[Congressional Record Volume 149, Number 137 (Wednesday, October 1, 2003)]
[Senate]
[Pages S12278-S12299]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. FEINGOLD (for himself, Mr. Grassley, Mr. Kennedy, and Mr.
Lieberman):
S. 1691. A bill to establish commissions to review the facts and
circumstances surrounding injustices suffered by European Americans,
European Latin Americans, and Jewish refugees during World War II; to
the Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, today I introduce the Wartime Treatment
Study Act. This bill would create two fact-finding commissions: one
commission to review the U.S. Government's treatment of German
Americans, Italian Americans, and European Latin Americans during World
War II and another commission to review the U.S. Government's treatment
of Jewish refugees fleeing Nazi persecution during World War II. This
bill is long overdue.
I am very pleased that my distinguished colleagues, Senators
Grassley, Kennedy, and Lieberman, have joined me as cosponsors of this
important bill. I thank them for their support.
The Allied victory in the Second World War was an American triumph, a
triumph for freedom, justice, and human rights. The courage displayed
by so many Americans, of all ethnic origins, should be a source of
great pride for all Americans.
But, as so many brave Americans fought against enemies in Europe and
the Pacific, here, at home, the U.S. Government was curtailing the
freedom of some of its own people. While, it is, of course, the right
of every nation to protect itself during wartime, the U.S. Government
must respect the basic freedoms for which so many Americans have given
their lives to defend. War tests our principles and our values. And as
our Nation's recent experience has shown, it is during times of war and
conflict, when our fears are high and our principles are tested most,
that we must be even more vigilant to guard against violations of the
Constitution.
Many Americans are aware of the fact that, during World War II, under
the authority of Executive Order 9066, our Government forced more than
100,000 ethnic Japanese from their homes into internment camps.
Japanese Americans were forced to leave their homes, their livelihoods,
and their communities and were held behind barbed wire and military
guard by their own government. Through the work of the Commission on
Wartime Relocation and Internment of Civilians created by Congress in
1980, this shameful event finally received the official acknowledgement
and condemnation it deserved. Under the Civil Liberties Act of 1988,
people of Japanese ancestry who were subjected to relocation or
internment later received an apology and reparations on behalf of the
people of the United States.
While I commend our Government for finally recognizing and
apologizing for the mistreatment of Japanese Americans during World War
II, I believe that it is time that the government also acknowledge the
mistreatment experienced by many German Americans,
[[Page S12279]]
Italian Americans, and European Latin Americans, as well as Jewish
refugees.
The Wartime Treatment Study Act would create two independent, fact-
finding commissions to review this unfortunate history, so that
Americans can understand why it happened and work to ensure that it
never happens again. One commission will review the treatment by the
U.S. Government of German Americans, Italian Americans, and other
European Americans, as well as European Latin Americans, during World
War II.
I believe that most Americans are unaware that, as was the case with
Japanese Americans, approximately 11,000 ethnic Germans, 3,200 ethnic
Italians, and scores of Bulgarians, Hungarians, Romanians or other
European Americans living in America were taken from their homes and
placed in internment camps during World War II. We must learn from our
history and explore why we turned on our fellow Americans and failed to
protect basic freedoms.
A second commission created by this bill will review the treatment by
the U.S. Government of Jewish refugees who were fleeing Nazi
persecution and genocide. We must review the facts and determine how
our restrictive immigration policies failed to provide adequate safe
harbor to Jewish refugees fleeing the persecution of Nazi Germany. The
United States turned away thousands of refugees, delivering many
refugees to their deaths at the hands of the Nazi regime.
As I mentioned earlier, there has been a measure of justice for
Japanese Americans who were denied their liberty and property. It is
now time for the U.S. Government to complete an accounting of this
period in our Nation's history. It is time to create independent, fact-
finding commissions to conduct a full and through review of the
treatment of all European Americans, European Latin Americans, and
Jewish refugees during World War II.
Up to this point, there has been no justice for the thousands of
German Americans, Italian Americans, and other European Americans who
were branded ``enemy aliens'' and then taken from their homes,
subjected to curfews, limited in their travel, deprived of their
personal property, and, in the worst cases, placed in internment camps.
There has been no justice for European Latin Americans who were
shipped to the United States and sometimes repatriated or deported to
hostile, war-torn European Axis powers, often in exchange for Americans
being held in those countries.
Finally, there has been no justice for the thousands of Jews, like
those aboard the German vessel the St Louis, who sought refuge from
hostile Nazi treatment but were callously turned away at America's
shores.
Although the injustices to European Americans, European Latin
Americans, and Jewish refugees occurred fifty years ago, it is never
too late for Americans to learn from these tragedies. We should never
allow this part of our nation's history to repeat itself. And, while we
should be proud of our Nation's triumph in World War II, we should not
let that justifiable pride blind us to the treatment of some Americans
by their own government.
I urge my colleagues to join me in supporting the Wartime Treatment
study Act. It is time for a full accounting of this tragic chapter in
our Nation's history.
I ask that the text of the Wartime Treatment Study Act be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1691
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 ``Wartime Treatment Study
Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) During World War II, the United States successfully
fought the spread of Nazism and fascism by Germany, Italy,
and Japan.
(2) Nazi Germany persecuted and engaged in genocide against
Jews and certain other groups. By the end of the war,
6,000,000 Jews had perished at the hands of Nazi Germany.
United States Government policies, however, restricted entry
to the United States to Jewish and other refugees who sought
safety from Nazi persecution.
(3) While we were at war, the United States treated the
Japanese American, German American, and Italian American
communities as suspect.
(4) The United States Government should conduct an
independent review to assess fully and acknowledge these
actions. Congress has previously reviewed the United States
Government's wartime treatment of Japanese Americans through
the Commission on Wartime Relocation and Internment of
Civilians. An independent review of the treatment of German
Americans and Italian Americans and of Jewish refugees
fleeing persecution and genocide has not yet been undertaken.
(5) During World War II, the United States Government
branded as ``enemy aliens'' more than 600,000 Italian-born
and 300,000 German-born United States resident aliens and
their families and required them to carry Certificates of
Identification, limited their travel, and seized their
personal property. At that time, these groups were the two
largest foreign-born groups in the United States.
(6) During World War II, the United States Government
arrested, interned or otherwise detained thousands of
European Americans, some remaining in custody for years after
cessation of World War II hostilities, and repatriated,
exchanged, or deported European Americans, including
American-born children, to hostile, war-torn European Axis
nations, many to be exchanged for Americans held in those
nations.
(7) Pursuant to a policy coordinated by the United States
with Latin American countries, many European Latin Americans,
including German and Austrian Jews, were captured, shipped to
the United States and interned. Many were later expatriated,
repatriated or deported to hostile, war-torn European Axis
nations during World War II, most to be exchanged for
Americans and Latin Americans held in those nations.
(8) Millions of European Americans served in the armed
forces and thousands sacrificed their lives in defense of the
United States.
(9) The wartime policies of the United States Government
were devastating to the Italian Americans and German American
communities, individuals and their families. The detrimental
effects are still being experienced.
(10) Prior to and during World War II, the United States
restricted the entry of Jewish refugees who were fleeing
persecution and sought safety in the United States. During
the 1930's and 1940's, the quota system, immigration
regulations, visa requirements, and the time required to
process visa applications affected the number of Jewish
refugees, particularly those from Germany and Austria, who
could gain admittance to the United States.
(11) Time is of the essence for the establishment of
commissions, because of the increasing danger of destruction
and loss of relevant documents, the advanced age of potential
witnesses and, most importantly, the advanced age of those
affected by the United States Government's policies. Many who
suffered have already passed away and will never know of this
effort.
SEC. 3. DEFINITIONS.
In this Act:
(1) During world war ii.--The term ``during World War II''
refers to the period between September 1, 1939, through
December 31, 1948.
(2) European americans.--
(A) In general.--The term ``European Americans'' refers to
United States citizens and permanent resident aliens of
European ancestry, including Italian Americans, German
Americans, Hungarian Americans, Romanian Americans, and
Bulgarian Americans.
(B) Italian americans.--The term ``Italian Americans''
refers to United States citizens and permanent resident
aliens of Italian ancestry.
(C) German americans.--The term ``German Americans'' refers
to United States citizens and permanent resident aliens of
German ancestry.
(3) European latin americans.--The term ``European Latin
Americans'' refers to persons of European ancestry, including
Italian or German ancestry, residing in a Latin American
nation during World War II.
TITLE I--COMMISSION ON WARTIME TREATMENT OF EUROPEAN AMERICANS
SEC. 101. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF
EUROPEAN AMERICANS.
(a) In General.--There is established the Commission on
Wartime Treatment of European Americans (referred to in this
title as the ``European American Commission'').
(b) Membership.--The European American Commission shall be
composed of 7 members, who shall be appointed not later than
90 days after the date of enactment of this Act as follows:
(1) Three members shall be appointed by the President.
(2) Two members shall be appointed by the Speaker of the
House of Representatives, in consultation with the minority
leader.
(3) Two members shall be appointed by the majority leader
of the Senate, in consultation with the minority leader.
(c) Terms.--The term of office for members shall be for the
life of the European American Commission. A vacancy in the
European American Commission shall not affect its powers, and
shall be filled in the same manner in which the original
appointment was made.
[[Page S12280]]
(d) Representation.--The European American Commission shall
include 2 members representing the interests of Italian
Americans and 2 members representing the interests of German
Americans.
(e) Meetings.--The President shall call the first meeting
of the European American Commission not later than 120 days
after the date of enactment of this Act.
(f) Quorum.--Four members of the European American
Commission shall constitute a quorum, but a lesser number may
hold hearings.
(g) Chairman.--The European American Commission shall elect
a Chairman and Vice Chairman from among its members. The term
of office of each shall be for the life of the European
American Commission.
(h) Compensation.--
(1) In general.--Members of the European American
Commission shall serve without pay.
(2) Reimbursement of expenses.--All members of the European
American Commission shall be reimbursed for reasonable travel
and subsistence, and other reasonable and necessary expenses
incurred by them in the performance of their duties.
SEC. 102. DUTIES OF THE EUROPEAN AMERICAN COMMISSION.
(a) In General.--It shall be the duty of the European
American Commission to review the United States Government's
wartime treatment of European Americans and European Latin
Americans as provided in subsection (b).
(b) Scope of Review.--The European American Commission's
review shall include the following:
(1) A comprehensive review of the facts and circumstances
surrounding United States Government actions during World War
II that violated the civil liberties of European Americans
and European Latin Americans pursuant to the Alien Enemies
Acts (50 U.S.C. 21-24), Presidential Proclamations 2526,
2527, 2655, 2662, Executive Orders 9066 and 9095, and any
directive of the United States Government pursuant to such
law, proclamations, or executive orders respecting the
registration, arrest, exclusion, internment, exchange, or
deportment of European Americans and European Latin
Americans. This review shall include an assessment of the
underlying rationale of the United States Government's
decision to develop related programs and policies, the
information the United States Government received or acquired
suggesting the related programs and policies were necessary,
the perceived benefit of enacting such programs and policies,
and the immediate and long-term impact of such programs and
policies on European Americans and European Latin Americans
and their communities.
(2) A review of United States Government action with
respect to European Americans pursuant to the Alien Enemies
Acts (50 U.S.C. 21-24) and Executive Order 9066 during World
War II, including registration requirements, travel and
property restrictions, establishment of restricted areas,
raids, arrests, internment, exclusion, policies relating to
the families and property that excludees and internees were
forced to abandon, internee employment by American companies
(including a list of such companies and the terms and type of
employment), exchange, repatriation, and deportment, and the
immediate and long-term effect of such actions, particularly
internment, on the lives of those affected. This review shall
include a list of all temporary detention and long-term
internment facilities.
(3) A brief review of the participation by European
Americans in the United States Armed Forces including the
participation of European Americans whose families were
excluded, interned, repatriated, or exchanged.
(4) A recommendation of appropriate remedies, including how
civil liberties can be better protected during war, or an
actual, attempted, or threatened invasion or incursion, an
assessment of the continued viability of the Alien Enemies
Acts (50 U.S.C. 21-24), and public education programs related
to the United States Government's wartime treatment of
European Americans and European Latin Americans during World
War II.
(c) Field Hearings.--The European American Commission shall
hold public hearings in such cities of the United States as
it deems appropriate.
(d) Report.--The European American Commission shall submit
a written report of its findings and recommendations to
Congress not later than 18 months after the date of the first
meeting called pursuant to section 101(e).
SEC. 103. POWERS OF THE EUROPEAN AMERICAN COMMISSION.
(a) In General.--The European American Commission or, on
the authorization of the Commission, any subcommittee or
member thereof, may, for the purpose of carrying out the
provisions of this title, hold such hearings and sit and act
at such times and places, and request the attendance and
testimony of such witnesses and the production of such books,
records, correspondence, memorandum, papers, and documents as
the Commission or such subcommittee or member may deem
advisable. The European American Commission may request the
Attorney General to invoke the aid of an appropriate United
States district court to require, by subpoena or otherwise,
such attendance, testimony, or production.
(b) Government Information and Cooperation.--The European
American Commission may acquire directly from the head of any
department, agency, independent instrumentality, or other
authority of the executive branch of the Government,
available information that the European American Commission
considers useful in the discharge of its duties. All
departments, agencies, and independent instrumentalities, or
other authorities of the executive branch of the Government
shall cooperate with the European American Commission and
furnish all information requested by the European American
Commission to the extent permitted by law, including
information collected as a result of Public Law 96-317 and
Public Law 106-451. For purposes of the Privacy Act (5 U.S.C.
552a(b)(9)), the European American Commission shall be deemed
to be a committee of jurisdiction.
SEC. 104. ADMINISTRATIVE PROVISIONS.
The European American Commission is authorized to--
(1) appoint and fix the compensation of such personnel as
may be necessary, without regard to the provisions of title
5, United States Code, governing appointments in the
competitive service, and without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of such title
relating to classification and General Schedule pay rates,
except that the compensation of any employee of the
Commission may not exceed a rate equivalent to the rate
payable under GS-15 of the General Schedule under section
5332 of such title;
(2) obtain the services of experts and consultants in
accordance with the provisions of section 3109 of such title;
(3) obtain the detail of any Federal Government employee,
and such detail shall be without reimbursement or
interruption or loss of civil service status or privilege;
(4) enter into agreements with the Administrator of General
Services for procurement of necessary financial and
administrative services, for which payment shall be made by
reimbursement from funds of the Commission in such amounts as
may be agreed upon by the Chairman of the Commission and the
Administrator;
(5) procure supplies, services, and property by contract in
accordance with applicable laws and regulations and to the
extent or in such amounts as are provided in appropriation
Acts; and
(6) enter into contracts with Federal or State agencies,
private firms, institutions, and agencies for the conduct of
research or surveys, the preparation of reports, and other
activities necessary to the discharge of the duties of the
Commission, to the extent or in such amounts as are provided
in appropriation Acts.
SEC. 105. AUTHORIZATION OF APPROPRIATIONS.
From funds currently authorized to the Department of
Justice, there are authorized to be appropriated not to
exceed $500,000 to carry out the purposes of this title.
SEC. 106. SUNSET.
The European American Commission shall terminate 60 days
after it submits its report to Congress.
TITLE II--COMMISSION ON WARTIME TREATMENT OF JEWISH REFUGEES
SEC. 201. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF
JEWISH REFUGEES.
(a) In General.--There is established the Commission on
Wartime Treatment of Jewish Refugees (referred to in this
title as the ``Jewish Refugee Commission'').
(b) Membership.--The Jewish Refugee Commission shall be
composed of 7 members, who shall be appointed not later than
90 days after the date of enactment of this Act as follows:
(1) Three members shall be appointed by the President.
(2) Two members shall be appointed by the Speaker of the
House of Representatives, in consultation with the Minority
Leader.
(3) Two members shall be appointed by the Majority Leader
of the Senate, in consultation with the minority leader.
(c) Terms.--The term of office for members shall be for the
life of the Jewish Refugee Commission. A vacancy in the
Jewish Refugee Commission shall not affect its powers, and
shall be filled in the same manner in which the original
appointment was made.
(d) Representation.--The Jewish Refugee Commission shall
include 2 members representing the interests of Jewish
refugees.
(e) Meetings.--The President shall call the first meeting
of the Jewish Refugee Commission not later than 120 days
after the date of enactment of this Act.
(f) Quorum.--Four members of the Jewish Refugee Commission
shall constitute a quorum, but a lesser number may hold
hearings.
(g) Chairman.--The Jewish Refugee Commission shall elect a
Chairman and Vice Chairman from among its members. The term
of office of each shall be for the life of the Jewish Refugee
Commission.
(h) Compensation.--
(1) In general.--Members of the Jewish Refugee Commission
shall serve without pay.
(2) Reimbursement of expenses.--All members of the Jewish
Refugee Commission shall be reimbursed for reasonable travel
and subsistence, and other reasonable and necessary expenses
incurred by them in the performance of their duties.
SEC. 202. DUTIES OF THE JEWISH REFUGEE COMMISSION.
(a) In General.--It shall be the duty of the Jewish Refugee
Commission to review the United States Government's refusal
to allow Jewish and other refugees fleeing persecution in
Europe entry to the United States as provided in subsection
(b).
[[Page S12281]]
(b) Scope of Review.--The Jewish Refugee Commission's
review shall cover the period between January 1, 1933,
through December 31, 1945, and shall include, to the greatest
extent practicable, the following:
(1) A review of the United States Government's refusal to
allow Jewish and other refugees fleeing persecution and
genocide entry to the United States, including a review of
the underlying rationale of the United States Government's
decision to refuse the Jewish and other refugees entry, the
information the United States Government received or acquired
suggesting such refusal was necessary, the perceived benefit
of such refusal, and the impact of such refusal on the
refugees.
(2) A review of Federal refugee policy relating to those
fleeing persecution or genocide, including recommendations
for making it easier for future victims of persecution or
genocide to obtain refuge in the United States.
(c) Field Hearings.--The Jewish Refugee Commission shall
hold public hearings in such cities of the United States as
it deems appropriate.
(d) Report.--The Jewish Refugee Commission shall submit a
written report of its findings and recommendations to
Congress not later than 18 months after the date of the first
meeting called pursuant to section 201(e).
SEC. 203. POWERS OF THE JEWISH REFUGEE COMMISSION.
(a) In General.--The Jewish Refugee Commission or, on the
authorization of the Commission, any subcommittee or member
thereof, may, for the purpose of carrying out the provisions
of this title, hold such hearings and sit and act at such
times and places, and request the attendance and testimony of
such witnesses and the production of such books, records,
correspondence, memorandum, papers, and documents as the
Commission or such subcommittee or member may deem advisable.
The Jewish Refugee Commission may request the Attorney
General to invoke the aid of an appropriate United States
district court to require, by subpoena or otherwise, such
attendance, testimony, or production.
(b) Government Information and Cooperation.--The Jewish
Refugee Commission may acquire directly from the head of any
department, agency, independent instrumentality, or other
authority of the executive branch of the Government,
available information that the Jewish Refugee Commission
considers useful in the discharge of its duties. All
departments, agencies, and independent instrumentalities, or
other authorities of the executive branch of the Government
shall cooperate with the Jewish Refugee Commission and
furnish all information requested by the Jewish Refugee
Commission to the extent permitted by law, including
information collected as a result of Public Law 96-317 and
Public Law 106-451. For purposes of the Privacy Act (5 U.S.C.
552a(b)(9)), the Jewish Refugee Commission shall be deemed to
be a committee of jurisdiction.
SEC. 204. ADMINISTRATIVE PROVISIONS.
The Jewish Refugee Commission is authorized to--
(1) appoint and fix the compensation of such personnel as
may be necessary, without regard to the provisions of title
5, United States Code, governing appointments in the
competitive service, and without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of such title
relating to classification and General Schedule pay rates,
except that the compensation of any employee of the
Commission may not exceed a rate equivalent to the rate
payable under GS-15 of the General Schedule under section
5332 of such title;
(2) obtain the services of experts and consultants in
accordance with the provisions of section 3109 of such title;
(3) obtain the detail of any Federal Government employee,
and such detail shall be without reimbursement or
interruption or loss of civil service status or privilege;
(4) enter into agreements with the Administrator of General
Services for procurement of necessary financial and
administrative services, for which payment shall be made by
reimbursement from funds of the Commission in such amounts as
may be agreed upon by the Chairman of the Commission and the
Administrator;
(5) procure supplies, services, and property by contract in
accordance with applicable laws and regulations and to the
extent or in such amounts as are provided in appropriation
Acts; and
(6) enter into contracts with Federal or State agencies,
private firms, institutions, and agencies for the conduct of
research or surveys, the preparation of reports, and other
activities necessary to the discharge of the duties of the
Commission, to the extent or in such amounts as are provided
in appropriation Acts.
SEC. 205. AUTHORIZATION OF APPROPRIATIONS.
From funds currently authorized to the Department of
Justice, there are authorized to be appropriated not to
exceed $500,000 to carry out the purposes of this title.
SEC. 206. SUNSET.
The Jewish Refugee Commission shall terminate 60 days after
it submits its report to Congress.
Amend the title so as to read: ``A bill to establish
commissions to review the facts and circumstances surrounding
injustices suffered by European Americans, European Latin
Americans, and Jewish refugees during World War II.''.
______
By Mr. GRASSLEY (for himself and Mr. Baucus):
S. 1693. A bill to amend section 35 of the Internal Revenue Code of
1986 to allow individuals receiving unemployment compensation to be
eligible for a refundable, advanceable credit for health insurance
costs; to the Committee on Finance.
Mr. GRASSLEY. Mr. President, today I am pleased to introduce, along
with Senator Baucus, an extension of a bipartisan policy to help reduce
the number of people living without health insurance today.
In simplist terms, our bill extends the 65 percent credit offered to
people eligible for trade adjustment assistance, and to certain PBGC
beneficiaries, to those workers eligible for unemployment insurance.
Is it perfect policy? No. Does it ``solve'' the problem of the
uninsured? it does not.
But it's an important step in the right direction. I do not subscribe
to the view that ``incrementalism'' when it comes to covering the
uninsured, is dead.
With census figures showing the number of Americans living without
health insurance increasing, even small steps are steps in the right
direction.
Incrementalism has made a difference. For example, the few million
people we covered with this tax credit in last year's trade promotion
authority bill made a difference. The S-CHIP program made a difference.
I believe Medical Savings Accounts and the small group market reforms
we made in HIPAA all have made a difference in controlling what would
otherwise be a much larger number of people without health insurance.
This year, Congress, in a bipartisan way, put $50 billion into a
reserve fund to address the rising number of uninsured. The year is
more than almost over, and nothing has been done, or even discussed.
I will not let a bipartisan consensus to spend $50 billion on
improving access to health insurance lay there on the table. Iowans
expect us to do get things done.
And to get anything, even something small, done on a problem this
big, it's got to be bipartisan. That's why I am glad to be building on
my work with Senator Baucus and making this important, novel program
available to more Americans.
I am looking forward to exploring still more options in the Finance
Committee on reducing the uninsured in the weeks and months ahead.
Mr. BAUCUS. Mr. President, I rise today to introduce the Health Care
Tax Credit Expansion Act of 2003.
According to the most recent census figures, more than 41 million
Americans lack health insurance coverage. More than the population of
23 States, plus the District of Columbia. As premiums sky rocket and
the unemployment rate remains high--despite signs of economic
recovery--I worry that this number may grow even higher.
For America's uninsured, the consequences of going without health
coverage can be devastating.
Put plainly, uninsured Americans are less healthy than those with
health insurance. They delay seeking medical care or go without
treatment altogether that could prevent and detect crippling illnesses.
Illnesses like diabetes, heart disease, and cancer. The uninsured are
far less likely to receive health services if they are injured or
become ill. They don't fill prescriptions that their doctors recommend.
These factors take an enormous personal toll on the lives of the
uninsured. They are sicker and less productive. Their children are less
likely to survive past infancy. And they must struggle with the
knowledge that a serious injury or illness in their family might push
them to the brink of financial ruin.
And there is also the impact on the rest of the U.S. economy that
must be taken into account. Because when the uninsured become so sick
that they must finally seek emergency treatment, there is often no one
to pay for it. No insurance company. No government program.
So who absorbs the cost of uncompensated medical care? We all do. In
the form of higher health care costs. Higher and higher premiums at a
time when the cost of health care is already rising out of control.
[[Page S12282]]
The situation is becoming critical. And I believe the time for
talking has ended. It is time for us to examine solutions instead of
talking about the problem.
That is why I have joined with my colleague, chairman of the Senate
Finance Committee, Senator Chuck Grassley, to introduce this important
piece of legislation.
Our bill would provide health care assistance to the unemployed--one
specific category of those without health insurance. And one where we
believe there is agreement to move forward.
More specifically, this bill would expand the 65 percent refundable,
advanceable tax credit that is currently provided under the Trade
Adjustment Assistance program to workers receiving unemployment
benefits.
By building on the structure that Congress put in place last year
under the Trade Act, we make it more likely that unemployed workers can
receive benefits in a timely manner. Without significant implementation
and start-up time.
And by building on the historic agreement that we reached last year,
we are more likely to have support for the structure and approach.
Let me be clear. This bill is not a major overhaul of the U.S. health
care system that several Democratic Presidential candidates have
outlined. It was not intended and does not seek to cover everyone in
this country without health insurance.
Rather the proposal would use the money set aside in this year's
budget for the uninsured--$50 billion--on a targeted policy that I
believe both sides can agree on. It is a practical, principled,
incremental solution.
Why the unemployed?
According to the Labor Department, since February 2001, 2.6 million
jobs have been lost. And with those jobs, an awful lot of health
insurance has been lost, too.
Despite assertions by economists that the recession has ended and the
economy is experiencing signs of improvement, the unemployment rate has
remained stubbornly high--6.4 percent in June. In fact, we are hearing
more and more talk of the same ``jobless recovery'' that we heard about
following the recession in the early 1990s.
It is true that employment does not immediately improve when an
economy emerges from recession. We read repeatedly that even if growth
surges and business investment begins to take off tomorrow, the ranks
of the unemployed may not thin for months.
Unfortunately, for many, many families, this means more weeks, if not
months, of endless job searches. And a longer period of time without
health coverage.
An estimated 46 percent of unemployed adults lack health insurance,
or about 4 million unemployed workers. Less than one in three
unemployed adults receives health coverage through their spouse or
other family member.
And while 65 percent may qualify for COBRA continuation coverage,
only 7 percent can afford to enroll. That is not surprising. Premiums
for this coverage average almost $700 a month for family coverage and
$250 for individual coverage. A very high price, given the average
$1,100 monthly UI check.
Last year, when we debated the economic recovery package, both
Republicans and Democrats proposed to expand health coverage for
unemployed workers. There was almost universal agreement that this
population deserved help and attention. So I think it's a good place
for us to start from this year.
Why a tax credit?
There's been a lot of debate about the best way to expand health
insurance coverage to the uninsured. Most Democrats favor expanding
public programs like Medicaid and CHIP, and harnessing the power of the
group insurance market to provide affordable coverage options.
Most Republicans, however, favor a more market-based approach that
gives the uninsured tax breaks and allows them to use the individual
insurance market.
But, after years of logjams and disagreements, we were able to come
together last year when we created the TAA tax credit. The TAA tax
credit merges a market-based tax credit with the affordability of the
group insurance market. This proposal simply builds on that progress.
With the structures now in place to implement the TAA credit, a new tax
credit for the unemployed can easily be incorporated into the new
system.
Caveats
I realize that the TAA tax credit is not a perfect model. And we may
need to make some adjustments as full implementation kicks in this
summer. For example, we need to ensure that the groups we intended to
cover actually have access to coverage.
In particular, all workers who had health insurance coverage for 3
months before they lost their jobs should be assured of coverage they
qualify for under TAA. I support making the technical change that would
provide that assurance.
I am also willing to consider other improvements, like additional
help for low income workers.
But I do not think these adjustments should deter us from moving
forward with an expansion of the tax credit. Millions of unemployed
workers and their families need our help. And they need it now.
All told, expanding the TAA tax credit to the unemployed would
provide health insurance coverage for 1.4 million Americans a month who
are currently unemployed and uninsured. It's not a panacea. But it's a
start.
I hope my colleagues will join this fight by helping us pass this
legislation, and taking a solid step toward providing quality,
affordable health insurance to all Americans.
______
By Mr. BROWNBACK:
S. 1694. A bill to amend title 38, United States Code to authorize
the Secretary of Veterans Affairs to provide veterans who participated
in certain Department of Defense chemical and biological warfare
testing to be provided health care for illness without requirement for
proof of service-connection; to the Committee on Veterans' Affairs.
Mr. BROWNBACK. Mr. President, I rise today to introduce the Health
Care for Veterans of Project 112/Project SHAD Act of 2003. This bill
will authorize health care assistance for veterans who participated in
specific Department of Defense chemical and biological warfare testing
without any requirements related to proof of service-connection for
their illness.
Project 112 consisted of a series of cold war chemical, nuclear, and
biological tests conducted both at sea and over land from 1962 to 1973.
This project was one of 150 military initiatives designed to identify
U.S. military personnel and warship vulnerabilities to chemical,
nuclear, and biological attacks. Some of the tests that were part of
Project 112/Operation Shipboard Hazard and Defense (SHAD) involved the
use of dangerous agents such as sarin, VX, tularemia, and anthrax. The
Defense Department has recognized that it does not have adequate
documentation to prove that test participants were informed of the
potential risks, or that personnel received adequate protective gear
during testing.
After an extensive search for records to identify all tests conducted
and link the dates of specific tests to the personnel on-board at the
time, the DOD produced a comprehensive list of all tests conducted and
each veteran involved in this project. In response to a VA request, DOD
reviewed and declassified information concerning the exact agents used
and other details of the Project 112 tests. This information was
subsequently turned over to the Department of Veterans Affairs, and the
VA began the process of contacting the veterans identified as
participants.
A total of 5,842 persons were identified as having been present in
one or more of the tests. All veterans who believe they were involved
in tests and have medical concerns have been encouraged to contact VA
to receive medical evaluations. Although Project 112 veterans suffer
from a broad range of ailments from cancer to hypertension, a causal
link between the tests and their current ailments has not been
established. Due to the amount of time that has passed and the
relatively small number of people involved in any specific test, it is
highly unlikely that we will ever be able to fully determine the health
effects from the tests.
It would be unconscionable to require Project 112 veterans to prove a
connection between their involvement in these tests and their current
health problems. If we cannot disprove a service connection, then we
should assume
[[Page S12283]]
responsibility for their health care. This Health Care for Veterans of
Project 112/Project SHAD Act of 2003 would provide priority access to
VA hospital care, medical services, and nursing home care for veterans
identified as participants in these tests, and not require medical
evidence that any illnesses are attributable to such testing. This is
an important step in bringing some finality to this issue and living up
to our commitment to this group of veterans.
I ask unanimous consent that the text of this legislation be printed
in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1694
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 ``Health Care for Veterans of
Project 112/Project SHAD Act of 2003''.
SEC. 2. PROVISION OF HEALTH CARE TO VETERANS WHO PARTICIPATED
IN CERTAIN DEPARTMENT OF DEFENSE CHEMICAL AND
BIOLOGICAL WARFARE TESTING.
Section 1710(e) of title 38, United States Code, is
amended--
(1) in paragraph (1), by adding at the end the following
new subparagraph:
``(E) Subject to paragraphs (2) and (3), a veteran who
participated in a test conducted by the Department of Defense
Deseret Test Center as part of a program for chemical and
biological warfare testing from 1962 through 1973 (including
the program designated as `Project Shipboard Hazard and
Defense (SHAD)' and related land-based tests) is eligible for
hospital care, medical services, and nursing home care under
subsection (a)(2)(F) for any illness, notwithstanding that
there is insufficient medical evidence to conclude that such
illness is attributable to such testing.'';
(2) in paragraph (2)(B), by striking ``paragraph (1)(C) or
(1)(D)'' and inserting ``subparagraph (C), (D), or (E) of
paragraph (1)''; and
(3) in paragraph (3)--
(A) by striking ``and'' at the end of subparagraph (B);
(B) by striking the period at the end of subparagraph (C)
and inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(D) in the case of care for a veteran described in
paragraph (1)(E), after December 31, 2005.''.
______
By Mr. LEAHY (for himself, Mr. Craig, Mr. Durbin, Mr. Sununu, and
Mr. Reid):
S. 1695. A bill to provide greater oversight over the USA PATRIOT
Act; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today I am introducing with Senators Craig,
Sununu, Durbin, and Reid, my distinguished colleagues from Idaho, New
Hampshire, Illinois, and Nevada, the Patriot Oversight Restoration Act
of 2003, a short bill whose singular but important purpose is to
provide Congress the opportunity to take a hard look at the USA PATRIOT
Act, which we passed in the anxious weeks following the devastating
attacks of September 11, 2001. This bipartisan bill is moderate in
scope; it would simply expand the sunset provision already enacted in
the PATRIOT Act, to cover a number of additional provisions. The
ensuing debate, however, should be considerable. My hope is that,
before the sunset expires in December 2005, Congress will methodically
revisit PATRIOT, with an eye toward achieving a suitable balance
between the need to address the threat of terrorism and the need to
protect our constitutional freedoms--and with the lessons of the past
few years to guide us.
We recently marked the second anniversary of the September 11
attacks. As we reflect on that terrible day, and honor those who were
lost, I strongly believe we should take stock of where we stand in our
fight against terrorism. In the aftermath of the attacks, Congress and
the administration did forge a constructive partnership to write the
USA PATRIOT Act, which was meant to help our law enforcement and
intelligence communities prevent future attacks from occurring. The
PATRIOT Act represented our best efforts, under difficult
circumstances, to balance the rights and liberties of the American
people with the very urgent need to confront a threat to our Nation.
Even in balancing this tension, we granted the executive branch an
unprecedented, vast new array of powers. We did so because we believed
the administration's claim that it needed these powers to protect us,
and because we trusted the administration's promise that it would use
these powers appropriately. I noted at the time that PATRIOT was not
the bill that I, or any of the sponsors, would have written if
compromise were unnecessary. But I believed in the bill's purpose, and
I gave it my vote and support. I worked hard to add checks and balances
to many of its provisions, and did so.
Unfortunately, like many Members who supported the act--and like many
Americans nationwide--I have come to feel disappointed. Since we passed
the PATRIOT Act in October 2001, it has grown increasingly apparent
that the trust and cooperation Congress provided to the executive
branch has proved to be a one-way street. In the quarter-century that I
have served in the Senate, no administration has been more secretive,
more resistant to congressional oversight, and more disposed to acting
unilaterally, without the approval of the American people or their
democratically elected representatives. Despite the administration's
unprecedented public relations campaign to promote the PATRIOT Act--
including a 16-State, 18-city tour by the Attorney General himself--the
administration has yet to show that it is using its PATRIOT powers
wisely. Instead, it has been secretly drafting a sequel to PATRIOT that
would grant it even more far-reaching powers.
I would never oppose an open discussion of any legislative tool that
would help in the fight against terrorism. But for such a debate to be
fruitful, we need to know more about the tools that are already
available, including those created by the PATRIOT Act. Which are
working, and how well? Which are not working, and why? Which, if any,
struck the wrong balance, threatening the civil liberties of our
citizens while doing little or nothing to keep our Nation secure?
Immediately after the PATRIOT Act passed, the administration draped a
cloak of secrecy around its use. When lawmakers and citizens have
attempted to start a dialogue on PATRIOT-related issues, the response
has been to ignore, insult or derisively dismiss them.
Attorney General Ashcroft has repeatedly declined to appear before
the Judiciary Committee to answer questions, and his Department is
painfully slow to respond to written requests for information. To quote
my friend Senator Grassley, ``getting information from the Justice
Department under Ashcroft is like pulling teeth.'' By ignoring
oversight requests until answers are moot or outdated, and responding
in only vague and conclusory fashion, if at all, the Justice Department
frustrates our constitutional system of checks and balances, and sows
the sort of public distrust that now accompanies the PATRIOT Act.
Just recently, in July, the Department dumped on committee members
literally hundreds of pages of answers to questions that had been
submitted to Attorney General Ashcroft and other senior Department
officials following their testimony before the committee more than a
year earlier. To give just one example of what a travesty it is when
oversight questions remain unanswered for a year or more, the
Department's responses dated July 17, 2003, devoted fully 15 pages to
answering questions about Operation TIPS--an ill-conceived program that
Congress had already terminated more than 8 months earlier.
Is the Department incapable of responding to congressional inquiries
in a timely fashion? Is it deliberately stonewalling? Or does it simply
believe that oversight is a game that it need not play?
Even more troubling, high-level administration officials have rashly
suggested that anyone who dares to voice their concerns as unpatriotic,
anti-American and pro-terrorist. In one of his rare appearances before
the Senate Judiciary Committee, Attorney General Ashcroft charged that
``fear mongers''--those who were raising concern about the loss of
civil liberties--were only aiding the terrorists. More recently, a
Justice Department official dismissed the many local government
resolutions condemning the PATRIOT Act by saying ``half are either in
cities in Vermont, very small population, or in college towns in
California. It's in a lot of the usual enclaves where you might see
nuclear free zones, or they
[[Page S12284]]
probably passed resolutions against the war in Iraq.''
It is unfortunate that the Justice Department felt it appropriate to
ridicule these grass-roots efforts to participate in an important
national dialogue. The opportunity to engage in public discourse is one
of the hallmark benefits of being an American, and I am proud that
Vermont towns are among those dedicated to thinking about and acting on
these important issues. But more importantly, the concerns expressed in
my home State are being echoed by Americans nationwide. To date, anti-
PATRIOT resolutions have been passed by 178 communities in 32 States
including Idaho, New Hampshire, and Illinois. These communities
represent millions upon millions of Americans, not just a few free-
spirited Vermonters, as the Justice Department has insinuated.
Concerns about the administration's antiterror tactics are also
shared by Members on both sides of aisle, many of whom supported the
PATRIOT Act as well as the war in Iraq, but who now know that the
administration has been less than forthright about what it has been
doing in the name of the American people. In July, the House voted to
nullify section 213 of the PATRIOT Act, which allows law enforcement to
ask a court to delay notice of a search warrant where it could have
certain adverse results. And several bills have been introduced in both
Houses to roll back another PATRIOT Act provision, section 215, which
gives federal agents new power to obtain records from libraries and
bookstores. Remarkably, in response, the Justice Department then
declassified information summarily reflecting that it has never used
the Section 215 powers--despite expressing urgent ``need'' during pre-
PATRIOT Act debate. And almost simultaneous to this announcement, the
President urged support for an alternative record gathering power when
Section 215 is still on the books. One has to question the
inconsistencies in these two positions and whether Congress should
blindly confer data gathering powers on an administration that does not
provide a hint of factual support for such requests. There is overall a
growing sense in the nation that Congress moved too fast in enacting
the PATRIOT Act, and that the Justice Department moved too slowly in
explaining its use of this sweeping legislation.
When we passed the PATRIOT Act in October 2001, I noted that Congress
needed to exercise careful oversight of how the Justice Department, the
FBI and other executive branch agencies used the newly expanded powers
that the act provided. The need for oversight and accountability is the
reason that former House Majority Leader Dick Armey and I insisted on a
sunset provision for several key provisions in PATRIOT--provisions that
blurred the lines between criminal investigation and intelligence
gathering. We succeeded, but only in part; several PATRIOT provisions
that should have been subject to the sunset--including a few that were
sunset or even cut in the version of the bill reported by the House
Judiciary Committee--were omitted from the sunset. As enacted, the
sunset applies only to certain enhanced surveillance authorities in
title II of the act.
The PATRIOT Oversight Restoration Act would extend PATRIOT's sunset
provision to other enhanced surveillance provisions in title II of the
act. These include subsections (a) and (c) of section 203, which
authorize the disclosure of grand jury information to foreign
enforcement, intelligence and immigration officials; sections 210 and
211, which broaden the types of information that law enforcement may
obtain, upon request, from electronic communication service providers
and cable service operators; section 213, which authorizes so-called
``sneak and peak''--delayed notification--search warrants; sections 216
and 222, which significantly expand when, where, and how law
enforcement can obtain a pen register or trap and trace order; and
section 219, which authorizes judges to sign search warrants for
properties located outside their districts.
In addition to these title II provisions, the PATRIOT Oversight
Restoration Act would also extend the sunset to a handful of provisions
in titles IV, V, VIII and X of the PATRIOT Act. These provisions
include sections 411 and 1006, which expand the Government's authority
to declare certain persons inadmissible to the United States; section
412, which grants the Attorney General authority to ``certify'' that an
alien is engaged in activity that endangers the national security, and
to take such an alien into custody; section 505, which gives law
enforcement greater authority to access telephone, bank, and credit
records through the issuance of so-called ``National Security
Letters,'' even if no criminal investigation is pending and without
court review; sections 507 and 508, which remove certain privacy
protections for educational records and surveys--called ``obstacles''
to investigating terrorism in the PATRIOT Act; section 802, which
defines ``domestic terrorism'' in a way that could be read to include
political protesters engaged in civil disobedience; section 806, which
uses the aforementioned definition of ``domestic terrorism'' to expand
the government's civil forfeiture authority; and section 1003, which
references another section of PATRIOT that is already covered by the
sunset.
With the PATRIOT Act, Congress provided government investigators with
a virtual smorgasbord of new powers from which to choose. Is the
Government gorging itself on the secretive powers allowed for ``foreign
intelligence'' gathering, with their less onerous procedural
requirements, rather than relying on bedrock criminal investigatory
techniques that are subject to more rigorous review by the Federal
courts? Have we provided too many choices and too much power to a
limited few? These are questions that require answers before the more
far-reaching provisions of PATRIOT are etched into stone.
The events of September 11, 2001, resound in our hearts and in our
memories. We owe it to the American people to be circumspect in the
powers and authorities we grant, even in the name of national security.
Our country was attacked on September 11 because of the democratic
principles that this country stands for and that we love. It would be a
cruel twist of irony to abandon those principles in the guise of a law
named ``PATRIOT'' that might prove to be anything but a defender or
protector of those cherished rights and freedoms.
The PATRIOT Oversight Restoration Act offers a cautious and sensible
solution to evolving fears about the PATRIOT Act. It will allow
Congress to re-examine some of the important legal issues that abruptly
confronted us in the weeks following September 11, and to re-assess our
efforts with the benefit of hindsight and the luxury of time.
Mr. President, I ask unanimous consent that the text of the bill and
an analysis be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The PATRIOT Oversight Restoration Act of 2003
Extends the current sunset provision in section 224 of the
USA PATRIOT Act (Pub. L. 107-56) to the following additional
sections of that law.:
203(a) and (c), which authorize the disclosure of grand
jury information to foreign enforcement, intelligence and
immigration officials;
210 and 211, which broaden the types of information that
law enforcement may obtain, upon request, from electronic
communication service providers and cable service operators;
213, which authorizes so-called ``sneak and peak'' (delayed
notification) search warrants;
216 and 222, which expand when, where, and how law
enforcement can obtain a pen register or trap and trace
order;
219, which authorizes judges to sign search warrants for
properties located outside their districts;
358, which establishes greater reporting requirements by
financial institutions for bank records and removes privacy
protections under the law for the same records;
411 and 1006, which expand the government's authority to
declare certain persons inadmissible to the United States;
412, which grants the Attorney General authority to
``certify'' that an alien is engaged in activity that
endangers the national security, and to take such an alien
into custody;
505, which gives law enforcement greater authority to
access telephone, bank, and credit records through the
issuance of so-called ``National Security Letters'';
507 and 508, which remove certain privacy protections for
educational records and surveys;
802, which defines ``domestic terrorism'' in a way that
could be read to include political protesters engaged in
civil disobedience.
806, which uses the aforementioned definition of ``domestic
terrorism'' to expand the government's civil forfeiture
authority; and
[[Page S12285]]
1003, which references another section of PATRIOT (section
217, ``Interception of computer trespasser communications'')
that is already covered by the sunset.
Clarifies that after these provisions sunset on December
31, 2005, the law shall revert to what it was before the USA
PATRIOT Act was enacted.
S. 1695
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 ``PATRIOT Oversight
Restoration Act of 2003''.
SEC. 2. EXTENSION AND CLARIFICATION OF PATRIOT SUNSET
PROVISION.
The USA PATRIOT Act (Public Law 107-56) is amended by--
(1) striking section 224;
(2) adding at the end of title X the following:
``SEC. 1017. SUNSET.
``(a) In General.--Except as provided in subsection (b),
the following sections of this Act and any amendments made by
such sections shall cease to have effect on December 31,
2005, and any provision of law amended or modified by such
sections shall take effect January 1, 2006, as in effect on
the day before the effective date of this Act:
``(1) In title II, all sections other than sections 201,
202, 204, 205, 208, and 221, and the first sentence of
section 222.
``(2) In title III, section 358.
``(3) In title IV, sections 411 and 412.
``(4) In title V, sections 505, 507, and 508.
``(5) In title VIII, sections 802 and 806.
``(6) In this title, sections 1003 and 1006.
``(b) Exception.--With respect to any particular foreign
intelligence investigation that began before the date on
which the provisions referred to in subsection (a) cease to
have effect, or with respect to any particular offense or
potential offense that began or occurred before the date on
which such provisions cease to have effect, such provisions
shall continue in effect.''; and
(3) in the table of contents for such Act, by--
(A) striking the item for section 224 and inserting the
following:
``Sec. 224. [Stricken see section 1017].'';
and
(B) inserting after the item for section 1016 the
following:
``Sec. 1017. Sunset.''.
Mr. CRAIG. Mr. President, I am pleased to join the distinguished
Senator from Vermont, Senator Leahy, and our other colleagues in
introducing the PATRIOT Oversight Restoration Act of 2003.
I am one of those who voted in favor of the USA PATRIOT Act to
respond to the unprecedented, tragic attacks of September 11, 2001.
However, even at the time of that vote, I raised my reservations about
the new authorities being granted under the act, and pledged that there
would be aggressive oversight by the legislative branch to make sure
PATRIOTS implementation did not compromise civil liberties.
Since that time, this lengthy and complex law has been subjected to
considerable dissection and discussion both inside and outside of
Congress, and concerns have been raised about many of its provisions.
The low boil of discontent around the Nation exploded in the other
Chamber some weeks ago with a strong vote to prohibit the use of
appropriated funds for requesting delayed notice of a search warrant
under the act.
To its credit, the Bush administration has lately worked to address
criticism of the law and demonstrate there have been no abuses by
Federal law enforcement. I greatly appreciate those efforts and believe
it is vitally important to continue that dialog with the Congress and
the American people.
At the same time, in light of the serious concerns that have been
raised, I think it is appropriate for us to add some triggers to the
law that will force Congress to review and affirmatively renew these
authorities. That is what the PATRIOT Oversight Restoration Act would
accomplish, by sunsetting additional provisions that are not currently
set to expire. I do not think this will create a burden for law
enforcement; on the contrary, if these authorities are indeed critical
to the protection of our Nation, it should not be difficult to convince
Congress to renew them. Furthermore, the knowledge that such a case
must be made at a time certain in the future will serve as an
additional immediate check against potential abuses.
The security of our Nation is the first responsibility of the Federal
Government. Our bill will ensure that responsibility is carried out
thoughtfully and in our country's great tradition of balance and
restraint in the enforcement of our laws. I urge all our colleagues to
join us in supporting the PATRIOT Oversight Restoration Act.
______
By Mr. CAMPBELL (for himself and Mr. Inouye)
S. 1696. A bill to amend the Indian Self-Determination and Education
Assistance Act to provide further self-governance by Indian tribes; to
the Committee on Indian Affairs.
Mr. CAMPBELL. Mr. President, today I am pleased to be joined by
Senator Inouye in introducing the Department of Health and Human
Services Tribal Self Governance Amendments of 2003, a bill that will
usher in the next phase in Indian Self Governance in health and health-
related programs.
Up to 1970 the U.S. Government was the sole provider of all or nearly
all services to Indian tribes and their members.
For many it is hard to recall that little more than 30 years ago the
Federal bureaucracy and its employees provided all police, fire,
resource husbandry, education, and health care services in Indian
communities.
The effects on tribal governments were negative and, by crowding out
the tribes, undermined tribal efforts at self-government.
The Federal monopoly in services was ended in 1970 when President
Nixon issued his now-famous Special Message to Congress on Indian
Affairs that called for a greater tribal role in designing and
implementing Federal services and programs and in re-building tribal
governments.
Nixon's Message led to the enactment of the Indian Self Determination
and Education Assistance Act of 1975, Pub. L. 93-638.
Since then Congress has systematically devolved to Indian tribes the
authority and responsibility to manage Federal programs and assume
control over their own affairs.
Tribal Self Governance aims to foster strong tribal governments and
healthy reservation economies as mechanisms to further tribal self-
government. Self Governance has resulted in a reduction in the Federal
bureaucracy and an improvement in the quality of services delivered to
tribal members.
Instead of Federal micro-management, the Indian tribes can tailor the
programs to unique local conditions and better serve their members.
For good reason, Tribal Self Governance has been embraced and
expanded by Congress and the executive repeatedly with amendments
enacted in 1984, 1988, 1994, and 2000.
Building on the solid successes of the early years, the amendments
made permanent Self Governance in the Bureau of Indian Affairs and
launched additional demonstrations in the Indian Health Service. In
2000, I introduced a bill that was enacted to make Self Governance in
Health Care permanent at the IHS.
The bill I am introducing today will create a demonstration project
for non-Indian Health Service programs in the Department of Health and
Human Services.
I urge my colleagues to join me in supporting this important bill.
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. 1696
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 ``Department of Health and
Human Services Tribal Self-Governance Amendments Act of
2003''.
SEC. 2. AMENDMENT.
The Indian Self-Determination and Education Assistance Act
is amended by striking title VI (25 U.S.C. 450f note; Public
Law 93-638) and inserting the following:
``TITLE VI--TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT FOR THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES
``SEC. 601. DEFINITIONS.
``In this title:
``(1) Compact.--The term `compact' means a compact under
section 604.
``(2) Construction project.--The term `construction
project' has the meaning given the term in section 501.
``(2) Demonstration project.--The term `demonstration
project' means the demonstration project under this title.
``(3) Funding agreement.--The term `funding agreement'
means a funding agreement under section 604.
``(4) Included program.--The term `included program' means
a program that is eligible for inclusion under a funding
agreement under section 604(c) (including any portion of such
a program and any function,
[[Page S12286]]
service, or activity performed under such a program).
``(5) Indian tribe.--The term `Indian tribe', in a case in
which an Indian tribe authorizes another Indian tribe, an
inter-tribal consortium, or a tribal organization to plan for
or carry out an included program on its behalf in accordance
with section 603(a)(3), includes the other authorized Indian
tribe, inter-tribal consortium, or tribal organization.
``(6) Inter-tribal consortium.--The term `inter-tribal
consortium' has the meaning given the term in section 501.
``(7) Secretary.--The term `Secretary' means the Secretary
of Health and Human Services.
``(8) Self-governance.--The term `self-governance' has the
meaning given the term in section 501.
``(9) Tribal share.--The term `tribal share' has the
meaning given the term in section 501.
``SEC. 602. ESTABLISHMENT OF DEMONSTRATION -PROJECT.
``(a) Demonstration.--For a period of not more than 5 years
after the date of enactment of the Department of Health and
Human Services Tribal Self-Governance Amendments Act of 2003,
the Secretary shall carry out a project to demonstrate the
effectiveness of tribal operation of the included programs
under self-governance principles and authorities.
``(b) Administration.--The management and administration of
the demonstration project shall be in the Office of the
Secretary.
``SEC. 603. SELECTION OF PARTICIPATING INDIAN TRIBES.
``(a) In General.--
``(1) Continuing participation.--Not more than 50 Indian
tribes that meet the eligibility criteria specified in
subsection (b) shall be entitled to participate in the
demonstration project.
``(2) Additional participants.--If more than 50 eligible
Indian tribes request participation, the Secretary may select
additional Indian tribes to participate in the demonstration
project.
``(3) Other authorized indian tribe, inter-tribal
consortium, or tribal government.--If an Indian tribe
authorizes another Indian tribe, an inter-tribal consortium,
or a tribal organization to plan for or carry out an included
program on its behalf under this title, the authorized Indian
tribe, inter-tribal consortium, or tribal organization shall
have the rights and responsibilities of the authorizing
Indian tribe (except as otherwise provided in the authorizing
resolution).
``(b) Eligibility.--An Indian tribe shall be eligible to
participate in the demonstration project if the Indian tribe,
as of the date of enactment of the Department of Health and
Human Services Tribal Self-Governance Amendments Act of 2003,
is a party to a compact or funding agreement under this Act.
``(c) Selection.--The Secretary shall select Indian tribes
that request participation in the demonstration project by
resolution or other official action by the governing body of
each Indian tribe to be served.
``(d) Planning and Negotiation Grants.--
``(1) In general.--Subject to the availability of
appropriations, the Secretary shall establish a program to
allow Indian tribes that meet the eligibility requirements of
this title to be awarded a planning grant or negotiation
grant, or both.
``(2) Receipt of Grant Not Required.--Receipt of a grant
under paragraph (1) by an Indian tribe is not a requirement
for the Indian tribe to participate in the demonstration
project.
``SEC. 604. COMPACTS AND FUNDING AGREEMENTS.
``(a) In General.--
``(1) New compact and funding agreement.--Not later than 60
days after the date of submission by an Indian tribe of a
request to participate in the demonstration project, the
Secretary shall negotiate and enter into a written compact
and funding agreement with the Indian tribe in a manner that
is consistent with the trust responsibility of the Federal
Government, treaty and statutory obligations, and the
government-to-government relationship between Indian tribes
and the United States.
``(2) Existing compact.--Rather than enter into a new
compact under paragraph (1), an Indian tribe may use an
existing compact negotiated under title V for purposes of the
demonstration project.
``(b) Compacts.--
``(1) Contents.--A compact under subsection (a) shall
designate--
``(A) congressional policies regarding tribal self-
governance;
``(B) the intent of the demonstration project;
``(C) such terms as shall control from year to year; and
``(D) any provisions of this title that are requested by
the Indian tribe.
``(2) Effective date.--The effective date of a compact
shall be the date of execution by the Indian tribe and the
Secretary or another date agreed on by the parties.
``(3) Duration.--A compact shall remain in effect so long
as permitted by Federal law or until terminated by agreement
of the parties.
``(4) Amendment.--A compact may be amended only by
agreement of the parties.
``(c) Funding Agreements.--
``(1) Scope.--A funding agreement under subsection (a)
shall, at the option of the Indian tribe, authorize the
Indian tribe to plan, conduct, and administer included
programs administered by the Secretary through an agency of
the Department of Health and Human Services, set forth in
paragraphs (2) through (4).
``(2) Initial included programs.--The following programs
are eligible for inclusion in a funding agreement under this
title:
``(A) Administration on aging.--Grants for Native Americans
under title VI of the Older Americans Act of 1965 (42 U.S.C.
3057 et seq.);
``(B) Administration for children and families.--
``(i) The tribal temporary assistance for needy families
program under section 412(a)(1) of the Social Security Act
(42 U.S.C. 612(a)(1) et seq.).
``(ii) The Low-Income Home Energy Assistance Program under
the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C.
8621 et seq.).
``(iii) The Community Services Block Grant Program under
the Community Services Block Grant Act (42 U.S.C. 9901 et
seq.).
``(iv) The Child Care and Development Fund under the Child
Care and Development Block Grant Act (42 U.S.C. 9858 et
seq.).
``(v) The native employment works program under section
412(a)(2) of the Social Security Act (42 U.S.C. 612(a)(2)).
``(vi) The Head Start Program under the Head Start Act (42
U.S.C. 9831 et seq.).
``(vii) Child welfare services programs under part B of
title IV of the Social Security Act (42 U.S.C. 620 et seq.).
``(viii) The promoting safe and stable families program
under part B of title IV of the Social Security Act (42
U.S.C. 620 et seq.).
``(ix) Family violence prevention grants for battered
women's shelters under the Family Violence Prevention and
Services Act (42 U.S.C. 10401 et seq.);
``(C) Substance abuse and mental health services
administration.--Targeted capacity expansion program under
title V of the Public Health Service Act (42 U.S.C. 290aa et
seq.);
``(D) Block grants regarding mental health and substance
abuse.--Mental health and substance abuse block grant
programs under title XIX of the Public Health Services Act
(42 U.S.C. 300x et seq.);
``(E) Health resources and services administration.--
Community health center grants under section 330 of the
Public Health Service Act (42 U.S.C. 254b).
``(3) Additional included programs.--The Secretary may
identify not more than 6 additional programs annually for
inclusion in the demonstration project, including--
``(A) all other programs in which Indian tribes are
eligible to participate;
``(B) all other programs for which Indians are eligible
beneficiaries; and
``(C) competitive grants for which an Indian tribe receives
an individual or cooperative award, on the condition that the
Indian tribe agree in the funding agreement to restrictions
regarding program redesign and budget reallocation for any
competitive awards.
``(4) Contents.--A funding agreement--
``(A) shall specify--
``(i) the services to be provided;
``(ii) the functions to be performed; and
``(iii) the responsibilities of the Indian tribe and the
Secretary;
``(B) shall provide for payment by the Secretary to the
Indian tribe of funds in accordance with section 605;
``(C) shall not allow the Secretary to waive, modify, or
diminish in any way the trust responsibility of the United
States with respect to Indian tribes and individual Indians
that exist under treaties, Executive orders, and Acts of
Congress; and
``(D) shall allow for retrocession of included programs
under section 105(e).
``SEC. 605. TRANSFER OF FUNDS.
``(a) Transfer.--
``(1) In general.--Under any compact or funding agreement
entered into under this title, the Secretary shall transfer
to the Indian tribe all funds provided for in the funding
agreement.
``(2) Timing.--Unless the funding agreement provides
otherwise, at the request of the Indian tribe--
``(A) funding shall be paid in 1 annual lump sum payment;
and
``(B) the transfer shall be made not later than 10 days
after the apportionment of funds by the Office of Management
and Budget to the Department of Health and Human Services.
``(b) Amount of Funding.--
``(1) Funding formulas.--
``(A) In general.--Any statutory funding formula for an
included program--
``(i) shall be waived for the demonstration project under
this title; and
``(ii) shall be used to determine the amount of funding
provided to an Indian tribe.
``(B) Adequacy.--Subject to the availability of
appropriations--
``(i) the funding amount shall be adequate to permit the
successful implementation of the demonstration project; and
``(ii) the Secretary and the participating Indian tribe
shall determine the funding amount through negotiation.
``(2) Matching requirement.--An Indian tribe may request a
waiver of any matching requirement applicable to an included
program, and the Secretary shall liberally grant such
reasonable waiver requests.
``(3) Contract support costs.--There shall be added to the
amount required by paragraph (1) contract support costs as
specified in paragraphs (2), (3), (5), and (6) of section
106(a).
``(4) Administrative fund shares.--
``(A) In general.--An Indian tribe may negotiate for a
tribal share of administrative
[[Page S12287]]
funds without regard to the organizational level at which the
included programs are carried out.
``(B) Inclusion.--A tribal share under subparagraph (A)
shall include a share for training and technical assistance
services performed by a contractor.
``SEC. 606. GENERAL PROVISIONS.
``(a) Redesign, Consolidation, and Reallocation.--
``(1) In general.--To the extent allowed under the
statutory provisions of the included programs included in the
funding agreement, and subject to the terms of the funding
agreement, an Indian tribe may--
``(A) redesign or consolidate the included programs under
the funding agreement if the Indian tribe agrees to abide by
the statutory purposes of the program; and
``(B) reallocate or redirect funds for the included
programs, among the included programs under the funding
agreement, so long as all demonstration project costs using
those funds meet allowable cost standards as required by
section 506(c).
``(2) Waivers.--
``(A) In general.--At the request of an Indian tribe, if
the Secretary determines that a waiver would further the
purposes of this Act, the Secretary shall grant a waiver of
program requirements for the duration of the demonstration
project to facilitate the ability of an Indian tribe to
redesign included programs or reallocate funds under
paragraph (1).
``(B) Documentation.--The Secretary shall document all
requests for a waiver under subparagraph (A), including a
description of--
``(i) the reasons for each request;
``(ii) the effect of the waiver on the Indian tribe making
the request; and
``(iii) the views of the Indian tribe regarding the
requested waiver.
``(b) Inability To Agree on Compact or Funding Agreement.--
``(1) Final offer.--If the Secretary and an Indian tribe
are unable to agree, in whole or in part, on the terms of a
compact or funding agreement (including funding levels), the
Indian tribe may submit a final offer to the Secretary.
``(2) Determination.--Not later than 45 days after the date
of submission of a final offer, or as otherwise agreed to by
the Indian tribe, the Secretary shall review and make a
determination with respect to the final offer.
``(3) No timely determination.--If the Secretary fails to
make a determination with respect to a final offer within the
time specified in paragraph (2), the Secretary shall be
deemed to have agreed to the final offer.
``(4) Rejection of final offer.--
``(A) In general.--If the Secretary rejects a final offer,
the Secretary shall--
``(i) submit to the Indian tribe a written statement
clearly setting forth the reasons for rejecting the final
offer; and
``(ii) provide the Indian tribe with a hearing on the
record (except that the Indian tribe may, in lieu of such a
hearing, file an appeal of the rejection to the Intra-
Departmental Council on Native American Affairs, the decision
of which shall be final and not subject to judicial review).
``(B) Burden of proof.--In a hearing or appeal under
subparagraph (A)(ii), the Secretary shall have the burden of
proving by clear and convincing evidence the validity of the
grounds for rejecting the final offer.
``(c) Other Funding.--Participation by an Indian tribe in
the demonstration project under this title shall not affect
the amount of funding that the Indian tribe would receive
under the laws (including regulations) governing the included
programs if the Indian tribe did not participate.
``(d) Duplication of Eligibility.--To the maximum extent
practicable, an Indian tribe shall make efforts to coordinate
with appropriate States to identify dually eligible
individuals to address the potential for the provision of
duplicate benefits.
``(e) Appeals.--Except as provided in subsection (b)(2), a
compact or funding agreement under this title shall be
considered to be a contract for the purposes of section 110.
``(f) Regulations; Other Agency Statements.--
``(1) Regulations.--An Indian tribe shall comply with final
regulations for the included programs in connection with the
demonstration project.
``(2) Other agency statements.--Unless expressly agreed to
by an Indian tribe in a compact or funding agreement, the
Indian tribe shall not be subject to any agency circular,
policy, manual, guidance, or rule that is promulgated by
regulation.
``(g) Applicability of Other Provisions.--The following
provisions of this Act shall apply to a compact or funding
agreements entered into under this title:
``(1) Section 102(d).
``(2) Section 506(b) (conflicts of interest).
``(3) Section 506(c)(1) (Single Agency Audit Act).
``(4) Section 506(c)(2) (cost principles).
``(5) Section 506(c) (records).
``(6) Section 507(c)(1)(A) (grounds for rejecting a final
offers).
``(7) Section 508(g) (prompt payment).
``(8) Section 506(h) (nonduplication).
``(9) Section 508(h) (interest or other income on
transfers).
``(10) Section 508(i) (carryover of funds).
``(11) Section 509 (construction projects)
``(12) Section 510 (Federal procurement laws)
``(13) Section 512(b) (regulation waivers).
``SEC. 607. REPORT.
``(a) In General.--The Secretary shall annually submit to
Congress a report on the relative costs and benefits of the
demonstration project using evaluation and reporting data
provided by participating Indian tribes.
``(b) Baseline Measurements.--
``(1) In general.--A report under subsection (a) shall be
based on baseline measurements developed jointly by the
Secretary and participating Indian tribes.
``(2) Financial assistance.--The Secretary shall provide
financial assistance to Indian tribes to assist Indian tribes
in evaluating and reporting on the demonstration project.
``(c) Contents.--A report under subsection (a) shall--
``(1) verify that the participating Indian tribes met the
statutory purposes of the included programs;
``(2) confirm that key self-governance principles were
carried out as Indian tribes operated the included programs;
and
``(3) separately include Federal and tribal viewpoints
regarding--
``(A) the merger of included programs operated under this
title and self-governance principles; and
``(B) the impact on program beneficiaries.
``SEC. 608. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as are
necessary to carry out this title, to remain available until
expended.''.
______
By Mr. DODD (for himself, Mr. Sarbanes, and Mr. Reed):
S. 1697. A bill to establish the elderly housing plus health support
demonstration program to modernize public housing for elderly and
disabled persons; to the Committee on Banking, Housing, and Urban
Affairs.
Mr. DODD. Mr. President, I rise today to introduce a bill that will
help address a growing problem in America--our ability to provide safe
and affordable housing that meets the needs of older Americans.
Currently there are 35 million Americans over 65 years old. That number
will double within the next 30 years. By 2030, 20 percent of the U.S.
population will be over 65 years old.
Nearly one third of all public housing units are occupied by senior
citizens. This figure has been steadily growing in recent years and
will undoubtedly continue to grow in the future. It is critically
important that we remain committed to providing low-income seniors with
safe and affordable housing.
The bill I am introducing will promote the development of assisted
living programs to provide a wide range of services, including medical
assistance, housekeeping services, hygiene and grooming, and meals
preparation. Providing these services will in turn give older Americans
greater opportunities to decide for themselves where they live and how
they exercise their independence.
The Elderly Housing Plus Supportive Health Support Demonstration Act,
will provide Federal grants to allow public housing authorities around
the country to develop new strategies for providing better housing for
senior citizens. The bill will give public housing authorities the
tools they need to improve our public housing stock so our seniors will
not be prematurely forced out of their homes. The bill authorizes
competitive grants through the Department of Housing and Urban
Development to upgrade and reconfigure elderly buildings, and buildings
with elderly and non-elderly disabled residents. The bill will also
provide funding for service coordinators and/or congregate services
programs.
Unfortunately, as we examine the public housing stock across the
country from the perspective of older Americans, we find a bleak
situation. Over 66 percent of existing public housing units are more
than 30 years old and most are not designed to meet the needs of older
Americans. For example, too few of our housing units are equipped to
facilitate mobility for those in wheelchairs. Even such simple things
as having a kitchen counter top that can be reached from a wheelchair
may make the difference between a senior being able to stay in his or
her home or having to leave, often to be sent to an institution where
seniors have less independence and control over their lives.
Because most public housing seniors are Medicaid-eligible, the bill
will also open a path to reducing Medicaid costs, 42 percent of which
goes to housing elders in costly nursing homes. The cost to the
Medicaid program of a beneficiary living in public housing converted to
assisted living has been shown to be as much as one-third that paid to
a nursing home on a long-term per capita basis.
[[Page S12288]]
The scarceness of affordable assisted living units has other social
costs that we must consider as we set national housing policies for the
future. Often, the cost of taking care of an aging family member can be
devastating to American families. Too often, working men and women are
torn between the need to maintain their jobs and the desire to provide
the best possible care to their aging family members.
Advances in medicine are allowing us to live longer, healthier lives.
Longevity is a great blessing, but it also poses significant challenges
for individuals, families, and society as whole. One of the greatest
challenges we will face in the decades ahead is the challenge of
developing new kinds of housing that respond to the needs of our
growing elderly population.
It is my hope that this bill will generate earnest discussion on
these important matters and will ultimately lead to action to ensure
that every American senior can live in security and dignity.
I ask unanimous consent that the text of the Elderly Housing Plus
Health Support Demonstration Act be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1697
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 ``Elderly Housing Plus Health
Support Demonstration Act''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) there are at least 34,100,000 Americans who are 65
years of age and older, and persons who are 85 years of age
or older comprise almost one-quarter of that population;
(2) the Bureau of the Census of the Department of Commerce
estimates that, by 2030, the elderly population will double
to 70,000,000 persons;
(3) according to the Department of Housing and Urban
Development report ``Housing Our Elders--A Report Card on the
Housing Conditions and Needs of Older Americans'', the
largest and fastest growing segments of the older population
include many people who have historically been vulnerable
economically and in the housing market--women, minorities,
and people over the age of 85;
(4) many elderly persons are at significant risk with
respect to the availability, stability, and accessibility of
affordable housing;
(5) one-third of public housing residents are approximately
62 years of age or older, making public housing the largest
Federal housing program for senior citizens;
(6) the elderly population residing in public housing is
older, poorer, frailer, and more racially diverse than the
elderly population residing in other assisted housing;
(7) two-thirds of the public housing developments for the
elderly, including those that also serve the disabled, were
constructed before 1970 and are in dire need of major
rehabilitation and configuration, such as rehabilitation to
provide new roofs, energy-efficient heating, cooling, utility
systems, accessible units, and up-to-date safety features;
(8) many of the dwelling units in public housing
developments for elderly and disabled persons are undersized,
are inaccessible to residents with physical limitations, do
not comply with the requirements under the Americans with
Disabilities Act of 1990, or lack railings, grab bars,
emergency call buttons, and wheelchair accessible ramps;
(9) a study conducted for the Department of Housing and
Urban Development found that the cost of the basic
modernization needs for public housing for elderly and
disabled persons exceeds $5,700,000,000;
(10) a growing number of elderly and disabled persons face
unnecessary institutionalization because of the absence of
appropriate supportive services and assisted living
facilities in their residences;
(11) for many elderly and disabled persons, independent
living in a non-institutionalization setting is a preferable
housing alternative to costly institutionalization, and would
allow public monies to be more effectively used to provide
necessary services for such persons;
(12) congregate housing and supportive services coordinated
by service coordinators is a proven and cost-effective means
of enabling elderly and disabled persons to remain in place
with dignity and independence;
(13) the effective provision of congregate services and
assisted living in public housing developments requires the
redesign of units and buildings to accommodate independent
living;
(14) most of the elderly who reside in public housing are
eligible for Medicaid to pay for the cost of their being
institutionalized in nursing homes;
(15) nursing home costs now exceed 42 percent of the entire
Medicaid program; and
(16) by providing a nursing home resident the choice of
assisted living in public housing instead, the Federal
Government can save as much as three-quarters of the long
term per capita Medicaid costs and at the same time allow a
frail senior to age in place.
(b) Purposes.--The purposes of this Act are--
(1) to establish a demonstration program to make
competitive grants to provide state-of-the-art, health-
supportive housing with assisted living opportunities for
elderly and disabled persons;
(2) to provide funding to enhance, make safe and
accessible, and extend the useful life of public housing
developments for the elderly and disabled and to increase
their accessibility to supportive services;
(3) to provide elderly and disabled public housing
residents a readily available choice in living arrangements
by utilizing the services of service coordinators and
providing a continuum of care that allows such residents to
age in place;
(4) to incorporate congregate housing service programs more
fully into public housing operations; and
(5) to accomplish such purposes and provide such funding
under existing provisions of law that currently authorize all
activities to be conducted under the program.
SEC. 3. DEFINITIONS.
In this Act:
(1) Assisted living facility.--The term ``assisted living
facility'' means any public housing project for the elderly,
or for the elderly and the non-elderly disabled, that is
operated in accordance with applicable laws and provides to
the residents any combination of the following services:
(A) Meal service adequate to meet nutritional need.
(B) Housekeeping aid.
(C) Personal assistance.
(D) Transportation services.
(E) Health-related services.
(F) Such other services as are considered important for
maintaining independent living.
(2) Elderly and disabled families.--The term ``elderly and
disabled families'' means families in which 1 or more persons
is an elderly person or a person with disabilities.
(3) Elderly person.--The term ``elderly person'' means a
person who is 62 years of age or older.
(4) Person with disabilities.--The term ``person with
disabilities'' has the same meaning as in section 3(b)(3)(E)
of the United States Housing Act of 1937 (42 U.S.C.
1437a(b)(3)(E)).
(5) Public housing agency.--The term ``public housing
agency'' has the same meaning as in section 3(b)(6)(A) of the
United States Housing Act of 1937 (42 U.S.C.
1437a(b)(6)(A)).
(6) Secretary.--The term ``Secretary'' means the Secretary
of Housing and Urban Development.
SEC. 4. AUTHORITY FOR ELDERLY HOUSING PLUS HEALTH SUPPORT
PROGRAM.
The Secretary shall establish an elderly housing plus
health support demonstration program (referred to in this Act
as the ``demonstration program'') in accordance with this Act
to provide coordinated funding to public housing projects for
elderly and disabled families selected for participation
under section 5, to be used for--
(1) rehabilitation or re-configuration of such projects or
the acquisition and rehabilitation of an existing assisted
living facility in cases where the public housing agency has
no elderly housing stock suitable for conversion;
(2) the provision of space in such projects for supportive
services and community and health facilities;
(3) the provision of service coordinators for such
projects; and
(4) the provision of congregate services programs in or
near such projects.
SEC. 5. PARTICIPATION IN PROGRAM.
(a) Application and Plan.--To be eligible to be selected
for participation in the demonstration program, a public
housing agency shall submit to the Secretary--
(1) an application, in such form and manner as the
Secretary shall require; and
(2) a plan for the agency that--
(A) identifies the public housing projects for which
amounts provided under this Act will be used, limited to
projects that are designated or otherwise used for
occupancy--
(i) only by elderly families; or
(ii) by both elderly families and disabled families; and
(B) provides for local agencies or organizations to
establish or expand the provision of health-related services
or other services that will enhance living conditions for
residents of public housing projects of the agency, primarily
in the project or projects to be assisted under the plan.
(b) Selection and Criteria.--
(1) Selection.--The Secretary shall select public housing
agencies for participation in the demonstration program based
upon a competition among public housing agencies that submit
applications for participation.
(2) Criteria.--The competition referred to in paragraph (1)
shall be based upon--
(A) the extent of the need for rehabilitation or re-
configuration of the public housing projects of an agency
that are identified in the plan of the agency pursuant to
subsection (a)(2)(A);
(B) the past performance of an agency in serving the needs
of elderly public housing residents or non-elderly, disabled
public housing residents given the opportunities in the
locality;
[[Page S12289]]
(C) the past success of an agency in obtaining non-public
housing resources to assist such residents given the
opportunities in the locality; and
(D) the effectiveness of the plan of an agency in creating
or expanding services described in subsection (a)(2)(B).
SEC. 6. CONFIGURATION AND CAPITAL IMPROVEMENTS.
(a) Grants.--
(1) In general.--The Secretary shall make grants to public
housing agencies selected for participation under section 5,
to be used only--
(A) for capital improvements to rehabilitate or configure
public housing projects identified in the plan submitted
under section 5(a)(2)(A);
(B) to provide space for supportive services and for
community and health-related facilities primarily for the
residents of projects identified in the plan submitted under
section 5(a)(2)(A); and
(C) for the cost of acquisition by a public housing agency
of an existing assisted living facility that is in need of
rehabilitation in cases where the public housing agency has
no elderly housing stock suitable for conversion.
(2) Source of funds.--Grants shall be made under this
section from funds made available for the demonstration
program in accordance with subsection (c).
(3) Inapplicability of other provisions.--Section 9(c)(1)
of the United States Housing Act of 1937 (42 U.S.C.
1437g(c)(1)) does not apply to grants made under this
section.
(b) Allocation.--Grants funded in accordance with this
section shall--
(1) be allocated among public housing agencies selected for
participation under section 5 on the basis of the criteria
established under section 5(b)(2); and
(2) be made in such amounts and subject to such terms as
the Secretary shall determine.
(c) Authorization of Appropriations.--There are authorized
to be appropriated for the demonstration program, to make
grants in accordance with this section--
(1) $100,000,000 for fiscal year 2004; and
(2) such sums as may be necessary for fiscal year 2005 and
each subsequent fiscal year.
SEC. 7. SERVICE COORDINATORS.
(a) Grants.--
(1) In general.--The Secretary shall make grants to public
housing agencies selected for participation under section 5,
to be used only--
(A) for public housing projects for elderly and disabled
families for whom capital assistance is provided under
section 6; and
(B) to provide service coordinators and related activities
identified in the plan of the agency pursuant to section
5(a)(2), so that the residents of such public housing
projects will have improved and more economical access to
services that support the health and well-being of the
residents.
(2) Source of funds.--Grants shall be made under this
section from funds made available for the demonstration
program in accordance with subsection (c).
(3) Inapplicability of other provisions.--Section 9(c)(1)
of the United States Housing Act of 1937 (42 U.S.C.
1437g(c)(1)) does not apply to grants made under this
section.
(b) Allocation.--The Secretary shall provide a grant
pursuant to this section, in an amount not to exceed
$100,000, to each public housing agency that is selected for
participation under section 5.
(c) Authorization of Appropriations.--There are authorized
to be appropriated for the demonstration program, to make
grants in accordance with this section--
(1) $2,000,000 for fiscal year 2004; and
(2) such sums as may be necessary for fiscal year 2005 and
each subsequent fiscal year.
SEC. 8. CONGREGATE HOUSING SERVICES PROGRAMS.
(a) Grants.--
(1) In general.--The Secretary shall make grants to public
housing agencies selected for participation under section 5,
to be used only--
(A) in connection with public housing projects for elderly
and disabled families for which capital assistance is
provided under section 6; and
(B) to carry out a congregate housing service program
identified in the plan of the agency pursuant to section
5(a)(2) that provides services as described in section
202(g)(1) of the Housing Act of 1959 (12 U.S.C. 1701q(g)(1)).
(2) Source of funds.--Grants shall be made under this
section from funds made available for the demonstration
program in accordance with subsection (c).
(3) Inapplicability of other provisions.--Other than as
specifically provided in this section--
(A) section 9(c)(1) of the United States Housing Act of
1937 (42 U.S.C. 1437g(c)(1)) does not apply to grants made
under this section; and
(B) section 202 of the Housing Act of 1959 (12 U.S.C.
1701q) does not apply to grants made under this section.
(b) Allocation.--The Secretary shall provide a grant
pursuant to this section, in an amount not to exceed
$150,000, to each public housing agency that is selected for
participation under section 5.
(c) Authorization of Appropriations.--There are authorized
to be appropriated for the demonstration program, to make
grants in accordance with this section--
(1) $3,000,000 for fiscal year 2004; and
(2) such sums as may be necessary for fiscal year 2005 and
each subsequent fiscal year.
SEC. 9. SAFEGUARDING OTHER APPROPRIATIONS.
Amounts authorized to be appropriated under this Act to
carry out this Act are in addition to any amounts authorized
to be appropriated under any other provision of law, or
otherwise made available in appropriations Acts, for
rehabilitation of public housing projects, for service
coordinators for public housing projects, or for congregate
housing services programs.
______
By Mr. ENZI (for himself, Mr. Gregg, Mr. Bond, and Mr. Santorum):
S. 1698. A bill to amend title I of the Employee Retirement Income
Security Act of 1974 and the Internal Revenue Code of 1986 to promote
the provision of retirement investment advice to workers managing their
retirement income assets; to the Committee on Health, Education, Labor,
and Pensions.
Mr. ENZI. Mr. President, with the passage of the Sarbanes-Oxley Act,
Congress acted swiftly and surely to restore investor confidence in our
capital markets. Something needed to be done to assure people that it
was OK for them to start investing in and relying on the market again.
People wanted to feel certain that the rules had been fixed and the
market was fair for all.
Although I am proud we were able to do that, we all knew that there
was still more that needed to be done to help the millions of American
workers whose retirement savings are fueled by the financial markets.
There's a gap that still threatens the retirement security of the 42
million Americans who participate in defined contribution plans, like
401(k) plans. In defined contribution plans, the employee--not the
employer--decides how much and how to invest retirement assets. As
anyone who has been investing their hard earned dollars through their
employer provided plans knows, there are quite a few choices out there.
They each have their own risks and rewards, but they have one thing in
common--they require an employee who is investing his or her pay to
have a good sense of the market. Employees find themselves having to
navigate bull and bear markets, weather changes in personal and
professional circumstances, and use long-term planning to set a course
that leads to retirement security.
401(k) plans provide great opportunity as well as risk. The
difference between the employee who can maximize opportunity and
minimize risk and the employee who cannot is sound investment advice.
Unfortunately, only 16 percent of plan participants have an investment
advisory service available to them through their retirement plans. This
survey by the Spectrum Group confirms the existence of an advice gap
that must be addressed. The legislation I am introducing today is
intended to close the advice gap and help workers choose wisely and
chart their course to retirement security.
Both workers and employers are acutely aware of the advice gap.
According to the 2002 Transamerica Small Business Retirement Survey, 76
percent of employees felt they don't know as much about retirement
investing as they should--up from 65 percent in 2001. This view is held
even more strongly by employers, with 91 percent believing their
workers don't know enough about retirement investing.
There is another gap that exists with respect to retirement
investment advice. Wealthier individuals or high-level executives are
more likely to have access to quality investment advice than rank-and-
file workers. The Retirement Security Advice Act of 2003 will bring
access to quality investment advice, and thereby retirement security,
to rank-and-file workers who need it most, particularly those employed
at small businesses.
Access to investment advice has not kept pace with either the
increasing number of workers participating in 401(k) plans or the
increasing complexity of investment options. What accounts for the gulf
between the need for and the supply of investment advice?
The 1974 Employee Retirement Income Security Act (ERISA) imposes
outdated barriers to the provision of investment advice to workers
participating in 401(k) plans. ERISA prevents investment advisors who
have an affiliation with the investment options available under the
plan from providing investment advice to plan participants. This
restriction might have
[[Page S12290]]
seemed reasonable in 1974 when retirement plans were dominated by
traditional defined benefit pension plans. However, the explosion in
401(k) plans--and thus the need to provide workers with investment
advice services--was not imagined in 1974.
This bill will allow employers to provide their employees with access
to quality investment advice so long as the advisors fully and clearly
disclose their fees and any potential conflicts of interest.
Furthermore, investment advisors are subject to ERISA's stringent
fiduciary obligations, which requires them to act solely in the best
interest of plan participants. Investment advisors who breach this
fiduciary duty are subject to a lawsuit by the worker, another plan
fiduciary, the plan itself, or the Department of Labor. Employers also
have the fiduciary obligation of prudently selecting and periodically
reviewing advice providers.
Let us remember that workers are not required to either seek or
follow the investment advice. All advice given is strictly voluntary.
With clear and full disclosure of fee arrangements and potential
conflicts of interest, plan participants can decide for themselves
whether or not to act on it.
Some of my colleagues might argue that only independent investment
advisors should be allowed to provide investment advice to plan
participants. This ignores both the realities of the marketplace for
investment advice and the needs of employees and employers. Excluding
many of the most qualified financial services companies from offering
investment advice to plan participants will leave a large void in the
401(k) advice marketplace. Conversely, increasing competition in this
marketplace will promote better quality and lower costs--both to the
benefit of plan participants.
Restricting the provision of investment advice services to
independent advisors ensures that the advice gap will remain wide--
particularly at small businesses. Employers would be required to look
outside of their plan's current administrative arrangement and hire
another financial institution to provide investment advice services to
employees. For small companies like those in Wyoming, meeting this
criteria would be almost impossible. Small employers face unique
resource and personnel limitations. The cost of researching, selecting,
and paying for the services of an independent advice provider will
deter small employers from providing this valued benefit to employees.
The key to retirement security for 401(k) participants is quality
investment advice, tailored to the needs of each worker. The key to
expanding the number of workers getting such advice is increasing
competition in the marketplace for investment advice while providing
meaningful protection and disclosure to workers. The Retirement
Security Advice Act will open the door to both.
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. 1698
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
This Act may be cited as the ``Retirement Security Advice
Act of 2003''.
SEC. 2. PROHIBITED TRANSACTION EXEMPTION FOR THE PROVISION OF
INVESTMENT ADVICE.
(a) Amendments to the Employee Retirement Income Security
Act of 1974.--
(1) Exemption from prohibited transactions.--Section 408(b)
of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1108(b)) is amended by adding at the end the following
new paragraph:
``(14)(A) Any transaction described in subparagraph (B) in
connection with the provision of investment advice described
in section 3(21)(A)(ii), in any case in which--
``(i) the investment of assets of the plan is subject to
the direction of plan participants or beneficiaries,
``(ii) the advice is provided to the plan or a participant
or beneficiary of the plan by a fiduciary adviser in
connection with any sale, acquisition, or holding of a
security or other property for purposes of investment of plan
assets, and
``(iii) the requirements of subsection (g) are met in
connection with the provision of the advice.
``(B) The transactions described in this subparagraph are
the following:
``(i) the provision of the advice to the plan, participant,
or beneficiary;
``(ii) the sale, acquisition, or holding of a security or
other property (including any lending of money or other
extension of credit associated with the sale, acquisition, or
holding of a security or other property) pursuant to the
advice; and
``(iii) the direct or indirect receipt of fees or other
compensation by the fiduciary adviser or an affiliate thereof
(or any employee, agent, or registered representative of the
fiduciary adviser or affiliate) in connection with the
provision of the advice or in connection with a sale,
acquisition, or holding of a security or other property
pursuant to the advice.''.
(2) Requirements.--Section 408 of such Act is amended
further by adding at the end the following new subsection:
``(g) Requirements Relating to Provision of Investment
Advice by Fiduciary Advisers.--
``(1) In general.--The requirements of this subsection are
met in connection with the provision of investment advice
referred to in section 3(21)(A)(ii), provided to an employee
benefit plan or a participant or beneficiary of an employee
benefit plan by a fiduciary adviser with respect to the plan
in connection with any sale, acquisition, or holding of a
security or other property for purposes of investment of
amounts held by the plan, if--
``(A) in the case of the initial provision of the advice
with regard to the security or other property by the
fiduciary adviser to the plan, participant, or beneficiary,
the fiduciary adviser provides to the recipient of the
advice, at a time reasonably contemporaneous with the initial
provision of the advice, a written notification (which may
consist of notification by means of electronic
communication)--
``(i) of all fees or other compensation relating to the
advice that the fiduciary adviser or any affiliate thereof is
to receive (including compensation provided by any third
party) in connection with the provision of the advice or in
connection with the sale, acquisition, or holding of the
security or other property,
``(ii) of any material affiliation or contractual
relationship of the fiduciary adviser or affiliates thereof
in the security or other property,
``(iii) of any limitation placed on the scope of the
investment advice to be provided by the fiduciary adviser
with respect to any such sale, acquisition, or holding of a
security or other property,
``(iv) of the types of services provided by the fiduciary
adviser in connection with the provision of investment advice
by the fiduciary adviser,
``(v) that the adviser is acting as a fiduciary of the plan
in connection with the provision of the advice, and
``(vi) that a recipient of the advice may separately
arrange for the provision of advice by another adviser, that
could have no material affiliation with and receive no fees
or other compensation in connection with the security or
other property,
``(B) the fiduciary adviser provides appropriate
disclosure, in connection with the sale, acquisition, or
holding of the security or other property, in accordance with
all applicable securities laws,
``(C) the sale, acquisition, or holding occurs solely at
the direction of the recipient of the advice,
``(D) the compensation received by the fiduciary adviser
and affiliates thereof in connection with the sale,
acquisition, or holding of the security or other property is
reasonable, and
``(E) the terms of the sale, acquisition, or holding of the
security or other property are at least as favorable to the
plan as an arm's length transaction would be.
``(2) Standards for presentation of information.--
``(A) In general.--The notification required to be provided
to participants and beneficiaries under paragraph (1)(A)
shall be written in a clear and conspicuous manner and in a
manner calculated to be understood by the average plan
participant and shall be sufficiently accurate and
comprehensive to reasonably apprise such participants and
beneficiaries of the information required to be provided in
the notification.
``(B) Model form for disclosure of fees and other
compensation.--The Secretary shall issue a model form for the
disclosure of fees and other compensation required in
paragraph (1)(A)(i) which meets the requirements of
subparagraph (A).
``(3) Exemption conditioned on making required information
available annually, on request, and in the event of material
change.--The requirements of paragraph (1)(A) shall be deemed
not to have been met in connection with the initial or any
subsequent provision of advice described in paragraph (1) to
the plan, participant, or beneficiary if, at any time during
the provision of advisory services to the plan, participant,
or beneficiary, the fiduciary adviser fails to maintain the
information described in clauses (i) through (iv) of
paragraph (1)(A) in currently accurate form and in the manner
described in paragraph (2) or fails--
``(A) to provide, without charge, such currently accurate
information to the recipient of the advice no less than
annually,
``(B) to make such currently accurate information
available, upon request and without charge, to the recipient
of the advice, or
``(C) in the event of a material change to the information
described in clauses (i) through (iv) of paragraph (1)(A), to
provide, without charge, such currently accurate information
to the recipient of the advice at a
[[Page S12291]]
time reasonably contemporaneous to the material change in
information.
``(4) Maintenance for 6 years of evidence of compliance.--A
fiduciary adviser referred to in paragraph (1) who has
provided advice referred to in such paragraph shall, for a
period of not less than 6 years after the provision of the
advice, maintain any records necessary for determining
whether the requirements of the preceding provisions of
this subsection and of subsection (b)(14) have been met. A
transaction prohibited under section 406 shall not be
considered to have occurred solely because the records are
lost or destroyed prior to the end of the 6-year period
due to circumstances beyond the control of the fiduciary
adviser.
``(5) Exemption for plan sponsor and certain other
fiduciaries.--
``(A) In general.--Subject to subparagraph (B), a plan
sponsor or other person who is a fiduciary (other than a
fiduciary adviser) shall not be treated as failing to meet
the requirements of this part solely by reason of the
provision of investment advice referred to in section
3(21)(A)(ii) (or solely by reason of contracting for or
otherwise arranging for the provision of the advice), if--
``(i) the advice is provided by a fiduciary adviser
pursuant to an arrangement between the plan sponsor or other
fiduciary and the fiduciary adviser for the provision by the
fiduciary adviser of investment advice referred to in such
section,
``(ii) the terms of the arrangement require compliance by
the fiduciary adviser with the requirements of this
subsection, and
``(iii) the terms of the arrangement include a written
acknowledgment by the fiduciary adviser that the fiduciary
adviser is a fiduciary of the plan with respect to the
provision of the advice.
``(B) Continued duty of prudent selection of adviser and
periodic review.--Nothing in subparagraph (A) shall be
construed to exempt a plan sponsor or other person who is a
fiduciary from any requirement of this part for the prudent
selection and periodic review of a fiduciary adviser with
whom the plan sponsor or other person enters into an
arrangement for the provision of advice referred to in
section 3(21)(A)(ii). The plan sponsor or other person who is
a fiduciary has no duty under this part to monitor the
specific investment advice given by the fiduciary adviser to
any particular recipient of the advice.
``(C) Availability of plan assets for payment for advice.--
Nothing in this part shall be construed to preclude the use
of plan assets to pay for reasonable expenses in providing
investment advice referred to in section 3(21)(A)(ii).
``(6) Definitions.--For purposes of this subsection and
subsection (b)(14)--
``(A) Fiduciary adviser.--The term `fiduciary adviser'
means, with respect to a plan, a person who is a fiduciary of
the plan by reason of the provision of investment advice by
the person to the plan or to a participant or beneficiary and
who is--
``(i) registered as an investment adviser under the
Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.) or
under the laws of the State in which the fiduciary maintains
its principal office and place of business,
``(ii) a bank or similar financial institution referred to
in section 408(b)(4) or a savings association (as defined in
section 3(b)(1) of the Federal Deposit Insurance Act (12
U.S.C. 1813(b)(1))), but only if the advice is provided
through a trust department of the bank or similar financial
institution or savings association which is subject to
periodic examination and review by Federal or State banking
authorities,
``(iii) an insurance company qualified to do business under
the laws of a State,
``(iv) a person registered as a broker or dealer under the
Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.),
``(v) an affiliate of a person described in any of clauses
(i) through (iv), or
``(vi) an employee, agent, or registered representative of
a person described in any of clauses (i) through (v) who
satisfies the requirements of applicable insurance, banking,
and securities laws relating to the provision of the advice.
``(B) Affiliate.--The term `affiliate' of another entity
means an affiliated person of the entity (as defined in
section 2(a)(3) of the Investment Company Act of 1940 (15
U.S.C. 80a-2(a)(3))).
``(C) Registered representative.--The term `registered
representative' of another entity means a person described in
section 3(a)(18) of the Securities Exchange Act of 1934 (15
U.S.C. 78c(a)(18)) (substituting the entity for the broker or
dealer referred to in such section) or a person described in
section 202(a)(17) of the Investment Advisers Act of 1940 (15
U.S.C. 80b-2(a)(17)) (substituting the entity for the
investment adviser referred to in such section).''.
(b) Amendments to the Internal Revenue Code of 1986.--
(1) Exemption from prohibited transactions.--Subsection (d)
of section 4975 of the Internal Revenue Code of 1986
(relating to exemptions from tax on prohibited transactions)
is amended--
(A) in paragraph (14), by striking ``or'' at the end;
(B) in paragraph (15), by striking the period at the end
and inserting ``; or''; and
(C) by adding at the end the following new paragraph:
``(16) any transaction described in subsection (f)(7)(A) in
connection with the provision of investment advice described
in subsection (e)(3)(B)(i), in any case in which--
``(A) the investment of assets of the plan is subject to
the direction of plan participants or beneficiaries,
``(B) the advice is provided to the plan or a participant
or beneficiary of the plan by a fiduciary adviser in
connection with any sale, acquisition, or holding of a
security or other property for purposes of investment of plan
assets, and
``(C) the requirements of subsection (f)(7)(B) are met in
connection with the provision of the advice.''.
(2) Allowed transactions and requirements.--Subsection (f)
of such section 4975 (relating to other definitions and
special rules) is amended by adding at the end the following
new paragraph:
``(7) Provisions relating to investment advice provided by
fiduciary advisers.--
``(A) Transactions allowable in connection with investment
advice provided by fiduciary advisers.--The transactions
referred to in subsection (d)(16), in connection with the
provision of investment advice by a fiduciary adviser, are
the following:
``(i) the provision of the advice to the plan, participant,
or beneficiary;
``(ii) the sale, acquisition, or holding of a security or
other property (including any lending of money or other
extension of credit associated with the sale, acquisition, or
holding of a security or other property) pursuant to the
advice; and
``(iii) the direct or indirect receipt of fees or other
compensation by the fiduciary adviser or an affiliate thereof
(or any employee, agent, or registered representative of the
fiduciary adviser or affiliate) in connection with the
provision of the advice or in connection with a sale,
acquisition, or holding of a security or other property
pursuant to the advice.
``(B) Requirements relating to provision of investment
advice by fiduciary advisers.--The requirements of this
subparagraph (referred to in subsection (d)(16)(C)) are met
in connection with the provision of investment advice
referred to in subsection (e)(3)(B), provided to a plan or a
participant or beneficiary of a plan by a fiduciary adviser
with respect to the plan in connection with any sale,
acquisition, or holding of a security or other property for
purposes of investment of amounts held by the plan, if--
``(i) in the case of the initial provision of the advice
with regard to the security or other property by the
fiduciary adviser to the plan, participant, or beneficiary,
the fiduciary adviser provides to the recipient of the
advice, at a time reasonably contemporaneous with the initial
provision of the advice, a written notification (which may
consist of notification by means of electronic
communication)--
``(I) of all fees or other compensation relating to the
advice that the fiduciary adviser or any affiliate thereof is
to receive (including compensation provided by any third
party) in connection with the provision of the advice or in
connection with the sale, acquisition, or holding of the
security or other property,
``(II) of any material affiliation or contractual
relationship of the fiduciary adviser or affiliates thereof
in the security or other property,
``(III) of any limitation placed on the scope of the
investment advice to be provided by the fiduciary adviser
with respect to any such sale, acquisition, or holding of a
security or other property,
``(IV) of the types of services provided by the fiduciary
adviser in connection with the provision of investment advice
by the fiduciary adviser,
``(V) that the adviser is acting as a fiduciary of the plan
in connection with the provision of the advice, and
``(VI) that a recipient of the advice may separately
arrange for the provision of advice by another adviser, that
could have no material affiliation with and receive no fees
or other compensation in connection with the security or
other property,
``(ii) the fiduciary adviser provides appropriate
disclosure, in connection with the sale, acquisition, or
holding of the security or other property, in accordance with
all applicable securities laws,
``(iii) the sale, acquisition, or holding occurs solely at
the direction of the recipient of the advice,
``(iv) the compensation received by the fiduciary adviser
and affiliates thereof in connection with the sale,
acquisition, or holding of the security or other property is
reasonable, and
``(v) the terms of the sale, acquisition, or holding of the
security or other property are at least as favorable to the
plan as an arm's length transaction would be.
``(C) Standards for presentation of information.--The
notification required to be provided to participants and
beneficiaries under subparagraph (B)(i) shall be written in a
clear and conspicuous manner and in a manner calculated to be
understood by the average plan participant and shall be
sufficiently accurate and comprehensive to reasonably apprise
such participants and beneficiaries of the information
required to be provided in the notification.
``(D) Exemption conditioned on making required information
available annually, on request, and in the event of material
change.--The requirements of subparagraph (B)(i) shall be
deemed not to have been met in connection with the initial or
any subsequent provision of advice described in subparagraph
(B) to the plan, participant, or beneficiary if, at any time
during the provision of advisory services to the plan,
participant, or beneficiary, the fiduciary adviser
[[Page S12292]]
fails to maintain the information described in subclauses (I)
through (IV) of subparagraph (B)(i) in currently accurate
form and in the manner required by subparagraph (C), or
fails--
``(i) to provide, without charge, such currently accurate
information to the recipient of the advice no less than
annually,
``(ii) to make such currently accurate information
available, upon request and without charge, to the recipient
of the advice, or
``(iii) in the event of a material change to the
information described in subclauses (I) through (IV) of
subparagraph (B)(i), to provide, without charge, such
currently accurate information to the recipient of the
advice at a time reasonably contemporaneous to the
material change in information.
``(E) Maintenance for 6 years of evidence of compliance.--A
fiduciary adviser referred to in subparagraph (B) who has
provided advice referred to in such subparagraph shall, for a
period of not less than 6 years after the provision of the
advice, maintain any records necessary for determining
whether the requirements of the preceding provisions of this
paragraph and of subsection (d)(16) have been met. A
transaction prohibited under subsection (c)(1) shall not be
considered to have occurred solely because the records are
lost or destroyed prior to the end of the 6-year period due
to circumstances beyond the control of the fiduciary adviser.
``(F) Exemption for plan sponsor and certain other
fiduciaries.--A plan sponsor or other person who is a
fiduciary (other than a fiduciary adviser) shall not be
treated as failing to meet the requirements of this section
solely by reason of the provision of investment advice
referred to in subsection (e)(3)(B) (or solely by reason of
contracting for or otherwise arranging for the provision of
the advice), if--
``(i) the advice is provided by a fiduciary adviser
pursuant to an arrangement between the plan sponsor or other
fiduciary and the fiduciary adviser for the provision by the
fiduciary adviser of investment advice referred to in such
section,
``(ii) the terms of the arrangement require compliance by
the fiduciary adviser with the requirements of this
paragraph,
``(iii) the terms of the arrangement include a written
acknowledgment by the fiduciary adviser that the fiduciary
adviser is a fiduciary of the plan with respect to the
provision of the advice, and
``(iv) the requirements of part 4 of subtitle B of title I
of the Employee Retirement Income Security Act of 1974 are
met in connection with the provision of such advice.
``(G) Definitions.--For purposes of this paragraph and
subsection (d)(16)--
``(i) Fiduciary adviser.--The term `fiduciary adviser'
means, with respect to a plan, a person who is a fiduciary of
the plan by reason of the provision of investment advice by
the person to the plan or to a participant or beneficiary and
who is--
``(I) registered as an investment adviser under the
Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.) or
under the laws of the State in which the fiduciary maintains
its principal office and place of business,
``(II) a bank or similar financial institution referred to
in subsection (d)(4) or a savings association (as defined in
section 3(b)(1) of the Federal Deposit Insurance Act (12
U.S.C. 1813(b)(1))), but only if the advice is provided
through a trust department of the bank or similar financial
institution or savings association which is subject to
periodic examination and review by Federal or State banking
authorities,
``(III) an insurance company qualified to do business under
the laws of a State,
``(IV) a person registered as a broker or dealer under the
Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.),
``(V) an affiliate of a person described in any of
subclauses (I) through (IV), or
``(VI) an employee, agent, or registered representative of
a person described in any of subclauses (I) through (V) who
satisfies the requirements of applicable insurance, banking,
and securities laws relating to the provision of the advice.
``(ii) Affiliate.--The term `affiliate' of another entity
means an affiliated person of the entity (as defined in
section 2(a)(3) of the Investment Company Act of 1940 (15
U.S.C. 80a-2(a)(3))).
``(iii) Registered representative.--The term `registered
representative' of another entity means a person described in
section 3(a)(18) of the Securities Exchange Act of 1934 (15
U.S.C. 78c(a)(18)) (substituting the entity for the broker or
dealer referred to in such section) or a person described in
section 202(a)(17) of the Investment Advisers Act of 1940 (15
U.S.C. 80b-2(a)(17)) (substituting the entity for the
investment adviser referred to in such section).''.
Mr. BOND. Mr. President, I rise today to cosponsor the Retirement
Security Advice Act of 2003, introduced by my good friend from Wyoming,
Senator Mike Enzi. I do so because this bill holds important
implications for small businesses in this county and for the millions
of Americans they employ.
In 1996, we created the Savings Incentive Match Plans for Employees
(SIMPLE) as a pension-plan option for small firms in this country. The
goal was a simple one: provide a pension plan with low administrative
costs for employers so they can offer pension benefits to encourage
employees to save for their retirement. I am pleased that these plans
have become quite popular, and together with the other pension
simplifications and improvements enacted since then, they have
contributed to better access to pension benefits by small businesses
and their employees.
Greater retirement savings, however, have raised new and complex
issues for many employees who have seen their pension accounts grow
substantially. As a member of both the Senate Small Business Committee
and the Health, Education, Labor, and Pension Committee, I have heard
many constitents raise difficult questions in this area: What are
appropriate investments for my personal circumstances and risk
tolerance? Should I buy stocks, bonds, annuities, or something else?
How should I diversify my investments? When should I modify my
investment mix? And so on.
The importance of these questions has increased substantially in
light of recent high-profile business failures and economic downtown.
Gone are the days of the momentum market where any dollar invested
seemed to grow with little effort or no risk.
The return to more cautious investing has left employees who
participate in employer-sponsored pension plans in a real dilemma--hire
an outside investment advisor or go it alone in most cases. Why?
Current pension rules effectively preclude most employers from offering
investment advice to their employees. In fact, recent estimates are
that only about 16 percent of participants have access to investment
advice through their pension plan. In today's complex investment
environment that is simply too little help for employees who are trying
to manage their retirement security.
Senator Enzi's bill addresses this situation in a responsible way.
For most businesses, and particularly small firms, the logical place to
look for an investment advisor would be the company that manage's the
plan's investment options or an affiliated firm. Under Senator Enzi's
bill that option would now be available, opening the door for countless
businesses to offer this important benefit at a low cost to their
employees who participate in the company's pension plan. In addition,
by allowing more businesses to offer investment-advice benefits, the
bill creates an opportunity for increased competition among investment
advisors, which can lead to better advice products and lower costs
overall.
Senator Enzi's bill, however, does not simply change the rules to
help the business community. It also includes critical protections for
the plan participants. Investment advisors must satisfy strict
requirements concerning their qualifications, and they must disclose on
a regular basis all their business relationships, fees, and potential
conflicts of interest directly to the participants. In addition, and
arguably most importantly, the investment advisor must assume fiduciary
liability for the investment advice it renders to the employee
participants in the plan. In short, if the investment advisor does not
act solely in the interest of the participant, it will be liable for
damages resulting from the breach of its fidicuary duty. Together, the
bill's provisions provide substantive safeguards to protect the
interests of the plan participants who take advantage of the new
investment-advice benefit.
Some have contended that a better alternative is to force small
businesses to engage an independent third party to provide investment
advice. I disagree. The result would simply be the same as under
current law. Cost is a real issue for small businesses seeking to offer
benefits like pension plans and related investment advice--hence, the
genesis of the SIMPLE pension plan. As under the current rules, if the
only option is a costly outside advisor, the small firm will not offer
the investment-advise benefit. As a result, we would not move the ball
even a yard further--employers would still be left to their own devices
to figure out the complex world of investing or they would have to seek
out and hire their own advisor, which few have the wherewithal to do.
More to the point, nothing under the Enzi bill prevents a business
from engaging an independent advisor if the employer deems that the
best alternative. The standard under the Enzi bill for selecting the
investment advisor is prudence; the same criteria that the employer
must exercise under current law when selecting the company
[[Page S12293]]
that manages the pension plan and its investment options. If a prudent
person would not hire or retain the investment advisor, then under the
Enzi bill, the employer should not do so either or face liability for
breach of fiduciary duty. Again, additional protection for the plan
participants.
In my assessment, investment advice is an increasingly important
benefit that employers want and need. Morover, small businesses in
particular need the flexibility to offer benefits that keep them
competitive with big companies as they seek to hire and retain the very
best employees possible. And when we talk about small businesses, we
are not dealing with an insignificant employer in this country. In
fact, according to Small Business Administration data, small businesses
represent 99 percent of all employers and provide 60 to 80 percent of
the net new jobs annually in this country.
The Retirement Security Advice Act provides a carefully balanced and
responsible solution to this situation. Most importantly, it provides a
solution that employers will actually use to offer the investment
advice sought by their employers who struggle to put money aside in the
hopes of having a nest egg that someday will provide them with a
comfortable retirement. I am pleased to co-sponsor this bill and look
forward to working with my colleague from Wyoming to see it enacted
into law.
______
By Mr. INHOFE:
S. 1699. A bill to amend the Head Start Act to require parental
consent for nonemergency intrusive physical examinations; to the
Committee on Health, Education, Labor and Pensions.
Mr. INHOFE. Mr. President, today I am introducing legislation to
require parental consent for intrusive physical exams, genital exams,
administered under the Head Start program.
Young children attending Head Start programs should not be subjected
to these invasive exams without the prior knowledge or consent of their
parents. While the Department of Health and Human Services has
administered general exam guidelines to agencies, the U.S. Code is not
clear about prohibiting them without parental consent. My bill will
clarify the Code by not allowing any non-emergency invasive genital
exam by a Head Start agency without parental consent.
As a father and grandfather, I believe it is vital for parents to be
informed about what is happening to their children in the classroom. I
hope that my colleagues will join me in support of this important bill.
______
By Mr. HATCH (for himself, Mr. Biden, Mr. Specter, Mr. Leahy, Mr.
DeWine, Mrs. Feinstein, Mr. Smith, Mr. Kennedy, Ms. Collins,
Mr. Schumer, Mr. Warner, Mr. Durbin, Mr. Campbell, Mr. Kohl,
Mrs. Clinton, Ms. Cantwell, Mrs. Murray, and Ms. Landrieu):
S. 1700. A bill to eliminate the substantial backlog of DNA samples
collected from crime scenes and convicted offenders, to improve and
expand the DNA testing capacity of Federal, State, and local crime
laboratories, to increase research and development of new DNA testing
technologies, to develop new training programs regarding the collection
and use of DNA evidence, to provide post-conviction testing of DNA
evidence to exonerate the innocent, to improve the performance of
counsel in State capital cases, and for other purposes; to the
Committee on the Judiciary.
Mr. HATCH. Mr. President, I rise today to introduce a comprehensive
bipartisan bill which will ensure the full use and availability of DNA
technology in our criminal justice system. This bill, which enacts the
President's DNA technology initiative, announced by Attorney General
Ashcroft on March 11, 2003, will provide over $1 billion in funding and
assistance over the next 5 years to the criminal justice system in
order to realize the full potential of DNA technology to solve crimes,
protect the public and exonerate the innocent.
The legislation I am introducing today represents a bipartisan
compromise which was reached through extensive negotiations among
Senators on the Judiciary Committee and members from the House
Committee on the Judiciary. I want to first commend my counterpart,
Chairman Sensenbrenner, for his steady leadership on this issue and his
commitment to reaching an agreement, and note the commitment and
dedication of Representatives Conyers, Coble, LaHood, and Delahunt to
this important initiative.
I also want to commend my colleagues here in the Senate: Senators
Biden, Specter, Leahy, DeWine, and Feinstein--who each have a long-
standing commitment to issues included in this comprehensive DNA bill.
We have worked together on DNA issues for many years, and thanks to
each of their efforts we now are in the position to enact bipartisan
legislation that enhances the use of DNA technology in our criminal
justice system. I want to express my personal thanks to all of them for
their leadership and contributions to this important piece of
legislation.
Also, I want to highlight specifically the accomplishment today of
the ranking member of our Judiciary Committee, Senator Leahy. For
several years, Senator Leahy has dedicated himself to the issue of DNA
technology and ensuring that such technology is used to protect the
integrity of our criminal justice system by exonerating the innocent
while punishing the guilty. He has worked tirelessly in this area as
the sponsor of the Innocence Protection Act. While we both shared a
common goal of protecting the integrity of our criminal justice system,
we differed on the means to accomplish that end.
Today, I am proud to support the compromise proposal we have
negotiated, and join together with my friend, Senator Leahy, to
introduce the Innocence Protection Act of 2003 as part of this
legislative package. I want to specifically congratulate Senator Leahy
for his accomplishment and for his dedication to this important issue.
It is perhaps fitting that 50 years after the discovery of DNA by Dr.
James Watson in 1953, we are now proposing to enact the most far-
reaching and comprehensive expansion of DNA technology to promote
public safety, to bring to justice violent criminals who can be
identified through DNA technology, and to ensure the accuracy of our
criminal justice system.
Let me take a moment to highlight the important provisions of this
bill.
The bill enacts the President's comprehensive DNA initiative,
``Advancing Justice Through DNA Technology,'' and will authorize
funding of $755 million for the Debbie Smith DNA Backlog Grant Program
in order to eliminate the current backlog of unanalyzed DNA samples in
our Nation's crime labs. It is critical that such funding be
appropriated to ensure that unanalyzed evidence from violent crime
scenes, such as rape and murder, are compared against known DNA samples
to solve these terrible crimes and apprehend the perpetrators.
As many of you know, Debbie Smith is the courageous survivor of
a horrific sexual assault, and has become a leading spokesperson for
women and crime victims across the country. Debbie Smith waited 6 years
before Norman Jimmerson, a current inmate in a Virginia prison, was
identified as her attacker through DNA. Debbie testified against
Jimmerson, who is now serving two life sentences plus 25 years with no
chance of parole.
Debbie Smith has dedicated herself to the elimination of the backlog
in the processing of DNA evidence and samples. By eliminating the
substantial backlog of DNA samples for the most serious violent
offenses, we can solve more crimes, protect the public and apprehend
more violent criminals. The National Institute of Justice estimates
that the current backlog of rape and homicide cases is at least 350,000
cases. NIJ also estimates that there are between 300,000 and 500,000
collected, but untested convicted offender samples. In addition, the
Justice Department estimates that there are between 500,000 and
1,000,000 convicted offender samples which have not yet been collected
as required by law.
The President has directed the Justice Department to eliminate these
backlogs completely within 5 years, and I am committed to doing
everything in my power to make that a reality to ensure that the
evidence is analyzed, the crimes solved and the criminals punished to
the fullest extent of the law.
[[Page S12294]]
The proposed legislation also will solve more crimes by expanding
State and local crime lab capacity to test DNA. Crime laboratories face
increasing workloads and increased DNA analysis demands. Only 10
percent of public crime labs have automated facilities needed to
process DNA testing, and help is needed in this area. We must expand
the capacity of these laboratories to meet current demand and build for
future needs. That is what the bill will do.
The bill also will increase research and development of new
technologies to test DNA; provides training of criminal justice
professionals to enhance collection and understanding of DNA evidence;
and expands existing programs to train medical personnel who typically
are the first to have contact with sexual assault victims so that they
can collect and preserve critical biological evidence for DNA testing
and comparison purposes.
Some have suggested that focusing exclusively on DNA technology
ignores the significant need for funding and assistance to State and
local crime labs for non-DNA forensic analyses. The proposed bill
expands the Paul Coverdell Grant Program to provide assistance to the
States to eliminate non-DNA forensic evidence backlogs. I recognize
that forensic examination of ballistics evidence, fingerprints,
suspected illegal drugs, and other evidence is critical to our criminal
justice system. I am committed to addressing these needs as well in
order to protect the public.
The legislation will not only speed the apprehension and prosecution
of the guilty, but will protect the innocent from wrongful prosecution.
DNA technology allows us to exclude innocent people as suspects early
in an investigation, and allows law enforcement to focus on finding the
true perpetrator.
The Innocence Protection Act of 2003, developed under the leadership
of Senator Leahy, which is included as Title III of this bill, creates
a federal post-conviction DNA testing scheme which authorizes DNA
testing and relief for a convicted defendant, where the defendant
claims he is ``actually innocent'' of the crime, and demonstrates that
such testing shows that they did not commit the crime. DNA testing will
not be permitted where such a test would only muddy the waters and be
used by the defendant to fuel a new and frivolous series of appeals.
Under the Act, DNA testing in capital cases will be prioritized and
conducted on a ``fast track,'' so that these important cases are
handled quickly.
In order to discourage a flood of baseless claims, the act authorizes
the prosecution of defendants who make false claims of innocence in
support of a DNA testing request. Each defendant will be required to
assert under penalty of perjury that they are, in fact, innocent of the
crime. When DNA testing reveals that the defendant's claim of innocence
was actually false, the defendant can then be prosecuted and, if
convicted, will be subject to a consecutive term of imprisonment of 3
years. Further, the act allows DNA test results to be entered into the
CODIS database and compared against unsolved crimes. If the test result
shows that the defendant committed another crime, the defendant may
then be prosecuted for the other crime.
With respect to the States, the act encourages States to create
similar DNA testing procedures, and provides funding assistance to
those States that have existing DNA testing programs or that implement
such DNA testing programs after enactment of this act. In honor of Kirk
Bloodsworth, a death row inmate, who was eventually freed through post-
conviction DNA testing, the bill creates and names a grant program
after Mr. Bloodsworth to help the States conduct appropriate post-
conviction DNA testing. With the new source of funding, more States
will enact DNA testing programs, and will provide such testing on an
expedited basis.
While DNA testing is now standard in pretrial criminal investigations
today, the integrity of our criminal justice system and in particular,
our death penalty system, can be enhanced with the appropriate use of
DNA testing. No one disagrees with the fact that post-conviction DNA
testing should be made available to defendants when it serves the ends
of justice. I am convinced that the proposed legislation does so fairly
and effectively with proper regard for the rights of the defendant and
the interests of victims and their families.
Finally, Title III of the bill creates a new grant program to improve
the performance of counsel--prosecutors and defense counsel--handling
State capital cases. The issue of the death penalty in our country
continues to spark significant debate. The recent Supreme Court
decisions addressing capital punishment underscore the importance of
this issue to the American people. It is an issue that engenders great
passion, both among its supporters and among its opponents. A large
majority of the American people believe in the death penalty,
especially for terrorists who have killed thousands of Americans. And
all of us agree that the death penalty must be imposed fairly and
accurately.
I have stated on numerous occasions my views on the death penalty. It
is the ultimate punishment and it should be reserved only for those
defendants who commit the most heinous of crimes. I am firmly convinced
that we must be vigilant in ensuring that capital punishment is meted
out fairly against those truly guilty criminals. We cannot and should
not tolerate defects in the capital punishment system. No one can
disagree with this ultimate and solemn responsibility.
I have disagreed with others on the committee as to the state of our
Nation's capital punishment system, the quality of representation in
State capital cases, and whether such sentences are meted out fairly. I
am proud, however, to support this proposal where we can all agree--we
can improve the performance of counsel on both sides by awarding grants
to States. These funds will be equally divided between prosecutors and
defense counsel, and are designed to reduce to the maximum extent
possible the occurrence of error in the conduct of capital trials in
our States. We all agree that reducing trial error is a laudable goal.
By doing so, we enhance the fairness of our capital punishment system.
Every defendant in our criminal justice system is afforded the
guarantee by the sixth amendment of our Constitution of competent and
effective counsel. The Supreme Court has enforced this right in
numerous decisions in order to ensure that all defendants are afforded
the constitutional protections guaranteed to them.
At the same time, the public is entitled to quality representation by
prosecutors who handle capital cases. Training and monitoring the
performance of prosecutors who handle these important cases will ensure
that States and the public are fully and effectively served in the
trial of capital cases.
Contrary to the view of some, I do not believe that our capital
punishment is broken. However, I do believe that our justice system can
always be improved. The grants proposed under the act will enable
states to improve the performance of prosecutors and defense counsel to
ensure that capital cases are handled more efficiently and effectively,
and that every capital defendant will receive a fair trial under our
justice system.
DNA technology has the power to convict the guilty and protect the
innocent and will move our criminal justice system into a new era that
is both fair and efficient. The President's DNA initiative is a
forward-looking measure, which will improve significant aspects of
federal, state and local criminal justice systems. We are poised to
enter that new era. With this comprehensive proposal, we will ensure
the use of DNA technology and protect the public safety.
I strongly urge my colleagues to join with me in promptly passing
this important legislation.
Mr. President, I ask unanimous consent to print in the Record a
section-by-section analysis.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Advancing Justice Through DNA Technology Act of 2003
section-by-section analysis
Overview
The Advancing Justice Through DNA Technology Act increases
Federal resources available to State and local governments to
combat crimes with DNA technology, and provides safeguards to
prevent wrongful convictions and executions. The bill enacts
the President's DNA Initiative, which provides
[[Page S12295]]
over $1 billion in the next five years to assist Federal and
State authorities to realize the full potential of DNA
technology to solve crimes and protect the innocent.
Title I and II, the DNA Sexual Assault Justice Act and the
Rape Kits and DNA Evidence Backlog Elimination Act, [of the
bill] authorize the Debbie Smith DNA Backlog Grant Program,
which provides $755 million over five years to address the
DNA Backlog crisis in the nation's crime labs. The bill also
establishes over $500 million in new grant programs [together
with grant programs] to reduce other forensic science
backlogs, train criminal justice and medical personnel in the
use of DNA evidence, and promote the use of DNA technology to
identify missing persons.
Title III of the bill, the Innocence Protection Act,
provides access to post-conviction DNA testing in federal
cases, helps States improve the quality of legal
representation in capital cases, and increases compensation
in Federal cases of wrongful conviction. In addition, Title
III authorizes the Kirk Bloodsworth Post-Conviction DNA
Testing Program and provides $25 million over five years to
defray the costs of post-conviction DNA testing.
TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003
Sec. 101. Short Title. This title may be cited as the
``Rape Kits and DNA Evidence Backlog Elimination Act of
2003.''
Sec. 102 [The]Debbie Smith DNA Backlog Grant Program.
Reauthorizes and expands the DNA Analysis Backlog Elimination
Act of 2000 (42 U.S.C. 14135), increasing the authorized
funding levels for the DNA Analysis Backlog Elimination
program to $151 million annually for the next five years, as
proposed in the President's DNA initiative.
Subsection (a) names the Backlog Elimination Act grant
program in honor of Debbie Smith, a rape survivor and leader
in promoting the use of the DNA technology to solve crimes.
In addition, subsection (a) amends he eligibility provisions
to add ``units of local government'' as [a] potential
grantees, so that Federal resources can meet local needs more
quickly.
Subsection (b)(1) provides a single annual authorization
for the program, and modifies existing program objectives by:
(1) adding the collection of DNA samples from convicted
offenders as a specific program purpose (proposed 42 U.S.C.
14135(a)(4)); (2) ensuring that DNA testing and analysis of
samples from crime scenes (such as rape kits and biological
material found at homicide scenes), including sexual assault
and other serious violent crimes, are carried out in a timely
manner (proposed 42 U.S.C. 14135(a)(5)); and (3) revising the
existing objective in 41 U.S.C. 14135(a)(3), to clarify that
funds can be used to increase the capacity of public
laboratories to carry out analysis of DNA samples.
Subsection (c) modifies 42 U.S.C. 14135(c) to provide for
the disbursement of grant funds by the Attorney General in
conformity with a formula that maximizes the effective use of
DNA technology to solve crimes and protect public safety, and
addresses areas where significant backlogs exist. A minimum
grant amount of 0.50 percent is to be awarded to each State,
and a specified percentage of remaining funds will be awarded
to conduct DNA analyses of samples from casework [or victims
of crime].
Conversion of the Backlog Elimination Act grant program
into a formula grant program will ensure that funds will be
fairly distributed among all eligible jurisdictions. It is
expected that the factors given weight in the formula will
include the magnitude and nature of the DNA backlogs and
current DNA work demands in the jurisdictions that seek
funding; deficits in public laboratory capacity for the
timely and efficient analysis of DNA samples in these
jurisdictions, and cost requirements for remedying these
deficits; and the ability of these jurisdictions to use the
funds to increase DNA analysis and public laboratory capacity
for such analysis. It is further expected that the formula
will target funding on the use of DNA analysis to solve the
most serious violent crimes, including rapes and murders,
whose solution through DNA testing promises the greatest
return in promoting public safety.
Subsection (k) reserves no more than 1 percent of the grant
amounts to assist State and local crime labs to become
accredited, and to undergo regular external audits, in order
to ensure that such labs fully comply with Federal quality
assurance standards.
Sec. 103. Expansion of Combined DNA Index System. Amends
the statute governing the Combined DNA Index System (CODIS)
to allow States to include in the DNA index the DNA profiles
of all persons whose DNA samples have been collected under
applicable legal authorities, including those authorized by
State law, all felons convicted of Federal crimes, and
qualifying military offenses.
Sec. 104. Tolling of State of Limitations [Limitation
Period for Prosecution in Cases Involving DNA
Identification]. Provides that, in a case where DNA testing
implicates an identified person in the commission of a
felony, except for a felony offense under chapter 109A, no
statute of limitations would preclude prosecution of the
offense until a time period equal to the statute of
limitations has elapsed from the date of identification of
the perpetrator.
Sec. 105. Legal Assistance for Victims of Dating Violence.
Amends the Violence Against Women Act to include legal
assistance for victims of ``dating violence,'' defined as
violence committed by a person: (1) who is or has been in a
romantic or intimate relationship with the victim; and (2)
where the existence of such relationship is determined based
upon consideration of its length and its type, and upon the
frequency of interaction between the persons involved.
Sec. 106. Ensuring Private Laboratory Assistance in
Eliminating DNA Backlog. Clarifies that grants may be made
through vouchers and contracts to private for-profit
laboratories to assist in collection of DNA samples from
offenders and processing of crime scene DNA evidence.
title ii--dna sexual assault justice act of 2003
Sec. 201. Short Title. This title may be cited as the ``DNA
Sexual Justice Act of 2003.''
Sec. 202. Ensuring Public Crime Laboratory Compliance with
Federal Standards. Requires that eligible State and local
government public crime labs are accredited and undergo
external audits, not less than once every 2 years, to
demonstrate compliance with Federal standards established by
the Federal Bureau of Investigation.
Sec. 203. DNA Training and Education for Law Enforcement,
Correctional Personnel, and Court Officers. Authorizes grants
to provide training, technical assistance, educational and
information relating to the identification, collection,
preservation, analysis and use of DNA samples and DNA
evidence by law enforcement personnel and other first
responders who collect or examine crime scene evidence; court
officers, including prosecutors, defense lawyers and judges;
forensic science professionals; and corrections personnel.
The grant program is authorized through 2009 at $12.5 million
per year.
Sec. 204. Sexual Assault Forensic Exam Program Grants.
Authorizes grants to provide training, technical assistance,
education and information relating to the identification,
collection, preservation, analysis and use of DNA samples and
DNA evidence by medical personnel and other personnel,
including doctors, medical examiners, coroners, nurses,
victim service providers, and other medical professionals,
including existing sexual assault and sexual assault
examination programs (Sexual Assault Nurse Examiner (SANE),
Sexual Assault Forensic Examiner (SAFE), and Sexual Assault
Response Team (SART)). The grant program is authorized
through 2009 at $30 million per year.
Sec. 205. DNA Research and Development. Authorizes grants
for research and development to improve forensic DNA
technology, including funding of demonstration projects
involving law enforcement agencies and criminal justice
participants to evaluate the use of forensic DNA technology.
Also authorizes the Attorney General to establish a new
Forensic Science Commission, composed of members from the
forensic science and criminal justice communities, which will
be responsible for examining various issues, including:
(1) maximizing the use of forensic sciences to solve
crimes and protect public safety; (2) increasing the
number of qualified forensic scientists; (3) disseminating
best practices concerning the collection and analyses of
forensic evidence; and (4) assessing Federal, State and
local privacy protection statutes, regulations and
practices relating to DNA samples and DNA analyses.
Programs are authorized through 2009 at $15 million per
year.
Sec. 206. FBI DNA Programs. Authorizes $42.1 million per
year through 2009 for FBI DNA programs and activities,
including (1) nuclear DNA analysis; (2) mitochondrial DNA
analysis; (3) regional mitochondrial DNA laboratories; (4)
the Combined DNA Index System; (5) the Federal Convicted
Offender DNA Program; and (6) DNA research and development.
Sec. 207. DNA Identification of Missing Persons. Authorizes
$2 million per year through 2009 for grants to promote the
use of forensic DNA technology to identify missing persons
and unidentified human remains.
Sec. 208. Enhanced Criminal Penalties for Unauthorized
Disclosure or Use of DNA Information. Modifies the existing
criminal provision for unauthorized disclosure of DNA
information to include unauthorized ``use'' of such
information, and increases the potential fine to $100,000 for
each criminal offense.
Sec. 209. Tribal Coalition Grants. Amends the eligibility
criteria for discretionary grants under the Violence Against
Women Act to include tribal coalitions, and thereby directly
support nonprofit, nongovernmental tribal domestic violence
and sexual assault coalitions [in Indian country.]
Sec. 210. Expansion of the Paul Coverdell Forensic Sciences
Improvement Grant Program. Expands existing grant program to
permit funds to be used to eliminate a backlog in the
analysis of forensic science evidence, and extends
authorization of appropriations through 2009, at $20 million
a year. Current authorizations are $128,067,000 for 2004,
$56,733,000 for 2005, and $42,067,000 for 2006. [Sec. 210.
Forensic Backlog Elimination Grant Program. Authorizes $10
million a year through 2009 for grants to States, units of
local government, and tribal governments, to eliminate the
backlog in the analysis of any area of forensic science,
including firearms examination, latent prints, toxicology,
and controlled substances.]
Sec. 211. Report to Congress. Requires the Attorney General
to submit a report, not later than 3 years after enactment,
relating to implementation of titles I and II of this Act.
[[Page S12296]]
title iii--innocence protection act of 2003
Sec. 301. Short Title. This title may be cited as the
``Innocence Protection Act of 2003.''
Subtitle 1--Exonerating the Innocent Through DNA Testing
Sec. 311. Federal Post-Conviction DNA Testing. Establishes
rules and procedures governing applications for DNA testing
by inmates in the Federal system. A court shall order DNA
testing if the applicant asserts under penalty of perjury
that he or she is actually innocent of a qualifying offense,
and the proposed DNA testing would produce new material
evidence that supports such assertion and raises a reasonable
probability that the applicant did not commit the offense.
Limitations on access to testing are imposed where the
applicant seeks to interfere with the administration of
justice rather than to support a valid claim. Penalties are
established in the event that testing inculpates the
applicant. Where test results are exculpatory, the court
shall grant the applicant's motion for a new trial or
resentencing if the test results and other evidence establish
by a preponderance of the evidence that a new trial would
result in an acquittal of the offense at issue.
This section also prohibits the destruction of biological
evidence in a federal criminal case while a defendant remains
incarcerated, absent a knowing and voluntary waiver by the
defendant or prior notification to the defendant that the
evidence may be destroyed. Nothing in this section supersedes
any statute, regulation, court order, or other provision of
law requiring that evidence, including biological evidence,
be preserved. Intentional violations of this preservation
provision to prevent evidence from being tested or used in
court are punishable by a term of imprisonment.
Sec. 312. Kirk Bloodsworth Post-Conviction DNA Testing
Grant Program. Authorizes $5 million a year in grants through
2009 to help States to defray the costs of post-conviction
DNA testing. This program is named in honor of Kirk
Bloodsworth, the first death row inmate to be exonerated by
DNA testing.
Sec. 313. Incentive Grants to States to Ensure
Consideration of Claims of Actual Innocence. Reserves the
total amount of funds appropriated to carry out sections 203,
205, 207, and 312 of this Act for states that have adopted
adequate procedures for providing post-conviction DNA testing
and preserving biological evidence for this purpose.
Subtitle 2--Improving the Quality of Representation in State Capital
Cases
Sec. 321. Capital Representation Improvement Grants.
Authorizes a grant program, to be administered by the
Attorney General, to improve the quality of legal
representation provided to indigent defendants in State
capital cases. Grants shall be used to establish, implement,
or improve an effective system for providing competent legal
representation in capital cases, but may not be used to fund
representation in specific cases. An effective system is
one in which a public defender program or other entity
establishes qualifications for attorneys who may be
appointed to represent indigents in capital cases;
establishes and maintains a roster of qualified attorneys
and assigns attorneys from the roster (or provides the
trial judge with a choice of attorneys from the roster);
trains and monitors the performance of such attorneys; and
ensures funding for the full cost of competent legal
representation by the defense team and any outside
experts.
Sec. 322. Capital Prosecution Improvement Grants. As part
of the same program established in section 321, authorizes
grants to improve the representation of the public in State
capital cases. Grants shall be used to design and implement
training programs for capital prosecutors; develop,
implement, and enforce appropriate standards and
qualifications for such prosecutors and assess their
performance; establish programs under which prosecutors
conduct a systematic review of cases in which a defendant is
sentenced to death in order to identify cases in which post-
conviction DNA testing is appropriate; and assist the
families of murder victims.
Sec. 323. Applications. Establishes requirements for States
applying for grants under this subtitle, including a long-
term strategy and detailed implementation plan that reflects
consultation with the judiciary, the organized bar, and State
and local prosecutor and defender organizations, and
establishes as a priority improvement in the quality of
trial-level representation of indigents charged with capital
crimes and trial-level prosecution of capital crimes in order
to enhance the reliability of capital trial verdicts. Funds
received under this subtitle shall be allocated equally
between the programs established in sections 321 and 322.
Sec. 324. State Reports. Requires States receiving funds
under this subtitle to submit an annual report to the
Attorney General identifying the activities carried out with
the funds and explaining how each activity complies with the
terms and conditions of the grant.
Sec. 325. Evaluations by Inspector General and
Administrative Remedies. Directs the Inspector General of the
Department of Justice to submit periodic reports to the
Attorney General evaluating the compliance of each State
receiving funds under this subtitle with the terms and
conditions of the grant. In conducting such evaluations, the
Inspector General shall give priority to States at the
highest risk of noncompliance. If, after receiving a report
from the Inspector General, the Attorney General finds that a
State is not in compliance, the Attorney General shall take a
series of steps to bring the State into compliance and report
to Congress on the results.
Sec. 326. Authorization of Appropriations. Authorizes $100
million a year for five years to carry out this subtitle.
Subtitle 3--Compensation of the Wrongfully Convicted
Sec. 331. Increased Compensation in Federal Cases.
Increases the maximum amount of damages that the U.S. Court
of Federal Claims may award against the United States in
cases of unjust imprisonment from a flat $5,000 to $50,000
per year in non-capital cases, and $100,000 per year in
capital cases.
Sec. 332. Sense of Congress Regarding Compensation in State
Death Penalty Cases. This section expresses the sense of
Congress that States should provide reasonable compensation
to any person found to have been unjustly convicted of an
offense against the State and sentenced to death.
Mr. BIDEN. Mr. President, I rise along with the distinguished senior
Senator from Utah, Senator Hatch and several others of my colleagues,
Senators Spector, Leahy, DeWine, and Feinstein, to introduce the
Advancing Justice Through DNA Act, a bill that harnesses the power of
DNA to give prompt justice to victims of sexual assault crimes and to
free the wrongly convicted. This bill takes every component of DNA
technology and makes it accessible and more useful to Federal, State
and local law enforcement, to prosecutors and defense attorneys, to
medical personnel and to victims of crime.
Promoting and supporting DNA technology as a crime-fighting tool is
not a new endeavor for me. A provision of my 1994 crime bill created
the Combined DNA Index System, called ``CODIS'', which is an electronic
database of DNA profiles, much like the FBI's fingerprint database.
CODIS includes two kinds of DNA information--convicted offender DNA
samples and DNA from crime scenes. CODIS uses the two indexes to
generate investigative leads in crimes where biological evidence is
recovered from the scene. In essence, CODIS facilitates the DNA match.
And once that match is made, a crime is solved because of the
incredible accuracy and durability of DNA evidence.
Ninety-nine.nine percent--that is how accurate DNA evidence is. One
in 30 billion--those are the odds someone else committed a crime if a
suspect's DNA matches evidence at the crime scene. Twenty or 30 years--
that is how long DNA evidence from a crime scene lasts.
Just 10 years ago DNA analysis of evidence could have cost thousands
of dollars and taken months, now testing one sample costs $40 and can
take days. Ten years ago forensic scientists needed blood the size of a
bottle cap, now DNA testing can be done on a sample the size of a
pinhead. The changes in DNA technology are remarkable, and mark a sea
change in how we can fight crime, particularly sexual assault crimes.
The FBI reports that since 1998 the national DNA database has helped
put away violent criminals in over 9,000 investigations in 50 States.
How? By matching the DNA crime evidence to the DNA profiles of
offenders. Individual success stories of DNA cold hits in sexual
assault cases make these numbers all too real.
Just last year, Alabama authorities charged a man in the rape of an
85-year-old woman almost 10 years ago after he was linked to the case
by a DNA sample he was compelled to submit while in prison on unrelated
charges.
In Colorado, prosecutors brought to trial a case against a man
accused of at least 14 rapes and sexual assaults. Due to the national
DNA database, prosecutors were able to trace the defendant to rapes and
assaults that occurred in Colorado, California, Arizona, Nevada and
Oklahoma between 1999 and 2002.
Or take for example a 1996 case in St. Louis were two young girls
were abducted from bus stops and raped at opposite ends of the city.
The police were unable to identify a suspect. In 1999, the police
decided to re-run the DNA testing to develop new leads. In January
2000, the DNA database matched the case to a 1999 rape case, and police
were able to identify the perpetrator.
Last spring, the New York Police Department arrested a man linked to
the rape of a woman years ago. In 1997, a woman was horribly beaten,
robbed and raped--there were no suspects. Five years later, the
perpetrator submitted
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a DNA sample as a condition of probation after serving time for
burglary. The DNA sample matched the DNA from the 1997 rape. Crime
solved, streets safer.
Undoubtedly, DNA matching by comparing evidence gathered at the crime
scene with offender samples entered on the national DNA database has
proven to be the deciding factor in solving stranger sexual assault
cases--it has revolutionized the criminal justice system, and brought
closure and justice for victims. A laboratory expert testified that
Virginia has a 48 percent hit rate because the State collects samples
from all convicted felons and aggressively analyzes crime scene
evidence with no backlog. This means that almost 1 out of every 2
violent crimes could be solved by the national DNA database.
In light of the past successes and the future potential of DNA
evidence, the reported number of untested rape kits and other crime
scene evidence waiting in police warehouses is simply shocking--300,000
to 500,000. It is a national problem, plaguing both urban and rural
areas, that deserves national attention and solutions. Last year, a
Michigan newspaper reported that its State police forensic unit is
expected to have a 10-year backlog of items in need of DNA testing. The
Florida crime lab system is facing a backlog of more than 2,400 rape,
murder and assault and burglary cases waiting for DNA testing. South
Carolina has 10,000 untested samples from convicted offenders. In June
2003, the New Jersey police department reported that over 1,200
criminal cases--most of them sexual assault cases--were waiting for DNA
analysis. Behind every single one of those rape kits is a victim who
deserves recognition and justice.
One woman in particular has reminded State and Federal lawmakers that
we cannot ignore even one rape kit sitting on a shelf gathering dust.
That woman is Debbie Smith. In 1989, Mrs. Smith was taken from her home
and brutally raped. There were no known suspects, and Mrs. Smith lived
in fear of her attacker's return. Six years later, the Virginia crime
laboratory discovered a DNA match between the rape scene evidence and a
State prisoner's DNA sample. That cold hit gave Mrs. Smith her first
moment of real security and closure, and since then she has traveled
the country to advocate on behalf of assault victims and champion the
use of DNA to fight sexual assault.
Today's bill provides over $755 five years to eliminate the backlog
in rape kits and other crime scene evidence, eliminate the backlog of
convicted offender samples awaiting DNA testing, and improve State
laboratory capacity to conduct DNA testing. I am pleased that the
backlog elimination grant program in the Advancing Justice Through DNA
Technology Act is entitled, ``The Debbie Smith DNA Backlog Grants.'' It
is a fitting tribute. I also want to take a moment to thank my
colleagues Senators Kohl and DeWine who began this effort with the DNA
Backlog Elimination Act of 2000, and acknowledge their ongoing
commitment.
But the DNA testing is only useful if the crime scene evidence is
carefully collected and preserved. Towards that end, the Advancing
Justice through DNA Technology Act creates two important grant
programs: 1. a $62.5 million DNA training and education grant program
for law enforcement, correctional personnel and court officers; and 2.
a $50 million grant program to provide training, education and
assistance to sexual assault forensic examiner programs, often known as
SANE or SART programs.
The Advancing Justice Through DNA Technology Act is a natural
extension to the Violence Against Women Act, which requires the
Attorney General to evaluate and recommend standards for training and
practice for licensed health care professionals performing sexual
assault forensic exams. So I knew that any DNA bill aimed at ending
sexual assault must include resources for sexual forensic examiners.
This bill ensures that sexual forensic nurses, doctors, and response
teams are all eligible for assistance. These program should be in each
and every emergency room to bridge the gap between the law and the
medicine.
Today's bill also makes two small, but important, amendments to the
Violence Against Women Act. First, it amends the law to include legal
assistance for victims of dating violence, and it amends the
eligibility criteria for discretionary programs so that tribal domestic
violence and sexual assault coalitions can directly receiving grants
funds, including those funds unreleased from past fiscal years.
I started looking at the issue of improved prosecution of sexual
assault crimes almost two decades ago when I began drafting the
Violence Against Women Act. The DNA Sexual Justice Act of 2003 is the
next step, a way to connect the dots between the extraordinary strides
in DNA technology and my commitment to ending violence against women.
We must ensure that justice delayed is not justice denied.
I am also gratified that this legislation includes the Innocence
Protection Act, which I cosponsored last year, and which passed the
Judiciary Committee. I have long advocated in this Committee for the
changes that it will implement.
The Innocence Protection Act will immeasurably improve the
administration of justice in our legal system, particularly where
justice is most important, and where we can least afford to make
mistakes--imposition of the death penalty.
I advocate for this bill not as an opponent of the death penalty
looking to curtail it, but as a supporter of the death penalty who
authored the first constitutional federal death penalty law after the
Supreme Court declared the death penalty unconstitutional.
But we who support the death penalty also have a duty to ensure that
it is fairly administered. The advent of DNA testing has provided us
with a wealth of opportunities to make certain that we are prosecuting
the right people. Just as we use DNA to help prosecutions, we must make
testing available to those who can use it to prove their innocence.
This legislation makes post-conviction testing to federal inmates who
assert that they did not commit the crime for which they have been
imprisoned. It also incentivizes States to take similar measures to
ensure that individuals have a proper opportunity to prove their
innocence. It also mandates proper preservation of DNA evidence so that
the DNA can be tested if appropriate.
As for competent counsel in death penalty cases, nobody can look me
in the eye and tell me that our system for representation in capital
cases works as it should. This bill will take a big step toward fixing
that by providing money for grants to States to improve their systems
of representation, on both the prosecution and defense side, in capital
cases.
Our goal must be an error-free system of criminal justice. To err is
human, but it should never be acceptable. Our job is to do all we can
to eliminate errors in the criminal justice system and to see to it
that a lack of resources does not delay bringing rapists and murderers
to justice. This bill means we are doing our job.
I would be remiss if I did not pause to thank some of the many people
who have helped bring about the introduction of this bill. In
particular, I wish to thank Senators Hatch and Leahy, the chairman and
ranking member of the Senate Judiciary Committee, for devoting so much
of their time and effort to developing this legislation. Similarly,
Chairman Sensenbrenner and Ranking Member Conyers have worked with us
every step of the way to get this bill done. In addition, Senators
Specter, DeWine and Feinstein, and Congressmen Delahunt and Coble,
among others, have spent countless hours contributing their ideas to
this bill. I wish to thank all of these members for their leadership on
this matter.
Mr. HATCH. Mr. President, will the Senator from Delaware yield for a
question?
Mr. BIDEN. Of course.
Mr. HATCH. Mr. President, it is my understanding that this
legislation makes certain of its grants contingent on States providing
a process for post-conviction testing available. For those States that
already have enacted a statute providing such testing, that statute
must ensure a meaningful process for resolving a claim of actual
innocence. As I understand it, almost all of the State statutes already
in existence, including those of Ohio, Utah, Delaware and Pennsylvania,
would pass
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muster and would qualify for the grants at issue. Is that the
understanding of the Senator from Delaware?
Mr. BIDEN. Yes, I thank the Senator from Utah for his question, and
wholeheartedly agree with his understanding of this provision. I
believe all of the drafters of this legislation are in agreement that
most of the States that already have passed statutes, except for the
few that limit post-conviction DNA testing to capital crimes, would
pass muster. For example, even if a State's statute differs from the
Federal law by imposing a meaningful time limit for filing of
applications for testing, or excluding guilty pleas from eligibility,
it would qualify. Specifically, Utah, Delaware, Ohio and Pennsylvania,
among others, under their statutes, or the re-enactment of those
statutes where they have expired, would be eligible for such grants.
However, States that have not yet enacted a statute would be required
to enact a statute, or follow a rule, regulation or practice, that met
a higher standard--the statute, rule, regulation or practice would need
to be ``comparable'' to the Federal law in order for the State to
qualify for the grants. I see the Senator from Pennsylvania on the
Floor. I would be happy to yield to the distinguished Senator to hear
his thoughts on this matter.
Mr. SPECTER. I thank the Senator for yielding time. I would just say
that I completely agree with the understanding of the Senators from
Delaware and Utah on this.
Mr. HATCH. Would the Senator yield?
Mr. BIDEN. It would be my pleasure.
Mr. HATCH. I would just like to make clear that the understanding of
the Senator from Delaware comports completely with mine.
Mr. SPECTER. Would the Senator yield for another question?
Mr. BIDEN. Of course.
Mr. SPECTER. As the Senator knows, a second requirement for States to
qualify for these grants is that--whether by State statute, State or
local rule, regulation or practice--they preserve biological evidence
in a reasonable way. Do the Senators from Delaware and Utah agree with
me that States would qualify so long as they preserve evidence in a way
sufficient to permit the testing provided for in their State statutes?
For example, if a State law provides a three year time limit on post-
conviction DNA testing, a practice of preserving evidence throughout
those three years would qualify as ``reasonable'' under this
legislation. Thus, for example, Pennsylvania, Delaware, Ohio and Utah
would qualify.
Mr. BIDEN. Yes, that has been, and remains, my understanding.
Mr. HATCH. And mine as well.
Mr. LEAHY. Mr. President, three years ago, Senator Smith, Senator
Collins and I joined together to introduce the Innocence Protection
Act, a modest and practical package of reforms aimed at reducing the
risk of error in capital cases. The reforms we proposed were designed
to create a fairer system of justice, where the problems that have sent
innocent people to death row would not occur, and where victims and
their families could be more certain of the accuracy, and finality, of
the results.
During the last Congress, the Innocence Protection Act gained
enormous momentum, with 32 Senators and 250 Representatives--well over
half the House--signed on in support. Hearings were held in each House,
and a version of the bill was reported out of the Senate Judiciary
Committee by a bipartisan vote of 12 to 7. Now is the time to finish
the job and enact this important legislation.
I am pleased, today, to introduce the Innocence Protection Act of
2003. This legislation is a piece of a larger bill called the Advancing
Justice through DNA Technology Act of 2003, which provides an infusion
of Federal funds to eliminate the current backlog of unanalyzed DNA
samples in the Nation's crime labs and to improve the capacity of
Federal, State and local crime labs to conduct DNA analyses.
The Innocence Protection Act of 2003 proposes two critical reforms.
First, it provides greater access to post-conviction DNA testing in
appropriate cases, where it can help expose wrongful convictions, and
authorizes $25 million in grants over 5 years to help defray the costs
of such testing. Second, the bill addresses what all the statistics and
evidence show is the single most frequent cause of wrongful
convictions--inadequate defense representation at trial. By far the
most important reform we can undertake is to help States establish
minimum standards of competency and funding for capital defense.
Other provisions of the Innocence Protection Act establish standards
for preserving biological evidence in criminal cases, and substantially
increase the maximum amount of compensation that may be awarded in
Federal cases of wrongful conviction.
Today's Innocence Protection Act is a modified version of the bill
that the Senate Judiciary Committee approved last year. These
modifications follow many months of negotiation and deliberation, and
were made to build further on the groundswell of support for the bill,
both here on Capitol Hill and across America. More than ever, the bill
is a collaborative product of which we all can be proud--an exercise of
bipartisanship that is in the best tradition of the United States
Congress.
I want to thank and commend the Senators and Representatives who
worked so hard this summer and fall to come to agreement on a bill that
we can all strongly support.
First and foremost, I want to thank my partner in this endeavor,
Representative Bill Delahunt of Massachusetts, who has worked
tirelessly over many years to achieve this goal. I also want to thank
our lead Republican sponsors in both houses, Senators Gordon Smith and
Susan Collins, and Representative Ray LaHood of Illinois, all of whom
have been steadfast in their commitment to this effort.
The Chairman of the Senate Judiciary Committee, Orrin Hatch, deserves
high praise for his leadership in our recent negotiations, as does the
Chairman of the House Judiciary Committee, Jim Sensenbrenner, and I
thank them both. Senator Hatch and I have debated these issues for
years. I have always appreciated his thoughtful approach and serious
commitment to improving the criminal justice system. Representative
Sensenbrenner played an instrumental role in this process and I do not
believe we could have come so far without his dedication. In addition,
I want to extend my heartfelt thanks to Senator Feinstein, who has
devoted countless hours over the years to reconciling the policy
differences that prevented this legislation from moving forward.
I am sorry that Senator DeWine could not be with us earlier today to
announce the introduction of the bill, and appreciate his willingness
to allow us to proceed. I have long worked with Senator DeWine on
funding important forensic science tools for law enforcement, and we
are currently working on a proposal with regard to how the mentally
retarded are treated by the criminal justice system. His leadership on
these issues is important and greatly appreciated.
Thanks, too, to the many members on both sides of the aisle, in the
Senate and in the House, who have supported this legislation over the
years. Working together, we can finally begin to address the many
problems facing our capital punishment system.
Capital Representation Improvement Grants: I would like to take a
moment now to elaborate on the capital defense representation
provisions of the bill, both because they are the more important
provisions and because they have been the principal subject of the
recent revisions to the bill.
The new version of the Innocence Protection Act establishes a grant
program for States to improve the systems by which they appoint and
compensate lawyers in death cases. States that authorize capital
punishment may apply for these grants or not, as they wish. However, if
a State chooses to accept the money, it must open itself up to a set of
requirements designed to ensure that its system truly meets basic
standards. After all, the point of the bill is not to throw money at
the problem of inadequate representation; the point is to fix it.
Earlier versions of the Innocence Protection Act took more of a
``carrot and stick'' approach to the counsel issue. The ``carrot'' was
the same as in the current version: millions of dollars in Federal
grants to help achieve adequate representation in capital cases. The
``stick''--which is no longer in the bill--has evolved over the years.
At one
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time, we proposed that States that failed to meet basic competent
counsel standards would have their death sentences given less deference
and subjected to more rigorous Federal court review. In some versions
of the bill, non-complying States would also have forfeited some
Federal prison grant funding over time. In the version that the
Judiciary Committee approved last year, if a State chose not to
participate in the new Federal grant program, the Attorney General
would award the money to one or more defender organizations within the
State, to be used for capital defense work.
Each of these various mechanisms would have helped ensure cooperation
on the part of the States, and I am disappointed that I was unable to
prevail upon my colleagues to include any one of them. Still, I believe
that the current formulation is a good first step and will make a
difference, provided that the grant program is fully funded and that
the States which are most in need of reform elect to participate.
As reported by the Senate Judiciary Committee last year, the bill
aimed to ensure full funding of the counsel program by providing that,
if Congress failed to appropriate sufficient funding for the program,
up to 10 percent of the Byrne block grant would be used for this
purpose. I regret that this provision has been dropped from the bill;
it seemed to me a good way to express our commitment to ensuring that
the program is funded. However, given the tremendous support for this
legislation in both houses, and on both sides of the aisle, I am
confident that Congress will speak with one voice in ensuring that our
years of effort are not undermined by a failure to appropriate the
money needed to make this legislation effective.
Getting States to participate in the program may be more difficult.
Indeed, the States that are in most need of reform may be the least
inclined to participate, given that they will have the most to do to
bring their indigent defense systems into compliance with the terms and
conditions of the grant. While I am hopeful that States will want to
improve their systems, and will welcome the infusion of Federal funds
for this purpose, Congress will need to monitor this program carefully
to ensure that it is meeting its stated objective of improving the
quality of legal representation provided to indigent defendants in
State capital cases and, if it is not, to take additional remedial
action.
Kirk Bloodsworth Post-Conviction DNA Testing Grant Program: We have
also established a $25 million grant program to help defray the costs
of post-conviction DNA testing. This program is named in honor of Kirk
Bloodsworth, the first death row inmate to be exonerated by DNA
testing.
I first met Kirk in February 2000, when he came to me as a man who
had been exonerated after almost nine years of wrongful imprisonment. I
am proud to say that we have become close friends and partners in the
fight to reform capital punishment in America. I am also delighted that
Kirk can finally feel truly free. Just a few weeks ago, the State of
Maryland charged another man with the crime for which Kirk was
convicted and sentenced to death, after prosecutors finally ran the DNA
evidence in the case through the DNA database. The prosecutor who sent
Kirk to death row, and who had previously refused to acknowledge his
innocence, went to his home to apologize to him.
Kirk Bloodsworth's battle to prove his own innocence has been won.
But his nightmare of wrongful conviction has been repeated again and
again across the country. Since the reinstatement of capital punishment
in the 1970s, more than 110 individuals who were convicted and
sentenced to death have been released from death row with evidence of
their innocence, according to the Death Penalty Information Center. In
addition, since the introduction of forensic DNA typing into the legal
system in the early 1990s, many more individuals who were sentenced to
long terms of imprisonment have been exonerated by post-conviction DNA
testing. The Kirk Bloodsworth Post-Conviction DNA Testing Grant Program
will help assist others who have experienced wrongful conviction.
Debbie Smith DNA Backlog Grant Program: As I noted earlier, this
version of the Innocence Protection Act is being introduced as part of
a larger package of criminal justice reforms, titled the Advancing
Justice Through DNA Technology Act of 2003, which will substantially
increase Federal resources available to State and local governments to
combat crimes with DNA technology. Among other things, this legislation
creates the Debbie Smith DNA Backlog Grant Program, which authorizes
$755 million over the next five years to reduce the current backlog of
unanalyzed DNA samples in the Nation's crime labs.
I have worked with the proponents of this program to revise the
allocation formula, so that each State is guaranteed a minimum
allocation of .50 percent of the total amount appropriated in a fiscal
year. This will make the program fair for all States, including smaller
States like Vermont.
As DNA testing has moved to the front lines of the war on crime,
forensic laboratories nationwide have experienced a significant
increase in their caseloads, both in number and complexity. Funding has
simply not kept pace with this increasing demand, and forensic labs
nationwide are now seriously bottlenecked.
Backlogs have seriously impeded the use of DNA testing in solving
cases without suspects--and reexamining cases in which there are strong
claims of innocence--as labs are required to give priority status to
those cases in which a suspect is known. Solely for lack of funding,
critical evidence remains untested while rapists and killers remain at
large. The Debbie Smith DNA Backlog Grant Program will give States the
help they desperately need to carry out DNA analyses of backlogged
evidence, and I strongly support its passage and full funding.
Expansion of the Paul Coverdell Forensic Sciences Improvement Grant
Program: The bill also expands and extends for another three years an
existing grant program, named after our late colleague, Senator Paul
Coverdell. Congress passed the Paul Coverdell National Forensic
Sciences Improvement Act three years ago, with the goal of improving
the quality and timeliness of State and local forensic science
services. I was proud to cosponsor that legislation, and have worked
since its passage to secure full funding for the grant program it
establishes. Unfortunately, despite my efforts and those of other
Members, and notwithstanding the urgent pleas of lab directors
nationwide, the President has never requested funding for Paul
Coverdell grants, and Congress has never appropriated sufficient funds
to make the program effective. The legislation we introduce today
renews our commitment to this important initiative.
Our bill also expands the purposes for which Paul Coverdell grants
may be used, to include the elimination of a non-DNA forensic evidence
backlog. The need for this measure was highlighted earlier this year at
a subcommittee hearing on funding forensic sciences. Witness after
witness testified that DNA evidence is not the only evidence that is
going untested for lack of resources. Crime labs are also facing
substantial backlogs with respect to other types of forensic science
evidence, including firearms, latent prints, controlled substances,
toxicology, trace evidence, questionable documents, and forensic
pathology. We need to ensure that our labs are equipped to address the
full range of issues that they are called upon to handle.
We have had a constructive debate. We have shown that the death
penalty system is broken, and we have built a bipartisan coalition
supporting reforms. It is now time to act. Our bill reflects a
principled consensus on the most basic and essential reforms; it raises
no serious constitutional or law enforcement concerns; it will improve
criminal justice in America considerably; and it may well save innocent
lives. I am therefore proud to sponsor it, and I urge its speedy
passage into law.
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