Congressional Record, Volume 146 Issue 69 (Wednesday, June 7, 2000)

[Congressional Record Volume 146, Number 69 (Wednesday, June 7, 2000)]
[Senate]
[Pages S4669-S4690]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. COCHRAN (for himself and Mr. Akaka):
S. 2686. A bill to amend chapter 36 of title 39, United States Code,
to modify rates relating to reduced rate mail matter, and for other
purposes; to the Committee on Governmental Affairs.

legislation to improve the process for establishing nonprofit postage
rates

Mr. COCHRAN. Mr. President, today I am introducing a bill to improve
the process used by the United States Postal Service to establish
postage rates for nonprofit and other reduced-rate mailers.
Under the current rate setting procedure, nonprofit postage rates
have changed significantly, often rising more than corresponding
commercial rates. In fact, in some cases, nonprofit mail rates have
increased so much that the nonprofit rates are higher than similar
commercial rates. According to the Postal Service, the unpredictable
rate changes experienced by nonprofit mailers stem from difficulties
the Service has had with gathering accurate cost data for small
subclasses of mail.
By establishing a structured relationship between nonprofit and
commercial postage rates, this legislation would protect all categories
of nonprofit mail from unpredictable rate swings in the future. The
bill would set nonprofit and classroom Periodical rates at 95 percent
of the commercial counterpart rates (excluding the advertising
portion), set nonprofit Standard A rates at 60 percent of the
commercial Standard A rates, and set Library and Educational Matter
rates at 95 percent of the rates for the special subclass of commercial
Standard B mail.
The Postal Service recently proposed to increase postage rates for
all classes of mail, and this proposal is now pending before the Postal
Rate Commission. As part of its request, the Postal Service asked for
nonprofit postage rates that are premised on the enactment of this, or
similar, legislation to change the process for setting nonprofit mail
rates. Without this legislation, nonprofit mailers will face potential
double-digit rate hikes.
This bill achieves an appropriate balance between nonprofit and
commercial postage rates, and provides nonprofit mailers with much
needed rate predictability. It is a compromise solution that is
supported by the United States Postal Service and several major
commercial and nonprofit mailer associations, including: the Alliance
of Nonprofit Mailers, the National Federation of Nonprofits, the Direct
Marketing Association, the Magazine Publishers of America, and the
Association of Postal Commerce.
I invite my colleagues to support this effort to protect nonprofit
mailers by improving the method for establishing nonprofit postage
rates.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2686

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SPECIAL RATEMAKING PROVISIONS.

(a) Establishment of Regular Rates for Mail Classes With
Certain Preferred Subclasses.--Section 3622 of title 39,
United States Code, is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following:
``(c) Regular rates for each class or subclass of mail that
includes 1 or more special rate categories for mail under
former section 4358(d) or (e), 4452(b) or (c), or 4554(b) or
(c) of

[[Page S4670]]

this title shall be established by applying the policies of
this title, including the factors of section 3622(b) of this
title, to the costs attributable to the regular rate mail in
each class or subclass combined with the mail in the
corresponding special rate categories authorized by former
section 4358(d) or (e), 4452(b) or (c), or 4554(b) or (c) of
this title.''.
(b) Residual Rule for Preferred Periodical Mail.--Section
3626(a)(3)(A) of title 39, United States Code, is amended to
read as follows:
``(3)(A) Except as provided in paragraph (4) or (5), rates
of postage for a class of mail or kind of mailer under former
section 4358 of this title shall be established in a manner
such that the estimated revenues to be received by the Postal
Service from such class of mail or kind of mailer shall be
equal to the sum of--
``(i) the estimated costs attributable to such class of
mail or kind of mailer; and
``(ii) the product derived by multiplying the estimated
costs referred to in clause (i) by the applicable percentage
under subparagraph (B).''.
(c) Special Rule for Nonprofit and Classroom Periodicals.--
Section 3626(a)(4) of title 39, United States Code, is
amended to read as follows:
``(4)(A) Except as specified in subparagraph (B), rates of
postage for a class of mail or kind of mailer under former
section 4358(d) or (e) of this title shall be established so
that postage on each mailing of such mail shall be as nearly
as practicable 5 percent lower than the postage for a
corresponding regular-rate category mailing.
``(B) With respect to the postage for the advertising pound
portion of any mail matter under former section 4358(d) or
(e) of this title, the 5-percent discount specified in
subparagraph (A) shall not apply if the advertising portion
exceeds 10 percent of the publication involved.''.
(d) Special Rule for Nonprofit Standard (A) Mail.--Section
3626(a) of title 39, United States Code, is amended by adding
at the end the following:
``(6) The rates for mail matter under former sections
4452(b) and (c) of this title shall be established as
follows:
``(A) The estimated average revenue per piece to be
received by the Postal Service from each subclass of mail
under former sections 4452(b) and (c) of this title shall be
equal, as nearly as practicable, to 60 percent of the
estimated average revenue per piece to be received from the
most closely corresponding regular-rate subclass of mail.
``(B) For purposes of subparagraph (A), the estimated
average revenue per piece of each regular-rate subclass shall
be calculated on the basis of expected volumes and mix of
mail for such subclass at current rates in the test year of
the proceeding.
``(C) Rate differentials within each subclass of mail
matter under former sections 4452(b) and (c) shall reflect
the policies of this title, including the factors set forth
in section 3622(b) of this title.''.
(e) Special Rule for Library and Educational Matter.--
Section 3626(a) of title 39, United States Code, as amended
by subsection (d) of this section, is amended by adding at
the end the following:
``(7) The rates for mail matter under former sections
4554(b) and (c) of this title shall be established so that
postage on each mailing of such mail shall be as nearly as
practicable 5 percent lower than the postage for a
corresponding regular-rate mailing.''.

SEC. 2. TRANSITIONAL AND TECHNICAL PROVISIONS.

(a) Transitional Provision for Nonprofit Standard (A)
Mail.--In any proceeding in which rates are to be established
under chapter 36 of title 39, United States Code, for mail
matter under former sections 4452(b) and (c) of that title,
pending as of the date of enactment of section 1 of this Act,
the estimated reduction in postal revenue from such mail
matter caused by the enactment of section 3626(a)(6)(A) of
that title, if any, shall be treated as a reasonably
assignable cost of the Postal Service under section
3622(b)(3) of that title.
(b) Technical Amendment.--Section 3626(a)(1) of title 39,
United States Code, is amended by striking ``4454(b), or
4454(c)'' and inserting ``4554(b), or 4554(c)''.
______

By Mr. INOUYE (for himself, Mr. Akaka, Mr. Cochran, Mr. Dodd, Mr.
Kennedy, Mrs. Murray, and Mr. Schumer):
S. 2688. A bill to amend the Native American Languages Act to provide
for the support of Native American Language Survival Schools, and for
other purposes.

native american languages act amendments act of 2000

Mr. INOUYE. Mr. President, I rise today to introduce a bill to
amend the Native American Languages Act to provide authority for the
establishment of Native American Language Survival Schools. I am joined
in co-sponsorship by Senators Akaka, Cochran, Dodd, Kennedy, Murray and
Schumer.
Mr. President, for hundreds of years, beginning with the arrival of
European settlers on America's shores, the native peoples of America
have had to fight for the survival of their cultures. History has shown
that the ability to maintain and preserve the culture and traditions of
a people is directly tied to the perpetuation of native languages. Like
others, the traditional languages of Native American people are an
integral part of their culture and identity. They provide the means for
passing down to each new generation the stories, customs, religion,
history and traditional ways of life. To lose the diversity and vibrant
history of many Indian nations, is to lose a vital part of the history
of this country.
Mr. President, Native American languages are near extinction in the
United States. Studies suggest that at one time several thousand
distinct Indian languages existed in what is now America. Today that
number has dwindled to approximately 155 Indian languages. Of these 155
languages remaining, 45 are only spoken by elders, 60 are spoken only
by middle-aged adults or older adults, 30 are spoken by all adults but
not children, and only 20 Native languages are spoken by most of the
children. With so many Native communities facing the loss of their
languages as elderly native speakers pass on before the language can be
taught to younger generations, it is little wonder that this tragedy is
growing exponentially, day by day.
In the 1880s, as part of the United States' forced assimilation
policies towards Native Americans, a system of off-reservation boarding
schools was initiated. Native American children were forcibly taken
from their families, transported hundreds of miles to schools where
their hair was cut notwithstanding the religious importance of hair
length in most native cultures, their clothes replaced with military-
style uniforms, and they were forbidden to speak their native languages
or practice their religion. Although this effort to eradicate Indian
culture was not successful, it did separate several generations of
Native Americans from their native languages.
The Native American Languages Act of 1990 officially repudiated the
policies of the past and declared that ``it is the policy of the United
States to preserve, protect, and promote the rights and freedom of
Native Americans to use, practice, and develop Native American
languages.'' The Act was amended in 1992 to provide financial support
to Native American language projects.
Mr. President, this bill would bring the nation one step closer to
assuring the preservation and revitalization of Native American
languages by supporting the development of Native American Language
Survival Schools. These schools would provide a complete education
through the use of both Native American languages and English. The bill
also provides support for Native American Language Nests, which are
Native American language immersion programs for children aged six and
under. In addition, the bill provides authority for the following
activities: curriculum development, teacher, staff and community
resource development, rental, lease, purchase, construction,
maintenance or repair of educational facilities, and the establishment
of two Native American Language School support centers at the Native
Language College of the University of Hawaii at Hilo, and the Alaska
Native Language Center of the University of Alaska at Fairbanks.
Mr. President, I urge my colleagues to support this legislation to
assist the Native people of America in their efforts to reverse the
effects of past Federal policies by reintroducing today's children to
their Native languages and preserving Native languages for the
generations to come.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2688

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Native American Languages
Act Amendments Act of 2000''.

SEC. 2. PURPOSE.

The purposes of this Act are to--
(1) encourage and support the development of Native
American Language Survival Schools as innovative means of
addressing the effects of past discrimination against Native
American language speakers and to support the revitalization
of such languages

[[Page S4671]]

through education in Native American languages and through
instruction in other academic subjects using Native American
languages as an instructional medium, consistent with United
States' policy as expressed in the Native American Languages
Act (25 U.S.C. 2901 et seq.);
(2) encourage and support the involvement of families in
the educational and cultural survival efforts of Native
American Language Survival Schools;
(3) encourage communication, cooperation, and educational
exchange among Native American Language Survival Schools and
their administrators;
(4) provide support for Native American Language Survival
School facilities and endowments;
(5) provide support for Native American Language Nests
either as part of Native American Language Survival Schools
or as separate programs that will be developed into more
comprehensive Native American Language Survival Schools;
(6) support the development of local and national models
that can be disseminated to the public and made available to
other schools as exemplary methods of teaching Native
American students; and
(7) develop a support center system for Native American
Survival Schools at the university level.

SEC. 3. DEFINITIONS.

Section 103 of Public Law 101-477 (25 U.S.C. 2902) is
amended to read as follows:

``definitions

``In this Act:
``(1) Indian.--The term `Indian' has the meaning given that
term in section 9161 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7881).
``(2) Indian tribal government.--The term `Indian tribal
government' has the meaning given that term in section 502 of
Public Law 95-134 (42 U.S.C. 4368b).
``(3) Indian tribe.--The term `Indian tribe' has the
meaning given that term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
``(4) Indian reservation.--The term `Indian reservation'
has the meaning given the term `reservation' in section 3 of
the Indian Financing Act of 1974 (25 U.S.C. 1452).
``(5) Native american.--The term `Native American' means an
Indian, Native Hawaiian, or Native American Pacific Islander.
``(6) Native american language.--The term `Native American
language' means the historical, traditional languages spoken
by Native Americans.
``(7) Native american language college.--The term `Native
American Language College' means--
``(A) a tribally-controlled community college or university
(as defined in section 2 of the Tribally-Controlled Community
College or University Assistance Act of 1978 (25 U.S.C.
1801));
``(B) Ka Haka `Ula 0 Ke'elikolani College; or
``(C) a college applying for a Native American Language
Survival School in a Native American language which that
college regularly offers as part of its curriculum and which
has the support of an Indian tribal government traditionally
affiliated with that Native American language.
``(8) Native american language educational organization.--
The term `Native American Language Educational Organization'
means an organization that--
``(A) is governed by a board consisting of speakers of 1 or
more Native American languages;
``(B) is currently providing instruction through the use of
a Native American language for not less than 10 students for
at least 700 hours of instruction per year; and
``(C) has provided such instruction for at least 10
students annually through a Native American language for at
least 700 hours per year for not less than 3 years prior to
applying for a grant under this Act.
``(9) Native american language nest.--The term `Native
American Language Nest' means a site-based educational
program enrolling families with children aged 6 and under
which is conducted through a Native American language for not
less than 20 hours per week and not less than 35 weeks per
year with the specific goal of strengthening, revitalizing,
or re-establishing a Native American language and culture as
a living language and culture of daily life.
``(10) Native american language survival school.--The term
`Native American Language Survival School' means a Native
American language dominant site-based educational program
which expands from a Native American Language Nest, either as
a separate entity or inclusive of a Native American Language
Nest, to enroll families with children eligible for
elementary or secondary education and which provides a
complete education through a Native American language with
the specific goal of strengthening, revitalizing, or
reestablishing a Native American language and culture as a
living language and culture of daily life.
``(11) Native american pacific islander.--The term `Native
American Pacific Islander' means any descendant of the
aboriginal people of any island in the Pacific Ocean that is
a territory or possession of the United States.
``(12) Native hawaiian.--The term `Native Hawaiian' has the
meaning given that term in section 9212 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7912).
``(13) Secretary.--The term `Secretary' means the Secretary
of the Department of Education.
``(14) Traditional leaders.--The term `traditional leaders'
includes Native Americans who have special expertise in
Native American culture and Native American languages.
``(15) Tribal organization.--The term `tribal organization'
has the meaning given that term in section 4 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450b).''.

SEC. 4. NATIVE AMERICAN LANGUAGE SURVIVAL SCHOOLS.

Title I of Public Law 101-477 (25 U.S.C. 2901 et seq.) is
amended by adding at the end the following new sections:

``general authority

``Sec. 108. (a) In General.--The Secretary is authorized to
provide funds, through grant or contract, to Native American
Language Educational Organizations, Native American Language
Colleges, Indian tribal governments, or a consortia of such
organizations, colleges, or tribal governments to operate,
expand, and increase Native American Language Survival
Schools throughout the United States and its territories for
Native American children and Native American language-
speaking children.
``(b) Eligibility.--As a condition of receiving funds under
subsection (a), a Native American Language Educational
Organization, a Native American Language College, an Indian
tribal government, or a consortia of such organizations,
colleges, or tribal governments--
``(1) shall--
``(A) have at least 3 years experience in operating and
administering a Native American Language Survival School, a
Native American Language Nest, or other educational programs
in which instruction is conducted in a Native American
language; and
``(B) include students who are subject to State compulsory
education laws; and
``(2) may include students from infancy through grade 12,
as well as their families.
``(c) Use of Funds.--
``(1) Required uses.--A Native American Language Survival
School receiving funds under this section shall--
``(A) consist of not less than 700 hours of instruction
conducted annually through a Native American language or
languages for at least 15 students who do not regularly
attend another school;
``(B) provide direct educational services and school
support services that may also include--
``(i) support services for children with special needs;
``(ii) transportation;
``(iii) boarding;
``(iv) food service;
``(v) teacher and staff housing;
``(vi) purchase of basic materials;
``(vii) adaptation of teaching materials;
``(viii) translation and development; or
``(ix) other appropriate services;
``(C) provide direct or indirect educational and support
services for the families of enrolled students on site,
through colleges, or through other means to increase their
knowledge and use of the Native American language and
culture, and may impose a requirement of family participation
as a condition of student enrollment; and
``(D) ensure that students who are not Native American
language speakers achieve fluency in a Native American
language within 3 years of enrollment.
``(2) Permissible uses.--A Native American Language
Survival School receiving funds under this section may--
``(A) include Native American Language Nests and other
educational programs for students who are not Native American
language speakers but who seek to establish fluency through
instruction in a Native American language or to re-establish
fluency as descendants of Native American language speakers;
``(B) include a program of concurrent and summer college or
university education course enrollment for secondary school
students enrolled in Native American Language Survival
Schools, as appropriate; and
``(C) provide special support for Native American languages
for which there are very few or no remaining Native American
language speakers.
``(d) Curriculum Development and Community Language Use
Development.--The Secretary is authorized to provide funds,
through grant or contract, to Native American Language
Educational Organizations, Native American Language Colleges,
Indian tribal governments, or a consortia of such
organizations, colleges, or tribal governments, for the
purpose of developing--
``(1) comprehensive curricula in Native American language
instruction and instruction through Native American
languages; and
``(2) community Native American language use in communities
served by Native American Language Survival Schools.
``(e) Teacher, Staff, and Community Resource Development.--
``(1) In general.--The Secretary is authorized to provide
funds, through grant or contract, to Native American Language
Educational Organizations, Native American Language Colleges,
Indian tribal governments, or a consortia of such
organizations, colleges, or tribal governments for the
purpose of providing programs in pre-service and in-service
teacher training, staff training, personnel development
programs, programs

[[Page S4672]]

to upgrade teacher and staff skills, and community resource
development training, that shall include a program component
which has as its objective increased Native American language
speaking proficiency for teachers and staff employed in
Native American Language Survival Schools and Native American
Language Nests.
``(2) Program scope.--Programs funded under this subsection
may include--
``(A) visits or exchanges among Native American Language
Survival Schools and Native American Language Nests of school
or nest teachers, staff, students, or families of students;
``(B) participation in conference or special non-degree
programs focusing on the use of a Native American language or
languages for the education of students, teachers, staff,
students, or families of students;
``(C) full or partial scholarships and fellowships to
colleges or universities for the professional development of
faculty and staff, and to meet requirements for the
involvement of the family or the community of Native American
Language Survival School students in Native American Language
Survival Schools;
``(D) training in the language and culture associated with
a Native American Language Survival School either under
community or academic experts in programs which may include
credit courses;
``(E) structuring of personnel operations to support Native
American language and cultural fluency and program
effectiveness;
``(F) Native American language planning, documentation,
reference material and archives development; and
``(G) recruitment for participation in teacher, staff,
student, and community development.
``(3) Conditions of fellowships or scholarships.--A
recipient of a fellowship or scholarship awarded under the
authority of this subsection who is enrolled in a program
leading to a degree or certificate shall--
``(A) be trained in the Native American language of the
Native American Language Survival School, if such program is
available through that Native American language;
``(B) complete a minimum annual number of hours in Native
American language study or training during the period of the
fellowship or scholarship; and
``(C) enter into a contract which obligates the recipient
to provide his or her professional services, either during
the fellowship or scholarship period or upon completion of a
degree or certificate, in Native American language
instruction in the Native American language associated with
the Native American Language Survival School in which the
service obligation is to be fulfilled.
``(f) Endowment and Facilities.--The Secretary is
authorized to provide funds, through grant or contract, for
endowment funds and the rental, lease, purchase,
construction, maintenance, or repair of facilities for Native
American Language Survival Schools, to Native American
Language Educational Organizations, Native American Language
Colleges, and Indian tribal governments, or a consortia of
such organizations, colleges, or tribal governments that have
demonstrated excellence in the capacity to operate and
administer a Native American Language Survival School and to
ensure the academic achievement of Native American Language
Survival School students.

``native american language nests

``Sec. 109. (a) In General.--The Secretary is authorized to
provide funds, through grant or contract, to Native American
Language Educational Organizations, Native American Language
Colleges, Indian tribal governments, and nonprofit
organizations that demonstrate the potential to become Native
American Language Educational Organizations, for the purpose
of establishing Native American Language Nest programs for
students from infancy to age 6 and their families.
``(b) Requirements.--A Native American Language Nest
program receiving funds under this section shall--
``(1) provide instruction and child care through the use of
a Native American language or a combination of the English
language and a Native American language for at least 10
children for at least 700 hours per year;
``(2) provide compulsory classes for parents of students
enrolled in a Native American Language Nest in a Native
American language, including Native American language-
speaking parents;
``(3) provide compulsory monthly meetings for parents and
other family members of students enrolled in a Native
American Language Nest;
``(4) provide a preference in enrollment for students and
families who are fluent in a Native American language; and
``(5) receive at least 5 percent of its funding from
another source, which may included Federally-funded programs,
such as a Head Start program funded under the Head Start Act
(42 U.S.C. 9801 et seq.).

``demonstration programs regarding linguistics assistance

``Sec. 110. (a) Demonstration Programs.--The Secretary
shall provide funds, through grant or contract, for the
establishment of 2 demonstration programs that will provide
assistance to Native American Language Survival Schools and
Native American Language Nests. Such demonstration programs
shall be established at--
``(1) Ka Haka `Ula 0 Ke`elikolani College of the University
of Hawaii at Hilo, in consortium with the `Aha Punana Leo,
Inc., and with other entities if deemed appropriate by such
College, to--
``(A) conduct a demonstration program in the development of
the various components of a Native American Language Survival
School program, including the early childhood education
features of a Native American Nest component; and
``(B) provide assistance in the establishment, operation,
and administration of Native American Language Nests and
Native American Language Survival Schools by such means as
training, hosting informational visits to demonstration
sites, and providing relevant information, outreach courses,
conferences, and other means; and
``(2) the Alaska Native Language Center of the University
of Alaska at Fairbanks, in consortium with other entities as
deemed appropriate by such Center, to conduct a demonstration
program, training, outreach, conferences, visitation
programs, and other assistance in developing orthographies,
resource materials, language documentation, language
preservation, material archiving, and community support
development.
``(b) Use of Technology.--The demonstration programs
authorized to be established under this section may employ
synchronic and asynchronic telecommunications and other
appropriate means to maintain coordination and cooperation
with one another and with participating Native American
Language Survival Schools and Native American Language Nests.
``(c) Direction to the Secretary.--The demonstration
programs authorized to be established under this section
shall provide direction to the Secretary in developing a site
visit evaluation of Native American Language Survival Schools
and Native American Language Nests.
``(d) Endowments and Facilities.--The demonstration
programs authorized to be established under this section may
establish endowments for the purpose of furthering their
activities relative to the study and preservation of Native
American languages, and may use funds to provide for the
rental, lease, purchase, construction, maintenance, and
repair of facilities.

``authorization of appropriations

``Sec. 111. There are authorized to be appropriated such
sums as may be necessary to carry out the activities
authorized by this Act for fiscal years 2001 through
2006.''.
______

By Ms. LANDRIEU:
S. 2689. A bill to authorize the President to award a gold medal on
behalf of Congress to Andrew Jackson Higgins (posthumously), and to the
D-day Museum in recognition of the contributions of Higgins Industries
and the more than 30,000 employees of Higgins Industries to the Nation
and to world peace during World War II; to the Committee on Banking,
Housing, and Urban Affairs.

ANDREW JACKSON HIGGINS

Ms. LANDRIEU. Mr. President, I speak today to honor an
innovative and patriotic American--the logger-turned-boatbuilder, who
single-handedly transformed the concept of amphibious ship design when
our nation and her Allies needed it most. Despite a series of
bureaucratic obstacles set up by America's World War II war-machine,
Higgins skillfully engineered Marine Corps landing craft, and
eventually won contracts to build 92 percent of the Navy's war-time
fleet. The story of Andrew Jackson Higgins exemplifies the American
Dream, and merits full recognition of this body for his ingenuity,
assiduous work, and devotion to our country.
In the late 1930's, Higgins was operating a small New Orleans work-
boat company, with less than seventy-five employees.He quickly earned a
reputation for fast, dependable work, turning out specialized vessels
for the oil industry, Coast Guard, Army Corps of Engineers, and U.S.
Biological Survey. But when he presented his plans for swift amphibious
landing crafts, he met hard resistance. The U.S. Navy had overestimated
French and British abilities to secure France's ports from German
encroachment, and had thus overruled decisions to create landing boat
crafts. As the U.S. Marine Corps discerned the need for mass production
of amphibious vessels for both the Pacific and European theaters, top
brass began to lobby the Navy to abandon its internal contracting, and
procure ships from Higgins Industries, which boasted high performance
quality, and unprecedented speed for turning out boats. In 1941, the
Navy finally asked Higgins to begin designing a landing draft to carry
tanks. Instead of a design, Higgins delivered an entire working boat.
It had only taken 61 hours to design and construct his first Landing
Craft, Mechanized (LCM). Quickly, the Higgins firm grew to seven
plants, eventually turning out 700 boats a month--

[[Page S4673]]

more than all other shipyards in the nation combined. By the war's end,
Higgins had turned out 20,000 boats, ranging from the 46-foot LCVP
(Landing Craft, Vehicle & Personnel) to the fast-moving PT boats, the
rocket-firing landing craft support boats, the 56-foot tank landing
craft, the 170 foot freight supply ships and the 27-foot airborne
lifeboats that could be dropped from B-17 bombers.
Able to conceive various ship designs and mass-produce vessels
quickly at affordable prices, Higgins not only transformed wartime ship
building acquisition, but sustained the universal faith American
invention and global power projection. Higgins landing craft crashed on
the shores of Normandy on June 6, 1944, launching the greatest
amphibious assault in world history, and commencing a eastward drive to
liberate Europe from Nazi Germany. In addition to his contributions to
Allied war efforts abroad, Higgins' manufacturing further changed the
face of my own city of New Orleans, home to most of the firm's
business. I urge my colleagues to support provisions to award Andrew
Jackson Higgins the Gold Medal of Honor, in the tradition of our great
institution.
Mr. President, in 1964, President Dwight D. Eisenhower was reflecting
on the success of the 1944 Normandy invasion to his biographer, Steven
Ambrose. Andrew Jackson Higgins ``is the man who won the war for us,''
he said. ``If Higgins had not developed and produced those landing
craft, we never could have gone in over an open beach. We would have
had to change the entire strategy of the war.'' to me, Mr. Higgins and
his 20,000-member workforce embody American creativity, persistence,
and patriotism; they deserve to be distinguished for their critical
place in history.
Mr. President, I ask unanimous consent that the full text of the bill
be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2689

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Andrew Jackson Higgins Gold
Medal Act''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) Andrew Jackson Higgins was born on August 28, 1886, in
Columbus, Nebraska, moved to New Orleans in 1910, and formed
Higgins Industries on September 26, 1930.
(2) Andrew Jackson Higgins designed, engineered, and
produced the ``Eureka'', a unique shallow draft boat the
design of which evolved during World War II into 2 basic
classes of military craft: high speed PT boats, and types of
Higgins landing craft (LCPs, LCPLs, LCVPs, LCMs and LCSs).
(3) Andrew Jackson Higgins designed, engineered, and
constructed 4 major assembly line plants in New Orleans for
mass production of Higgins landing craft and other vessels
vital to the Allied Forces' conduct of World War II.
(4) Andrew Jackson Higgins bought the entire 1940
Philippine mahogany crop and other material purely at risk
without a government contract, anticipating that America
would join World War II and that Higgins Industries would
need the wood to build landing craft. Higgins also bought
steel, engines, and other material necessary to construct
landing craft.
(5) Andrew Jackson Higgins, through Higgins Industries,
employed a fully integrated assembly line work force, black
and white, male and female, of up to 30,000 during World War
II, with equal pay for equal work.
(6) In 1939, the United States Navy had a total of 18
landing craft in the fleet.
(7) From November 18, 1940, when Higgins Industries was
awarded its first contract for Higgins landing craft until
the conclusion of the war, the employees of Higgins
Industries produced 12,300 Landing Craft Vehicle Personnel
(LCVP's) and nearly 8,000 other landing craft of all types.
(8) During World War II, Higgins Industries employees
produced 20,094 boats, including landing craft and Patrol
Torpedo boats, and trained 30,000 Navy, Marine, and Coast
Guard personnel on the safe operation of landing craft at the
Higgins' Boat Operators School.
(9) On Thanksgiving Day 1944, General Dwight D. Eisenhower
stated in an address to the Nation: ``Let us thank God for
Higgins Industries, management, and labor which has given us
the landing boats with which to conduct our campaign.''.
(10) Higgins landing craft, constructed of wood and steel,
transported fully armed troops, light tanks, field artillery,
and other mechanized equipment essential to amphibious
operations.
(11) Higgins landing craft made the amphibious assault on
D-day and the landings at Leyte, North Africa, Guadalcanal,
Sicily, Iwo Jima, Tarawa, Guam, and thousands of less well-
known assaults possible.
(12) Captain R.R.M. Emmett, a commander at the North Africa
amphibious landing, and later commandant of the Great Lakes
Training Station, wrote during the war: ``When the history of
this war is finally written by historians, far enough removed
from its present turmoil and clamor to be cool and impartial,
I predict that they will place Mr. (Andrew Jackson) Higgins
very high on the list of those who deserve the commendation
and gratitude of all citizens.''.
(13) In 1964, President Dwight D. Eisenhower told historian
Steven Ambrose: ``He (Higgins) is the man who won the war for
us. If Higgins had not developed and produced those landing
craft, we never could have gone in over an open beach. We
would have had to change the entire strategy of the war.''.

SEC. 3. CONGRESSIONAL GOLD MEDAL.

(a) Presentation Authorized.--
(1) In general.--The President is authorized, on behalf of
Congress, to award a gold medal of appropriate design to--
(A) the family of Andrew Jackson Higgins, honoring Andrew
Jackson Higgins (posthumously) for his contributions to the
Nation and world peace; and
(B) the D-day Museum in New Orleans, Louisiana, for public
display, honoring Andrew Jackson Higgins (posthumously) and
the employees of Higgins Industries for their contributions
to the Nation and world peace.
(2) Modalities.--The modalities of presentation of the
medals under this Act shall be determined by the President
after consultation with the Speaker of the House of
Representatives, the Majority Leader of the Senate, the
Minority Leader of the Senate, and the Minority Leader of the
House of Representatives.
(b) Design and Striking.--For purposes of the presentation
referred to in subsection (a), the Secretary of the Treasury
(in this Act referred to as the ``Secretary'') shall strike 2
gold medals with suitable emblems, devices, and inscriptions,
to be determined by the Secretary.

SEC. 4. DUPLICATE MEDALS.

The Secretary may strike and sell duplicates in bronze of
the gold medals struck under this Act, under such regulations
as the Secretary may prescribe, and at a price sufficient to
cover the costs thereof, including labor, materials, dies,
use of machinery, and overhead expenses, and the cost of the
gold medal.

SEC. 5. STATUS AS NATIONAL MEDALS.

The medals struck under this Act are national medals for
purposes of chapter 51 of title 31, United States Code.

SEC. 6. AUTHORIZATION OF APPROPRIATIONS; PROCEEDS OF SALE.

(a) Authority To Use Fund Amounts.--There is authorized to
be charged against the United States Mint Public Enterprise
Fund an amount not to exceed $60,000 to pay for the cost of
the medals authorized by this Act.
(b) Proceeds of Sale.--Amounts received from the sale of
duplicate bronze medals under section 4 shall be deposited in
the United States Mint Public Enterprise Fund.
______

By Mr. LEAHY (for himself, Mr. Smith of Oregon, Ms. Collins, Mr.
Levin, Mr. Jeffords, Mr. Feingold, Mr. Moynihan, Mr. Akaka, Mr.
Kerrey, and Mr. Wellstone):
S. 2690. A bill to reduce the risk that innocent persons may be
executed, and for other purposes; to the Committee on the Judiciary.

THE INNOCENCE PROTECTION ACT OF 2000

Mr. LEAHY. Mr. President, a few months ago, I came to this
floor to draw attention to a growing national crisis in the
administration of capital punishment and to suggest some solutions. You
will recall some of the shocking facts I described:

For every 7 people executed, 1 death row inmate is shown
some time after conviction to be innocent of the crime.
Many of those exonerated have come within hours of being
executed, and many have spent a decade or more in jail before
they were given a fair opportunity to establish their
innocence.
Capital defendants are frequently represented by lawyers
who lack the funds or the competence to do the job, or who
have been disbarred or suspended for misconduct, and, from
time to time, by lawyers who sleep through the trial, but the
courts turn a blind eye.
Inexpensive and practically foolproof means of proving
innocence are often denied to defendants.

The saddest fact of all, to me, is that the society facing this
crisis is not a medieval one; it is America, today, in the 21st
Century. As the Governor of Illinois told us when he placed a
moratorium on the death penalty in his State earlier this year,
something urgently needs to be done to remedy this situation. That is
why I have been talking with Senators on both sides of the aisle and
all sides of the capital punishment debate. That is why I have been
searching for ways to reduce the risk of mistaken executions.
That is why I am so pleased that today, with my good friend, the
junior

[[Page S4674]]

Senator from Oregon (Senator Gordon Smith), we are introducing the
bipartisan Innocence Protection Act of 2000. This bill is a carefully
crafted package of criminal justice reforms designed to protect the
innocent and to ensure that if the death penalty is imposed, it is the
result of informed and reasoned deliberation, not politics, luck, bias
or guesswork.
Every American child is taught that justice is blind. It is important
to remember what justice is supposed to be blind to. Justice should
never be blind to the truth, it should never be blind to the evidence,
and it should never be blind to the teachings of modern science. What
justice should be blind to is ideology, politics, race and money.
Too often in this chamber, we find ourselves dividing along party or
ideological lines. The bill that Senator Smith and I are introducing
today is not about that, and it is not about whether in the abstract,
you favor or disfavor the death penalty. It is about what kind of
society we want America to be in the 21st Century.
I am optimistic about America's future. I have become all the more
optimistic in the past few months as I have seen an outpouring of
support across the political spectrum and across the country for
common-sense measures to reduce the risk of executing the innocent.
Today, Senator Smith and I are joined by Senators from both sides of
the aisle, by some who support capital punishment and by others who
oppose it. On the Republican side, I want to thank my friend Senator
Susan Collins of Maine and my fellow Vermonter, Senator Jim Jeffords.
On the Democratic side, Senators Levin, Feingold, Moynihan, Akaka,
Kerrey, and Wellstone. I also want to thank our House sponsors William
Delahunt and Ray LaHood, along with their 39 cosponsors, both
Democratic and Republican. Here on Capitol Hill it is our job to
represent Americans. The scores of legislators who have sponsored this
legislation clearly do represent Americans, both in their diversity and
in their readiness to work together for common-sense solutions.
The outpouring of bipartisan support we have seen in Congress
reflects an emerging public consensus. Opinion polls show Americans
divided on the death penalty in the abstract. But they show
overwhelmingly that Americans will not tolerate the execution of
innocent people, and that Americans expect their justice system to
provide everyone with a fair trial and a competent lawyer. A recent
Gallup Poll found that 92 percent of Americans believe that people
convicted before modern advances in DNA technology should be given the
opportunity to obtain DNA testing if such tests might show their
innocence.
I am also encouraged by the growing chorus of calls for reform of our
capital punishment system by criminal justice experts and respected
opinion leaders nationwide. George Will wrote in a April 6th column
that ``skepticism is in order'' when it comes to capital punishment.
Another conservative columnist, Bruce Fein, wrote in The Washington
Times on April 25th:

A decent respect for life . . . demands scrupulous concern
for the reliability of verdicts in capital punishment trials.
Otherwise, the death penalty game is not worth the gamble of
executing the innocent--a shameful stain on any system of
justice--and life sentences (perhaps in solitary confinement)
should be the maximum.

Mr. Fein writes as one who served as a senior Justice
Department official in the Reagan Administration.
More recently, on May 11th, the Constitution Project at Georgetown
University Law Center established a blue-ribbon National Committee to
Prevent Wrongful Executions, comprised of supporters and opponents of
the death penalty, Democrats and Republicans, including six former
State and Federal judges, a former U.S. Attorney, two former State
Attorneys General, and a former Director of the FBI. According to its
mission statement, this Committee is ``united in [its] profound concern
that, in recent years, and around the country, procedural safeguards
and other assurances of fundamental fairness in the administration of
capital punishment have been significantly diminished.'' Many of the
concerns that the Committee has raised are addressed in the legislation
that Senator Smith and I are introducing today.

Just yesterday, the editors of The Washington Times noted that ``the
increased use of DNA analysis has in fact revealed some serious flaws
in the way the justice system exacts the supreme penalty,'' and
succinctly expressed the common sense view of nine out of ten Americans
and the basic point that underlies our legislation: ``Surely no one
could reasonably object to making sure we execute only the guilty.''
I ask unanimous consent that The Washington Times editorial be
included in the Record at this point, together with the articles by
George Will and Bruce Fein, and editorials dated February 19 and 28
from the New York Times and The Washington Post, both praising the
Innocence Protection Act.
As I describe some of the major reforms proposed by our legislation,
I ask you to consider these issues from the perspective of a capital
juror, an ordinary citizen who is asked by his government to do one of
the toughest things a citizen can do: sit in judgment on another
person's life. You would not want to make the wrong decision. You would
want the process to work so that you could make the right decision.
We need to enact real reforms to combat the very real risk in America
today that an innocent person is being executed. I will now describe
some of the major reforms proposed by our legislation.
More than any other development, improvements in DNA testing have
provided the critical evidence to exonerate innocent people. In the
last decade, scores of wrongfully convicted people have been released
from prison--including many from death row--after DNA testing proved
they could not have committed the crime for which they were convicted.
In some cases the same DNA testing that vindicated the innocent helped
catch the guilty.
As I already mentioned, 92 percent of Americans agree that we need to
make DNA testing available in every appropriate case. But this
legislation is not about public opinion polls--it is about saving
innocent lives.
A few months ago, I met Kirk Bloodsworth, a former Marine who was
convicted and sentenced to death in Maryland for a crime that he did
not commit. Nine years later, DNA testing conclusively established his
innocence.
On the same day, I met Clyde Charles. He spent 9 years pleading with
the State of Louisiana for the DNA testing that eventually exonerated
him. He missed the childhood of his daughter, he contracted diabetes
and tuberculosis while in prison, and both of his parents died before
his release.
Just last Wednesday, the Governor of Texas pardoned A.B. Butler, who
served 17 years of a 99-year sentence for a sexual assault that he did
not commit before he was finally cleared by DNA testing. Butler spent
10 years trying to have DNA testing done in his case.
One day later, the Governor of Virginia ordered new DNA testing for
Earl Washington, a retarded man convicted of a rape-murder in 1982.
There are still significant numbers of convicted men and women in
prisons throughout the country whose trials preceded modern DNA
testing. If history is any guide, then some of these individuals are
innocent of any crime.
If DNA testing can help establish innocence, there is no reason to
deny testing, and every reason to grant it. This is not about guilty
people trying to get off on legal technicalities. This is about
innocent people trying to prove their innocence--and being thwarted by
legal technicalities. Our bill will allow retroactive tests for people
tried before DNA technology was available to them, and eliminate the
procedural bars that may prevent the introduction of new, exculpatory
DNA evidence. Our bill will also ensure that inmates are notified
before a State destroys a rape kit or other biological evidence that
may, through DNA testing, prove that an inmate was wrongfully
convicted.
What possible reason could there be to deny people access to the
evidence--often the only evidence--that could prove their innocence?
Now that we have DNA fingerprinting that can prove a person's
innocence, why should we as a society be willfully blind to the truth?
The sole argument I have heard advanced against the Leahy-Smith
proposal is that it is somehow overly broad. As best I can understand
this objection, the point seems to be that in

[[Page S4675]]

some cases, DNA evidence will only confirm the jury's guilty verdict.
That is the point that Virginia prosecutors have advanced in opposing
DNA testing for death row inmate Derek Barnabei. But as the Washington
Post pointed out in a March 20th editorial about the Barnabei case, the
possibility that DNA testing will confirm an inmate's guilt is no
reason to deny testing:

It is hard to see why a state, before putting someone to
death, would be unwilling to demonstrate a jury verdict's
consistency with all of the evidence. Indeed, this is
precisely the type of case in which the state should have no
choice. Under [the Innocence Protection Act], states would be
obligated in such circumstances to allow post-conviction DNA
testing. Such a law would not merely offer a layer of
protection to innocent people but would increase public
confidence in the convictions of guilty people.

I am grateful for the Post's endorsement.
As the Post has pointed out, this is a common sense reform. As
opinion polls have shown, the idea of ensuring DNA testing is available
in appropriate cases enjoys the support of the vast majority of
Americans. And as the recent cases that I have discussed make clear,
this is a matter of national urgency. I hope we can move forward
expeditiously.
Post-conviction DNA testing is an essential safeguard that can save
innocent lives when the trial process has failed to uncover the truth.
As the Governor of New York has recognized, DNA testing also serves as
a window into the systemic flaws of our capital punishment apparatus.
In May, Governor Pataki proposed the creation of a panel to investigate
the facts behind DNA exonerations and to determine what went wrong.
When DNA uncovers one miscarriage of justice after another, it is
neither just nor sensible to stop at making post-conviction DNA testing
more available. It is unjust because innocent people should not have to
wait for years after trial to be exonerated and freed. It is not
sensible because society should not have to wait for years to know the
truth. When dozens of innocent people are being sentenced to death, and
dozens of guilty people are working free because the State has
convicted the wrong person, we must ask ourselves what went wrong in
the trial process, and we must take what steps we can to make sure it
does not happen again.
There is a recurring theme in wrongful conviction cases--incompetent
and grossly underpaid defense counsel. That theme is well illustrated
by the case of Federico Macias. He spent nine years on Texas's death
row and came within two days of execution because his trial lawyer did
almost nothing to prepare for trial. No doubt, being paid less than $12
an hour was a disincentive for the lawyer to conduct a more thorough
investigation.
This lawyer failed to call available witnesses who could have refuted
the State's case, and based his trial decisions on a fundamental
misunderstanding of Texas law. The lawyer also admitted he did no
investigation at all for the sentencing phase. His only preparation was
to speak to his client and his client's wife during the lunch break of
the sentencing proceeding.
Macias was eventually cleared of all charges and released from
prison, thanks to volunteer work by a Washington lawyer who intervened
just before the scheduled execution. Here is what the Federal Court of
Appeals had to say when it overturned Macias's conviction:

We are left with the firm conviction that Macias was denied
his constitutional right to adequate counsel in a capital
case in which actual innocence was a close question. The
state paid defense counsel $11.84 per hour. Unfortunately,
the justice system got only what it paid for.

Federico Macias's case was not unique. In the Texas criminal justice
system, there is a whole category of capital cases known as the
sleeping lawyer cases, to which the majority of the Texas Court of
Criminal Appeals has responded with apathy. This attitude was
chillingly conveyed by one Texas judge who reasoned that, while the
Constitution requires a defendant to be represented by a lawyer, it
``doesn't say the lawyer has to be awake.''
But this is not just a Texas problem, this is a nationwide problem.
In case after case across the country, capital defendants have found
their lives placed in the hands of lawyers who are hopelessly
incompetent--lawyers who were drunk during the trial; lawyers who never
bothered to investigate the case or even meet with their client before
trial; and lawyers who were suspended or disbarred.
Oklahoma spent all of $3,200 on the defense of Ronald Keith
Williamson; it got what it paid for when Williamson's lawyer failed to
investigate and present to the jury a simple fact--the fact that
another man had confessed to the murder. Both Williamson and his
codefendant were eventually cleared of any crime.
In Illinois, Dennis Williams was defended by a lawyer who was
simultaneously defending himself in disbarment proceedings. Williams
was eventually exonerated in 1996, after 18 years on death row, with
the help of three journalism students from Northwestern University.
That is not how the American adversarial system of criminal justice
is meant to work. Americans on trial for their lives should not be
condemned to rely on sleeping lawyers, drunk lawyers, disbarred
lawyers, or lawyers who do not have the resources to do the job. In our
society, lawyers and journalists both serve important fact-finding
functions. But, as one of the Northwestern University journalism
students so aptly said after proving the innocence of yet another death
row inmate, Anthony Porter, ``Twenty-one-year-olds are not supposed to
be responsible for finding the innocent people on death row.''
The need for competent and adequately funded lawyers to make our
adversarial system work is not a novel insight, and the lack of such
lawyers and funding is not a novel discovery. In 1991, Retired Chief
Justice Harold Clarke of Georgia told the Georgia State Bar that:

Providing lawyers for poor people accused of crimes is a
state obligation. The Constitution teaches us that. But more
important, common sense and human decency tell us that. Yet
we haven't listened to those voices.

In repeated resolutions dating back to the 1980s, the Conference of
Chief Justices has urged States to do more to ensure that capital
defendants are provided quality representation. In 1995, for example,
the Chief Justices resolved that each State should ``establish
standards and a process that will assure the timely appointment of
competent counsel, with adequate resources, to represent defendants in
capital cases at each stage of such proceedings.''
As we enter the 21st century, a few States have heeded this advice.
But many are still not listening to the voices of the people who know
first hand what a mockery incompetent and underfunded defense lawyers
can make of our criminal justice system. I have described two cases,
from Texas and Oklahoma, in which the State grossly underfunded
appointed counsel and got what it paid for. There are many more
examples, including an Alabama case within the past year in which the
court, after a full trial, limited the fee for investigating and
defending against a charge of capital murder to about $4,000. After
paying his investigator and paralegal, the lawyer pocketed $1,212,
which worked out to $5.05 an hour--less than the minimum wage.

We should not sit back and rely on 21-year-old journalism students to
save innocent people from execution. And a quarter of a century of
experience with the death penalty since the Supreme Court restored it
in 1976 teaches us that we cannot sit back and rely on the States to
provide adequate counsel to those whom they seek to execute.
We in Congress can never guarantee that the innocent will not be
convicted. But we have a responsibility, at a minimum, to ensure that
when people in this country are on trial for their lives, they will be
defended by lawyers who meet reasonable minimum standards of competence
and who have sufficient funds to investigate the facts and prepare
thoroughly for trial. That goal can be achieved by cooperation between
the States and the Federal Government whereby we give the States money
to fund their criminal justice systems conditioned on their meeting a
floor of minimum standards, and leave the States free to improve on
those standards if they are so inclined. That is what our bill seeks to
achieve.
What do we owe to the innocent people who are able to win their
release

[[Page S4676]]

from prison? How do we compensate them for all the years they spent
behind bars, sometimes on death row, for all the lost wages, for all
the pain and suffering. In most cases, there is no compensation, or at
least not much. Federal law provides a miserly $5,000 in cases of
unjust imprisonment, regardless of the time served. In the case of
Clyde Charles, who spent 18 years in Louisiana's Angola prison, that
would come out to about 75 cents a day. Is that what society owes to
Clyde Charles, for the walls placed between him and his family for 18
years, for missing his daughter's childhood, and for the diabetes and
tuberculosis he contracted in prison? Does that seem about right--75
cents a day?
How about nothing at all? In 36 States, people who have been unjustly
convicted and incarcerated for crimes they did not commit are barred
from recovering any damages against the State. Louisiana, which
destroyed the life of Clyde Charles, has no compensation statute. The
States that have compensation statutes generally put a cap on payments,
although none sets the cap as low as the current Federal cap of $5,000.
Let us step back and put this situation in perspective. A few years
ago, a Maryland jury found that three young men had been falsely
imprisoned by a security guard at an Eddie Bauer clothing store. The
guard detained these men for about 10 minutes on suspicion of
shoplifting, and forced one of them to remove his shirt. How much did
the jury award for those 10 minutes of false imprisonment? $1 million.
Now compare what happened to Walter McMillian. In 1986, in a small
town in Alabama, an 18-year-old white woman was shot to death. Walter
McMillian was a black man who lived in the next town. From the day of
his arrest, McMillian was placed on death row. No physical evidence
linked him to the crime, and several people testified at the trial that
he could not have committed the murder because he was with them all
day. All three witnesses who connected McMillian with the murder later
recanted their testimony. The one supposed ``eyewitness'' said that
prosecutors had pressured him to implicate McMillian in the crime.
The jury in the trial recommended a life sentence, but the judge
overruled this recommendation and sentenced McMillian to death. His
case went through four rounds of appeal, all of which were denied. New
attorneys, not paid by the State of Alabama, voluntarily took over the
case and eventually found that the prosecutors had illegally withheld
exculpatory evidence. A story about the case appeared on 60 Minutes in
November 1992. Finally, the State agreed to investigate its earlier
handling of the case and admitted that a grave mistake had been made.
McMillian was freed into the welcoming arms of his family and friends
on March 3, 1993.
Despite many years of litigation, McMillian has never been given any
recompense for the years he was unjustly held on death row. His
attorney has taken the issue of just compensation all the way to the
U.S. Supreme Court, but to no avail.
Let us take another example in another State. In Oklahoma, 4 inmates
have been exonerated by DNA testing over the past few years. When you
add it up, they spent about 40 years in prison. Two of them were on
death row. One came within 5 days of execution. None has received
compensation--not a dime.
Putting one's life back together after such an experience is
difficult enough, even with financial support. Without such support, a
wrongly convicted person might never be able to establish roots that
would allow him to contribute to society.
We need to do more to help repair the lives that are shattered by
wrongful convictions. The Innocence Protection Act does this by raising
the Federal cap on compensation, and by pushing the States to provide
meaningful compensation to any person who is unjustly convicted and
sentenced to death.
Money damages will never compensate for the mental anguish of being
falsely convicted, for the lost years, or for the day-to-day brutality
and deprivations of prison. But we must do what we can. Society owes a
moral debt to the wrongfully imprisoned; that debt should be paid.
Finally, we as a Nation need to go back to first principles when it
comes to deciding who is eligible for the death penalty. The United
States stands alongside Iran, Nigeria, Pakistan, and Saudi Arabia as
the only nations still executing people for crimes committed as
juveniles. Is this the company that we want to keep?
The execution of juvenile offenders is also barred by several major
human rights treaties, including the U.N. Convention on the Rights of
the Child, the American Convention on Human Rights, and the
International Covenant on Civil and Political Rights--perhaps the most
important human rights documents in the world today. As a leader in the
human rights community, it would be fitting if the United States agreed
to respect the precepts of international humans rights law and comply
with the terms of these treaties.
This country should also stop executing the mentally retarded. People
with mental retardation have a diminished capacity to understand right
from wrong. They are more prone to confess to crimes they did not
commit simply to please their interrogators, and they are often unable
to assist their lawyer in preparing a defense. Executing them is wrong;
it is immoral. In addition, the execution of the mentally retarded,
like the execution of juvenile offenders, severely damages U.S.
standing in the international community.
Today, 13 States with capital punishment forbid the execution of
defendants with mental retardation. The State Senator who sponsored the
Nebraska bill in 1998 later said that it should not have been necessary
because ``no civilized, mature society would ever entertain the
possibility of executing anybody who was mentally retarded.''
The legislation that I introduce today proposes that the United
States Congress speak as the conscience of the Nation in condemning the
continued execution of juvenile offenders and the mentally retarded.
There can be no longer be any question that our capital punishment
system is in crisis. The Innocence Protection Act is the absolute
minimum we must do to prevent and catch these mistakes and to restore
the public's confidence in our criminal justice system.
I ask unanimous consent that the bill, a summary of the bill, and
additional material be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 2690

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Innocence
Protection Act of 2000''.
(b) Table of Contents.--The table of contents for this Act
is as follows:

Sec. 1. Short title; table of contents.

TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

Sec. 101. Findings and purposes.
Sec. 102. DNA testing in Federal criminal justice system.
Sec. 103. DNA testing in State criminal justice systems.
Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.

TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

Sec. 201. Amendments to Byrne grant programs.
Sec. 202. Effect on procedural default rules.
Sec. 203. Capital representation grants.

TITLE III--COMPENSATING THE UNJUSTLY CONDEMNED

Sec. 301. Increased compensation in Federal cases.
Sec. 302. Compensation in State death penalty cases.

TITLE IV--MISCELLANEOUS PROVISIONS

Sec. 401. Accommodation of State interests in Federal death penalty
prosecutions.
Sec. 402. Alternative of life imprisonment without possibility of
release.
Sec. 403. Right to an informed jury.
Sec. 404. Annual reports.
Sec. 405. Discretionary appellate review.
Sec. 406. Sense of Congress regarding the execution of juvenile
offenders and the mentally retarded.

TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

SEC. 101. FINDINGS AND PURPOSES.

(a) Findings.--Congress makes the following findings:
(1) Over the past decade, deoxyribonucleic acid testing
(referred to in this section as ``DNA testing'') has emerged
as the most reliable forensic technique for identifying

[[Page S4677]]

criminals when biological material is left at a crime scene.
(2) Because of its scientific precision, DNA testing can,
in some cases, conclusively establish the guilt or innocence
of a criminal defendant. In other cases, DNA testing may not
conclusively establish guilt or innocence, but may have
significant probative value to a finder of fact.
(3) While DNA testing is increasingly commonplace in
pretrial investigations today, it was not widely available in
cases tried prior to 1994. Moreover, new forensic DNA testing
procedures have made it possible to get results from minute
samples that could not previously be tested, and to obtain
more informative and accurate results than earlier forms of
forensic DNA testing could produce. Consequently, in some
cases convicted inmates have been exonerated by new DNA tests
after earlier tests had failed to produce definitive results.
(4) Since DNA testing is often feasible on relevant
biological material that is decades old, it can, in some
circumstances, prove that a conviction that predated the
development of DNA testing was based upon incorrect factual
findings. Uniquely, DNA evidence showing innocence, produced
decades after a conviction, provides a more reliable basis
for establishing a correct verdict than any evidence
proffered at the original trial. DNA testing, therefore, can
and has resulted in the post-conviction exoneration of
innocent men and women.
(5) In the past decade, there have been more than 65 post-
conviction exonerations in the United States and Canada based
upon DNA testing. At least 8 individuals sentenced to death
have been exonerated through post-conviction DNA testing,
some of whom came within days of being executed.
(6) The 2 States that have established statutory processes
for post-conviction DNA testing, Illinois and New York, have
the most post-conviction DNA exonerations, 14 and 7,
respectively.
(7) The advent of DNA testing raises serious concerns
regarding the prevalence of wrongful convictions, especially
wrongful convictions arising out of mistaken eyewitness
identification testimony. According to a 1996 Department of
Justice study entitled ``Convicted by Juries, Exonerated by
Science: Case Studies of Post-Conviction DNA Exonerations'',
in approximately 20 to 30 percent of the cases referred for
DNA testing, the results excluded the primary suspect.
Without DNA testing, many of these individuals might have
been wrongfully convicted.
(8) Laws in more than 30 States require that a motion for a
new trial based on newly discovered evidence of innocence be
filed within 6 months or less. These laws are premised on the
belief--inapplicable to DNA testing--that evidence becomes
less reliable over time. Such time limits have been used to
deny inmates access to DNA testing, even when guilt or
innocence could be conclusively established by such testing.
For example, in Dedge v. Florida, 723 So.2d 322 (Fla. Dist.
Ct. App. 1998), the court without opinion affirmed the denial
of a motion to release trial evidence for the purpose of DNA
testing. The trial court denied the motion as procedurally
barred under the 2-year limitation on claims of newly
discovered evidence established by the State of Florida,
which has since adopted a 6-month limitation on such claims.
(9) Even when DNA testing has been done and has
persuasively demonstrated the actual innocence of an inmate,
States have sometimes relied on time limits and other
procedural barriers to deny release.
(10) The National Commission on the Future of DNA Evidence,
a Federal panel established by the Department of Justice and
comprised of law enforcement, judicial, and scientific
experts, has issued a report entitled ``Recommendations For
Handling Post-Conviction DNA Applications'' that urges post-
conviction DNA testing in 2 carefully defined categories of
cases, notwithstanding procedural rules that could be invoked
to preclude such testing, and notwithstanding the inability
of the inmate to pay for the testing.
(11) The number of cases in which post-conviction DNA
testing is appropriate is relatively small and will decrease
as pretrial testing becomes more common and accessible.
(12) The cost of DNA testing has also decreased in recent
years. The typical case, involving the analysis of 8 samples,
currently costs between $2,400 and $5,000, depending upon
jurisdictional differences in personnel costs.
(13) In 1994, Congress authorized funding to improve the
quality and availability of DNA analysis for law enforcement
identification purposes. Since then, States have been awarded
over $50,000,000 in DNA-related grants.
(14) Although the Supreme Court has never announced a
standard for addressing constitutional claims of innocence,
in Herrera v. Collins, 506 U.S. 390 (1993), a majority of the
Court expressed the view that, ``a truly persuasive
demonstration of `actual innocence' '' made after trial would
render imposition of punishment by a State unconstitutional.
(15) If biological material is not subjected to DNA testing
in appropriate cases, there is a significant risk that
persuasive evidence of innocence will not be detected and,
accordingly, that innocent persons will be unconstitutionally
incarcerated or executed.
(16) To prevent violations of the Constitution of the
United States that the Supreme Court anticipated in Herrera
v. Collins, it is necessary and proper to enact national
legislation that ensures that the Federal Government and the
States will permit DNA testing in appropriate cases.
(17) There is also a compelling need to ensure the
preservation of biological material for post-conviction DNA
testing. Since 1992, the Innocence Project at the Benjamin N.
Cardozo School of Law has received thousands of letters from
inmates who claim that DNA testing could prove them innocent.
In over 70 percent of those cases in which DNA testing could
have been dispositive of guilt or innocence if the biological
material were available, the material had been destroyed or
lost. In two-thirds of the cases in which the evidence was
found, and DNA testing conducted, the results have exonerated
the inmate.
(18) In at least 14 cases, post-conviction DNA testing that
has exonerated a wrongly convicted person has also provided
evidence leading to the apprehension of the actual
perpetrator, thereby enhancing public safety. This would not
have been possible if the biological evidence had been
destroyed.
(b) Purposes.--The purposes of this title are to--
(1) substantially implement the Recommendations of the
National Commission on the Future of DNA Evidence in the
Federal criminal justice system, by ensuring the availability
of DNA testing in appropriate cases;
(2) prevent the imposition of unconstitutional punishments
through the exercise of power granted by clause 1 of section
8 and clause 2 of section 9 of article I of the Constitution
of the United States and section 5 of the 14th amendment to
the Constitution of the United States; and
(3) ensure that wrongfully convicted persons have an
opportunity to establish their innocence through DNA testing,
by requiring the preservation of DNA evidence for a limited
period.

SEC. 102. DNA TESTING IN FEDERAL CRIMINAL JUSTICE SYSTEM.

(a) In General.--Part VI of title 28, United States Code,
is amended by inserting after chapter 155 the following:

``CHAPTER 156--DNA TESTING

``Sec.
``2291. DNA testing.
``2292. Preservation of biological material.

``Sec. 2291. DNA testing

``(a) Application.--Notwithstanding any other provision of
law, a person in custody pursuant to the judgment of a court
established by an Act of Congress may, at any time after
conviction, apply to the court that entered the judgment for
forensic DNA testing of any biological material that--
``(1) is related to the investigation or prosecution that
resulted in the judgment;
``(2) is in the actual or constructive possession of the
Government; and
``(3) was not previously subjected to DNA testing, or can
be subjected to retesting with new DNA techniques that
provide a reasonable likelihood of more accurate and
probative results.
``(b) Notice to Government.--
``(1) In general.--The court shall notify the Government of
an application made under subsection (a) and shall afford the
Government an opportunity to respond.
``(2) Preservation of remaining biological material.--Upon
receiving notice of an application made under subsection (a),
the Government shall take such steps as are necessary to
ensure that any remaining biological material that was
secured in connection with the case is preserved pending the
completion of proceedings under this section.
``(c) Order.--The court shall order DNA testing pursuant to
an application made under subsection (a) upon a determination
that testing may produce noncumulative, exculpatory evidence
relevant to the claim of the applicant that the applicant was
wrongfully convicted or sentenced.
``(d) Cost.--The cost of DNA testing ordered under
subsection (c) shall be borne by the Government or the
applicant, as the court may order in the interests of
justice, if it is shown that the applicant is not indigent
and possesses the means to pay.
``(e) Counsel.--The court may at any time appoint counsel
for an indigent applicant under this section.
``(f) Post-Testing Procedures.--
``(1) Procedures following results unfavorable to
applicant.--If the results of DNA testing conducted under
this section are unfavorable to the applicant, the court--
``(A) shall dismiss the application; and
``(B) in the case of an applicant who is not indigent, may
assess the applicant for the cost of such testing.
``(2) Procedures following results favorable to
applicant.--If the results of DNA testing conducted under
this section are favorable to the applicant, the court
shall--
``(A) order a hearing, notwithstanding any provision of law
that would bar such a hearing; and
``(B) enter any order that serves the interests of justice,
including an order--
``(i) vacating and setting aside the judgment;
``(ii) discharging the applicant if the applicant is in
custody;
``(iii) resentencing the applicant; or
``(iv) granting a new trial.
``(g) Rule of Construction.--Nothing in this section shall
be construed to limit the

[[Page S4678]]

circumstances under which a person may obtain DNA testing or
other post-conviction relief under any other provision of
law.

``Sec. 2292. Preservation of biological material

``(a) In General.--Notwithstanding any other provision of
law and subject to subsection (b), the Government shall
preserve any biological material secured in connection with a
criminal case for such period of time as any person remains
incarcerated in connection with that case.
``(b) Exception.--The Government may destroy biological
material before the expiration of the period of time
described in subsection (a) if--
``(1) the Government notifies any person who remains
incarcerated in connection with the case, and any counsel of
record or public defender organization for the judicial
district in which the judgment of conviction for such person
was entered, of--
``(A) the intention of the Government to destroy the
material; and
``(B) the provisions of this chapter;
``(2) no person makes an application under section 2291(a)
within 90 days of receiving notice under paragraph (1) of
this subsection; and
``(3) no other provision of law requires that such
biological material be preserved.''.
(b) Technical and Conforming Amendment.--The analysis for
part VI of title 28, United States Code, is amended by
inserting after the item relating to chapter 155 the
following:

``156. DNA Testing..........................................2291''.....

SEC. 103. DNA TESTING IN STATE CRIMINAL JUSTICE SYSTEMS.

(a) DNA Identification Grant Program.--Section 2403 of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3796kk-2) is amended--
(1) in paragraph (2)--
(A) in the matter preceding subparagraph (A), by striking
``shall'' and inserting ``will'';
(B) in subparagraph (C), by striking ``is charged'' and
inserting ``was charged or convicted''; and
(C) in subparagraph (D), by striking ``and'' at the end;
(2) in paragraph (3)--
(A) by striking ``shall'' and inserting ``will''; and
(B) by striking the period at the end and inserting ``;
and''; and
(3) by adding at the end the following:
``(4) the State will--
``(A) preserve all biological material secured in
connection with a State criminal case for not less than the
period of time that biological material is required to be
preserved under section 2292 of title 28, United States Code,
in the case of a person incarcerated in connection with a
Federal criminal case; and
``(B) make DNA testing available to any person convicted in
State court to the same extent, and under the same
conditions, that DNA testing is available under section 2291
of title 28, United States Code, to any person convicted in a
court established by an Act of Congress.''.
(b) Drug Control and System Improvement Grant Program.--
Section 503(a)(12) of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3753(a)(12)) is
amended--
(1) in subparagraph (B)--
(A) in clause (iii), by striking ``is charged'' and
inserting ``was charged or convicted''; and
(B) in clause (iv), by striking ``and'' at the end;
(2) in subparagraph (C), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(D) the State will--
``(i) preserve all biological material secured in
connection with a State criminal case for not less than the
period of time that biological material is required to be
preserved under section 2292 of title 28, United States Code,
in the case of a person incarcerated in connection with a
Federal criminal case; and
``(ii) make DNA testing available to a person convicted in
State court to the same extent, and under the same
conditions, that DNA testing is available under section 2291
of title 28, United States Code, to a person convicted in a
court established by an Act of Congress.''.
(c) Public Safety and Community Policing Grant Program.--
Section 1702(c) of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796dd-1(c)) is amended--
(1) in paragraph (10), by striking ``and'' at the end;
(2) in paragraph (11), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(12) if any part of funds received from a grant made
under this subchapter is to be used to develop or improve a
DNA analysis capability in a forensic laboratory, or to
obtain or analyze DNA samples for inclusion in the Combined
DNA Index System (CODIS), certify that--
``(A) DNA analyses performed at such laboratory will
satisfy or exceed the current standards for a quality
assurance program for DNA analysis, issued by the Director of
the Federal Bureau of Investigation under section 210303 of
the DNA Identification Act of 1994 (42 U.S.C. 14131);
``(B) DNA samples and analyses obtained and performed by
such laboratory will be accessible only--
``(i) to criminal justice agencies for law enforcement
purposes;
``(ii) in judicial proceedings, if otherwise admissible
under applicable statutes and rules;
``(iii) for criminal defense purposes, to a defendant, who
shall have access to samples and analyses performed in
connection with the case in which the defendant was charged
or convicted; or
``(iv) if personally identifiable information is removed,
for a population statistics database, for identification
research and protocol development purposes, or for quality
control purposes;
``(C) the laboratory and each analyst performing DNA
analyses at the laboratory will undergo, at regular intervals
not exceeding 180 days, external proficiency testing by a DNA
proficiency testing program that meets the standards issued
under section 210303 of the DNA Identification Act of 1994
(42 U.S.C. 14131); and
``(D) the State will--
``(i) preserve all biological material secured in
connection with a State criminal case for not less than the
period of time that biological material is required to be
preserved under section 2292 of title 28, United States Code,
in the case of a person incarcerated in connection with a
Federal criminal case; and
``(ii) make DNA testing available to any person convicted
in State court to the same extent, and under the same
conditions, that DNA testing is available under section 2291
of title 28, United States Code, to a person convicted in a
court established by an Act of Congress.''.

SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH
AMENDMENT.

(a) Request for DNA Testing.--
(1) In general.--No State shall deny a request, made by a
person in custody resulting from a State court judgment, for
DNA testing of biological material that--
(A) is related to the investigation or prosecution that
resulted in the conviction of the person or the sentence
imposed on the person;
(B) is in the actual or constructive possession of the
State; and
(C) was not previously subjected to DNA testing, or can be
subjected to retesting with new DNA techniques that provide a
reasonable likelihood of more accurate and probative results.
(2) Exception.--A State may deny a request under paragraph
(1) upon a judicial determination that testing could not
produce noncumulative evidence establishing a reasonable
probability that the person was wrongfully convicted or
sentenced.
(b) Opportunity To Present Results of DNA Testing.--No
State shall rely upon a time limit or procedural default rule
to deny a person an opportunity to present noncumulative,
exculpatory DNA results in court, or in an executive or
administrative forum in which a decision is made in
accordance with procedural due process.
(c) Remedy.--A person may enforce subsections (a) and (b)
in a civil action for declaratory or injunctive relief, filed
either in a State court of general jurisdiction or in a
district court of the United States, naming either the State
or an executive or judicial officer of the State as
defendant. No State or State executive or judicial officer
shall have immunity from actions under this subsection.

TITLE II--ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES

SEC. 201. AMENDMENTS TO BYRNE GRANT PROGRAMS.

(a) Certification Requirement; Formula Grants.--Section 503
of title I of the Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C. 3753) is amended--
(1) in subsection (a), by adding at the end the following:
``(13) If the State prescribes, authorizes, or permits the
penalty of death for any offense, a certification that the
State has established and maintains an effective system for
providing competent legal services to indigents at every
phase of a State criminal prosecution in which a death
sentence is sought or has been imposed, up to and including
direct appellate review and post-conviction review in State
court.''; and
(2) in subsection (b)--
(A) by striking ``(b) Within 30 days after the date of
enactment of this part, the'' and inserting the following:
``(b) Regulations.--
``(1) In general.--The''; and
(B) by adding at the end the following:
``(2) Certification regulations.--The Director of the
Administrative Office of the United States Courts, after
notice and an opportunity for comment, shall promulgate
regulations specifying the elements of an effective system
within the meaning of subsection (a)(13), which elements
shall include--
``(A) a centralized and independent appointing authority,
which shall have authority and responsibility to--
``(i) recruit attorneys who are qualified to represent
indigents in the capital proceedings specified in subsection
(a)(13);
``(ii) draft and annually publish a roster of qualified
attorneys;
``(iii) draft and annually publish qualifications and
performance standards that attorneys must satisfy to be
listed on the roster and procedures by which qualified
attorneys are identified;
``(iv) periodically review the roster, monitor the
performance of all attorneys appointed, provide a mechanism
by which members of the Bar may comment on the

[[Page S4679]]

performance of their peers, and delete the name of any
attorney who fails to complete regular training programs on
the representation of clients in capital cases, fails to meet
performance standards in a case to which the attorney is
appointed, or otherwise fails to demonstrate continuing
competence to represent clients in capital cases;
``(v) conduct or sponsor specialized training programs for
attorneys representing clients in capital cases;
``(vi) appoint lead counsel and co-counsel from the roster
to represent a defendant in a capital case promptly upon
receiving notice of the need for an appointment from the
relevant State court; and
``(vii) report the appointment, or the failure of the
defendant to accept such appointment, to the court requesting
the appointment;
``(B) compensation of private attorneys for actual time and
service, computed on an hourly basis and at a reasonable
hourly rate in light of the qualifications and experience of
the attorney and the local market for legal representation in
cases reflecting the complexity and responsibility of capital
cases;
``(C) reimbursement of private attorneys and public
defender organizations for attorney expenses reasonably
incurred in the representation of a client in a capital case,
computed on an hourly basis reflecting the local market for
such services; and
``(D) reimbursement of private attorneys and public
defender organizations for the reasonable costs of law
clerks, paralegals, investigators, experts, scientific tests,
and other support services necessary in the representation of
a defendant in a capital case, computed on an hourly basis
reflecting the local market for such services.''.
(b) Certification Requirement; Discretionary Grants.--
Section 517(a) of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3763(a)) is amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(5) satisfies the certification requirement established
by section 503(a)(13).''.
(c) Director's Reports to Congress.--Section 522(b) of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3766b(b)) is amended--
(1) in paragraph (4), by striking ``and'' at the end;
(2) by redesignating paragraph (5) as paragraph (6); and
(3) by inserting after paragraph (4) the following:
``(5) descriptions and a comparative analysis of the
systems established by each State in order to satisfy the
certification requirement established by section 503(a)(13),
except that the descriptions and the comparative analysis
shall include--
``(A) the qualifications and performance standards
established pursuant to section 503(b)(2)(A)(iii);
``(B) the rates of compensation paid under section
503(b)(2)(B); and
``(C) the rates of reimbursement paid under subparagraphs
(C) and (D) of section 503(b)(2); and''.
(d) Effective Date.--
(1) In general.--Subject to paragraph (2), the amendments
made by this section shall apply with respect to any
application submitted on or after the date that is 1 year
after the date of enactment of this Act.
(2) Exception.--The amendments made by this section shall
not take effect until the amount made available for a fiscal
year to carry out part E of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 equals or exceeds an
amount that is $50,000,000 greater than the amount made
available to carry out that part for fiscal year 2000.
(e) Regulations.--The Director of the Administrative Office
of the United States Courts shall issue all regulations
necessary to carry out the amendments made by this section
not later than 180 days before the effective date of those
regulations.

SEC. 202. EFFECT ON PROCEDURAL DEFAULT RULES.

Section 2254(e) of title 28, United States Code, is
amended--
(1) in paragraph (1), by striking ``In a proceeding'' and
inserting ``Except as provided in paragraph (3), in a
proceeding''; and
(2) by adding at the end the following:
``(3) In a proceeding instituted by an indigent applicant
under sentence of death, the court shall neither presume a
finding of fact made by a State court to be correct nor
decline to consider a claim on the ground that the applicant
failed to raise such claim in State court at the time and in
the manner prescribed by State law, unless--
``(A) the State provided the applicant with legal services
at the stage of the State proceedings at which the State
court made the finding of fact or the applicant failed to
raise the claim; and
``(B) the legal services the State provided satisfied the
regulations promulgated by the Director of the Administrative
Office of the United States Courts pursuant to section
503(b)(2) of title I of the Omnibus Crime Control and Safe
Streets Act of 1968.''.

SEC. 203. CAPITAL REPRESENTATION GRANTS.

Section 3006A of title 18, United States Code, is amended--
(1) by redesignating subsections (i), (j), and (k) as
subsections (j), (k), and (l), respectively; and
(2) by inserting after subsection (h) the following:
``(i) Capital Representation Grants.--
``(1) Definitions.--In this subsection--
``(A) the term `capital case'--
``(i) means any criminal case in which a defendant
prosecuted in a State court is subject to a sentence of death
or in which a death sentence has been imposed; and
``(ii) includes all proceedings filed in connection with
the case, including trial, appellate, and Federal and State
post-conviction proceedings;
``(B) the term `defense services' includes--
``(i) recruitment of counsel;
``(ii) training of counsel;
``(iii) legal and administrative support and assistance to
counsel;
``(iv) direct representation of defendants, if the
availability of other qualified counsel is inadequate to meet
the need in the jurisdiction served by the grant recipient;
and
``(v) investigative, expert, or other services necessary
for adequate representation; and
``(C) the term `Director' means the Director of the
Administrative Office of the United States Courts.
``(2) Grant award and contract authority.--Notwithstanding
subsection (g), the Director shall award grants to, or enter
into contracts with, public agencies or private nonprofit
organizations for the purpose of providing defense services
in capital cases.
``(3) Purposes.--Grants and contracts awarded under this
subsection shall be used in connection with capital cases in
the jurisdiction of the grant recipient for 1 or more of the
following purposes:
``(A) Enhancing the availability, competence, and prompt
assignment of counsel.
``(B) Encouraging continuity of representation between
Federal and State proceedings.
``(C) Decreasing the cost of providing qualified counsel.
``(D) Increasing the efficiency with which such cases are
resolved.
``(4) Guidelines.--The Director, in consultation with the
Judicial Conference of the United States, shall develop
guidelines to ensure that defense services provided by
recipients of grants and contracts awarded under this
subsection are consistent with applicable legal and ethical
proscriptions governing the duties of counsel in capital
cases.
``(5) Consultation.--In awarding grants and contracts under
this subsection, the Director shall consult with
representatives of the highest State court, the organized
bar, and the defense bar of the jurisdiction to be served by
the recipient of the grant or contract.''.

TITLE III--COMPENSATING THE UNJUSTLY CONDEMNED

SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

Section 2513 of title 28, United States Code, is amended by
striking subsection (e) and inserting the following:
``(e) Damages.--
``(1) In general.--The amount of damages awarded in an
action described in subsection (a) shall not exceed $50,000
for each 12-month period of incarceration, except that a
plaintiff who was unjustly sentenced to death may be awarded
not more than $100,000 for each 12-month period of
incarceration.
``(2) Factors for consideration in assessing damages.--In
assessing damages in an action described in subsection (a),
the court shall consider--
``(A) the circumstances surrounding the unjust conviction
of the plaintiff, including any misconduct by officers or
employees of the Federal Government;
``(B) the length and conditions of the unjust incarceration
of the plaintiff; and
``(C) the family circumstances, loss of wages, and pain and
suffering of the plaintiff.''.

SEC. 302. COMPENSATION IN STATE DEATH PENALTY CASES.

(a) Criminal Justice Facility Construction Grant Program.--
Section 603(a) of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3769b(a)) is amended--
(1) in paragraph (5), by striking ``and'' at the end;
(2) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(7) reasonable assurance that the applicant, or the State
in which the applicant is located--
``(A) does not prescribe, authorize, or permit the penalty
of death for any offense; or
``(B)(i) has established and maintains an effective
procedure by which any person unjustly convicted of an
offense against the State and sentenced to death may be
awarded reasonable damages upon substantial proof that the
person did not commit any of the acts with which the person
was charged; and
``(ii)(I) the conviction of that person was reversed or set
aside on the ground that the person was not guilty of the
offense or offenses of which the person was convicted;
``(II) the person was found not guilty of such offense or
offenses on new trial or rehearing; or
``(III) the person was pardoned upon the stated ground of
innocence and unjust conviction.''.
(b) Effective Date.--The amendments made by this section
shall apply with respect to any application submitted on or
after the date that is 1 year after the date of enactment of
this Act.

[[Page S4680]]

TITLE IV--MISCELLANEOUS PROVISIONS

SEC. 401. ACCOMMODATION OF STATE INTERESTS IN FEDERAL DEATH
PENALTY PROSECUTIONS.

(a) Recognition of State Interests.--Chapter 228 of title
18, United States Code, is amended by adding at the end the
following:

``Sec. 3599. Accommodation of State interests; certification
requirement

``(a) In General.--Notwithstanding any other provision of
law, the Government shall not seek the death penalty in any
case initially brought before a district court of the United
States that sits in a State that does not prescribe,
authorize, or permit the imposition of such penalty for the
alleged conduct, except upon the certification in writing of
the Attorney General or the designee of the Attorney General
that--
``(1) the State does not have jurisdiction or refuses to
assume jurisdiction over the defendant with respect to the
alleged conduct;
``(2) the State has requested that the Federal Government
assume jurisdiction; or
``(3) the offense charged is an offense described in
section 32, 229, 351, 794, 1091, 1114, 1118, 1203, 1751,
1992, 2340A, or 2381, or chapter 113B.
``(b) ``State Defined.--In this section, the term `State'
means each of the several States of the United States, the
District of Columbia, and the territories and possessions of
the United States.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 228 of title 18, United States Code, is amended by
adding at the end the following:

``3599. Accommodation of State interests; certification requirement.''.

SEC. 402. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT
POSSIBILITY OF RELEASE.

Section 408(l) of the Controlled Substances Act (21 U.S.C.
848(l)), is amended by striking the first 2 sentences and
inserting the following: ``Upon a recommendation under
subsection (k) that the defendant should be sentenced to
death or life imprisonment without possibility of release,
the court shall sentence the defendant accordingly.
Otherwise, the court shall impose any lesser sentence that is
authorized by law.''.

SEC. 403. RIGHT TO AN INFORMED JURY.

(a) Additional Requirements.--Section 20105 of the Violent
Crime Control and Law Enforcement Act of 1994 (42 U.S.C.
13705) is amended by striking subsection (b) and inserting
the following:
``(b) Additional Requirements.--To be eligible to receive a
grant under section 20103 or 20104, a State shall provide
assurances to the Attorney General that--
``(1) the State has implemented policies that provide for
the recognition of the rights and needs of crime victims; and
``(2) in any capital case in which the jury has a role in
determining the sentence imposed on the defendant, the court,
at the request of the defendant, shall inform the jury of all
statutorily authorized sentencing options in the particular
case, including applicable parole eligibility rules and
terms.''.
(b) Effective Date.--The amendments made by this section
shall apply with respect to any application for a grant under
section 20103 or 20104 of the Violent Crime Control and Law
Enforcement Act of 1994 (42 U.S.C. 13703; 13704) that is
submitted on or after the date that is 1 year after the date
of enactment of this Act.

SEC. 404. ANNUAL REPORTS.

(a) Report.--Not later than 2 years after the date of
enactment of this Act, and annually thereafter, the Attorney
General shall prepare and transmit to Congress a report
concerning the administration of capital punishment laws by
the Federal Government and the States.
(b) Report Elements.--The report required under subsection
(a) shall include substantially the same categories of
information as are included in the Bureau of Justice
Statistics Bulletin entitled ``Capital Punishment 1998''
(December 1999, NCJ 179012), and the following additional
categories of information:
(1) The percentage of death-eligible cases in which a death
sentence is sought, and the percentage in which it is
imposed.
(2) The race of the defendants in death-eligible cases,
including death-eligible cases in which a death sentence is
not sought, and the race of the victims.
(3) An analysis of the effect of Witherspoon v. Illinois,
391 U.S. 510 (1968), and its progeny, on the composition of
juries in capital cases, including the racial composition of
such juries, and on the exclusion of otherwise eligible and
available jurors from such cases.
(4) An analysis of the effect of peremptory challenges, by
the prosecution and defense respectively, on the composition
of juries in capital cases, including the racial composition
of such juries, and on the exclusion of otherwise eligible
and available jurors from such cases.
(5) The percentage of capital cases in which life without
parole is available as an alternative to a death sentence,
and the sentences imposed in such cases.
(6) The percentage of capital cases in which life without
parole is not available as an alternative to a death
sentence, and the sentences imposed in such cases.
(7) The percentage of capital cases in which counsel is
retained by the defendant, and the percentage in which
counsel is appointed by the court.
(8) A comparative analysis of systems for appointing
counsel in capital cases in different States.
(9) A State-by-State analysis of the rates of compensation
paid in capital cases to appointed counsel and their support
staffs.
(10) The percentage of cases in which a death sentence or a
conviction underlying a death sentence is vacated, reversed,
or set aside, and the reasons therefore.
(c) Public Disclosure.--The Attorney General or the
Director of the Bureau of Justice Assistance, as appropriate,
shall ensure that the reports referred to in subsection (a)
are--
(1) distributed to national print and broadcast media; and
(2) posted on an Internet website maintained by the
Department of Justice.

SEC. 405. DISCRETIONARY APPELLATE REVIEW.

Section 2254(c) of title 28, United States Code, is
amended--
(1) by inserting ``(1)'' after ``(c)''; and
(2) by adding at the end the following:
``(2) For purposes of paragraph (1), if the highest court
of a State has discretion to decline appellate review of a
case or a claim, a petition asking that court to entertain a
case or a claim is not an available State court procedure.''.

SEC. 406. SENSE OF CONGRESS REGARDING THE EXECUTION OF
JUVENILE OFFENDERS AND THE MENTALLY RETARDED.

It is the sense of Congress that the death penalty is
disproportionate and offends contemporary standards of
decency when applied to a person who is mentally retarded or
who had not attained the age of 18 years at the time of the
offense.
____

Innocence Protection Act of 2000--Section-by-Section Summary

overview

The Innocence Protection Act of 2000 is a comprehensive
package of criminal justice reforms aimed at reducing the
risk that innocent persons may be executed. Most urgently,
the bill would (1) ensure that convicted offenders are
afforded an opportunity to prove their innocence through DNA
testing; (2) help States to provide competent legal services
at every stage of a death penalty prosecution; (3) enable
those who can prove their innocence to recover some measure
of compensation for their unjust incarceration; and (4)
provide the public with more reliable and detailed
information regarding the administration of the nation's
capital punishment laws.

title I--exonerating the innocent through federal post-conviction
review

Sec. 101. Findings and purposes. Legislative findings and
purposes in support of this title.
Sec. 102. DNA testing in Federal criminal justice system.
Establishes rules and procedures governing applications for
DNA testing by convicted offenders in the Federal system. An
applicant must allege that evidence to be tested (1) is
related to the investigation or prosecution that resulted in
the applicant's conviction; (2) is in the government's actual
or constructive possession; and (3) was not previously
subjected to DNA testing, or to the form of DNA testing now
requested. The court may, in its discretion, appoint counsel
for an indigent applicant.
Because access to DNA testing is of no value unless
evidence containing DNA has been preserved, this section also
prohibits the government from destroying any biological
material in a criminal case while any person remains
incarcerated in connection with that case, unless such person
is notified of the government's intent to destroy the
material, and afforded at least 90 days to request DNA
testing under this title.
Sec. 103. DNA testing in State criminal justice system.
Conditions receipt of Federal grants for DNA-related programs
on an assurance that the State will adopt adequate procedures
for preserving biological material and making DNA testing
available to its inmates.
Sec. 104. Prohibition pursuant to section 5 of the 14th
amendment. Prohibits States from (1) denying requests for DNA
testing that could produce new exculpatory evidence or (2)
denying inmates a meaningful opportunity to prove their
innocence using the results of DNA testing. Creates an
authority to sue for declaratory or injunctive relief to
enforce these prohibitions.

title ii--ensuring competent legal services in capital cases

Sec. 201. Amendments to Byrne grant programs. Conditions
Federal funding under the Byrne grant programs--when such
funding equals or exceeds an amount that is $50 million
greater than the amount appropriated for such programs in FY
2000--on certification that the State has established and
maintains an ``effective system'' for providing competent
legal services to indigent defendants at every stage of death
penalty prosecution, from pre-trial proceedings through post-
conviction review. The Director of the Administrative Office
of the United States Courts is charged with specifying the
elements of an ``effective system,'' which must include a
centralized and independent authority for appointing
attorneys in capital cases, and adequate compensation and
reimbursement of such attorneys.
Sec. 202. Effect on procedural default rules. Provides that
certain procedural barriers to Federal habeas corpus review
shall not apply if the State failed to provide the petitioner
with adequate legal services.
Sec. 203. Capital representation grants. Amends the
Criminal Justice Act, 18 U.S.C. Sec. 3006A, to make more
Federal funding available to public agencies and private non-
profit organizations for purposes of enhancing

[[Page S4681]]

the availability and competence of counsel in capital cases,
encouraging the continuity of representation in such cases,
decreasing the cost of providing qualified death penalty
counsel, and increasing the efficiency with which capital
cases are resolved.

title iii--compensating the unjustly condemned

Sec. 301. Increased compensation in Federal cases. Raises
the total amount of damages that may be awarded against the
United States in cases of unjust imprisonment from $5,000 to
$50,000 a year in a non-death penalty case, or $100,000 a
year in a death penalty case. Identifies factors for court to
consider in assessing damages.
Sec. 302. Compensation in State death cases. Encourages
States to permit any person who was unjustly convicted and
sentenced to death to be awarded reasonable damages, upon
substantial proof of innocence and formal exoneration, by
adding a new condition for Federal funding to assist in
construction of correctional facility projects.

title iv--miscellaneous

Sec. 401. Accommodation of State interests in Federal
death-penalty prosecutions. Protects the interests of States
(including the District of Columbia and any commonwealth,
territory or possession of the United States) by limiting the
Federal government's authority to seek the death penalty in
States that do not permit the imposition of such penalty.
Department of Justice guidelines provide that in cases of
concurrent jurisdiction, ``a Federal indictment for an
offense subject to the death penalty will be obtained only
when the Federal interest in the prosecution is more
substantial than the interests of the State or local
authorities.'' Section 401 builds on that principle by
requiring the Attorney General or her designee to certify
that (1) the State does not have jurisdiction or refuses to
assume jurisdiction over the defendant; (2) the State has
requested that the Federal government assume jurisdiction; or
(3) the offense charged involves genocide; terrorism; use of
chemical weapons or weapons of mass-destruction; destruction
of aircraft, trains, or other instrumentalities or facilities
of interstate commerce; hostage taking; torture; espionage;
treason; the killing of certain high public officials; or
murder by a Federal prisoner.
Sec. 402. Alternative of life imprisonment without
possibility of release. Provides juries in Federal death
penalty prosecutions brought under the drug kingpin statute,
21 U.S.C. Sec. 848(l), the option of recommending life
imprisonment without possibility of release. This amendment
brings the drug kingpin statute into conformity with the more
recently-enacted death penalty procedures in title 18, which
govern most Federal death penalty prosecutions. See 18 U.S.C.
Sec. 3594.
Sec. 403. Right to an informed jury. Conditions Federal
truth-in-sentencing grants upon certification that, in any
capital case in which the jury has a role in determining the
defendant's sentence, the defendant has the right to have the
jury informed of all statutorily-authorized sentencing
options in the particular case, including applicable parole
eligibility rules and terms. The purpose is to give full
effect to the due process principles underlying the Supreme
Court's decision in Simmons v. South Carolina, 512 U.S. 154
(1994), which held that a defendant who has been convicted of
a capital offense is entitled to an instruction informing the
sentencing jury that he is ineligible for parole under State
law.
Sec. 404. Annual reports. Directs the Justice Department to
prepare an annual report regarding the administration of the
nation's capital punishment laws. The report must be
submitted to Congress, distributed to the press and posted on
the Internet.
Sec. 405. Discretionary appellate review. Respects State
procedural rules by allowing Federal habeas corpus
petitioners to raise claims that State courts discouraged
them from raising when seeking discretionary review in the
State's highest court. Responds to the Supreme Court's
decision in O'Sullivan v. Boerckel, 119 S. Ct. 1728 (1999),
which held that a State prisoner must present his claims to a
State supreme court in a petition for discretionary review in
order to satisfy the exhaustion requirement of 28 U.S.C.
Sec. 2254(b)(1), (c).
Sec. 406. Sense of the Congress regarding the execution of
juvenile offenders and the mentally retarded. Expresses the
sense of the Congress that the death penalty is
disproportionate and offends contemporary standards of
decency when applied to juvenile offenders and the mentally
retarded.
____

[From the Washington Times, June 6, 2000]

Thoughts on Executions

In his decision to halt Thursday evening's execution of a
convicted killer for a period of 30 days, Texas Gov. George
W. Bush did what had to be done. Where there is no shadow of
a doubt, the death penalty can sometimes be the right course
of action. Yet, where doubt, any doubt, remains, the
consequences are awesome. In the case of Ricky Nolan McGinn,
who was sentenced to death for raping and murdering his 13-
year-old stepdaughter in 1993, there seems to be some
uncertainty, in which case every means should be used to
establish the truth. When you take a man's life, you take
everything he's got. There simply is no way to make up for a
mistake made in the execution chamber.
Mr. Bush cannot be accused of being soft on criminals.
During his five and a half years in office, Mr. Bush has
presided over more executions than any other governor in the
country: 131, all told. Most famously, Mr. Bush refused to
reduce the sentence of Karla Faye Tucker in 1998. She had
been convicted of the particularly horrible execution-style
murder of two persons during a gas station robbery, and while
in prison had become a born-again Christian. Though religious
leaders such as Pat Robertson pleaded for her life, Mr. Bush
allowed the execution to go forward. The fact that he has
chosen to grant a 30-day reprieve in this one case can hardly
be said to indicate a change of heart on the death penalty.
Nevertheless, in the partisan heat of a presidential
election year, Mr. Bush has been accused of playing politics
with the death penalty. If this is the case, he is doing so
on the side of giving someone on death row a final chance.
This contrasts with Gov. Bill Clinton's decision to proceed
with the execution of a severely retarded Arkansas man during
the 1992 presidential election campaign, which was meant to
establish his tough-on-crime credentials.
But beyond the question of politics, there's science. Mr.
Bush is catching a nationwide movement, based on advances
that are making DNA testing increasingly sophisticated. The
increased use of DNA analysis has in fact revealed serious
flaws in the way the justice system exacts the supreme
penalty. The trend towards state moratoria on executions has
been led by Gov. George Ryan of Illinois, a Republican. In
Illinois, during the course of the 23 years since the death
penalty was reinstated, a dozen persons have been put to
death--but 13 have been cleared of capital murder charges
through DNA testing after having been sentenced to death.
This is a stunning and sobering fact. Unless Illinois is
vastly different from the rest of the United States, that
statistic ought to produce second thoughts for everyone. (One
of those second thoughts might be that for every innocent man
executed, a guilty man is still out there, unpunished.)
We do not suggest here that the United States should stop
punishing the guilty to the fullest extent of the law, even
if that means death. However, if this country is to have the
death penalty, we must be as certain as is humanly possible
that executions are restricted to the guilty. States should
be encouraged to make sure that is the case. Even if 66
percent of Americans support the death penalty, it is no
argument to say (as some conservatives have done) that the
death of an innocent person here or there is not enough to
reconsider what we are doing. This argument has been put
forward by the Rev. Jerry Falwell. Some have even argued that
this may be the price of the death penalty's deterrent
effect; Rep. Bill McCollum, Florida Republican, suggested as
much in an article for the Atlantic Monthly last year.
Perhaps the most cogent argument against the death penalty
is that it degrades the sensibilities of otherwise good and
reasonable men and women, who have come to believe in it so
obsessively that they would impose it on the innocent if that
is the only way to keep the death penalty in the law.
During a moratorium, the state would keep its electricity
and gas bills paid and its stockpiles of potassium chloride
intact against the day when the moratorium ends and
executions resume--presumably following improvements in the
way convictions are produced. Surely no one could reasonably
object to making sure we execute only the guilty.
____

[From the Washington Post, Apr. 6, 2000]

Innocent On Death Row

(By George F. Will)

``Don't you worry about it,'' said the Oklahoma prosecutor
to the defense attorney. ``We're gonna needle your client.
You know, lethal injection, the needle. We're going to needle
Robert.''
Oklahoma almost did. Robert Miller spent nine years on
death row, during six of which the state had DNA test results
proving his sperm was not that of the man who raped and
killed the 92-year-old woman. The prosecutor said the tests
only proved that another man had been with Miller during the
crime. Finally, the weight of scientific evidence, wielded by
an implacable defense attorney, got Miller released and
another man indicted.
You could fill a book with such hair-curling true stories
of blighted lives and justice traduced. Three authors have
filled one. It should change the argument about capital
punishment and other aspects of the criminal justice system.
Conservatives, especially, should draw this lesson from the
book: Capital punishment, like the rest of the criminal
justice system, is a government program, so skepticism is in
order.
Horror, too, is a reasonable response to what Barry Scheck,
Peter Neufeld and Jim Dwyer demonstrate in ``Actual
Innocence: Five Days to Execution and Other Dispatches From
the Wrongly Convicted.'' You will not soon read a more
frightening book. It is a catalog of appalling miscarriages
of justice, some of them nearly lethal. Their cumulative
weight compels the conclusion that many innocent people are
in prison, and some innocent people have been executed.
Scheck and Neufeld (both members of O.J. Simpson's ``dream
team'' of defense attorneys) founded the pro-bono Innocence
Project at the Benjamin N. Cardozo School of Law in New York
to aid persons who convincingly claim to have been wrongly
convicted. Dwyer, winner of two Pulitzer Prizes,

[[Page S4682]]

is a columnist for the New York Daily News. Their book is a
heartbreaking and infuriating compendium of stories of lives
ruined by:
Forensic fraud, such as that by the medical examiner who,
in one death report, included the weight of the gallbladder
and spleen of a man from whom both organs had been surgically
removed long ago.
Mistaken identifications by eyewitnesses or victims, which
contributed to 84 percent of the convictions overturned by
the Innocence Project's DNA exonerations.
Criminal investigations, especially of the most heinous
crimes, that become ``echo chambers'' in which, because of
the normal human craving for retribution, the perceptions of
prosecutors and jurors are shaped by what they want to be
true. (The authors cite evidence that most juries will
convict even when admissions have been repudiated by the
defendant and contradicted by physical evidence.)
The sinnister culture of jailhouse snitches, who earn
reduced sentences by fabricating ``admissions'' by fellow
inmates to unsolved crimes.
Incompetent defense representation, such as that by the
Kentucky attorney in a capital case who gave his business
address as Kelly's Keg tavern.
The list of ways the criminal justice system misfires could
be extended, but some numbers tell the most serious story: In
the 24 years since the resumption of executions under Supreme
Court guidelines, about 620 have occurred, but 87 condemned
persons--one for every seven executed--had their convictions
vacated by exonerating evidence. In eight of these cases, and
in many more exonerations not involving death row inmates,
the evidence was from DNA.
One inescapable inference from these numbers is that some
of the 620 persons executed were innocent. Which is why,
after the exoneration of 13 prisoners on Illinois' death row
since 1987, for reasons including exculpatory DNA evidence,
Gov. George Ryan, a Republican, has imposed a moratorium on
executions.
Scheck, Neufeld and Dwyer note that when a plane crashes,
an intensive investigation is undertaken to locate the cause
and prevent recurrences. Why is there no comparable urgency
about demonstrable, multiplying failures in the criminal
justice system? They recommend many reforms, especially
pertaining to the use of DNA and the prevention of forensic
incompetence and fraud. Sen. Patrick Leahy's Innocence
Protection Act would enable inmates to get DNA testing
pertinent to a conviction or death sentence, and ensure that
courts will hear resulting evidence.
The good news is that science can increasingly serve the
defense of innocence. But there is other news.
Two powerful arguments for capital punishment are that it
saves lives, if its deterrence effect is not vitiated by
sporadic implementation, and it heightens society's valuation
of life by expressing proportionate anger at the taking of
life. But that valuation is lowered by careless or corrupt
administration of capital punishment, which ``Actual
Innocence'' powerfully suggests is intolerably common.
____

[From the Washington Times, Apr. 25, 2000]

Death Edict For the Guilty Only

(By Bruce Fein)

Can reasonable people dispute that the government should
confine the death penalty to persons guilty of the crime
charged? And can reasonable people deny that the climbing
number of exonerations of death row inmates on the ground of
actual innocence creates chilling worries on that scores?
Those questions make both urgent and compelling enactment
of the cool-headed bill (S. 2071) by Sen. Patrick Leahy,
Vermont Democrat, to upgrade the reliability of verdicts in
capital cases.
Manifold reasons justify the death penalty (which the U.S.
Supreme Court has restricted to crimes of homicide):
retribution against offenders whose killings are earmarked by
shocking and barbaric wickedness, something akin to the Adolf
Eichmann example; to control prison inmates already laboring
under life sentences with no parole possibilities; to deter
the murder of police or crime witnesses in the hope of
escaping punishment of a lesser crime; and encouraging guilty
pleas contingent on cooperation with prosecutors in murder
conspiracy cases in exchange for a non-capital sentence.
Whether death sentences in general deter crime is hotly
disputed. but if they do, their effects would not even begin
to dent the crime problem.
A decent respect for life also demands scrupulous concern
for the reliability of verdicts in capital punishment trials.
Otherwise, the death penalty game is not worth the gamble of
executing the innocent--a shameful stain on any system of
Justice--and life sentences (perhaps in solitary confinement)
without parole should be the maximum.
The Leahy bill laudably aims to preserve the death penalty
by slashing the prevailing and highly worrisome risk of
executing the innocent through greater DNA testing and
competent defense counsel.
Unzip you ears to these facts. Since the Supreme Court in
1976 affirmed the constitutionality of the death penalty for
heinous and aggravated murders, 610 death sentences have been
implemented. Concurrently, 85 death row prisoners have been
released not for technical procedural flukes but because of
exculpatory evidence establishing their innocence. In other
words, for every seven executions approximately one capital
sentence has been levied on an innocent defendant.
Moreover, the detections of these grim injustices has been
more haphazard than systematic. The case Randall Dale Adams
and Antony Porter are emblematic.
The former was released after attracting the attention of
cinematic genius, Earl Morris. His gripping movie, ``The Thin
Blue Line,'' discredited the prosecution's case to a
nationally awakened audience.
Mr. Porter had lived with the Sword of Damocles for 16
years, and in 1998 his hourglass fell to 48 hours. He was
saved from wrongful execution by the plucky work of
Northwestern University undergraduate journalism students,
who proved Mr. Antony's innocence, a verdict that the
State of Illinois conceded.
Quirks and citizen altruism, however, are woefully
inadequate safeguards against executing the innocent. While
nothing in life is absolutely certain but death and taxes,
the Leahy bill would add two muscular measures to make the
truth-finding process in capital cases as reliable as is
reasonably feasible.
First, post-conviction DNA testing of biological material
would be available to an inmate through court order upon a
demonstration that the test could provide noncumulative
exculpatory evidence; that the material is actually or
constructively possessed by the government; and that no
previous DNA test had been conducted or that new DNA
techniques might reasonably yield more accurate and probative
evidence. Jurisdictions also would be directed to preserve
biological material gathered in the course of an
investigation during the period of the criminal's
incarceration for the purpose of possible DNA testing.
Of vastly greater importance to reliable death penalty
verdicts, however, is securing competent defense counsel in
lieu of incompetence or worse. The U.S. Supreme Court has
repeatedly celebrated the indispensability of reasonably
skilled lawyers to reliable verdicts. In the infamous
Scottsboro, Ala., criminal justice farce, Powell vs. Alabama
(1932), Justice George Sutherland, speaking for a unanimous
court, lectured: ``Left without the aid of counsel [the
accused] may be put on trial without a proper charge, and
convicted on incompetent evidence, or evidence irrelevant to
the issue or otherwise inadmissible. He lacks both the skill
and knowledge to prepare his defense, even though he has a
perfect one. He requires the guiding hand of counsel at every
step of the proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction because he does
not know how to establish his innocence.''
Capital cases generally feature indigent defendants. And
their court-appointed lawyers are frequently deficient
because of austere rates of reimbursement or plain laziness.
For instance, the lawyer appointed to represent Ronald
Keith Williamson was uncurious about the fact that another
had confessed to the crime. He neglected to raise the
exculpatory confession at trial, Williamson was convicted,
and was later proven innocent through DNA testing after a
1997 federal appeals court decision overturned the trial
verdict because of inert or anemic lawyering.
The Leahy legislation would end this blight in death
penalty prosecutions by instructing the director of the
Administrative Office of the United States Courts to creating
a scheme for credentialing attorneys and providing reasonable
pay in capital prosecutions against indigent defendants.
Aren't executions too definitive to be left to chancy
discoveries of innocence? If the government does not want to
pay the price of turning square corners in capital cases,
shouldn't the prosecution accept a lesser maximum punishment?
____

[From the Washington Post, Feb. 28, 2000]

Innocent on Death Row

Sen. Patrick Leahy (D-Vt.) has introduced a bill that seeks
to strengthen safeguards against wrongful executions. Those
who support capital punishment should be as determined as its
opponents to ensure that innocent people are not executed. By
that logic, this legislation should enjoy wide support.
The bill would require both state and federal courts to
permit post-conviction DNA testing in cases in which there is
a significant question of innocence. It also would encourage
states to retain biological evidence, thereby ensuring that
there is a material to test when innocence questions arise.
Perhaps more important, the bill would make federal criminal
justice funds to the states contingent on their improving
legal representation for the accused in all stages of death-
penalty litigation.
This is a critical reform, as the absence of competent
counsel is a pervasive theme in wrongful convictions. The
bill would raise the insultingly low limit for damages
against the federal government--$5,000 per year in jail--for
those wrongly convicted of federal crimes. And it would
encourage states to offer reasonable compensation as well.
These are common-sense improvements to the basic
infrastructure of the death penalty. For those who favor the
abolition of capital punishment, they may seem inadequate.
But by focusing only on protecting the innocent--not on a
broader agenda of halting all executions--Mr. Leahy places
the spotlight on what should be bedrock principle for all

[[Page S4683]]

who believe in due process. To support these reforms, one
need only believe that people accused of capital crimes
should have reasonably able counsel and that--when
substantial questions arise about the rightness of their
convictions--they should have the ability to prove their
innocence.
____

[From the New York Times, Feb. 19, 2000]

New Looks at the Death Penalty

America is at last beginning to grapple honestly with the
profound flaws of the death penalty system. Late last month
Gov. George Ryan of Illinois, a Republican, became the first
governor in a death penalty state to declare a moratorium on
executions, citing well-founded concerns about his state's
``shameful record of convicting innocent people and putting
them on death row.'' That has now been followed by moves in
Congress and the executive branch to review death penalty
policies from a national perspective.
Senator Russell Feingold of Wisconsin has urged President
Clinton to suspend all federal executions pending a review of
death penalty procedures similar to the one Governor Ryan has
initiated in Illinois. Problems of inadequate legal
representation, lack of access to DNA testing, police
misconduct, racial bias and even simple errors are not unique
to Illinois, Mr. Feingold noted.
The Justice Department has also initiated its own review to
determine whether the federal death penalty system unfairly
discriminates against racial minorities. At his news
conference this week, Mr. Clinton praised the death penalty
moratorium in Illinois, but indicated he thought a federal
moratorium was unnecessary. Mr. Feingold has urged him to
reconsider. Given his lame-duck status, the president can
afford to call a halt without worrying about being falsely
labeled soft on crime. Moreover, the fact that a Republican
governor was first to announce a moratorium should minimize
any concern about Vice President Al Gore being so labeled.
Congress need not wait for the administration to act. Last
week Senator Patrick Leahy, Democrat of Vermont, introduced
legislation to address ``the growing national crisis'' in how
capital punishment is administered. This promising measure,
the Innocence Protection Act of 2000, stops short of
abolishing the death penalty, the course we hope the nation
will eventually follow. But key provisions would lessen the
chance of unfairness and deadly error by making DNA testing
available to both state and federal inmates, and by setting
national standards to ensure that competent lawyers are
appointed for capital defendants.
Without such protections, there is a grave possibility of
judicial error. Nationally, 612 people have been executed
since the Supreme Court reinstated capital punishment in
1976. During the same period, 81 people in 21 states have
been found innocent and released from death row--some within
hours of being executed. That suggests that many who were
executed might also have been innocent.
Neither the states nor the courts are providing adequate
protection against awful miscarriages of justice. In Texas,
the nation's leader in executions, courts have upheld death
sentences in cases where defense lawyers slept during big
portions of the trial. Lately, Congress and the Supreme Court
have exacerbated the danger of mistaken executions by
curtailing appeal and habeas corpus rights. They have also
ignored the festering problem of inadequate legal
representation that caused the American Bar Association to
call for a death penalty moratorium three years ago. Even
death penalty supporters have to be troubled by a system
shown to have a high risk of executing the innocent.
____

[From the Washington Post, Mar. 20, 2000]

On Virginia's Death Row

Derek Barnabei evokes no sympathy. He is on death row in
Virginia for the rape and murder of his girlfriend, Sarah
Wisnosky, in 1993. The evidence of his guilt seems strong.
But that strong probability of guilt makes Virginia's
unwillingness to permit DNA testing of potentially key
evidence all the more puzzling. Mr. Barnabei has maintained
his innocence, and the case has a few troubling aspects. In
light of this, it only makes sense to test bloodstained
physical evidence retained but never tested by investigators.
Yet Virginia balks on the grounds that Mr. Barnabei's guilt
is so clear.
The likelihood is that the blood is Ms. Wisnosky's, which
would neither bolster nor undermine the jury's verdict in the
case. It also could be Mr. Barnabei's, which would reinforce
the integrity of the verdict. But the presence of someone
else's blood would make Mr. Barnabei's claims more credible.
It is hard to see why a state, before putting someone to
death, would be unwilling to demonstrate a jury verdict's
consistency with all of the evidence. Indeed, this is
precisely the type of case in which the state should have no
choice. Under a bill being pushed by Sen. Patrick Leahy (D-
Vt.), states would be obligated in such circumstances to
allow post-conviction DNA testing. Such a law would not
merely offer a lawyer of protection to innocent people but
would increase public confidence in the convictions of guilty
people.

Mr. SMITH of Oregon. Mr. President, I am a supporter of the death
penalty. I believe there are some times when humankind can act in a
manner so odious so heinous, and so depraved that the right to life is
forfeited. Notwithstanding this belief--indeed, because of this
belief--I rise today to talk about the importance of protecting
innocent people in this country from wrongful imprisonment and
execution. Today, Senator Leahy and I are introducing the Innocence
Protection Act of 2000 that will use the technological advances of the
21st century to ensure that justice is served swiftly and fairly.
It has been difficult to open a newspaper in recent months without
finding discussion of the death penalty and possible miscarriages of
justice. You have almost certainly seen or heard reports of inmates
being freed from death row based on results of new genetic tests that
were unavailable at the time of trial. There have been a number of
cases where this has, in fact, occurred.
This is a cause for concern for a number of cases. First and
foremost, of course, is the possibility that an innocent person could
lose his or her life if wrongfully convicted. In such cases, this also
leads to the double tragedy that the true guilty party remains free to
roam the country in search of future victims. Clearly, capturing and
convicting the true perpetrator of a crime is in everyone's best
interests.
The Innocence Protection Act of 2000 would provide a national
standard for post-conviction DNA testing of inmates who believe they
have been wrongly incarcerated. Although many inmates were convicted
before modern methods of genetic fingerprinting were available, not all
states routinely allow post-conviction DNA testing.
This does not make sense. If we are to have a system that is just,
transparent, and defensible, we must make absolutely certain that every
person who is behind bars deserves to be there. One of the best ways to
do this is to make the most advanced technology available for cases in
which physical evidence could have an influence on the verdict.
Making DNA testing available will result in some convictions being
overturned. In such cases, people who have been unjustly incarcerated
must be afforded fair compensation for the lost years of their lives.
The Leahy-Smith Innocence Protection Act of 2000 has a provision that
would do this. Sometimes a person who has been wrongly imprisoned is
released from prison with bus fare and the clothes on his or her back.
This practice simply heaps one wrong upon another.
While officers of America's courts and law enforcement work extremely
hard to ensure that the true perpetrators of heinous crimes are caught
and convicted, there have been instances where defendants have been
represented by overworked, underpaid, or even unqualified counsel, and
this situation cannot be tolerated in a system of criminal justice. The
Leahy-Smith Innocence Protection Act of 2000 would ensure that
defendants who are put on trial for their lives receive competent legal
representation at every stage in their cases.
The Innocence Protection Act of 2000 will allow us, as a nation, to
continue our confidence in the American judicial system and in the fair
and just application of the death penalty. We must have confidence in
the integrity of justice, that it will both protect the innocent and
punish the guilty. This legislation will not prevent true criminals
from being executed; rather, it will increase support for the death
penalty by providing added assurances that American justice is
administered fairly across the country.
Therefore, I urge my colleagues on both sides of the aisle, whether
you support or oppose capital punishment, to join Senator Leahy and me
in backing the Innocence Protection Act of 2000, which will put the
fingerprint of the 21st century on our criminal justice system,
ensuring that innocent lives are not unjustly taken in this country.
Ms. COLLINS Mr. President, I am pleased to join as a cosponsor of the
``Innocence Protection Act.''
Since the reinstatement of capital punishment in 1976, 610 people
have been executed in our nation. In that same period of time, an
astounding 87 people who were sentenced to die have been found innocent
and released from death row. Each of these individuals has lived the
Kafkaesque nightmare of condemnation and imprisonment for crimes they
have not committed. It is

[[Page S4684]]

difficult to imagine the despair and betrayal these individuals must
have felt as they were accused, tried, convicted and sentenced, all the
time knowing they were not guilty. And during all those years they
remained in prison, the real perpetrators remained at large.
I am an opponent of the death penalty, and I am proud to be from the
State of Maine which outlawed the death penalty in 1887. The
legislation we introduce today is, however, not an anti-death penalty
measure.
The legislation we introduce today simply requires logical safeguards
to be put in place to prevent wrongful convictions. Its two most
important provisions compel DNA testing where it can yield evidence of
innocence, and puts in place a new process to ensure defendants receive
competent counsel in death penalty cases.
The ``Innocence Protection Act'' calls on the federal government and
the states to make DNA testing available in circumstances where it
could yield new evidence of innocence. The incidents in which DNA
testing has exonerated individuals are not isolated--64 people have
been released from prison or death row due to DNA testing.
Linus Pauling once said that ``science is the search for truth.''
Through DNA testing, science provides a tool that can uncover the
truth, and lend certainty to our moral obligation in a civilized
society--proper administration of our criminal justice system.
The legislation we introduce today assists the wrongfully convicted,
and will help prevent the miscarriages of justices that have seemed
sadly common. It will also serve the interests of justice and protect
crime victims. Justice is never served until the true perpetrator of a
crime is identified, convicted and punished. We owe it to the victims
and their families to pursue every avenue to find and hold accountable
the true criminals who have injured them.
Our American ideals and sense of justice simply cannot tolerate the
current risk for mistaken executions. The case of Mr. Anthony Porter
should shock the conscience of America. Mr. Porter spent over 16 years
on death row, and at one point he was only two days short of receiving
a lethal injection, having been convicted of two murders. A determined
group of journalism students investigated his case and uncovered
evidence that exonerated Mr. Porter. It was only through their efforts
that the identity of the real murderer was determined, a review of the
case compelled, and Mr. Porter ultimately freed. The peculiar good
fortune that lead to the release of Mr. Porter undeniably highlights a
weakness in our system of justice that cries out for remedy.
Nothing that we can do here today can restore those years to Mr.
Porter, or others who have been wrongly convicted, but we can demand
safeguards be put in place to protect the innocent from conviction, and
protect society from real criminals who may remain loose on our
streets. Regardless of one's views about the death penalty, I hope we
all can agree to needed safeguards to help ensure that justice is
served.
Thank you, Mr. President, I yield the floor.
Mr. FEINGOLD. Mr. President, I am extremely pleased to join my
distinguished colleague from Vermont and ranking member of the
Judiciary Committee, Senator Leahy, as a cosponsor of the Innocence
Protection Act of 2000. I commend him for his leadership on this
important legislation. The insight and unique experience that he brings
to this issue as a former federal prosecutor is invaluable. I have no
doubt that because of his leadership and diligence, Americans have
recently become more aware of the important role that the certainty of
science can have in our criminal justice system. Improvements in DNA
testing have allowed us to determine with greater accuracy whether
certain offenders committed the crime that sent them to prison,
including, very importantly, of course, those who have been condemned
to death row.
Since the 1970s, 87 people sentenced to die were later proven
innocent. Some of those innocent death row inmates were able to prove
their innocence based on modern DNA testing of biological evidence.
But, Mr. President, this is not just about ensuring that we not condemn
the innocent. DNA testing can also ensure that the guilty person not go
free. DNA testing can be a tool for the prosecution to determine
whether they have the right person.
Over the last several months, I have spoken often on the floor about
the serious flaws in the administration of capital punishment across
the nation. I strongly support Senator Leahy's bill. It is a much over-
due package of reforms that goes after some of the worst failings in
our nation's administration of capital punishment--those that are
unfair, unjust and plain just un-American.
Very simply, Senator Leahy's bill can help save lives. His bill would
make it less likely for an innocent man or woman to be sent to death
row, where biological evidence is central to the issue of guilt or
innocence. The bill also would make it more likely that a poor person
receive adequate defense representation and less likely that a poor
person gets stuck with a lawyer that sleeps through trial. Yesterday, I
spoke on the floor about specific examples of such cases of egregious
failings of defense counsel.
We must ensure the utmost fairness in the administration of this
ultimate punishment. I hope our colleagues--both those who support the
death penalty in principle and those who oppose it--will join together
in fixing this broken system and restoring fairness and justice. All
Americans demand and deserve no less.
Mr. President, I think it is very significant that this important
bill now has bipartisan support. I want to thank and commend my
colleagues, Senators Gordon Smith, Susan Collins and James Jeffords,
for recognizing that flaws exist in our system of justice and
acknowledging that something has to be done about it. I hope this is a
sign that we can work together with the very real goal of passing this
bill this year. Until we do so, the lives of innocent people literally
hang in the balance.
______

By Mr. WYDEN (for himself and Mr. Smith of Oregon):
S. 2691. A bill to provide further protections for the watershed of
the Little Sandy River as part of the Bull Run Watershed Management
Unit, Oregon, and for other purposes; to the Committee on Energy and
Natural Resources.

The Little Sandy Watershed Protection Act

Mr. WYDEN. Mr. President, I rise today to introduce the Little Sandy
Watershed Protection Act.
I promised Oregonians that my first legislative business when
Congress reconvened after the Memorial Day Recess would be the
introduction of this bill.
Therefore, joined by my friends Senator Gordon Smith and Congressman
Earl Blumenauer, I introduce this legislation to make sure that
Portland families can go to their kitchen faucets and get a glass of
safe and pure drinking water today, tomorrow, and on, into the 21st
century.
The Bull Run has been the primary source of water for Portland since
1895. The Bull Run Watershed Management Unit, Mount Hood National
Forest, was protected by Congressional action in 1904, 1977 and then
again, most recently, in 1996 (P.L. 95-200, 16, U.S.C. 482b note)
because it was recognized as Portland's primary municipal water supply.
It still is.
Today I propose to finish the job of the Oregon Resources and
Conservation Act of 1996. That law, which I worked on with Senator Mark
Hatfield, finally provided full protection to the Bull Run watershed,
but only provided temporary protection for the adjacent Little Sandy
watershed. I promised in 1996 that I would return to finish the job of
protecting Portland's drinking water supply and intend to continue to
push this legislation until the job is complete.
The bill I introduce today expands the Bull Run Watershed Management
Unit boundary from approximately 95,382 acres to approximately 98,272
acres by adding the southern portion of the Little Sandy River
watershed, an increase of approximately 2,890 acres.
The protection this bill offers will not only assure clean drinking
water, but also increase the potential for fish recovery. Reclaiming
suitable habitat for our region's threatened fish populations must be
an all-out effort.

[[Page S4685]]

Through the cooperation of Portland General Electric and the City of
Portland, the Little Sandy can be an important part of that effort.
My belief is that the children of the 21st century deserve water that
is as safe and pure as any that the Oregon pioneers found in the 19th
century. This legislation will go a long way toward bringing about that
vision.
Mr. SMITH of Oregon. Mr. President, let me begin by saying that I am
pleased to be a cosponsor of this legislation aimed at protecting the
Little Sandy Watershed for future generations. The Little Sandy lies
adjacent to the Bull Run Watershed, which is the primary municipal
water supply for the City of Portland, Oregon. The water that filters
through these forests and mountainsides to the east of Portland is of
the highest quality in the nation and does not require artificial
filtration or treatment.
The Bull Run Watershed Management Unit was established by
congressional action in 1977, creating a management partnership between
the USDA Forest Service and the City of Portland for the review of
water quality and quantity. Additional protection was given to the Bull
Run by the Northwest Forest Plan in 1993, restricting all timber
harvests in sensitive areas. Neither of these actions, however,
extended a satisfactory level of protection to the nearby Little Sandy
Watershed. Population growth and heightened water quality expectations
have brought the preservation of the Little Sandy Watershed to the
forefront of the public's interest in recent years.
The legislation that I have cosponsored would expand the boundary of
the Bull Run Watershed Management Unit to include the southern portion
of the Little Sandy. This would add nearly 3,000 acres to the
Management Unit, including a number of acres currently managed by the
Bureau of Land Management (BLM). I am aware that questions have just
arisen as to whether some of this acreage is currently managed by O & C
lands. If so, there are concerns that O & C land would be devalued by a
change in management designation. If this is the case, as the bill
moves through the legislative process, I will seek the redesignation of
other lands outside the preserve in order to maintain the wholeness of
O & C land and the timber base.
______

By Ms. MIKULSKI (for herself, Mr. Kennedy, and Mr. Durbin):
S. 2692. A bill to amend the Federal Food, Drug, and Cosmetic Act to
improve safety of imported products, and for other purposes; to the
Committee on Health Education, Labor, and Pensions.

imported products safety improvement and disease prevention act of 2000

Ms. MIKULSKI. Mr. President, I rise today to reintroduce the
``Imported Products Safety Improvement and Disease Prevention Act of
2000.'' I am proud to be the sponsor of this important legislation
which guarantees the improved safety of imported foods, and I have high
hopes that we will act on it this year.

The health of Americans is not something to take chances with. It is
important that we make food safety a top priority. Every person should
have the confidence that their food is fit to eat. We should be
confident that imported food is as safe as food produced in this
country. Cars can't be imported unless they meet U.S. safety
requirements. Prescription drugs can't be imported unless they meet FDA
standards. You shouldn't be able to import food that isn't up to U.S.
standards, either.
We import increasing quantities of fresh fruits and vegetables,
seafood, and many other foods. In the past seven years, the amount of
food imported into the U.S. has more than doubled. Out of all the
produce we eat, 40% of it is imported. Our food supply has gone global,
so we need to have global food safety.
The impact of unsafe food is staggering. There have been several
frightening examples of food poisoning incidents in the U.S. When
Michigan schoolchildren were contaminated with Hepatitis A from
imported strawberries in 1997, Americans were put on alert. Thousands
of cases of cyclospora infection from imported raspberries--resulting
in severe, prolonged diarrhea, weight loss, vomiting, chills and
fatigue were also reported that year. Imported cantaloupe eaten in
Maryland sickened 25 people. As much as $663 million was spent on food
borne illness in Maryland alone. Overall, as many as 33 million people
per year become ill and over 9000 die as a result of food borne
illness. It is our children and our seniors who suffer the most. Most
of the food-related deaths occur in these two populations.
These incidents have scared us and have jump-started the efforts to
do more to protect our nation's food supply. Now, I believe in free
trade, but I also believe in fair trade. FDA's current system of
testing import samples at ports of entry does not protect Americans. It
is ineffective and resource-intensive. Less than 2 percent of imported
food is being inspected under the current system. At the same time, the
quantity of the imported foods continues to increase.
What this law does is simple: It improves food safety and aims at
preventing food borne illness of all imported foods regulated by the
FDA. This bill takes a long overdue, big first step.
First, it requires that FDA make equivalence determinations on
imported food. This was developed with the FDA by Senator Kennedy and
myself in consultation with the consumer groups.
Today, FDA has no authority to protect Americans against imported
food that is unsafe until it is too late. According to the GAO, the FDA
lacks the authority to require that food coming into the U.S. is
produced, prepared, packed or held under conditions that provide the
same level of food safety protection as those in the U.S. This means
that currently, food offered for import to the U.S., can be imported
under any conditions, even if those conditions are unsanitary. The
Imported Products Safety Improvement and Disease Prevention Act of 2000
will allow FDA to look at the production at its source. This means that
FDA will be able to take preventive measures. FDA will be able to be
proactive, rather than just reactive.
That means that when you pack your childrens' lunches for school or
sit down at the dinner table, you can rest assured that your food will
be safe. Whether your strawberries were grown in a foreign country or
on the Eastern Shore, in Maryland, those strawberries will be held to
the same standard. You won't have to worry or wonder where your food is
coming from. You won't have to worry that your children or families are
going to get sick. You will know that the food coming into this country
will be subject to equivalent standards.
Second, this bill contains strong enforcement measures. Last year,
the Permanent Subcommittee on Investigations, under the leadership of
Senator Sue Collins, held numerous hearings on the safety of imported
food. These enforcement measures are largely a product of those facts
uncovered during those hearings.
Finally, this bill covers emergency situations by allowing FDA to ban
imported food that has been connected to outbreaks of food borne
illness. When our children, parents and communities are getting
seriously sick, the Secretary of Health and Human Services can
immediately issue an emergency ban. We don't have to wait till someone
else gets seriously sick or dies. We no longer have to go through the
current bureaucratic mechanism that is inefficient and resource
intensive. We can stop the food today, to protect our citizens.
My goal is to strengthen the food supply, whatever the source of the
food may be. This bill won't create trade barriers. It just calls for
free trade of safe food. It calls for international concern and
consensus on guaranteeing standards for public health.
This bill is important because it will save lives and makes for a
safer world. Everyone should have security in knowing that the food
they eat is fit to eat. I look forward to working on a bipartisan basis
to enact this legislation. I pledge my commitment to fight for ways to
make America's food supply safer. This bill is an important step in
that direction.
Mr. President, I ask unanimous consent that the text of the bill and
a summary be added to the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[[Page S4686]]

S. 2692

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Imported Products Safety
Improvement and Disease Prevention Act of 2000''.

TITLE I--IMPROVEMENTS TO THE PRODUCT SAFETY IMPORT SYSTEM

SEC. 101. EQUIVALENCE AUTHORITY TO PROTECT THE PUBLIC HEALTH
FROM CONTAMINATED IMPORTED PRODUCTS.

(a) Equivalence Determinations, and Measures, Systems, and
Conditions To Achieve Public Health Protection.--Section 801
of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 381)
is amended--
(1) by redesignating subsections (d), (e), and (f) as
subsections (f), (g), and (h), respectively; and
(2) by inserting after subsection (c) the following:
``(d)(1) Subject to paragraphs (2) and (3), any covered
product offered for import into the United States shall be
prepared (including produced), packed, and held under a
system or conditions, or subject to measures, that meet the
requirements of this Act or that have been determined by the
Secretary to be equivalent to a system, conditions, or
measures for such covered product in the United States and to
achieve the level of public health protection for such
covered product prepared, packed, and held in the United
States. Consistent with section 492 of the Trade Agreements
Act of 1979 (19 U.S.C. 2578a), the Secretary shall make,
where appropriate, equivalence determinations described in
that section relating to sanitary or phytosanitary measures
(including systems and conditions) that apply to the
preparation, packing, and holding of covered products offered
for import into the United States.
``(2) In carrying out this subsection, the Secretary shall
conduct systematic evaluations of the systems, conditions,
and measures in foreign countries that apply to the
preparation, packing, and holding of covered products offered
for import into the United States.
``(3) The Secretary shall develop a plan for the
implementation of the authority under this subsection within
2 years after the date of enactment of the Imported Products
Safety Improvement and Disease Prevention Act of 2000. In
developing the plan, the Secretary shall provide an
opportunity for, and take into consideration, public comment
on a proposed plan.''.
(b) General Authority.--Section 801 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 381), as amended in
subsection (a), is further amended by inserting after
subsection (d) the following:
``(e)(1)(A) The Secretary shall establish a system, for use
by the Secretary of the Treasury, to deny the entry of any
covered product offered for import into the United States if
the Secretary of Health and Human Services makes and
publishes--
``(i) a written determination that the covered product--
``(I) has been associated with repeated and separate
outbreaks of disease borne in a covered product or has been
repeatedly determined by the Secretary to be adulterated
within the meaning of section 402;
``(II) presents a reasonable probability of causing
significant adverse health consequences or death; and
``(III) is likely, without systemic intervention or
changes, to cause disease or be adulterated again; or
``(ii) an emergency written determination that the covered
product has been strongly associated with a single outbreak
of disease borne in a covered product that has caused serious
adverse health consequences or death.
``(B)(i) The Secretary shall make a determination described
in subparagraph (A) with respect to--
``(I) a covered product from a specific producer,
manufacturer, or shipper; or
``(II) a covered product from a specific growing area or
country;
that meets the criteria described in subparagraph (A).
``(ii) Only the covered product from the specific producer,
manufacturer, shipper, growing area, or country for which the
Secretary makes the determination shall be subject to denial
of entry under this subsection.
``(C) The denial of entry of any covered product under this
paragraph shall be done in a manner consistent with
bilateral, regional, and multilateral trade agreements and
the rights and obligations of the United States under the
agreements.
``(D)(i) Before making any written determination under
subparagraph (A)(i), the Secretary shall consider written
comments, on a proposed determination, made by any party
affected by the proposed determination and any remedial
actions taken to address the findings made in the proposed
determination. In making the written determination, the
Secretary may modify or rescind the proposed determination in
accordance with such comments.
``(ii)(I) The Secretary may immediately issue an emergency
written determination under subparagraph (A)(ii) without
first considering comments on a proposed determination.
``(II) Within 30 days after the issuance of the emergency
determination, the Secretary shall consider written comments
on the determination that are made by a party described in
clause (i) and received within the 30-day period. The
Secretary may affirm, modify, or rescind the emergency
determination in accordance with the comments.
``(III) The emergency determination shall be in effect--
``(aa) for the 30-day period; or
``(bb) if the Secretary affirms or modifies the
determination, until the Secretary rescinds the
determination.
``(2)(A) The covered product initially denied entry under
paragraph (1) may be imported into the United States if the
Secretary finds that--
``(i) the written determination made under paragraph (1) no
longer justifies the denial of entry of the covered product;
or
``(ii) evidence of remedial action submitted from the
producer, manufacturer, shipper, specific growing area, or
country for which the Secretary made the written
determination under paragraph (1) addresses the
determination.
``(B)(i) The Secretary shall take action on evidence
submitted under subparagraph (A)(ii) within 90 days after the
date of the submission of the evidence.
``(ii) The Secretary's action may include--
``(I) lifting the denial of entry of the covered product;
or
``(II) continuing to deny entry of the covered product
while requesting additional information or specific remedial
action from the producer, manufacturer, shipper, specific
growing area, or country.
``(iii) If the Secretary does not take action on evidence
submitted under subparagraph (A)(ii) within 90 days after the
date of submission, effective on the 91st day after the date
of submission, the covered product initially denied entry
under paragraph (1) may be imported into the United States.
``(3) The Secretary shall by regulation establish criteria
and procedures for the system described in paragraph (1). The
Secretary may by regulation modify those criteria and
procedures, as the Secretary determines appropriate.''.
(c) Technical and Conforming Amendments.--
(1) Section 351(h) of the Public Health Service Act (42
U.S.C. 262(h)) is amended by striking ``section 801(e)(1) of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 381(e))''
and inserting ``section 801(g)(1) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 381(g)(1))''.
(2) Section 301 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 331) is amended--
(A) in paragraph (t), by striking ``section 801(d)(1)'' and
inserting ``section 801(f)(1)''; and
(B) in paragraph (w)--
(i) by striking ``sections 801(d)(3)(A) and 801(d)(3)(B)''
and inserting ``subparagraphs (A) and (B) of section
801(f)(3)'';
(ii) except as provided in clause (i), by striking
``section 801(d)(3)'' each place it appears and inserting
``section 801(f)(3)''; and
(iii) by striking ``section 801(e)'' and inserting
``section 801(g)''.
(3) Section 303(b)(1)(A) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 333(b)(1)(A)) is amended by striking
``section 801(d)(1)'' and inserting ``section 801(f)(1)''.
(4) Section 304(d)(1) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 334(d)(1)) is amended--
(A) by striking ``section 801(e)(1)'' and inserting
``section 801(g)(1)''; and
(B) except as provided in subparagraph (A), by striking
``section 801(e)'' each place it appears and inserting
``section 801(g)''.
(5) Section 801 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 381) is amended--
(A) in subsection (a), in the third sentence, by striking
``subsection (b) of this section'' and inserting ``subsection
(b) or subsection (e)(2)(A) (in the case of a covered product
described in that subsection)'';
(B) in paragraph (3)(A) of subsection (f), as redesignated
in subsection (a), by striking ``section 801(e) or 802'' and
inserting ``subsection (g), section 802,''; and
(C) in paragraph (1) of subsection (h), as redesignated in
subsection (a), by striking ``subsection (e)'' and inserting
``subsection (g)''.
(6) Section 802 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 382) is amended--
(A) in subsection (a)(2)(C), by striking ``section
801(e)(2)'' and inserting ``section 801(g)(2)'';
(B) in subsection (f)(3), by striking ``section 801(e)(1)''
and inserting ``section 801(g)(1)''; and
(C) in subsection (i), by striking ``section 801(e)(1)''
and inserting ``section 801(g)(1)''.

SEC. 102. PROHIBITION AGAINST THE DISTRIBUTION OF CERTAIN
PRODUCTS.

(a) Adulterated Products.--Section 402 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 342) is amended by adding
at the end the following:
``(h)(1) If--
``(A) it is a covered product being imported or offered for
import into the United States;
``(B) the covered product has been designated by the
Secretary for sampling, examination, or review for the
purpose of determining whether the covered product is in
compliance with this Act;
``(C) the Secretary requires, under section 801(a)(2)(B),
that the covered product not be distributed until the
Secretary authorizes the distribution of the covered product;
and
``(D) the covered product is distributed before the
Secretary authorizes the distribution.

[[Page S4687]]

``(2) In this paragraph, the term `distributed', used with
respect to a covered product, means--
``(A) moved for the purpose of selling the covered product,
offering the covered product for sale, or delivering the
covered product for the purpose of selling the covered
product or offering the covered product for sale; or
``(B) delivered contrary to any bond requirement.''.
(b) Prohibition.--Section 801(a) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 381(a)) is amended--
(1) in the third sentence, by redesignating paragraphs (1)
through (3) as subparagraphs (A) through (C), respectively;
(2) by striking ``(a) The'' and inserting ``(a)(1) The'';
(3) in the last sentence, by striking ``Clause (2)'' and
inserting ``Subparagraph (B)'';
(4) by moving the fourth sentence to the end;
(5) in the sentence so moved, by striking ``The Secretary''
and inserting the following:
``(2)(A) The Secretary''; and
(6) by adding at the end the following:
``(B) The Secretary of Health and Human Services may
require that a covered product being imported or offered for
import into the United States not be distributed until the
Secretary authorizes distribution of the covered product.''.

SEC. 103. REQUIREMENT OF SECURE STORAGE OF CERTAIN IMPORTED
PRODUCTS.

(a) Adulterated Products.--Section 402 of the Federal Food,
Drug, and Cosmetic Act, as amended in section 102(a), is
further amended by adding at the end the following:
``(i) If--
``(1) it is a covered product being imported or offered for
import into the United States;
``(2) the Secretary requires, under section 801(a)(2)(C),
that the covered product be held in a secure storage facility
until the Secretary authorizes distribution of the covered
product; and
``(3) the covered product is not held in a secure storage
facility as described in section 801(a)(2)(C) until the
Secretary authorizes the distribution.''.
(b) Requirement.--Section 801(a)(2) of the Federal Food,
Drug, and Cosmetic Act, as amended in section 102(b), is
further amended by adding at the end the following:
``(C)(i) The Secretary of Health and Human Services may
require that a covered product that is being imported or
offered for import into the United States be held, at the
expense of the owner or consignee of the covered product, in
a secure storage facility until the Secretary authorizes
distribution of the covered product, if the Secretary makes
the determination that the covered product is--
``(I) being imported or offered for import into the United
States by a person described in clause (ii); or
``(II) owned by or consigned to a person described in
clause (ii).
``(ii) An importer, owner, or consignee referred to in
subclause (I) or (II) of clause (i) is a person against whom
the Secretary of the Treasury has assessed liquidated damages
not less than twice under subsection (b) for failure to
redeliver, at the request of the Secretary of the Treasury, a
covered product subject to a bond under subsection (b).''.

SEC. 104. REQUIREMENT OF ADMINISTRATIVE DESTRUCTION OF
CERTAIN IMPORTED PRODUCTS.

(a) Adulterated Products.--Section 402 of the Federal Food,
Drug, and Cosmetic Act, as amended in section 103(a), is
further amended by adding at the end the following:
``(j) Notwithstanding subsections (a)(2)(A) and (b) of
section 801, if--
``(1) it is a covered product being imported or offered for
import into the United States;
``(2) the covered product presents a reasonable probability
of causing significant adverse health consequences or death;
``(3) the Secretary, after the covered product has been
refused admission under section 801(a), requires under
section 801(a)(2)(D) that the covered product be destroyed;
and
``(4) the owner or consignee of the covered product fails
to comply with that destruction requirement.''.
(b) Requirement.--Section 801(a)(2) of the Federal Food,
Drug, and Cosmetic Act, as amended in section 103(b), is
further amended by adding at the end the following:
``(D) The Secretary of Health and Human Services may
require destruction, at the expense of the owner or
consignee, of a covered product imported or offered for
import into the United States that presents a reasonable
probability of causing significant adverse health
consequences or death.''.

SEC. 105. PROHIBITION AGAINST PORT SHOPPING.

Section 402 of the Federal Food, Drug, and Cosmetic Act, as
amended in section 104(a), is further amended by adding at
the end the following:
``(k) If it is a covered product being imported or offered
for import into the United States, and the covered product
previously has been refused admission under section 801(a),
unless the person reoffering the article affirmatively
establishes, at the expense of the owner or consignee of the
article, that the article complies with the applicable
requirements of this Act, as determined by the Secretary.''.

SEC. 106. PROHIBITION OF IMPORTS BY DEBARRED PERSONS.

Section 402 of the Federal Food, Drug, and Cosmetic Act, as
amended in section 105, is further amended by adding at the
end the following:
``(l) If it is a covered product being imported or offered
for import into the United States by a person debarred under
section 306(b)(4).''.

SEC. 107. AUTHORITY TO MARK REFUSED ARTICLES.

(a) Misbranded Products.--Section 403 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 343) is amended by adding
at the end the following:
``(t) If--
``(1) it has been refused admission under section 801(a);
``(2) the covered product has not been required to be
destroyed under subparagraph (A) or (B) of section 801(a)(2);
and
``(3) the packaging of the covered product does not bear a
label or labeling described in section 801(a)(2)(E).''.
(b) Requirement.--Section 801(a)(2) of the Federal Food,
Drug, and Cosmetic Act, as amended in section 104(b), is
further amended by adding at the end the following:
``(E) The Secretary of Health and Human Services may
require the owner or consignee of a covered product that has
been refused admission under paragraph (1), and has not been
required to be destroyed under subparagraph (A) or (B), to
affix to the packaging of the covered product a label or
labeling that--
``(i) clearly and conspicuously bears the following
statement: `United States: Refused Entry.';
``(ii) is affixed to the packaging until the covered
product is brought into compliance with this Act; and
``(iii) has been provided at the expense of the owner or
consignee of the covered product.''.

SEC. 108. EXPORT OF REFUSED ARTICLES.

Paragraph (2)(A) of section 801(a) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 381(a)), as designated in
section 102(b), is amended by striking ``ninety days'' and
inserting ``30 days''.

SEC. 109. COLLECTION AND ANALYSIS OF SAMPLES OF PRODUCT
IMPORTS.

Section 801 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 381), as amended in section 101(a), is further amended
by adding at the end the following:
``(i) The Secretary may issue regulations or guidance as
necessary to govern the collection and analysis by entities
other than the Food and Drug Administration of samples of a
covered product imported or offered for import into the
United States to ensure the integrity of the samples
collected and the validity of the analytical results.''.

SEC. 110. DEFINITION.

Section 201 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 321) is amended by adding at the end the following:
``(kk) The term `covered product' means an article that is
described in subparagraph (1), (2), or (3) of paragraph (f)
and that is not a dietary supplement. The term shall not
include an article to the extent that the Secretary of
Agriculture exercises inspection authority over the article
at the time of import into the United States.''.

TITLE II--ENFORCEMENT AND PENALTIES FOR IMPORTING CONTAMINATED PRODUCTS

SEC. 201. ENHANCED BONDING REQUIREMENTS FOR PRIOR INVOLVEMENT
IN IMPORTING ADULTERATED OR MISBRANDED
PRODUCTS.

Section 801(b) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 381(b)) is amended--
(1) by inserting ``(1)'' after ``(b)''; and
(2) by adding at the end the following:
``(2)(A) The Secretary of the Treasury, acting through the
Commissioner of Customs, shall issue regulations that
establish a rate for a bond required to be executed under
paragraph (1) for a covered product if an owner, consignee,
or importer of the covered product has committed a covered
violation.
``(B) The regulations shall require the owner or consignee
to execute such a bond--
``(i) at twice the usual rate; or
``(ii) if the owner, consignee, or importer has committed
more than 1 covered violation, at a rate that increases with
the number of covered violations committed, as determined in
accordance with a sliding scale established in the
regulations.
``(C) In this paragraph:
``(i) The term `committed' means been convicted of, or
found liable for, a violation by an appropriate court or
administrative officer.
``(ii) The term `covered violation' means a violation
relating to--
``(I) importing or offering for import into the United
States--
``(aa) a covered product during a period of debarment under
section 306(b)(4);
``(bb) a covered product that is adulterated within the
meaning of paragraph (h), (i), (j), (k), or (l) of section
402; or
``(cc) a covered product that is misbranded within the
meaning of section 403(t); or
``(II) making a false or misleading statement in conduct
relating to the import or offering for import of a covered
product into the United States.
``(iii) The term `usual rate', used with respect to a bond,
means the rate that would be required under paragraph (1) for
the bond by a person who has not committed a covered
violation.''.

SEC. 202. DEBARMENT OF REPEAT OFFENDERS AND SERIOUS
OFFENDERS.

(a) In General.--Section 306(b) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 335a(b)) is amended--

[[Page S4688]]

(1) in paragraph (1), in the paragraph heading, by
striking ``In general.--'' and inserting ``Debarment
for violations relating to drugs.--'';
(2) in paragraph (2), in the paragraph heading, by striking
``Persons subject to permissive debarment.--'' and inserting
``Persons subject to permissive debarment for violations
relating to drugs.--'';
(3) in paragraph (3), in the paragraph heading, by
striking ``Stay of certain orders.--'' and inserting
``Stay of certain orders relating to debarment for
violations relating to drugs.--''; and
(4) by adding at the end the following:
``(4) Debarment for violations relating to product
imports.--
``(A) In general.--The Secretary may debar a person from
importing a covered product or offering a covered product for
import into the United States, if--
``(i) the Secretary finds that the person has been
convicted for conduct that is a felony under Federal law and
relates to the importation or offering for importation of any
covered product into the United States; or
``(ii) the Secretary makes a written determination that the
person has repeatedly or deliberately imported or offered for
import into the United States a covered product adulterated
within the meaning of paragraph (h), (i), (j), or (k) of
section 402, or misbranded within the meaning of section
403(t).
``(B) Impact.--On debarring a person under subparagraph
(A), the Secretary shall provide notice of the debarment to
the Secretary of the Treasury, who shall deny entry of a
covered product offered for import by the person.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Section 306 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 335a) is amended--
(A) in subsection (c)--
(i) in paragraph (1)--

(I) in subparagraph (B), by striking ``, and'' at the end
and inserting a comma;
(II) by redesignating subparagraph (C) as subparagraph (D);
and
(III) by inserting after subparagraph (B) the following:

``(C) shall, during the period of a debarment under
subsection (b)(4), prohibit the debarred person from
importing a covered product or offering a covered product for
import into the United States, and'';
(ii) in paragraph (2)(A), by inserting after clause (iii)
the following:
``(iv) The period of debarment of any person under
subsection (b)(4) shall be not less than 1 year.''; and
(iii) in paragraph (3)--

(I) in subparagraph (C)--

(aa) by striking ``suspect drugs'' and inserting ``suspect
drugs or covered products''; and
(bb) by striking ``fraudulently obtained'' and inserting
``fraudulently obtained or on a covered product wrongfully
imported into the United States''; and

(II) in subparagraph (E), by inserting ``in the case of a
debarment relating to a drug,'' after ``(E)'';

(B) in subsection (d)--
(i) in paragraph (3)--

(I) in subparagraph (A)--

(aa) in clause (i), by striking ``or (b)(2)(A)'' and
inserting ``or paragraph (2)(A) or (4) of subsection (b)'';
and
(bb) in clause (ii)(II), by inserting ``in the case of a
debarment relating to a drug,'' after ``(II)''; and

(II) in subparagraph (B)--

(aa) in clause (i), by striking ``or clause (i), (ii),
(iii) or (iv) of subsection (b)(2)(B)'' and inserting ``,
clause (i), (ii), (iii), or (iv) of subsection (b)(2)(B), or
subsection (b)(4)''; and
(bb) in clause (ii), by striking ``subsection (b)(2)(B)''
and inserting ``paragraph (2)(B) or (4) of subsection (b)'';
and
(ii) in paragraph (4)--

(I) in subparagraph (A), by striking ``(a)(2)'' and
inserting ``(a)(2) or (b)(4)'';
(II) in subparagraph (B)--

(aa) in clause (ii), by striking ``involving the
development or approval of any drug subject to section 505''
and inserting ``involving, as appropriate, the development or
approval of any drug subject to section 505 or the
importation of any covered product''; and
(bb) in clause (iv), by striking ``drug'' each place it
appears and inserting ``drug or covered product''; and

(III) in subparagraph (D), in the matter following clause
(ii), by inserting ``, in the case of a debarment relating to
a drug,'' before ``protects''; and

(C) in subsection (l)(2), in the second sentence, by
striking ``(b)(2)(B)'' and inserting ``(b)(2)(B), subsection
(b)(4),''.
(2) Civil penalties.--Paragraphs (6) and (7) of section
307(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
335b(a)) are amended by striking ``306'' and inserting ``306
(except section 306(b)(4))''.

SEC. 203. INCREASED ENFORCEMENT TO IMPROVE THE SAFETY OF
IMPORTED PRODUCTS.

Subchapter A of chapter VII of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 371 et seq.) is amended by adding at
the end the following:

``SEC. 712. POSITIONS TO IMPROVE THE SAFETY OF IMPORTED
PRODUCTS.

``There is authorized to be appropriated such sums as may
be necessary for each of fiscal years 2001 through 2003 to
enable the Commissioner, in carrying out chapters IV and
VIII, to decrease the health risks associated with imported
covered products through the creation of additional
employment positions for laboratory, inspection, and
compliance personnel.''.

TITLE III--IMPROVEMENTS TO PUBLIC HEALTH INFRASTRUCTURE AND AWARENESS

SEC. 301. IMPROVEMENTS.

Title II of the Public Health Service Act (42 U.S.C. 202 et
seq.) is amended by adding at the end the following:

``PART C--PUBLIC HEALTH INFRASTRUCTURE AND AWARENESS

``SEC. 251. DEFINITIONS.

``In this part:
``(1) Covered product.--The term `covered product' has the
meaning given the term in section 201 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321).
``(2) Institution of higher education.--The term
`institution of higher education' has the meaning given the
term in section 101(a) of the Higher Education Act of 1965
(20 U.S.C. 1001(a)).
``(3) Secretary.--The term `Secretary' means the Secretary
of Health and Human Services, acting through the Director of
the Centers for Disease Control and Prevention.

``SEC. 252. PUBLIC HEALTH SURVEILLANCE ENHANCEMENT.

``(a) In General.--The Secretary may--
``(1) make grants to, enter into cooperative agreements
with, and provide technical assistance to eligible agencies
to enable the agencies to enhance their capacity to carry out
activities relating to surveillance and prevention of
pathogen-related disease borne in a covered product,
particularly pathogen-related disease associated with
imported covered products, as described in subsection (b)(1);
and
``(2) carry out the activities described in subsection
(b)(2).
``(b) Use of Assistance.--
``(1) Agencies.--An eligible agency that receives
assistance under subsection (a) shall use the assistance to
enhance the capacity of the agency--
``(A) to identify, investigate, and contain threats of
pathogen-related disease borne in a covered product,
particularly pathogen-related disease associated with
imported covered products; and
``(B) to conduct additional surveillance and studies to
address prevention and control of the disease.
``(2) Centers for disease control and prevention.--The
Secretary may use not more than 30 percent of the funds
appropriated to carry out this section--
``(A) to assist an agency described in paragraph (1) in
enhancing the capacity described in paragraph (1) by
providing standards, technologies, information, materials,
and other resources; and
``(B) to enhance national surveillance systems, including
the ability of domestic and international agencies and
entities to respond to product safety issues associated with
imported covered products that are identified through such
systems.
``(c) Eligible Agencies.--To be eligible to receive
assistance under subsection (a)(1), an agency shall be a
State or local health department.
``(d) Application.--To be eligible to receive assistance
under subsection (a)(1), an agency shall submit an
application to the Secretary at such time, in such manner,
and containing such information as the Secretary may require.
``(e) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section such
sums as may be necessary for fiscal years 2001 through 2003.

``SEC. 253. PATHOGEN DETECTION RESEARCH AND DEVELOPMENT.

``(a) In General.--The Secretary may conduct applied
research, directly or by grant or contract, to develop new or
improved methods for detecting and subtyping emerging
pathogens (borne in covered products) in human specimens,
covered products, and relevant environmental samples. The
Secretary may use funds appropriated to carry out this
section to support applied research by State health
departments or institutions of higher education.
``(b) Application.--To be eligible to receive a grant or
enter into a contract under subsection (a), an entity shall
submit an application to the Secretary at such time, in such
manner, and containing such information as the Secretary may
require.
``(c) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section such
sums as may be necessary for fiscal years 2001 through 2003.

``SEC. 254. TRAINING, EDUCATION, AND PUBLIC INFORMATION.

``(a) In General.--The Secretary may--
``(1) make grants and enter into contracts with eligible
entities, to support training activities and other
collaborative activities with the entities to inform health
professionals about disease borne in covered products,
including strengthening training networks serving State,
local, and private entities; and
``(2) increase and improve the activities carried out by
the Centers for Disease Control and Prevention to provide
information to the public on disease borne in covered
products.
``(b) Eligible Entities.--To be eligible to receive a grant
or enter into a contract under subsection (a), an entity
shall be a medical school, a nursing school, an entity
carrying out clinical laboratory training programs, a school
of public health, another institution of higher education, a
professional organization, or an international organization.

[[Page S4689]]

``(c) Application.--To be eligible to receive a grant or
enter into a contract under subsection (a), an entity shall
submit an application to the Secretary at such time, in such
manner, and containing such information as the Secretary may
require.
``(d) Consultation.--In carrying out this section, the
Secretary shall consult with Federal, State, and local
agencies, international organizations, and other interested
parties.
``(e) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section such
sums as may be necessary for fiscal years 2001 through 2003.

``SEC. 255. INTERNATIONAL PUBLIC HEALTH TRAINING AND
TECHNICAL ASSISTANCE.

``(a) In General.--The Secretary shall, directly or by
agreement, provide training and technical assistance to
agencies and entities in foreign countries, to strengthen the
surveillance and investigation capacities of the agencies and
entities relating to disease borne in covered products,
including establishing or expanding activities or programs
such as the Field Epidemiology and Training Program of the
Centers for Disease Control and Prevention.
``(b) Application.--To be eligible to enter into an
agreement under subsection (a), an entity shall submit an
application to the Secretary at such time, in such manner,
and containing such information as the Secretary may require.
``(c) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section such
sums as may be necessary for fiscal years 2001 through 2003.

``SEC. 256. SUPPLIES AND SERVICES IN LIEU OF GRANT FUNDS.

``(a) In General.--On the request of a recipient of
assistance under section 252, 253, 254, or 255, the Secretary
may, subject to subsection (b), provide supplies, equipment,
and services for the purpose of aiding the recipient in
carrying out the section involved and, for such purpose, may
detail to the grant recipient any officer or employee of the
Department of Health and Human Services. Such detail shall be
without interruption or loss of civil service status or
privilege.
``(b) Corresponding Reduction in Payments.--With respect to
a request described in subsection (a), the Secretary shall
reduce the amount of payments under the section involved by
an amount equal to the cost of detailing the officer or
employee and the fair market value of the supplies,
equipment, or services provided by the Secretary. The
Secretary shall, for the payment of expenses incurred in
complying with such a request, expend the amounts
withheld.''.
____

Summary of Imported Products Safety Improvement and Disease Prevention
Act of 2000

TABLE OF CONTENTS

Title I: Improvements to the Product Safety Import System

Title II: Enforcement and Penalties for Importing Contaminated Products

Title III: Improvements to Public Health Infrastructure and Awareness

Imported Products Safety Act of 2000--Title I: Improvements
to the Product Safety Import System--Amends the Federal Food,
Drug, and Cosmetic Act to require imported covered products
to be prepared, packed, and held under a system meeting the
requirements of such Act, or determined by the Secretary of
Health and Human Services (Secretary) to be equivalent to
domestic requirements. (``Covered product'' means a food as
defined under Section 201(f) of the Act and that is not a
dietary supplement.) Directs the Secretary to: (1) develop an
implementation plan; and (2) conduct overseas covered product
system evaluations.
Directs the Secretary to establish, for use by the
Secretary of the Treasury, a system to deny the entry of
imported covered products from a specific area, producer,
manufacturer, or transporter into the United States that: (1)
has been repeatedly adulterated or associated with repeated
outbreaks of foodborne disease, presents a health danger, and
is likely without systematic changes to cause disease or be
adulterated again; or (2) in an emergency determination, has
been strongly associated with a serious outbreak of foodborne
disease.
Makes a conforming amendment to the Public Health Service
Act.
(Sec. 102) Deems as adulterated an imported (of offered for
import) covered product: (1) withheld for review that is
distributed prior to the Secretary's authorization of
distribution; (2) ordered to be held in secure storage prior
to distribution that is not so held; (3) required to be
destroyed that is not so destroyed; (4) previously denied
admission that is subsequently offered for admission without
a showing of appropriate compliance (port shopping); or (5)
owned or consigned by a debarred person.
Authorizes the Secretary to: (1) prohibit distribution of
an imported covered product until the Secretary so
authorizes; (2) prohibit distribution and require the secure
storage of an imported covered product if the importer,
owner, or consignee of such product is a person against whom
the Secretary of the Treasury has assessed certain liquidated
damages for failure to redeliver covered products subject to
a bond; (3) order dangerous imported covered products to be
destroyed; and (4) require marking of refused entry (but not
ordered destroyed) covered product until brought into
appropriate compliance. Deems as misbranded a covered product
refused entry that is not so marked.
(Sec. 108) Shortens the period before a refused entry
article which is not exported shall be destroyed.
(Sec. 109) Authorizes the Secretary to provide for the
collection and analysis of imported covered products by
entities other than the Food and Drug Administration.
Title II: Enforcement and Penalties for Importing
Contaminated Food--Amends the Federal Food, Drug, and
Cosmetic Act to establish bonding requirements for persons
involved in prior importing of adulterated or misbranded
covered products.
(Sec. 202) Authorizes the Secretary to debar a person from
importing covered products into the United States for covered
product import-related repeat or felony activities.
(Sec. 203) Authorizes appropriations for additional Food
and Drug Administration laboratory, inspection, and
compliance personnel.
Title III: Improvements to Public Health Infrastructure and
Awareness--Amends the Public Health Service Act to authorize
the Secretary, through the Centers for Disease Control and
Prevention, to make grants to, enter into contracts with, and
provide technical assistance to State and local health
entities for enhanced surveillance and prevention of
foodborne disease, particularly related to imported covered
products. Authorizes appropriations.
Authorizes the Secretary, with respect to foodborne
disease, to: (1) conduct pathogen detection research and
development; and (2) provide for training, education, and
public information. Authorizes appropriations.
Directs the Secretary to provide related international
public health training and technical assistance. Authorizes
appropriations.

Mr. KENNEDY. I am reintroducing this important bill because of the
seriousness of the problem it addresses and to spur this Congress to
take action. I commend Senator Mikulski for her continued leadership on
this legislation to close the critical gaps in our imported food safety
laws.
Citizens deserve to know that the foods they eat are safe and
wholesome, regardless of their source. The United States has one of the
safest food supplies in the world. Yet, every year, millions of
Americans become sick, and thousands die, from eating contaminated
food. Food-borne illnesses cause billions of dollars a year in medical
costs and lost productivity. Often, the source of the problem is
imported food.
The number of reports in the press of illnesses caused by eating
contaminated imported foods has grown steadily over the past few years.
For example, in 1997, school children in five states contracted
Hepatitis A from frozen strawberries served in the school cafeterias.
Fecal contamination is a potential source of Hepatitis A, and the
strawberries the children ate came from a farm in Mexico where workers
had little access to sanitary facilities.
Earlier this year, cases of typhoid fever in Florida were linked to a
frozen tropical fruit product from Guatemala. Again, poor sanitary
conditions appear to be at the root of the problem.
Gastrointestinal illness has been linked to soft cheeses from Europe.
Bacterial food poisoning has been attributed to canned mushrooms from
the Far East.
The emergence of highly virulent strains of bacteria, and an increase
in the number of organisms that are resistant to antibiotics, make
microbial contamination of food a major public health challenge.
Ensuring the safety of imported food is a huge task. Americans now
enjoy a wide variety of foods from around the world and have access to
fresh fruits and vegetables year round. In 1997, the Food Safety
Inspection Service of the Department of Agriculture handled 118,000
entries of imported meat and poultry. The FDA handled far more--2.7
million entries of other imported food. Current FDA procedures and
resources allowed for less than two percent of those 2.7 million
imports to be physically inspected. Clearly, we need to do better.
The FDA lacks sufficient authority to prevent contaminated food
imports from reaching our shores. The agency has no legal authority to
require that food imported into the United States has been prepared,
packed and stored under conditions that provide the same level of
public health protection as similar food produced in the United States.
Under current procedures, the FDA takes random samples of imports as
they arrive at the border. The imports often continue on their way to
stores in all parts of the country while testing is being done, and it
is often

[[Page S4690]]

difficult to recall the food if a problem is found. Unscrupulous
importers make the most of the loopholes in the law, including
substituting cargo, falsifying laboratory results, and attempting to
bring a refused shipment in again, at a later date or at a different
port.
The legislation we are reintroducing today will give the Secretary of
Health and Human Services the additional authority needed to assure
that food imports are as safe as food grown and prepared in this
country.
It will give the FDA greater authority to deal with outbreaks of
food-borne illness and to bar further imports of dangerous foods until
improvements at the source can guarantee the safety of future
shipments. This authority covers foods that have repeatedly been
associated with food-borne disease, have repeatedly been found to be
adulterated, or have been linked to a catastrophic outbreak of food-
borne illness.
The legislation will also close loopholes in the law and give the FDA
better tools to deal with unscrupulous importers.
In addition, the legislation will authorize the Centers for Disease
Control and Prevention to target resources toward enhanced surveillance
and prevention activities to deal with food-borne illnesses, including
new diagnostic tests, better training of health professionals, and
increased public awareness about food safety.
Too many citizens today are at unnecessary risk of food-borne
illness. The measure we are proposing is designed to reduce that risk
as much as possible, both immediately and for the long term. We know
that there are powerful special interests that put profits ahead of
safety. But Americans need and deserve laws that better protect their
food supply. This is essential legislation, and I look forward to
working with my colleagues to see that it is enacted as soon as
possible.

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