the last 36 
months.
  First of all, I want to make it clear that there can be no doubt 
about it that, in the last 36 months, the United States has found 
itself, once again, in a massive drug epidemic. It is fueling and will 
continue to fuel crime. Just to cite this, in the last 36 months, 
marijuana use is up 105 percent, LSD is up 130 percent, cocaine up 160 
percent. Somebody in the administration suggested that, actually, drug 
use is down. I have no idea where that data is coming from, but it must 
be a single source, because every other source has documented that 
drugs were up in virtually every category. The sad thing, Mr. 
President, is that they are kids.
  In the last epidemic, during the 1960's and 1970's, it was a target 
group from about 16 to 20. It has dropped, which is such a tragedy. Now 
the ensnarement is occurring at age 8 to 13. This country is going to 
feel the impact of that for a long, long time. One in every 10 kids is 
using drugs.
  Drug prosecutions are down 12 percent. This administration cut 625 
drug agents. Federal spending on drug interdiction has been cut by 25 
percent. The drug czar's office was reduced by 83 percent. On the list 
of national security threats, compiled by the National Security 
Council, this administration moved illegal drugs from No. 3, as a 
threat, to No. 29 out of 29.
  Now, Mr. President, can there be any wonder that our children are 
getting the wrong message, and that they no longer think drugs are a 
risk, and that, therefore, they are using them in record numbers, and 
that, therefore, we have an epidemic, and that, therefore, we are 
having the emergence of a new crime wave?
  Mr. President, we have been joined by one of our colleagues that has 
been in the center of this controversy during his entire time, which is 
since 1994. The distinguished Senator from Michigan is already making 
an impact in this area of vital concern across our country.
  I yield up to 15 minutes to the Senator from Michigan.


                 PRESIDENT CLINTON'S VETO BY LAWYERING

  Mr. ABRAHAM. Mr. President, I thank the Senator from Georgia, again, 
for his efforts to bring us together here to focus on various vital 
matters before the Senate and before the American people.
  Mr. President, I have taken the floor on several previous occasions 
to discuss the problem of abusive prison litigation and this Congress' 
efforts to attack that problem.
  The last time I did so was April 19, 1996. At that time, I expressed 
my disappointment that President Clinton had just vetoed the Commerce-
Justice-State appropriations bill.
  Contained in that bill was the Prison Litigation Reform Act, a 
carefully crafted set of provisions designed to stem the tide of prison 
litigation.
  In my view, this was a very important piece of legislation. Lawsuits 
by prisoners and lawsuits over prison conditions were completely out of 
hand.
  One figure captures the situation very well. In fiscal year 1995, 
prisoners--inmates in prison--filed 63,550 civil lawsuits in our 
Federal court system. That is a little over one-quarter of all the 
civil lawsuits filed in Federal courts that year. It's also far more 
than the 45,788 Federal criminal prosecutions initiated that fiscal 
year.
  In short, Mr. President, we saw, in fiscal year 1995, prison lawsuits 
outnumber prosecutions under our Federal system and account for one-
quarter of all the lawsuits brought in this country in the Federal 
system.
  One prisoner sued because he had been served melted ice cream. For 
this he claimed $1 million in damages. Fortunately, the judge ruled 
that the right to eat frozen ice cream was not one of those the Framers 
of the Constitution had in mind.
  Another sued because when his dinner tray arrived, the piece of cake 
on it was ``hacked up.''
  A third sued demanding LA Gear or Reebok ``Pumps'' instead of 
Converse tennis shoes. This kind of abusive litigation is not only 
frivolous, it costs money and cost the taxpayers a lot of money.
  The National Association of Attorneys General estimated that the 
States were spending about $81 million to battle cases of the sort I 
just described--this even though the States win 95 percent of these 
cases early in the litigation for reasons that are obvious.
  We were determined to do something about this problem in the 
Congress, so as part of the Commerce-State-Justice appropriations bill 
in 1996 we passed the Prison Litigation Reform Act. This legislation 
charged prisoners a fee for filing any lawsuit, while making it 
possible for the prisoners to pay that fee in installments. If a 
prisoner filed more than three frivolous cases, however, the prisoner 
would no longer be able to pay the filing fee in installments. He or 
she would have to pay the full fee up front, unless a court found this 
would create imminent risk of bodily harm.
  In addition, prisoners who filed frivolous lawsuits would lose their 
good time credits, thus making their stay in prison longer. And judges 
were given authority to screen out frivolous cases on their own.
  The legislation was designed to put an end to another aspect of the 
prison litigation problem: Seizure by Federal judges of the power to 
run prison systems. These seizures have consequences that range from 
the ridiculous to the disastrous.
  In my own State of Michigan, judicial orders resulting from Justice 
Department lawsuits have resulted in

[[Page S10577]]

Federal courts monitoring our State prisons to determine how warm the 
food is, how bright the lights are, whether there are electrical 
outlets in each cell, whether the prisoners' hair is cut by licensed 
barbers--this despite the fact that no court has ever found that any of 
these conditions regarding which it is giving orders violate the 
Constitution.
  The orders issued by a judge in Philadelphia were even worse. There a 
Federal judge had been overseeing what had become a program of 
wholesale releases of up to 600 criminal defendants per week. Why? To 
keep the prison population down to what the judge considered an 
appropriate level. Thousands of the released defendants were then 
rearrested for new crimes including in one 18-month period 79 murders, 
90 rapes, 959 robberies, 2,215 drug dealing charges, 701 burglaries, 
2,748 thefts, and 1,113 assaults.
  In the interest of justice and public safety, we wanted to stop this, 
and the means were simple and fully in keeping with everyone's rights. 
We simply required in that same Prison Litigation Reform Act that no 
judge could take over a prison without first holding that it had 
violated the Constitution and explaining how the order was necessary to 
correct the violation. We also directed that the judge give due regard 
to public safety in deciding what kinds of remedies to require. And we 
established stringent limits on the power of the courts to order 
prisoners released. Existing orders would have to meet these new 
standards. If they did not, they would have to be dissolved immediately 
on motion of the prison authorities, unless the court found that the 
orders were necessary to correct an on-going violation of a Federal 
right.
  Unfortunately, President Clinton vetoed that legislation. At the 
time, the President said his veto had nothing to do with our prison 
litigation proposals. Instead, he said, he was vetoing the bill over 
other matters.
  We took the President at his word and included our proposals in a 
second piece of legislation. This time, the President signed the 
legislation. Unfortunately, the President's top ranking officials in 
the Department of Justice seem intent on inventing a new kind of veto, 
veto by lawyering.

  This effort started almost as soon as the ink from the President's 
signing pen was dry. A mere 11 weeks after signing the bill, his 
Department of Justice was filing briefs all around the country that 
would undermine the clear intent of our legislation. The briefs claimed 
that, far from requiring the courts to stop running the prisons for the 
comfort of prisoners, that law authorized them to continue to do so 
indefinitely.
  Thus, according to President Clinton's Justice Department, Federal 
judges should continue to tell Michigan how warm the food should be, 
how bright the lights have to be, and who should cut the prisoners' 
hair. And by the logic of their position, judges should also continue 
to dictate prison population size and order excess prisoners released--
this even if the Constitution contains no such requirement and even if 
the release orders jeopardize public safety. At least they should do 
this while they are investigating whether the prison ever violated any 
provision of the Constitution, an investigation that can take quite a 
bit of time.
  The Department of Justice has come up with a host of legal theories 
to explain why the reform act should be read to require indefinite 
judicial supervision of prisons for the benefit of prisoners. It is 
difficult to say which is more ludicrous, the original or the current 
theory. The original theory, now abandoned in the face of questions 
from Members of this body and the National Association of Attorneys 
General, was that the phrase ``violation of a Federal right'' includes 
violations of the very decrees the reform act was adopted to end.
  The current theory stands on its head the reform act's requirement 
that existing decrees be automatically stayed 30 days after a motion to 
end one has been filed unless there has been a final ruling on the 
motion.
  According to the current Justice Department theory, this requirement 
in fact means the decrees are not automatically stayed, and, indeed, 
that nothing should happen to them at all until the court conducts its 
own exhaustive inquiry as to whether conditions at the prison have ever 
violated any constitutional provision.
  These theories are unpersuasive, Mr. President. Even Judge Harold 
Baer, the subject of some attention for his theory that running away 
from the cops gave no grounds for reasonable suspicion, rejected these 
theories and ended judicial rule at Riker's Island. Judges there had 
been dictating such crucial matters as the brand and exact 
concentration of cleanser to be used in certain areas.
  The theories are ludicrous but the end result is not. These 
interpretations make a mockery of this Congress, they make a mockery of 
the law, and they make a mockery of the American people's desire to 
have prisons run to promote the public order, not to promote the 
comfort of our prisoners.
  Further, even if they desperately try to protect existing decrees, 
President Clinton's Department of Justice continues to threaten exactly 
the kinds of lawsuits the reform act was supposed to end.
  For example, a mere 4 days after President Clinton signed the reform 
act, the Assistant Attorney General for Civil Rights threatened to sue 
Gov. Parris Glendening of Maryland over conditions in Maryland's 
supermaximum security prison. Supermaxes are reserved for the most 
dangerous prisoners, murderers and rapists who continue their violent 
behavior in prison.

  What were the egregious unconstitutional conditions that led 
President Clinton's Assistant Attorney General for Civil Rights to 
threaten suit? The fact that supermax prisoners are not allowed to 
socialize enough and are not getting enough outdoor exercise. The 
Department calls these conditions unconstitutional because they are the 
``mental equivalent of putting an asthmatic in a place with little air 
to breathe.''
  Fortunately, this particular veto by lawyering will ultimately 
succeed only if President Clinton's Justice Department persuades the 
courts to go along with it. I do not expect that it will.
  So far the results are not promising for the Justice Department. So 
far, the judges who have decided these issues, interestingly, all of 
them Democratic appointees who had either taken over the running of 
prisons themselves or had inherited them from a predecessor who 
retired, rejected half the arguments urging them to retain control.
  Mr. President, other parts of the Reform Act, the ones designed to 
cut back on individual prisoner lawsuits, which President Clinton's 
Department of Justice has no role in enforcing, already are showing 
their effects. Prisoner filings since the bill's enactment have 
declined sharply. Nevertheless, the Department of Justice, through its 
attempted veto by lawyering, is delaying and undermining the 
effectiveness of critical portions of the Reform Act. The Judiciary 
Committee will be holding a hearing on this matter next week.
  It is my intention to propose an amendment to whatever proves to be 
the most appropriate legislation, either this year's Commerce-State-
Justice appropriations bill or perhaps another omnibus appropriations 
bill, that clarifies once and for all it is time for abusive prison 
litigation to end, whether it is brought by prisoners or by President 
Clinton's Department of Justice.
  It is unfortunate we must clarify once again the clear intent of such 
recently enacted legislation. But public safety and the costs of our 
prison system are too important for us to allow this inappropriate veto 
by misinterpretation.
  In short, I am here today to say that if we are truly serious about 
getting tough with crime, we ought to begin immediately to take the 
Prison Litigation Reform Act and administer it in the exact clear sense 
that Congress intended it to be administered.
  That is not happening today. I am extraordinarily disappointed by it. 
I intend to be on the floor as often as necessary to bring about the 
correct interpretation of that legislation or to add new legislation 
that eliminates any possibility of misinterpretation in the future. 
Prisons should be tough time for prisoners and the rights of victims 
should take priority.
  That is what I believe everybody in this Chamber is committed to 
doing, and if necessary we will have to enact more legislation to get 
the job done. But I am very disappointed in the actions of the 
Department of Justice to

[[Page S10578]]

date because it is certainly inconsistent with what we demand and what 
the American people I believe want to see happen in the area of prison 
reform.
  I thank the Senator from Georgia.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. COVERDELL. I wonder if the Senator from Michigan would stay just 
a moment to see if I get the sequence of these events down. We had a 
condition of legal frivolity--if you froze an ice cream or not. I think 
any American who would hear this just would be dumbfounded. But your 
legislation put an end to that and put an end to judicial management of 
prisons. And the President vetoed that.
  Mr. ABRAHAM. That is correct.
  Mr. COVERDELL. Then you came back again, passed the essence of this 
legislation, and he signed it, but his Justice Department has 
subsequently been engaged in an overt attempt to undo it?
  Mr. ABRAHAM. That is accurate. I would say to the Senator from 
Georgia, we were told when the first veto occurred, because this 
legislation was included in a broader bill, that the legislation, the 
Prison Litigation Reform Act, was not the basis for the veto; that, in 
fact, it was supported.
  When the second bill was signed, we assumed the Justice Department 
would seek to make sure the provisions of that Litigation Reform Act 
would be enacted and followed by the courts. Instead, what we have seen 
is the Department of Justice intervening in lawsuits in a way that 
would, in fact, preclude, rather than allow, States to extricate 
themselves from these various judicial circumstances where judges were 
running the prison systems with no clear evidence of a constitutional 
violation ever having occurred. Instead, we find the Justice Department 
finding ways to allow the judges to stay in charge and to allow for 
various things such as we have seen around the country, where these 
prisoner lawsuits are growing in number, where judges are requiring 
prisons and State authorities to expend millions of taxpayer dollars 
simply to ensure and improve the comfort of prisoners. We think that is 
the wrong direction.

                          ____________________