[Congressional Record Volume 153, Number 63 (Thursday, April 19, 2007)]
[Senate]
[Pages S4729-S4744]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COURT SECURITY IMPROVEMENT ACT OF 2007
The PRESIDING OFFICER. The Senate will resume consideration of S.
378, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (S. 378) to amend title 18, United States Code, to
protect judges, prosecutors, witnesses, victims, and their
family members and for other purposes.
Mr. LEAHY. Mr. President, today we continue to debate and consider
the Court Security Improvement Act of 2007. It should not be a struggle
to enact this broadly supported consensus legislation. We made some
progress yesterday but failed to get to final passage of this important
legislation. I hope we can get there later today.
I would like to thank the majority leader for his support and
leadership on this bill. Senator Reid knows all too well about the need
for greater court security since the last courthouse tragedy occurred
in Nevada. Nobody has been a stronger supporter of this legislation. He
helped us pass similar protections twice last year. It is no surprise
to me that yesterday he met with the head of the U.S. Marshals Service.
Sadly, they reported a 17 percent increase in attacks this year. We
cannot delay our response any further in the face of this trend.
Senator Durbin, our assistant majority leader, has been consistently
dedicated to getting this legislation passed. The tragic murder of
Judge Lefkow's husband and mother in her home State of Illinois serves
as a terrible reminder of why we need this legislation. Senator Durbin
has worked tirelessly to prevent any further tragedies from befalling
our Federal judges.
As I have noted before, this legislation has broad bipartisan
support. Yesterday Senator Cornyn gave a powerful statement in support
of this legislation. Senator Cornyn is a former member of his State's
judiciary. I urge Members to consider his views and support for these
important provisions providing for increased security. Even the White
House has issued a supportive Statement of Administration Policy.
Yesterday a number of amendments were filed, but none of them was
relevant to the important purpose of court security. There will be
other opportunities to consider worthwhile amendments. I look forward
to working with Senator Coburn on Department of Justice reauthorization
later this year.
We made some progress yesterday. The Senate adopted the Kyl-Feinstein
amendment that was adopted in committee. I thank Senator Specter for
working with me on an important managers' amendment. That amendment
made several technical fixes and clarified our treatment and protection
of magistrate judges and the Tax Court judges.
Last night after significant debate we had a vote on an amendment
offered by Senator Coburn. Regretfully, it took from 10:30 a.m. to 5:30
p.m. for the Senator from Oklahoma to be ready to offer his amendment.
Once offered we dealt with it promptly.
I would like to thank Senator Whitehouse for helping me manage this
bill yesterday. His eloquent words in support of this legislation were
much appreciated.
I thank Senators Klobuchar and Brown for helping me manage this
legislation today during the Judiciary Committee's oversight hearing
with Attorney General Alberto Gonzales.
I hope that today we can finish our work on this important
legislation.
Mr. BROWN. Mr. President, I understand the Senator from Nevada has an
amendment he wishes to offer.
Amendment No. 897.
Mr. ENSIGN. Mr. President, I call up amendment No. 897.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. Ensign] proposes an amendment
numbered 897.
Mr. ENSIGN. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To amend title 28, United States Code, to provide for the
appointment of additional Federal circuit judges, to divide the Ninth
Judicial Circuit of the United States into 2 circuits, and for other
purposes)
At the end of the bill, add the following:
TITLE VI: NINTH CIRCUIT SPLIT
SEC. 601. SHORT TITLE.
This title may be cited as the ``The Circuit Court of
Appeals Restructuring and Modernization Act of 2007''.
SEC. 602. DEFINITIONS.
In this title:
(1) Former ninth circuit.--The term ``former ninth
circuit'' means the ninth judicial circuit of the United
States as in existence on the day before the effective date
of this title.
(2) New ninth circuit.--The term ``new ninth circuit''
means the ninth judicial circuit of the United States
established by the amendment made by section 603(2)(A).
(3) Twelfth circuit.--The term ``twelfth circuit'' means
the twelfth judicial circuit of the United States established
by the amendment made by section 603(2)(B).
SEC. 603. NUMBER AND COMPOSITION OF CIRCUITS.
Section 41 of title 28, United States Code, is amended--
(1) in the matter preceding the table, by striking
``thirteen'' and inserting ``fourteen''; and
(2) in the table--
(A) by striking the item relating to the ninth circuit and
inserting the following:
California, Guam, Hawaii, Northern Mariana Islands.''..................
and
[[Page S4730]]
(B) by inserting after the item relating to the eleventh
circuit the following:
Alaska, Arizona, Idaho, Montana, Nevada, Oregon, Washington.''.........
SEC. 604. JUDGESHIPS.
(a) New Judgeships.--The President shall appoint, by and
with the advice and consent of the Senate, 5 additional
circuit judges for the new ninth circuit court of appeals,
whose official duty station shall be in California.
(b) Temporary Judgeships.--
(1) Appointment of judges.--The President shall appoint, by
and with the advice and consent of the Senate, 2 additional
circuit judges for the former ninth circuit court of appeals,
whose official duty stations shall be in California.
(2) Effect of vacancies.--The first 2 vacancies occurring
on the new ninth circuit court of appeals 10 years or more
after judges are first confirmed to fill both temporary
circuit judgeships created by this subsection shall not be
filled.
(c) Effective Date.--This section shall take effect on the
date of the enactment of this Act.
SEC. 605. NUMBER OF CIRCUIT JUDGES.
The table contained in section 44(a) of title 28, United
States Code, is amended--
(1) by striking the item relating to the ninth circuit and
inserting the following:
``Ninth........................................................20''....
and
(2) by inserting after the item relating to the eleventh
circuit the following:
``Twelfth.....................................................14''.....
SEC. 606. PLACES OF CIRCUIT COURT.
The table contained in section 48(a) of title 28, United
States Code, is amended--
(1) by striking the item relating to the ninth circuit and
inserting the following:
Honolulu, Pasadena, San Francisco.''...................................
and
(2) by inserting after the item relating to the eleventh
circuit the following:
Las Vegas, Phoenix, Portland, Seattle.''...............................
SEC. 607. LOCATION OF TWELFTH CIRCUIT HEADQUARTERS.
The offices of the Circuit Executive of the Twelfth Circuit
and the Clerk of the Court of the Twelfth Circuit shall be
located in Phoenix, Arizona.
SEC. 608. ASSIGNMENT OF CIRCUIT JUDGES.
Each circuit judge of the former ninth circuit who is in
regular active service and whose official duty station on the
day before the effective date of this title--
(1) is in California, Guam, Hawaii, or the Northern Mariana
Islands shall be a circuit judge of the new ninth circuit as
of such effective date; and
(2) is in Alaska, Arizona, Idaho, Montana, Nevada, Oregon,
or Washington shall be a circuit judge of the twelfth circuit
as of such effective date.
SEC. 609. ELECTION OF ASSIGNMENT BY SENIOR JUDGES.
Each judge who is a senior circuit judge of the former
ninth circuit on the day before the effective date of this
title may elect to be assigned to the new ninth circuit or
the twelfth circuit as of such effective date and shall
notify the Director of the Administrative Office of the
United States Courts of such election.
SEC. 610. SENIORITY OF JUDGES.
The seniority of each judge--
(1) who is assigned under section 608, or
(2) who elects to be assigned under section 609,
shall run from the date of commission of such judge as a
judge of the former ninth circuit.
SEC. 611. APPLICATION TO CASES.
The following apply to any case in which, on the day before
the effective date of this title, an appeal or other
proceeding has been filed with the former ninth circuit:
(1) Except as provided in paragraph (3), if the matter has
been submitted for decision, further proceedings with respect
to the matter shall be had in the same manner and with the
same effect as if this title had not been enacted.
(2) If the matter has not been submitted for decision, the
appeal or proceeding, together with the original papers,
printed records, and record entries duly certified, shall, by
appropriate orders, be transferred to the court to which the
matter would have been submitted had this title been in full
force and effect at the time such appeal was taken or other
proceeding commenced, and further proceedings with respect to
the case shall be had in the same manner and with the same
effect as if the appeal or other proceeding had been filed in
such court.
(3) If a petition for rehearing en banc is pending on or
after the effective date of this title, the petition shall be
considered by the court of appeals to which it would have
been submitted had this title been in full force and effect
at the time that the appeal or other proceeding was filed
with the court of appeals.
SEC. 612. TEMPORARY ASSIGNMENT OF CIRCUIT JUDGES AMONG
CIRCUITS.
Section 291 of title 28, United States Code, is amended by
adding at the end the following:
``(c) The chief judge of the Ninth Circuit may, in the
public interest and upon request by the chief judge of the
Twelfth Circuit, designate and assign temporarily any circuit
judge of the Ninth Circuit to act as circuit judge in the
Twelfth Circuit.
``(d) The chief judge of the Twelfth Circuit may, in the
public interest and upon request by the chief judge of the
Ninth Circuit, designate and assign temporarily any circuit
judge of the Twelfth Circuit to act as circuit judge in the
Ninth Circuit.''.
SEC. 613. TEMPORARY ASSIGNMENT OF DISTRICT JUDGES AMONG
CIRCUITS.
Section 292 of title 28, United States Code, is amended by
adding at the end the following:
``(f) The chief judge of the United States Court of Appeals
for the Ninth Circuit may in the public interest--
``(1) upon request by the chief judge of the Twelfth
Circuit, designate and assign 1 or more district judges
within the Ninth Circuit to sit upon the Court of Appeals of
the Twelfth Circuit, or a division thereof, whenever the
business of that court so requires; and
``(2) designate and assign temporarily any district judge
within the Ninth Circuit to hold a district court in any
district within the Twelfth Circuit.
``(g) The chief judge of the United States Court of Appeals
for the Twelfth Circuit may in the public interest--
``(1) upon request by the chief judge of the Ninth Circuit,
designate and assign 1 or more district judges within the
Twelfth Circuit to sit upon the Court of Appeals of the Ninth
Circuit, or a division thereof, whenever the business of that
court so requires; and
``(2) designate and assign temporarily any district judge
within the Twelfth Circuit to hold a district court in any
district within the Ninth Circuit.
``(h) Any designations or assignments under subsection (f)
or (g) shall be in conformity with the rules or orders of the
court of appeals of, or the district within, as applicable,
the circuit to which the judge is designated or assigned.''.
SEC. 614. ADMINISTRATION.
The court of appeals for the ninth circuit as constituted
on the day before the effective date of this title may take
such administrative action as may be required to carry out
this title and the amendments made by this title. Such court
shall cease to exist for administrative purposes 2 years
after the date of enactment of this Act.
SEC. 615. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title, including funds for
additional court facilities.
SEC. 616. EFFECTIVE DATE.
Except as provided in section 604(c), this title and the
amendments made by this title shall take effect 12 months
after the date of enactment of this Act.
Mr. ENSIGN. Mr. President, we are debating a bill about court
security. The court security bill is about the administration of
justice. Some would argue that the amendment I have offered, while
relating to the courts, does not deal with court security. Both the
underlying bill and my amendment deal with the administration of
justice. There are provisions in the bill that are not strictly dealing
with court security, and I believe this is an appropriate place to talk
about this amendment and an appropriate time for the Senate to vote on
my amendment. It is something we have been working on for a few years.
My amendment recognizes that the ninth circuit, by far being the
largest circuit in the United States, is too large, the administration
of justice is too slow, and that the ninth circuit needs to be broken
up at this point. It needs to be split up so the people, such as the
people who live in the State of Nevada, can receive justice in a way
that is fair and that is also expeditious.
In the past, the United States has gotten to a point with other
circuits where we have decided that they are too large and need to be
split. Some have argued that splitting up the ninth circuit is for
ideological reasons, but that is not why I have offered this amendment.
Many who used to be opposed to splitting up the ninth circuit 5 or 10
years ago now understand that for the sake of the administration of
justice, the ninth circuit needs to be split up. It is by far and away
the largest circuit in the United States.
We have had testimony in front of the Judiciary Committee, and many
articles have been written, on why so many of the ninth circuit
decisions are overturned by the U.S. Supreme Court.
The Ninth Circuit, far and away, has more of its decisions overturned
by the Supreme Court than any other circuit. Well, Mr. President, we
had testimony that one of the reasons a lot of people believe that to
be the case is not that the jurists on the Ninth Circuit may be less
competent than those in other circuits, but that is because of the
overwhelming caseload, the circuit doesn't have the time to consider
the cases that other circuits do but the use of the en-banc panel,
instead of the full circuit, contributes to this problem.
[[Page S4731]]
Mr. President, 20 percent of the country is in the Ninth Circuit. It
is laden with immigration cases. It has too many cases per judge and,
because of that, too many of the cases that need to be heard in a
timely fashion are delayed. What our bill simply would do is to divide
the Ninth Circuit up in a very fair manner. We have put this through
judges and through studies and over the years we have modified it on
exactly how to break it up. If people disagree with how we are deciding
to break it up, we can talk about that. But the bottom line is that it
is too large of a circuit, and the Ninth Circuit needs to be split up.
I think all but one of the judges in the State of Nevada--by the way,
almost all these same judges used to be against splitting up the Ninth
Circuit. Today, nearly all of them have come out in favor of splitting
up the Ninth Circuit. The reason for that is we live in the fastest
growing area in the country. Nevada, in 18 out of the last 19 years, is
the fastest growing State. The other States in the Ninth Circuit,
including Arizona, California, Washington, Oregon, Idaho, all of these
States have booming populations. While we are the largest circuit in
the United States, it is going to get increasingly worse in the future,
as far as the size of the population, the number of cases per judge,
while overwhelming now, it is only going to get worse in the future.
I believe this is an amendment that should be discussed as a separate
bill on the floor. But we all know most bills cannot get time on the
Senate floor. So you have to take the opportunity to offer amendments
wherever you can. We have been trying to get this bill acted on for
years and years and years. We now have a vehicle, dealing with the
courts, where it is appropriate to offer this amendment. So that is why
I am offering this amendment today.
Mr. President, again, amendment No. 897 would split the Ninth Circuit
Court of Appeals. Because my home State of Nevada is under the
jurisdiction of the Ninth Circuit, I have taken particular interest in
how the Ninth Circuit functions. As a Senator from Nevada, I represent
people who are on both sides of this issue. I have heard arguments for,
and against, splitting the Ninth Circuit but, having listened to the
debate, have concluded that it is time for Congress to split the Ninth
Circuit.
The Ninth Circuit really has become too large to function as
efficiently as it should. The population of the States in the Ninth
Circuit is growing too fast for the circuit to manage its caseload.
Cases working their way through the Ninth Circuit take far too long to
come to resolution. The circuit is becoming increasingly dependent on
visiting judges, who are not as familiar with circuit precedent, to
manage its caseload. The reversal rate of cases heard by the Supreme
Court which on appeal from the Ninth Circuit is much higher than the
average of all Federal circuits. These problems require some form of
action by Congress and, having studied the issue, simply adding more
judges is not the solution.
Last year, the Judiciary Committee held a hearing on the issue of
splitting the Ninth Circuit. As several Federal judges who were
witnesses testified, adding more judges, in a circuit so geographically
large, is not going to adequately address the need for collegiality
among judges.
Mr. President, my primary motivation is to ensure that my
constituents, the people of Nevada, have equal access to justice. Equal
access to justice requires not only fair, but also prompt, resolution
of a case. From my perspective, the current backlog in cases and the
fact that the resolution of appeals takes far longer in the Ninth
Circuit than any other circuit demonstrates that Nevadans are not
guaranteed the promise that their claims will be heard with the same
timeliness as persons living in other circuits. The adage of ``justice
delayed is justice denied'' is appropriate with respect to the Ninth
Circuit delays.
I believe we should consider the cost that unreasonable delay causes
to the parties in a case. The lawyers and the judges live in this
system. To these people, delays are not only reasonable but they are
expected. A delay to someone who is part of the legal community is just
the way things are done. But that is not the case for litigants. Ask
any litigant whose case is waiting for a hearing on appeal. They take
being sued personally and would tell you that their lives are on hold.
They may fear they will lose their business, or their job, or their
livelihood. It really does not matter whether the case involves
business litigation, an immigration appeal, or a criminal matter.
If you talk to the parties to a case, they will tell you stories of
the economic, social, and psychological toll extended litigation has on
them and their families. That is why I am concerned about delays in the
process.
That is also why I believe that some groups have endorsed my bill.
For example, the Western States Sheriff's Association, which includes
Nevada, has endorsed splitting the Ninth Circuit. I believe that the
Association understands that America's law enforcement agencies have
been devoting scarce budget resources to monitoring and dealing with
criminal appeals that would otherwise be better devoted to protecting
America's families if only appeals cases were resolved sooner rather
than later.
I believe that it is not only the duty of Congress but also our
obligation to ensure that the Judicial branch is operating efficiently.
That is why we are considering the current legislation, the court
security bill, because we want to ensure that judicial branch operates
efficiently. And we know that it cannot, if those who work in the
system--our judges and our court officers--do not feel safe. That is
also why my amendment is so important.
I do not believe that splitting the Ninth Circuit would infringe on
the ``independence of the judiciary'' as some might suggest. The
Constitution provides Congress with the power to ``constitute'' or
establish ``tribunals inferior to the Supreme Court,'' and also gives
Congress the power to ``ordain and establish'' the lower Federal
courts. Acting in accordance with the Constitution, Congress has used
its authority to establish the Federal appeals courts and the Federal
district courts, as well as other Federal courts. Congress has the
ability to create courts of special jurisdiction, such as military
courts, bankruptcy courts, and tax courts, and to limit the appeals
jurisdiction of all Federal courts, including the Supreme Court of the
United States. The Constitution clearly provides that the people,
acting through their respective Congressional representatives, can
enact legislation to split the Ninth Circuit. The prerogative of
Congress to enact legislation to split the Ninth Circuit is consistent
with the role of Congress established by the Constitution. The idea of
splitting the Ninth Circuit is a proper action for Congress to take.
Finally, Mr. President, I would hope that Members of the Senate could
agree that, regardless of where each of us may be on this issue, we
could engage in an honest discussion and avoid attacking each other's
motives. I have read with great interest the statements of people on
the other side of this issue suggesting that split supporters, like
myself, are only ``politically motivated'' or that supporters of a
split are ``trying to punish'' the Ninth Circuit because of the
perception of the circuit's ideology. Nothing could be further from the
truth. I am sure the people who do not favor a split have likewise had
similar attacks directed at them. We should not condone that rhetoric
or impugn each others motives. I do not believe that it is in the
Senate's, or the Nation's, best interest to attack someone else's
motives. I have met with people on both sides of this issue and respect
their views.
Let me conclude by saying this. The saying is that justice delayed is
justice denied. In the Ninth Circuit that is what happens ever single
day. Nevadans experience justice delayed too often. We are putting more
and more of a burden on our Federal courts by the actions of the
Senate. We need to now take the responsibility to make sure our various
circuits around the country are not even more overburdened simply
because of population growth. That is what has happened, and will
continue to happen, in the Ninth Circuit. We have added a judge here
and there. But the overall size of the Ninth Circuit, even if you add
more judges, would not take care of the problems we are now
experiencing. Some have argued that adding more judges would fix the
problem, but it still would not
[[Page S4732]]
allow the full Ninth Circuit to hear many of the most difficult,
challenging cases. The judges of the ninth are not able to work
together as a full circuit and collaborate on some of the most
difficult, challenging judicial cases.
That is why it is better to split up this circuit, so that more
thoughtful decisions can be made in the administration of justice.
With that, I will yield the floor and ask my colleagues to support
this very important amendment.
The PRESIDING OFFICER (Ms. Klobuchar). The Senator from North Dakota
is recognized.
Mr. DORGAN. Madam President, April 22 marks the beginning of National
Crime Victims' Rights Week, an annual commemoration that has been
observed since the early 1980s to honor crime victims and call
attention to their plight.
We have an opportunity to provide full justice to many victims of
federal crime by passing legislation that will help federal criminal
justice officials more fully recover court-order restitution that is
owed to innocent crime victims. By ensuring victims receive the
restitution they are entitled to, our proposal truly reflects the theme
of this year's Crime Victims' Rights Week--Victim's Rights: Every
Victim, Every Time.
I intend to offer an amendment with Senator Grassley today that would
improve the collection of federal criminal debt. Our amendment is being
sent over to the floor at this point. I will describe it and the reason
for offering it.
The amendment will be one in the form of a bill, S. 973, which I
authored with my colleague, Senator Grassley. We introduced it with
Senators Durbin and Collins. It is called the Restitution for Victims
Of Crime Act. This piece of legislation will give Justice Department
officials the tools they say are needed to help them do a better job of
collecting court-ordered Federal restitution and fines.
In our court system in this country, there are, in many cases, fines
that are levied against defendants who are found guilty of a crime.
They are adjudged to be guilty and, therefore, are levied a fine by the
court. In many cases, they are required to make restitution through
orders of the court system. For some long while, I have been working on
this issue because I have discovered that in the Federal court system,
Justice Department data shows that the amount of uncollected criminal
debt--that is, fines and restitution--is growing out of control.
Believe it or not, the uncollected Federal criminal debt is nearly $46
billion. Think of that. It is almost $46 billion. These are fines that
have been levied in our Federal court system against defendants
adjudged to have been guilty. Restitution orders have been made that
require someone to make financial restitution; yet some $46 billion is
the amount of criminal debt that is unpaid. It is spiraling upward. It
was $41 billion just a year ago. When I first called attention to this
problem, it was well less than half of that. Yet very little has been
done.
In my State of North Dakota, the Federal courts have about $18.7
million of uncollected criminal debt. That is up some $4 million from
the preceding year. In my judgment, crime victims should not have to
worry if those in charge of collecting the restitution on their behalf
are making every effort to do so. We would expect that to be happening.
Yet it is not. In some cases, it is because the tools don't exist. In
some cases, it is because collecting the criminal debt has become kind
of the backwater of the U.S. Attorney's Office.
At my request, GAO reviewed five white-collar financial fraud cases.
What they have found is that certain offenders, those judged guilty,
had taken expensive trips abroad, traveled overseas; had fraudulently
obtained millions of dollars in assets and converted those assets to
personal use. GAO also found offenders who had established businesses
for their children; held homes and lived in homes worth millions of
dollars that were located in upscale neighborhoods. So here we have a
circumstance where we have people who have been judged guilty of
certain things by the Federal court system. They have been told you
have to pay a fine or you have to pay restitution. Yet despite the fact
that they have not made restitution or paid their fine, according to
the GAO evaluation at my request, some of them have decided we are not
going to pay those things, we are going to take a trip overseas, live
in multimillion dollar houses, we are going to transfer a business to
the children so federal justice officials cannot get at it.
All of this is going on at a time when victims are waiting for
restitution that has been ordered by the court. The proposal that
Senator Grassley and I have authored is a proposal based on a set of
recommendations, some from the Justice Department, some from the task
force on improving the collection of criminal debt. Justice Department
officials believe the changes we suggest will remove many of the
current impediments to better debt collection.
Our legislation offers the tools that we think are necessary, having
worked with Justice officials and others and victims' rights
organizations, to deal with these issues. Justice Department officials
describe, for example, a circumstance where they were prevented by a
court from accessing $400,000 in a criminal offender's 401(k) plan to
pay a $4 million restitution debt to a victim. Let me say that again.
This is an offender who was judged to be guilty and who had $400,000 in
a 401(k) plan. He has been ordered to pay a $4 million restitution debt
to a victim. The court said: No, you cannot take the $400,000 in the
401(k) plan because the defendant was complying with a $250 minimum
monthly payment plan, and that precluded any other enforcement actions.
So he is sitting there with nearly half a million dollars in liquid
assets, and the victim is sitting over here having been defrauded. The
court said you must pay restitution, and this person with nearly half a
million dollars in assets is paying $250 a month, and the court says
that is it, you cannot get the 401(k) funds from the victim. That is
not fair. Our proposal would remove impediments like this in the
future.
This legislation will address another major problem identified by the
GAO for officials in charge of criminal debt collection. Many years can
pass between the date a crime occurs and the date that a court will
order restitution. That gives criminal defendants an ample opportunity
to hide their ill-gotten gains. This bill sets up preconviction
procedures for preserving assets for victims' restitution. We set up
those preconviction circumstances--no, not to take the assets but at
least be sure they are going to be preserved in the event they are
needed for restitution.
These tools will ensure financial assets that are traceable to a
crime are going to be available when a court imposes a final
restitution order on behalf of a victim. These tools are similar to
those already used in some states and by Federal officials in certain
asset forfeiture cases. The Restitution for Victims Of Crime Act that I
have introduced in the Senate as S. 973, with Senator Grassley and
others, has been endorsed by a number of organizations that are
concerned about the well-being of crime victims and the rights of
victims to receive the restitution ordered by federal courts: National
Center for Victims of Crime, Mothers Against Drunk Driving, Parents of
Murdered Children, Justice Solutions, and many others.
The U.S. attorney in North Dakota has said this legislation
``represents important progress toward ensuring that victims of crime
are one step closer to being made whole.''
I have mentioned S. 973, and that is what I intend to offer as an
amendment to the court security bill. I recognize the legislation
itself doesn't deal with the narrower issue of the security of the
courts, but it certainly deals with the functioning of the courts and
the ability of a court to decide they are going to levy a fine or
impose a restitution order on a person judged guilty of a crime and
then be able to feel, at some point, they are going to be able to make
that happen.
I mentioned earlier U.S. Attorney's Offices, as most of us know, are
about investigating and prosecuting. They are involved when given
investigation capability or given the results of investigations. If
they believe a criminal act has occurred, they are involved in
preparing to go to court to prosecute criminal actions.
They have also been given the responsibility to collect fines and
restitutions. But the fact is, many U.S.
[[Page S4733]]
attorneys will admit they have a U.S. Attorney's Office that, by and
large, in the front of that office is engaged in prosecuting
wrongdoing, and in the back of that office, the collection of fines and
restitutions is not a high priority and, frankly, is difficult for many
of them.
I don't come here with harsh criticism in those circumstances. But I
do say we should not stand for it, the Justice Department should not
stand for it, and certainly victims should not stand for a circumstance
where some $46 billion in court-ordered fines and restitution remains
uncollected, while at least some are taking trips to London and have
$400,000 in 401(k) accounts, are hiding their assets by transferring
businesses to children, living in multimillion-dollar homes and
deciding they won't pay the fines, they won't pay the restitution, and
nothing much is going to happen to them because we are not very
aggressive on behalf of victims or on behalf of this country in getting
those fines and restitutions paid.
That is not the right course for this country. I plan offer the
amendment shortly to address this problem. I am checking with Senator
Grassley for his cosponsorship. As I indicated, he was the primary
cosponsor when we introduced the legislation earlier this year.
I hope that perhaps we can consider this legislation as an amendment
that would be added to the court security bill.
Regarding the court security bill, I am pleased this bill is before
the Senate. It is rather strange we had to have a recorded vote on
whether we would have a motion to proceed to go to a court security
bill, but I guess that is the strange, Byzantine circumstances of
legislative activities these days in the Senate.
Now that it is before the Senate, this is important business, and we
should proceed to consider amendments and then pass this legislation
and move to the other issues that are before us.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Brown). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from North Dakota is recognized.
Contracting Abuses
Mr. DORGAN. Mr. President, we are considering the court security
bill. At the moment, there is no one who wishes to speak on that
legislation. I wish to speak about the Senate Armed Services Committee,
which is now holding a hearing. I just finished testifying before the
Senate Armed Services Committee. I wish to talk about that testimony.
The Armed Services Committee, under the chairmanship of Senator Carl
Levin, is holding a hearing this morning on contracting abuses; that
is, contracting abuses in Iraq especially under what is called the
LOGCAP contract.
I testified that I chaired in the Democratic Policy Committee, over
the last 3 years, 10 hearings on these issues of contract abuses. I
suggested to the Armed Services Committee that they look into what is
not only called the LOGCAP, which is a logistic contract which, in this
case, Halliburton, or their subsidiary, KBR, provided certain logistics
assistance to the Department of the Army under a contract worth
billions of dollars, I suggested they also look into the RIO contract,
which is Restore Iraqi Oil contract.
I pointed out to them that the woman who rose to become the highest
contract official in the U.S. Corps of Engineers--she rose to become
the highest civilian contract official in the Army Corps of Engineers--
she said the awarding of the RIO contract, the Restore Iraqi Oil
contract--Restore Iraqi Oil is what RIO stands for--to Halliburton and
KBR was ``the most blatant contracting abuse I have seen in my entire
career.'' This is from the top civilian contracting officer.
What happened to her? She paid for that with her job. For that she
was demoted. Before she said that publicly, she was given outstanding
evaluations every year. Once she said publicly what she had told them
privately, and they ignored, they began the process of giving her
performance evaluations that were inferior for demotion.
A couple of nights ago, I called the general, now retired, who
brought this contracting officer in as the top civilian contracting
officer. I said: What's the story?
He said: She has been dealt an awful hand, and it has been very
unfair to her. She is a straight-shooter, she is competent, she speaks
the truth. The fact is, she is paying for telling the truth.
I suggested to the Armed Services Committee that this woman, named
Bunnatine Greenhouse, who had the courage to speak out against
contracting abuse, should be called to testify.
We ought to put a stop to this stuff that when someone in the Federal
Government speaks out and says there is abuse occurring, the taxpayers
are being abused, the soldiers are being disserved, that somehow they
injure their career by telling the truth. But let me go on.
I suggested the committee look into the RIO contract. I sent the
issues raised by Bunnatine Greenhouse, who paid for her honesty with
her job: she was demoted. I sent all that material to the inspector
general. Seventeen months ago, I got a letter from the inspector
general saying they received it, they looked into all those
allegations, it has now been referred to the Justice Department, it is
for their action, and because it is a criminal matter, they would not
comment further.
Obviously, they believed there was something that was serious. That
is the RIO, the Restore Iraq Oil contract.
There is another contract, and that is the purpose of the hearing
this morning, the LOGCAP contract, once again, given to Halliburton and
their subsidiary, Kellogg, Brown and Root. What I told them this
morning is what I found in 10 hearings. I held up a white towel, a
white hand towel that most would recognize. It hangs in the bathrooms
in most homes.
A man named Henry Bunting came to us. Henry Bunting was in Kuwait. He
was actually buying supplies for the troops in Iraq. Henry Bunting was
a purchaser for KBR in Kuwait. They said to Henry Bunting: Buy some
towels for the troops. So Henry goes about buying towels for the
troops. But then the supervisor said: No, you can't buy those towels.
You have to buy towels that have the embroidered name of KBR on the
towel, triple the cost. Henry said it would cost a lot of money. It
doesn't matter, the taxpayers are paying for this, cost plus. Triple
the price of the towels so you can put the embroidered initials of the
company on the towels.
How about $45 for a case of Coca-Cola? How about $7,500 a month to
lease an SUV? Henry Bunting told us about that as well.
I described the other issues. Rory Mayberry--Rory showed up at a
hearing. He was a food service supervisor for KBR in Iraq at a
cafeteria. He said he was told by his supervisor: Don't you dare talk
to Government auditors when they show up. If you do, you will get fired
or you will get sent to an active combat zone. Don't you dare talk to a
Government auditor.
He said: We routinely provided food to the soldiers that had expired
date stamps on it.
The supervisor said: It doesn't matter--the expired date stamps--feed
the expired food to the troops.
We know from previous press accounts that at one point that company
was charging for 42,000 meals a day to soldiers when they were actually
only feeding 14,000 soldiers. Rory said the same thing. Rory Mayberry,
a supervisor in one of the KBR food service situations in Iraq said
they were charging for meals for soldiers who weren't there, and the
supervisor said: We are doing that because we had lost money
previously, so now we are charging for meals that aren't being served
to soldiers.
How about an eyewitness to an $85,000 brand new truck left beside the
road in a noncombat zone in Iraq to be torched because they didn't have
the proper wrench to fix the tire? It doesn't matter, the American
taxpayer is going to buy the new truck, cost plus.
[[Page S4734]]
The list is almost endless. It is unbelievable the stories we have
heard from people who wish to come forward.
One company, the same company under the LOGCAP contract, was to
provide water to the military bases in Iraq--all of the bases. A
whistleblower came to me and said: I have something you should see. It
is a 21-page internal report, and it is written by a man named Will
Granger who is in charge of all water going to the bases in Iraq. He is
the KBR employee, Halliburton employee in charge of all water that goes
to the bases in Iraq.
He said instead of treating the water, nonpotable water which
soldiers use to shower, shave, sometimes brush their teeth, and so on,
instead of treating the water as it was supposed to have been treated
under the contract, the water was more contaminated with E coli and
bacteria than raw water from the Euphrates River.
He said: Here is the internal report. The internal report said this
was a near miss. It could have caused mass sickness or death.
That was from the internal report I had in my hand. The company said
it never happened. This is the internal report made by the man in the
company whose name is Will Granger, who said: Here is what we
discovered.
Just after I held the hearing and described this situation, I
received an e-mail from a young woman in Iraq who was an Army
physician. She said: I read about this hearing about the water issue,
the nonpotable water which was more contaminated than raw water from
the Euphrates River that was being used for nonpotable water for
soldiers. She said: It has happened on my base as well. She said: I
started seeing these illnesses, conditions with the soldiers, and I had
a lieutenant follow the waterline back. It is exactly the same
circumstance--untreated water. We were paying for it, and the company
wasn't doing what the contract requires, putting at risk those
soldiers. The company denied it happened, but it is in black and white.
The evidence exists.
I described these issues and other issues this morning to the Armed
Services Committee. I am pleased they are holding hearings. It is long
past the time for them to hold these oversight hearings finding out
what is happening and what we can do about it.
Mr. President, these are important issues. I commend Senator Levin,
Senator Warner, and all members of the Armed Services Committee for
taking a serious look at these issues. My interest is not in tarnishing
any company or anything like that. My interest is in making sure the
American taxpayers are not disserved, and they have been. And my
interest is the American soldiers are treated properly, and they have
not been. What I saw with the waste, fraud, and abuse with these
contracts, in my judgment, is a disservice to the American taxpayer and
a disservice to the country's soldiers, and the fact is, we can fix
this.
I will describe at a later time the legislation I have introduced
that deals with these contracting abuses so we can prevent them from
ever happening again.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. KLOBUCHAR. Mr. President, I am speaking in favor of S. 378, the
Court Security Improvement Act of 2007. I have had a personal
experience with court security issues when I was a prosecutor, the
chief prosecutor in Hennepin County.
We had a very tragic incident, where a woman who had emotional
difficulties came into our courthouse with a gun and gunned down a
woman--an innocent woman--who was the guardian of her father's estate
and was simply there to help. This had been a long-standing litigation
battle. She tracked her down at the courthouse and shot her to death,
and shot her own lawyer. Fortunately, he did not die. He survived. But
this happened only a few floors below my office. We went on to
prosecute this woman, and she was convicted and sentenced to life in
prison for the murder and an additional 15 years for the attempted
murder.
That is why I am such a strong proponent of this bill. The Court
Security Improvement Act will significantly improve our ability to
protect judicial officials and all those who help to protect the fair
and impartial justice system in America.
The bill is going to improve court security by, first, enhancing
measures that protect judicial personnel, witnesses, and family members
of judicial personnel. I should note there is a provision in the bill
that allows for State courthouses to apply for grants for things such
as witness protection.
I will say, coming from running an office of nearly 400 people, but
operating in a local court system as opposed to the Federal system,
there are increasing problems for local prosecutors with witness
protection. I can't even count the number of witnesses we had
threatened during trials. We had a juror threatened who actually had to
get off the case after a call was made to her home during a trial in a
gang case. We are seeing an increasing number of cases where we have
witnesses threatened. Obviously, we don't have the Federal Witness
Protection Program in a local district attorney's office, so I am very
pleased there are some provisions for this and some realization that
this is a growing issue.
This bill would also increase funding for judicial security at the
Federal and State levels. It would strengthen the relevant criminal
penalties. It would authorize funds for the U.S. Marshals Service for
judicial security. This is a good bill, and I stand in support of it.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SANDERS. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANDERS. I ask consent to speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Economy
Mr. SANDERS. Mr. President, we hear much from the Bush administration
and our Republican friends, almost on a daily basis, about how
wonderfully our economy is doing. I recall not so long ago being at a
Budget Committee hearing when we heard the Secretary of the Treasury,
Mr. Paulson, indicating in fact that the economy is doing ``just
marvelous.''
Yet, for obvious reasons, the American people do not seem to agree
with the Bush administration or with our Republican friends as to how
well the economy is doing. I ask unanimous consent to have printed in
the Record segments of two polls that were recently released, one by
CBS News and one by Gallup.
There being no objection, the material was ordered to be printed in
the Record, as follows:
CBS News Poll
[Conducted 4/9-12/07; surveyed 994 adults; margin of error 3%
(release, 4/15). A response of * indicates less than 0.5 percent.]
How about the economy? Do you approve or disapprove of the
way George W. Bush is handling the economy?
------------------------------------------------------------------------
Percent
-------------------------------
All Rep Dem Ind
------------------------------------------------------------------------
Approve................................. 36 66 13 33
Disapprove.............................. 57 27 79 60
Don't know/NA........................... 7 7 8 7
------------------------------------------------------------------------
How would you rate the condition of the national economy
these days? It is very good, fairly good, fairly bad or very
bad?
------------------------------------------------------------------------
Percent
-------------------------------
All Rep Dem Ind
------------------------------------------------------------------------
Very good............................... 8 19 1 5
Fairly good............................. 51 61 44 48
Fairly bad.............................. 28 15 38 30
Very bad................................ 11 4 15 15
Don't know/NA........................... 2 1 2 2
------------------------------------------------------------------------
Do you think the economy is getting better, getting worse
or staying about the same?
------------------------------------------------------------------------
Percent
-------------------------------
All Rep Dem Ind
------------------------------------------------------------------------
Better.................................. 11 24 4 7
Worse................................... 44 23 59 47
Same.................................... 44 52 36 45
Don't know/NA........................... 1 1 1 1
------------------------------------------------------------------------
Over the past 10 years, do you think life for middle class
Americans has gotten better or worse? (Percentage)
[[Page S4735]]
Better, 30
Worse, 59
Same (vol.), 7
Don't know/Refused, 4
In the past couple of years, would you say you have been
getting ahead financially, just staying even financially or
falling behind financially? (Percentage)
Getting ahead, 21
Staying even, 50
Falling behind, 27
Don't know/NA, 2
How much difficulty would you have if you had to pay an
unexpected bill of one thousand dollars right away--a lot, a
little, not much or none at all? (Percentage)
A lot, 43
A little, 24
Not much, 15
None at all, 17
Don't know/NA, 1
How concerned are you that you will have enough money to
pay for major expenses, for example, healthcare, tuition,
buying a home, and retirement? Are you very concerned,
somewhat concerned, not very concerned or not at all
concerned? (Percentage)
Very concerned, 46
Somewhat concerned, 33
Not very concerned, 14
Not at all concerned, 7
These last few questions are for background only. A
person's social class is determined by a number of things
including education, income, occupation and wealth. If you
were asked to use one of these five names for your social
class, which would you say you belong in--upper class, upper-
middle class, middle class, working class or lower class?
(Percentage)
Upper, 2
Upper middle, 13
Middle, 42
Working, 36
Lower, 7
Don't know/NA, 0
[From the Gallup Poll', Apr. 16, 2007]
Americans More in Favor of Heavily Taxing Rich Now Than in 1939
(By Frank Newport)
Princeton, NJ.--About half of Americans advocate heavy
taxation of the rich in order to redistribute wealth, a
higher percentage than was the case in 1939. More generally,
a large majority of Americans support the principle that
wealth should be more evenly distributed in America, and an
increasing number--although still a minority--say there are
too many rich people in the country. Attitudes toward heavy
taxes on the rich are strongly related to one's own income,
and Democrats are much more likely to be in favor of income
redistribution than are Republicans.
Basic Trends
A poll commissioned by Fortune Magazine in 1939 and
conducted by famous pollster Elmo Roper included a question
phrased as follows:
``People feel differently about how far a government should
go. Here is a phrase which some people believe in and some
don't. Do you think our government should or should not
redistribute wealth by heavy taxes on the rich?''
At that time, near the end of the Depression, only a
minority of Americans, 35%, said the government should impose
heavy taxes on the rich in order to redistribute wealth. A
slight majority--54%--said the government should not. (Eleven
percent did not have an opinion.)
Gallup asked this question again in 1998 and found the
percentage willing to say that the government should
redistribute wealth had gone up by 10 points (while the ``no
opinion'' responses had dropped to 4% and the negative stayed
slightly above 50%).
Now, the attitudes have shifted slightly again, to the
point where Americans' sentiment in response to this question
is roughly split, with 49% saying the government should
redistribute wealth by heavy taxes on the rich, and 47%
disagreeing.
People feel differently about how far a government should
go. Here is a phrase which some people believe in and some
don't. Do you think our government should or should not
redistribute wealth by heavy taxes on the rich?
------------------------------------------------------------------------
Percent
---------------------------
No,
Yes, should No
should not opinion
------------------------------------------------------------------------
April 2 to 5, 2007.......................... 49 47 4
April 23 to May 31, 1998.................... 45 51 4
March 1939 \1\.............................. 35 54 11
------------------------------------------------------------------------
\1\ Roper for Fortune Magazine.
One must be cautious in interpreting changes between the
1939 poll, which was conducted using different sampling and
methods than is the case today, and the current poll. It does
appear safe to say, however, that based on this one question,
the American public has become at least somewhat more
``redistributionist'' over the almost seven decades since the
end of the Depression.
The current results of this question are in line with a
separate Gallup question that asks whether various groups in
American society are paying their fair share of taxes, or too
much or too little. Two-thirds of Americans say ``upper-
income people'' are paying too little in taxes.
As I read off some different groups, please tell me if you
think they are paying their FAIR share in federal taxes,
paying too much or paying too little?
Upper-income people:
------------------------------------------------------------------------
Percent
----------------------------------
Fair Too Too No
share much little opinion
------------------------------------------------------------------------
April 2 to 5, 2007................... 21 9 66 4
April 10 to 13, 2006................. 21 8 67 4
April 4 to 7, 2005................... 22 7 68 3
April 5 to 8, 2004................... 24 9 63 4
April 7 to 9, 2003................... 24 10 63 3
April 6 to 7, 1999................... 19 10 66 5
April 9 to 10, 1996.................. 19 9 68 4
April 16 to 18, 1994................. 20 10 68 2
March 29 to 31, 1993................. 16 5 77 2
March 26 to 29, 1992................. 16 4 77 3
------------------------------------------------------------------------
There is no trend on this question going back to the 1930s,
but the supermajority agreement that upper-income people pay
too little in taxes has been evident for the last 15 years.
More on attitudes toward wealth and the rich:
The most recent Gallup Poll included two other questions
measuring attitudes toward wealth and the rich.
Do you feel that the distribution of money and wealth in
this country today is fair, or do you feel that the money and
wealth in this country should be more evenly distributed
among a larger percentage of the people?
------------------------------------------------------------------------
Percent
-----------------------------------------
Should be more
Distribution evenly No
is fair distributed opinion
------------------------------------------------------------------------
April 2 to 5, 2007............ 29 66 5
January 10 to 12, 2003........ 31 63 6
September 11 to 13, 2000...... 38 56 6
April 23 to May 31, 1998...... 31 63 6
April 25 to 28, 1996.......... 33 62 5
May 17 to 20, 1990............ 28 66 6
December 7 to 10, 1984D31..... 60 9
------------------------------------------------------------------------
The results of this question, asked seven times over the
past 23 years, have consistently shown that Americans are
strongly in favor of the principle that money and wealth in
this country should be more evenly distributed. The current
66% who feel that way is tied for the highest reading on this
measure across this time period in which the question has
been asked.
A separate question asked:
As far as you are concerned, do we have too many rich
people in this country, too few, or about the right amount?
------------------------------------------------------------------------
Percent
----------------------------------------
Right No
Too many Too few amount opinion
------------------------------------------------------------------------
April 2 to 5, 2007............. 37 17 40 6
April 23 to May 31, 1998....... 25 20 50 5
May 17 to 20, 1990............. 21 15 55 9
------------------------------------------------------------------------
Here we have evidence of a growing resentment toward the
rich. The percentage of Americans who say there are too many
rich people in the United States--although still a minority--
is up significantly from the two times in the 1990s when this
question was asked.
In summary, the data show that:
A significant majority of Americans feel that money and
wealth should be distributed more equally across a larger
percentage of the population.
A significant majority of Americans feel that the rich pay
too little in taxes.
About half of Americans support the idea of ``heavy'' taxes
on the rich to help redistribute wealth.
Almost 4 out of 10 Americans flat-out say there are ``too
many'' rich people in the country
Implications
Most societies experience tensions revolving around
inequalities of wealth among those societies' members. This
seemingly inevitable fact of life has been at the core of
revolutions throughout history. American society has been
immune from massive revolts of those at the bottom end of the
spectrum in part because the public perceives that the United
States is an open society with upward social mobility. A
recent Gallup Poll found a majority of Americans believing
that people who make a lot of money deserve it, and that
almost anyone can get rich if they put their mind to it. And
a 2003 Gallup Poll found that about a third of Americans,
including a significantly higher percentage of younger
Americans, believed that they themselves would one day be
rich.
The findings reviewed in this report most likely reflect at
least in part the fact that it is easy to advocate greater
taxation of the rich, since most Americans do not consider
themselves rich.
In fact, a 2003 Gallup Poll found that the median annual
income that Americans considered ``rich'' was $122,000. Since
the average income in America is markedly below that, it
follows that most Americans do not consider themselves rich.
(Eighty percent of Americans put themselves in the middle
class, working class, or lower class. Only 1 % identify
themselves as being in the upper class, while 19% are willing
to say the upper middle class.)
The data show that as one gets closer to being what
Americans consider rich, one is also less interested in the
rich being taxed heavily. This relationship is fairly linear;
the more money one makes in general, the more likely one is
to say that the government should not be imposing heavy taxes
on the rich.
People feel differently about how far a government should
go. Here is a phrase which some people believe in and some
don't. Do you think our government should or should not
redistribute wealth by heavy taxes on the rich?
[[Page S4736]]
------------------------------------------------------------------------
Percent
-----------------
Income No,
Yes, should
should not
------------------------------------------------------------------------
$75,000+.............................................. 35 62
$50,000 to $75,000.................................... 46 51
$30,000 to $50,000.................................... 58 41
$20,000 to $30,000.................................... 55 42
$20,000............................................... 64 26
------------------------------------------------------------------------
There are also political differences in views on heavy
taxes on the rich. Democrats are more than twice as likely as
Republicans to agree that the government should redistribute
wealth by heavy taxes on the rich.
People feel differently about how far a government should
go. Here is a phrase which some people believe in and some
don't. Do you think our government should or should not
redistribute wealth by heavy taxes on the rich?
------------------------------------------------------------------------
Percent
-----------------
Party No,
Yes, should
should not
------------------------------------------------------------------------
Republican............................................ 30 68
Independent........................................... 51 43
Democrat.............................................. 63 32
------------------------------------------------------------------------
Bottom Line
Americans in general agree with the concept that money and
wealth should be distributed more equally in society today,
and that the upper-income class of Americans do not pay their
fair share in taxes. About half of Americans are willing to
go so far as advocate ``heavy taxes'' on the rich in order to
redistribute wealth. These findings are despite the belief of
many Americans that the rich deserve their money and the
hopes Americans themselves harbor that they will be rich some
day.
From a political viewpoint, these data suggest that a
political platform focused on addressing the problems of the
lower and middle classes contrasted with the rich, including
heavier taxes on the upper class, could meet with significant
approval, particularly among Democrats and those with lower
incomes.
Survey Methods
These results are based on telephone interviews with a
randomly selected national sample of 1,008 adults, aged 18
and older, conducted April 2-5, 2007. For results based on
this sample, one can say with 95% confidence that the maximum
error attributable to sampling and other random effects is 3
percentage points. In addition to sampling error, question
wording and practical difficulties in conducting surveys can
introduce error or bias into the findings of public opinion
polls.
Mr. SANDERS. When the American people were asked by CBS News the
question, ``Do you think the economy is getting better, getting worse
or staying about the same?'' 11 percent of the American people said the
economy is getting better, 44 percent thought it was getting worse, and
44 percent thought it was about the same.
Then, interestingly, in that same poll, when the American people were
asked by CBS the question, ``Over the past 10 years, do you think life
for middle class Americans has gotten better or worse?'' 30 percent
said life has gotten better, 59 percent, almost a 2-to-1 margin, said
life is getting worse, and 7 percent said the same.
Technology has exploded in recent years. Our workers are far more
productive than used to be the case. Yet by a 2-to-1 margin the
American people have said that life for the middle class is getting
worse, not better.
In terms of the Gallup Poll, the Gallup people, from April 2 to April
5, asked some very interesting questions that we very often do not
speak about here on the floor of the Senate. In my view, what we have
seen since President Bush has been in office, in a general sense, is
the shrinking of the middle class, an increase in poverty, and a
growing gap between the rich and the poor--not something we talk about
terribly often on the floor of the Senate, not something that is talked
about terribly often in the corporate media. But here is the question,
very interestingly, that Gallup asked the American people, between
April 2 and April 5: ``Do you feel that the distribution of money and
wealth in this country today is fair, or do you feel that the money and
wealth in this country should be more evenly distributed among a larger
percentage of the people?'' Answer: Distribution is fair, 29 percent;
should be more evenly distributed, 66 percent.
Then the next question they asked, which was rather a clumsy
question, I thought, and I was surprised by the answer, but this was
the question. Question: ``People feel differently about how far a
government should go. Here is a phrase which some people believe in and
some don't. Do you think our Government should or should not
redistribute wealth by heavy taxes on the rich?''
That is a pretty clumsy question. Do you know what the answer was to
that rather clumsy question? Yes, should redistribute wealth, 49
percent; no, should not, 47 percent.
I mention this poll because it is important to understand that
despite a lot of the rhetoric we hear from the White House and on the
floor of the Senate, the American people understand that in terms of
our economy, something is fundamentally wrong. They understand it
because they are living the experience of working longer hours for
lower wages; of working day after day, trying to pay the bills for
their family, trying to send their kids to college, trying to take care
of health care, trying to provide childcare for their kids. They know
the reality of the economy because they are the economy.
Every single day the people of our country are seeing an economy
which is forcing them in many instances to work longer hours for lower
wages, an economy in which they wonder how their kids are going to be
able to go to college, able to afford college; an economy in which they
worry that for the first time in the modern history of our country,
their children will see a lower standard of living than they do. That
is the reality of the economy, in the eyes, I believe, of millions of
American workers.
That perception that the American worker has of the economy is, in my
view, the correct perception of what is going on. Since George W. Bush
has been President, more than 5 million Americans have slipped into
poverty, including 1 million children. This country now has the very
dubious distinction of having by far the highest rate of childhood
poverty of any major industrialized country on Earth. How do you have a
great economy, a booming economy, when 5 million more Americans have
slipped into poverty? Median income has declined in our country for 5
years in a row. Americans understand that the economy is not doing well
when the personal savings rate is below zero, which has not happened
since the Great Depression. How do we talk about a strong economy when
7 million Americans have lost their health insurance since President
Bush has been in office, and when we now have, unbelievably, 47 million
Americans who have no health insurance at all?
How can anybody come to the floor of the Senate, or anybody in the
Bush administration talk about a strong economy, when we have 47
million Americans who have no health insurance at all; when 35 million
Americans in our country, the richest country in the history of the
world, struggled to put food on the table last year; and the number of
the poorest, most hungry Americans keeps getting larger? The American
people understand this is not an economy that is working for ordinary
people. In this economy today, more and more of our brothers and
sisters, our fellow Americans, are going hungry. Let's not talk about a
booming economy when we have children in America who are hungry.
Mr. President, you and I have heard, over and over again, people
talking about the importance of education for this country. Yet
millions of working families do not know how they are going to be able
to send their kids to college when the cost of college education is
soaring, when the average person graduating a 4-year college leaves
that school $20,000 in debt, when hundreds of thousands of young people
are now giving up the dream of going to college because they don't want
to come out deeply in debt? How do we talk about a booming economy when
so many of our young people, some of the brightest, most able of our
young people, are giving up the dream of going to college? How do you
compete on the international and global economy if so many of our young
people are not able to get the kind of education they need?
When we talk about a booming economy, how does that correlate with
the fact that our manufacturing infrastructure is falling apart, that
since President Bush has been in office we have lost over 3 million
good manufacturing jobs, and when people go out to the store to shop,
when they look at the product, they know where that product is
manufactured today? It is not manufactured in the United States. Over
and over again they see it is manufactured in China.
[[Page S4737]]
We have a trade deficit now of over $700 billion. In my small State
of Vermont, not a manufacturing center, we lost 20 percent of our
manufacturing jobs in the last 5 years and that phenomenon is going on
all over this country. How do you have a booming economy when we are
losing huge numbers of good-paying manufacturing jobs and we are on the
cusp of losing millions of good-paying, white-collar information
technology jobs?
Three million fewer American workers today have pension coverage than
when President Bush took office. Half of private sector American
workers have no pension coverage whatsoever. How does that speak to a
strong economy? It was not so many years ago that workers understood
that when they left their job, there would be a defined pension
available to them. They knew what they were getting. Today, those days
seem like ancient history. Fewer and fewer workers have solid pensions
on which to depend.
What is important to understand is, while poverty is increasing,
while the middle class is shrinking, while more and more people are
losing their health insurance, while hunger is growing in America,
while good-paying jobs are going to China, the truth is not all is bad
in the American economy. We have to acknowledge that. Are there some
people who in fact are doing well? The answer is yes. Today, the simple
truth is the top 1 percent of the families in our country have not had
it so good since the 1920s. When that poll I mentioned from Gallup
talks about the American people wanting to seek an understanding of the
unfair distribution of wealth, this is precisely what they are
referring to.
Today in the United States we have by far the most unequal
distribution of income and wealth of any major country on Earth. Let me
highlight very briefly a recent study done by Professor Emmanuel Saez
from the University of California-Berkeley and Professor Thomas Piketty
from the Paris School of Economics. This is what they found. In 2005,
while average incomes for the bottom 90 percent of Americans declined
by $172, the wealthiest one one-hundredth of 1 percent reported an
average income of $25.7 million, a 1-year increase of $4.4 million.
In other words, for the people at the very top, a huge increase in
their income, while 90 percent of the American people saw a decline.
The gap between the rich and the poor, the rich and the middle class,
continues to grow wider.
The top 1 percent of Americans received, in 2005, the largest share
of national income since 1928. And some people may remember what
happened in 1929. The top 300,000 Americans now earn nearly as much
income as the bottom 150 million Americans combined.
You and I have heard many of our friends here on the other side of
the aisle talk about how much the wealthy are paying in taxes. My, my,
my. Yet the reason for that is what we are seeing is, with the decline
of the middle class, a huge increase in the percentage of the income
being made by the people on top. Let me repeat it. The top 300,000
Americans now earn nearly as much income as the bottom 150 million
Americans. Is that the kind of country we really want to become, with
so few having so much and so many having so little? I do not think that
is the America most people want to see us evolve into, an oligarchic
form of society. That is wrong.
According to Forbes magazine, the collective net worth of the
wealthiest 400 Americans increased by $120 billion last year to $1.25
trillion--$1.25 trillion for the wealthiest 400 Americans. That is an
astounding number. The reality is that in America today, we have the
people on the top who have more income, in some cases, than they are
going to be able to spend in a thousand lifetimes, while people in
Vermont, people in Ohio, people in Minnesota, people all over our
country are struggling so hard to provide basic needs for their
families.
One of the reasons the gap between the rich and the poor is growing
wider and why we now have by far the most unequal distribution of
income and wealth of any major country is due to the passage of massive
tax breaks for millionaires and billionaires since President Bush has
been in office.
Now, you stop and you take a look at the needs of the people of our
country in the most basic sense.
Hunger is increasing. Well, what do we think? Should we eliminate
hunger in America or do you give tax breaks to billionaires? I don't
think too many people would disagree with what we should be doing.
We have a crisis in affordable childcare in America. We have single
moms, working families, both parents going to work, trying to provide
well for their 2-year-old, 3-year-old. They cannot provide affordable
childcare. The Federal Government provides totally inadequate
childcare. Do we increase funding for childcare or do we give tax
breaks to millionaires?
We are all aware of the scandal at Walter Reed Hospital. We are all
aware of the outrageously inadequate way we treat our veterans, men and
women who put their lives on the line defending this country. Yet when
they come home from Iraq, there is inadequate care at the hospital at
Walter Reed and inadequate care and waiting lines at VA hospitals all
over America. What is our priority? Do we take care of our veterans or
do we give tax breaks to millionaires and billionaires?
In America, millions of children do not have any health insurance.
What are our priorities?
People are paying 50 percent of their limited income for housing
because we are not building affordable housing. What are our
priorities?
We have a major crisis in global warming. We should be investing in
sustainable energy, energy efficiency, not giving tax breaks to
billionaires. What are our priorities?
Let me conclude by saying that I think the American people, on issue
after issue, are far ahead of where we are in Congress. So we are going
to have to work very hard to catch up to where the American people are.
I think we should begin the process of doing that.
We need to fundamentally change our national priorities. We have to
have the courage now to stand up to the wealthiest people and the
largest corporations and say to those people: The free ride is over.
Our job is to represent the middle class, working families, the lower
income people who are not getting justice from the Congress. When we
stand and do the right thing for the middle class and working families
of this country, I believe we are going to see a significant increase
in the respect this body receives.
Mr. President, I yield the floor.
Ms. KLOBUCHAR. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BROWN. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
Mr. BROWN. Mr. President, I rise in support of this crucial
legislation. I want to read into the record a statement from the Bush
administration in support of the bill. It is from the Executive Office
of the President, Statement of Administration Policy:
The Administration supports Senate passage of S. 378 to
strengthen judicial security. The legislation would enhance
the ability of the Federal government to prosecute
individuals who attack or threaten participants in the
Nation's judicial system, including judges, lawyers,
witnesses, and law enforcement officers. A Nation founded on
the rule of law must protect the integrity of its judicial
system, which must apply the law without fear or favor. The
Administration also supports the provision to prohibit the
filing of false liens against judges, prosecutors, and other
government officials to retaliate against them for the
performance of their official duties.
Another of the most important provisions of this bill was brought to
our attention by Judge Carr of the Northern District Court in Toledo,
OH. Judge Carr pointed out the importance of section 101 that
``enhances the ability of the Judicial Conference of the United States
to participate in determining the security needs of the judicial branch
by requiring the Director of the U.S. Marshals Service . . . to consult
with the Judicial Conference on an ongoing basis regarding the security
requirements of the judicial branch.''
This legislation makes sense for a variety of reasons. Not only must
our judges be protected, but they must have a seat at the table in
determining
[[Page S4738]]
the safety of our Federal courthouses and the personal safety of the
employees of the Federal judiciary and the participants who come in
front of the Federal bench.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN. Madam President, I ask unanimous consent the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so
ordered.
Mrs. FEINSTEIN. Madam President, I rise in strong opposition to the
amendment before us that will split the Ninth Circuit. We will be
voting on a point of order at 2 o'clock.
I think it is very unfortunate that the pending bill, to make much-
needed improvements in the security of our judges, is being threatened
by a rehashing of an old and bad idea to split the circuit. There is a
raft of reasons why the Senate should defeat this effort to divide the
Ninth Circuit. First, it would be a serious blow to judicial
independence if the circuit were to be split because of disagreement
with its decisions. It would also result in an unfair distribution of
the Ninth Circuit caseload. Judges in the new Ninth Circuit would be
much more busy than their counterparts on the Twelfth Circuit. The
proposal that is being made by Senator Ensign essentially takes
California, Hawaii, Guam, and the Mariana Islands and puts them into
their own Ninth Circuit, and takes all the big continental States that
are now part of the Ninth Circuit and creates a Twelfth Circuit. That
is the proposal that is before the body now.
This proposal would also destroy the current uniformity of the law in
the West. It would have significant costs that the judiciary cannot
afford to bear, given its already tight budgets, and it is opposed by
the vast majority of the people who know the circuit best: its judges.
Virtually overwhelmingly I think all but three or four of the judges in
the Ninth Circuit oppose its splitting.
I agree with many of the Ninth Circuit's decisions. I disagree with
some of them. However, the Framers of the Constitution intended the
judiciary to be independent and free from congressional or Presidential
pressure or reprisal. I am concerned that recent attempts to split the
Ninth Circuit are part of an assault on the independence of the
judiciary by those who disagree with some of the court's rulings.
As former Gov. Pete Wilson has stated:
These attempts are judicial ``gerrymandering,'' designed to
isolate and punish judges whose decisions some disagree with.
They are antithetical to the Constitution.
That is not me saying that; that is the former Republican Governor of
California.
Attempting to coerce or punish judges or rig the system is not an
appropriate response to disagreements with a court's decisions. Rather,
it is essential that we preserve our system of checks and balances and
make it clear that politicians will not meddle in the work of judges.
The configuration of the Ninth Circuit is not set in stone; however,
any change to the Ninth Circuit should be guided by concerns of
efficiency and administration, not ideology.
After a substantial review of the statistics, decisions, and reports
from those who know the circuit best, it is clear that splitting the
Ninth Circuit would hinder its mission of providing justice for the
people of the West.
The split proposal before us would unfairly distribute judicial
resources to the West. This is the key. The Ninth Circuit would keep 71
percent of the caseload of the current circuit but only 58 percent of
its permanent judges. Any split we look at, because California is so
big, tilts the circuit and, of course, all of the proponents of the
circuit split take the judges with them. So it leaves a
disproportionate share of a heavy caseload in the Ninth Circuit--unless
you split California, and to split California creates a host of
technical and legal problems.
Last year, the Ninth Circuit had a caseload of 570 cases per judge,
as opposed to a national average of 381 cases per judge. So under the
proposed split, the Ensign plan, the average caseload in the new Ninth
Circuit would actually increase to 600 cases per judge, while the new
Twelfth Circuit would have half that, 326 cases per judge. There is no
effort to give the Ninth the new judges they would need to keep the
caseload even. This inequitable division of resources would leave
residents of California and Hawaii facing greater delays and with court
services inferior to their Twelfth Circuit neighbors.
The uniformity of law in the West is a key advantage of the Ninth
Circuit, offering consistency to States that share many common
concerns. The size of the Ninth Circuit is an asset, offering a unified
legal approach to issues from immigration to the environment. Dividing
the circuit would make solving these problems even more difficult. For
example, splitting the circuit could result in different
interpretations in California and Arizona of laws that govern
immigration, different applications of environmental regulations on the
California and Nevada sides of Lake Tahoe, and different intellectual
property law in Silicon Valley and the Seattle technology corridor.
These differences would have real economic costs. These are border
States, and trade and commerce in the Pacific is a huge part of what
they do. Therefore, the legal consistency between them is an asset, not
a disadvantage.
In a time of tight judicial budgets, splitting the circuit would add
significant and unnecessary expense. The split actually would require
additional Federal funds to duplicate the current staff of the Ninth
Circuit and a new or expanded courthouse and an administrative building
since existing judicial facilities for a Twelfth Circuit are
inadequate. The Administrative Office of the U.S. Courts estimated that
creating a Twelfth Circuit would have a startup cost of $96 million,
with another $16 million in annual recurring cost.
If we are going to do anything, what we need is more judges on the
Ninth Circuit. That is the key. With budget pressures already forcing
our Federal courts to cut staff and curtail services, this is no time
to impose new, unnecessary costs on the judiciary.
My colleague, Senator Barbara Boxer, joins me in these remarks. She
will have a separate statement.
Those who know the Ninth Circuit best overwhelming oppose the split.
Of the active Ninth Circuit Court of Appeals judges, 18 oppose the
split, to be exact, and only 3 support it. The district court and
bankruptcy judges of the Ninth Circuit also oppose the split. Every
State bar association that has weighed in on the split--Alaska,
Arizona, Hawaii, Montana, Nevada, Oregon, and Washington--opposes
breaking up the Ninth Circuit, and more than 100 different national,
regional, and local organizations have written to urge that the Ninth
Circuit be kept intact.
I believe splitting the Ninth Circuit would create more problems
right now than it would solve. It will not solve the caseload problem
of the circuit, and that is the critical issue. Those who propose the
split do so to unfairly benefit themselves because they also take the
judges from the Ninth Circuit and they add them to the Twelfth Circuit.
They would end up having a caseload per judge of one-half of what the
caseload would be in a new Ninth Circuit. So it is not a fair plan
because it does not fairly distribute the resources based on caseload.
I believe there is only one criterion for resources, and that is
caseload. The judges must be where the cases are, and that should be an
inescapable truth that we follow.
I urge the Senate to vote to sustain the point of order on the Ensign
amendment to split the Ninth Circuit, and instead let's focus our
attention on securing the courts and then, secondly, providing the
judges who are necessary to equalize caseloads throughout the Nation.
Mr. President, I raise a point of order that the pending amendment
violates section 505(a) of H. Con. Res. 95, the concurrent resolution
on the budget for fiscal year 2004; that at 2 p.m. today, a vote occur
on Senator Ensign's motion to waive the point of order, considered made
by this agreement, with the time until 2 p.m. equally divided and
controlled between Senators Feinstein and Ensign or their designees;
that if the motion to waive the Budget Act is not successful, then
without further intervening action or debate, the bill be read a third
time and the Senate vote
[[Page S4739]]
on passage of the bill; that if the motion to waive the Budget Act is
successful, the provision on third reading and passage be vitiated.
I ask that the preceding be done by unanimous consent.
The PRESIDING OFFICER. (Mr. Salazar). Without objection, it is so
ordered.
Mrs. FEINSTEIN. Mr. President, I yield the floor, and I suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SPECTER. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I urge my colleagues to sustain the
budget point of order because the underlying amendment, which would
split the Court of Appeals for the Ninth Circuit, is not yet ripe for
consideration by this body. The issue is a very complicated one as to
what will happen with the Ninth Circuit. It is admittedly too large at
the present time, but we have a lot of analysis to do as to which
States ought to be in which divisions. It is an issue which the
Judiciary Committee has wrestled with for some time. We took it up in
the 109th Congress. The two confirmations of Chief Justice Roberts and
Justice Alito took a great deal of time, as did the PATRIOT Act, and
our bankruptcy legislation and class action reform, the confirmation
process generally. I know Senator Leahy, as chairman, plans to take up
this issue as soon as we can do so. We are not ripe for action.
When we finish the next vote, we will be taking up final passage on
the Court Security Act. I urge my colleagues to pass this important
legislation. There is no doubt that there is a real threat to judges.
We have seen violence right in the courtroom. We have seen violence
against family members of Federal judges. We have seen the
extraordinary situation that in April of 2005, cookies with rat poison
were mailed to each of the nine Supreme Court Justices, also to FBI
Director Robert Mueller, and others in the Federal establishment.
The core legislation was introduced during the 109th Congress in
November 7, 2005. It passed unanimously. We need to pass it now to make
some very important changes to provide for the security of our Federal
judges.
I see the arrival of the Senator from California who has raised a
budget point of order. I know we plan to vote imminently.
Mr. BAUCUS. Mr. President, I rise to express my opposition to the
Ensign amendment. Splitting the circuit would have detrimental effects
on the West--in particular, in my home State of Montana. Splitting the
Ninth Circuit would eliminate uniformity of law in the West. States
sharing common concerns such as the environment and Native American
rights could end up with different rules of law. This would create
confusion and cause serious problems between States.
And splitting the Ninth Circuit would impose huge new costs. A split
would require new Federal funds for courthouses and administrative
buildings. Existing judicial facilities are just not equipped for a new
circuit. The Administrative Office estimates these start-up costs to be
$96 million, and then $16 million in annual recurring costs under the
proposed split. The judiciary budget is already stretched thin. The
creation of a new and costly bureaucracy to administer the new circuit
would just add to our growing deficit. And this proposal does not have
the support of the people whom it will most directly affect.
Judges on the circuit oppose the split. Members of the State bars
affected by the split oppose it. And almost 100 Federal, State, and
local organizations oppose splitting the Ninth Circuit. Only 3 of the
26 active judges on the Ninth Circuit favor splitting the circuit. Many
State bars oppose this proposal including Alaska, Washington, Nevada,
Hawaii, and Arizona. Even the Federal Bar Association and the appellate
section of the Oregon bar feel strongly that we should not split the
Ninth Circuit. The State Bar of Montana does not support this proposal.
The Montana bar unanimously passed a resolution opposing division of
the Ninth Circuit.
We ought to be listening to the people on the ground who deal with
this issue every day, not creating hardship from our offices in DC.
Let's be frank here. The motivation behind splitting the circuit is
political. It is an attempt to control the decisions of the judiciary
by rearranging the bench. The judiciary is supposed to be an
independent branch of government. It must remain so. Splitting the
circuit is not the right thing to do for Montana. It is not the right
thing to do for the country.
Mrs. BOXER. Mr. President, once again we are faced with a proposal to
split the Ninth Circuit Court of Appeals, which includes my home State
of California.
The amendment before us today would create a ``new'' Ninth Circuit,
with California, Hawaii, and Guam, and a new 12th Circuit, consisting
of other Western States.
I oppose this amendment for three reasons: First, splitting the Ninth
Circuit would place a greater burden on California Federal appellate
judges. Under the new plan, California judges would constitute only 58
percent of the former circuit's judicial staff, but required to handle
more than 70 percent of former circuit's total caseload. Second,
splitting the Ninth Circuit is unnecessary. The Ninth Circuit has
performed well according to most performance measures, despite having
one of the highest caseloads per judge in the country. Third, splitting
the Ninth Circuit is opposed by the majority of people who would be
most affected--the judges and attorneys of the Ninth Circuit.
I urge my colleagues to reject this unnecessary amendment that has
nothing to do with court security, and creates new problems and costs
for the parties, lawyers and judges that practice in the Ninth Circuit.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Nevada is expected to make a motion to waive the Budget Act.
Mr. ENSIGN. Mr. President, I ask the Chair to rule on the point of
order.
The PRESIDING OFFICER. The point of order is sustained.
The amendment falls.
Mr. KYL. Mr. President, I wish to comment on section 207 of the
pending matter, the Court Security Improvement Act of 2007. Section 207
increases the statutory maximum penalties for the Federal offense of
manslaughter. Pursuant to this legislation, the maximum penalty for
involuntary manslaughter will be increased from 6 to 10 years, and the
penalty for voluntary manslaughter will be increased from 10 to 20
years. This is a change that I sought to have included in last year's
various court security bills. I am pleased to see that it will be
included in this year's final Senate bill.
The need for an increase in the manslaughter statutory maximum
penalty is made clear in testimony that was presented before the U.S.
Sentencing Commission by Paul Charlton, the U.S. Attorney for the
District of Arizona, on March 25, 2003. Despite recent changes to the
guidelines for manslaughter offenses, the typical DUI involuntary
manslaughter crime still is subject to a sentencing range of only 30 to
37 months. Yet, as Mr. Charlton noted in his testimony, under Arizona
State law, the presumptive sentence for a typical DUI involuntary
manslaughter offense is 10\1/2\ years. In other words, despite recent
guidelines adjustments, the Federal criminal justice system still
imposes a sentence for involuntary manslaughter in drunk driving cases
that is only a third of the sentence that would be imposed for the
exact same conduct under State law.
Mr. Charlton concluded that there is a ``dire need for immediate
improvements to the manslaughter statutory penalty and sentencing
guidelines.'' As he noted, ``the respect and confidence of surviving
victims in the federal criminal justice system is severely undermined
and will continue to be unless the statutory maximum penalties are
increased to reflect the seriousness of the crime and the sentencing
guidelines are comparably changed to reflect that increase.''
With this bill, the Congress finally acts on Mr. Charlton's
recommendation to increase the statutory maximum. I would like to
emphasize, however, that enactment of section 207 does not alone finish
the job. As Mr.
[[Page S4740]]
Charlton noted in his testimony, even after Congress increased
statutory penalties for these offenses in 1998, the sentences imposed
by Federal courts ``remain[ed] inadequate to deter and punish offenders
[as of March 2003] because the federal manslaughter sentencing
guideline was never changed to reflect the increased penalty.''
The Sentencing Commission did eventually adjust the guidelines in
response to the 1998 amendments, albeit 5 years after those changes
were enacted. In case a staffer for the Sentencing Commission reads
this speech in the Congressional Record, let me be clear: yes, we do
expect the Commission to adjust the guidelines for voluntary and
involuntary manslaughter in order to reflect the statutory changes made
by section 207. And please persuade the Commissioners to act
expeditiously. If this matter is not addressed during the next
appropriate period for submitting proposed changes to the guidelines, I
will contact the Commission to inquire why no adjustment has been made.
I ask unanimous consent that Mr. Charlton's 2003 testimony before the
Sentencing Commission be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Testimony Before the U.S. Sentencing Commission
(By Paul Charlton)
Members of the U.S. Sentencing Commission, thank you for
giving me the opportunity to appear before you to discuss
sentencing in federal manslaughter cases. This topic is
particularly important to the District of Arizona because my
district routinely handles the highest number of prosecutions
under the Major Crimes Act arising out of violations in
Indian country, including federal manslaughter cases, in the
United States. The low statutory and guideline sentences for
these offenses are a topic of frustration routinely discussed
among my counterparts with similar criminal jurisdiction
responsibilities and who serve on the United States Attorney
General's Native American Issues Advisory Subcommittee.
The District of Arizona encompasses the entire state of
Arizona. We have exclusive authority to prosecute Major
Crimes Act violations occurring within Arizona's 21 Indian
Reservations. Two of the nation's largest Indian Reservations
are located in Arizona--the Navajo Nation, with an
approximate total population of 275,000 members and a land
base of over 17 million acres spanning three states (Arizona,
New Mexico and Utah), and the Tohono O'odham Nation, with an
approximate total population of 24,000 members and a land
base comparable to the state of Connecticut. Recent
Department of Justice data revealed that the violent crime
rate on the Navajo Reservation is six times the national
average. In total, in calendar year 2002, my office handled a
total of 64 manslaughter and 94 murder cases. In a two-year
period ending September 2002, the Flagstaff division of the
U.S. Attorney's Office (which responds to Northern Arizona
federal crimes) handled 65 homicide prosecutions, including
27 manslaughter and 38 murder cases.
In the summer of 2001, this Commission held a hearing on
the impact of the sentencing guidelines on Indians committing
offenses in Indian country. The perception going into this
hearing was that Indians sentenced under the federal
sentencing guidelines are treated more harshly than those who
are adjudicated in the State system. The experiences of
federal prosecutors in my District as they relate to the
crimes of voluntary and involuntary manslaughter are not
consistent with this perception. Our perception, and that of
many Indian and non-Indian victims, is that the federal
criminal justice system is in many circumstances unjust.
Consequently, the respect and confidence of surviving victims
in the federal criminal justice system is severely undermined
and will continue to be unless the statutory maximum
penalties are increased to reflect the seriousness of the
crime and the sentencing guidelines are comparably changed to
reflect that increase.
In 1994, the United States Congress amended the penalty for
involuntary manslaughter from three years to the current six
year maximum term. [Footnote: See H.R. Conf. Rep. 103-711
(1994).] The primary purpose for the amendment was to correct
the inadequacy of the three-year penalty as it applied to
drunk driving homicides. In passing the amendment, one
Senator noted ``Involuntary manslaughter most often occurs
through reckless or drunken driving. A three-year maximum
sentence is not adequate to vindicate the most egregious
instances of this conduct, which takes an increasing toll of
innocent victims' lives.'' [Footnote: 134 CONG. REC. S.7446-
01 (statement of Sen. Byrd).] I applaud Congress' efforts in
amending the law. However, it has become abundantly clear
that the current statutory penalties remain inadequate to
deter and punish offenders because the federal manslaughter
sentencing guideline was never changed to reflect the
increased penalty.
Today, the average range of sentence for a defendant for
involuntary manslaughter is 16-24 months imprisonment
followed by three years on Supervised Release. I would like
to share with you some of the experiences faced by federal
prosecutors assigned to DUI homicides in Indian country to
illustrate the gravity of theses crimes, the comparable state
sentences imposed, and to demonstrate the need for increased
penalties and comparable sentencing guidelines:
Kyle Peterson, was charged with one count of involuntary
manslaughter for the death of a 60-year-old man who was
driving to work southbound on the Loop 101 Freeway in
Phoenix. Peterson was driving north in the southbound lanes
of the Loop 101. The two vehicles collided head-on as they
entered a portion of the freeway located in Indian country.
The victim was killed instantly. Peterson suffered serious
head injuries but his recovery has been positive. At the time
of impact Peterson's blood alcohol level was .158. He pled
guilty to the charge of involuntary manslaughter with no
agreements and was sentenced to 14 months in custody followed
by three years on supervised release. In her victim impact
statement, the decedent's widow stated ``[f]inally there is
me rage at a system that allows a criminal to face almost no
punishment because of Federal Sentencing Commission laws . .
. DUI is a criminal offense. Why does the Federal system not
treat it as such?''
Gaylen Lomatuwayma was charged with one count of
involuntary manslaughter after he struck and killed the
victim, who was walking along Navajo Route 2. The crash took
place after a night of drinking in Flagstaff, Arizona. The
defendant kept driving until his truck stopped working. He
was indicted on one count of involuntary manslaughter and was
sentenced to 21 months in custody followed by 3 years on
supervised release.
In July, 2001, Zacharay Guerrero was driving intoxicated on
the Salt River Pima-Maricopa Reservation near Phoenix when he
failed to stop at a clearly posted stop sign. He collided
with a vehicle occupied by two female tribal members. On
impact, both females were ejected from the vehicle, which
ignited in flames and burned at the scene. Guerrero fled the
scene. Investigation revealed that the defendant's vehicle
had an impact speed of between 64 and 70 mph (while the
posted speed limit was 35 mph) and the victim vehicle had an
impact speed of 9 mph. One victim died at the scene. The
medical examiner attributed her death to multiple blunt force
trauma due to the motor-vehicle impact. The second victim
died two months later. While there were small amounts of
alcohol detected in the victim/driver's blood, the accident
reconstructionist did not believe it was a significant
contributing factor to the crash. Guerrero was charged and
plead guilty to two counts of involuntary manslaughter, with
no sentencing agreement. The guideline calculation resulted
in a total offense level 13, with acceptance of
responsibility, or a sentencing range of only 12-18 months.
Only because of Guerrero's prior criminal history did he
receive a sentence of concurrent terms of 37 months, the high
end of the applicable guideline range.
In November 2001, Ernest Zahony was driving eastbound on
hwy 160 near the Old Red Lake Trading Post on the Navajo
Indian Reservation. He crossed the center line and struck a
family headed westbound on their way to a late Thanksgiving
dinner. The driver was pinned behind the steering wheel and
later died as a result of her injuries. Five other occupants,
including children, received serious injuries. The
defendant walked away from the scene and was found about a
mile away. The defendant admitted to drinking all night
and into the morning. At the time of the crash, he is
estimated to have had a .252 blood alcohol level. The
court, applying an upward departure, sentenced the
defendant to 40 months in custody.
Victim families routinely hear or read about state drunk-
driving homicide cases where long sentences are imposed by
state court judges. Without exception, every Assistant U.S.
Attorney and Victim Advocate assigned to federal drunk
driving homicides must go through the painful process of
explaining to victim families that the long sentences meted
out in the state court system do not apply because the
defendant will be sentenced under the federal sentencing
guideline scheme. Victim families cannot comprehend that had
the crime occurred in state jurisdiction, the defendant would
be imprisoned for a substantially longer term.
To illustrate this, in Arizona state court, the crime of
manslaughter is designated either ``dangerous'' or ``non-
dangerous.'' [Footnote: Case illustrations were provided by
the Arizona Chapter of MADD. Explanation of state sentencing
categories were provided by the Maricopa County Attorney's
Office.] In Maricopa County, DUI homicides are almost
exclusively charged as ``dangerous'' felonies. [Footnote:
According to the Maricopa County Attorney's Office, ``non-
dangerous'' felonies are reserved for those DUI homicides
with great evidentiary weaknesses and are rarely, if ever,
charged.] The sentence for manslaughter ``dangerous'' ranges
from seven to 21 years in custody and yields a presumptive
10\1/2\ year sentence.
For example, the Maricopa County Attorney's Office stated
that generally, where an intoxicated defendant crosses a
center line striking and killing someone, he/she will almost
assuredly receive a sentence of 10\1/2\ years. If the
individual has a prior drunk driving history, the range of
sentence increases by 2 years. In cases where a passenger in
a defendant's car is killed, the
[[Page S4741]]
range of sentence generally is 7-10\1/2\ years in custody.
Compare Arizona v. Bruguier with United States v.
Lomatuwayma. In Bruguier, the defendant was sentenced to
11\1/2\ years for driving while intoxicated and striking and
killing an individual who was jogging along a roadway.
Ironically, if any of the victims in the above-mentioned
cases were injured, rather than killed, each defendant would
have been sentenced under the assault statute, resulting in
much harsher penalties. [Footnote: Similarly, the statutory
maximum for Assault with a Dangerous Weapon and Assault
Resulting in Serious Bodily Injury is no more than 10 years
and a $250,000 fine. 18 U.S.C.Sec. 113. The Base Offense
Level is 15 and allows for specific offense characteristics
which may result in a substantially higher sentencing range.]
To address the low statutory and guideline penalty for
involuntary manslaughter cases, my office applies alternative
or additional charges in appropriate cases such as assault or
second degree murder. This approach enhances the penalties
available to the court. Also, the added charges will
hopefully deter the defendant from future conduct, and
provide a means to advocate on behalf of the surviving
victims.
For example, Sebastian Lopez plead guilty to Second Degree
Murder for committing a DUI homicide and was sentenced to
11\1/2\ years in custody. At the time of this offense, Lopez
was serving a sentence of federal probation for a prior DUI
homicide. In total, this defendant had four prior DUI
convictions, three involving accidents and one involving
death, yet he remained undeterred by his first DUI homicide
crime and federal sentence.
Additionally, federal prosecutors routinely seek upward
departures to increase a drunk driving defendant's final
adjusted sentence. However, courts are reluctant to impose
upward departures in manslaughter cases. In United States v.
Merrival, 176 F.3d 1079 (8th Cir. 1999), a case prosecuted by
the District of South Dakota, the defendant was charged with
one count of Involuntary Manslaughter for the DUI homicide of
his two passengers, which included a 5-month-old infant. The
defendant plead guilty to the indictment and the district
court departed upward to sentence him to 70 months in
custody. In imposing sentence, the court stated that the
defendant's conduct was extremely dangerous and resulted in
two deaths and severe bodily injury to the three surviving
victims. In upholding the sentence, the Eighth Circuit stated
``[w]e make special note, however, that in imposing a
departure of this magnitude, the district court acted at the
outermost limits of its discretionary authority.'' Id. at
1082. Consequently, federal courts themselves appear to
struggle with finding a just sentence for these crimes and
remain reluctant to impose an upward departure even in the
most egregious cases.
Additionally, if a defendant's tribal criminal history
reflects repeated criminal conduct while they are under the
influence of alcohol, a prosecutor may seek an enhanced
sentence pursuant to U.S.S.G. Sec. 4A1.3, Adequacy of
Criminal History. [Footnote: This section may only be applied
where a defendant's prior sentence(s) are not factored into
his sentencing guideline range. 4A1.3(a).] However, federal
court judges are reluctant to apply an upward departure even
where a defendant has prior multiple tribal court DUI
convictions. Recently, Dale Haskan received a 14 month
sentence for the DUI homicide of a 15-year-old girl. Haskan
had multiple prior DUIs in tribal court dating back 20 years.
The district court ruled that only one of his prior
convictions was admissible because of inadequate
documentation and his concern whether Haskan was represented
in tribal court on those multiple convictions.
Depending on the extent and substance of a defendant's
tribal criminal history, the facts, and the character of the
victim, a court may make legal and factual findings that the
defendant is entitled to an enhancement. See United States v.
Betti Rowbal, 105 F.3d 667 (9th Cir. Nev.) (Unpublished
Decision). In drunk driving homicides, however, it is hard
for a prosecutor to argue that the Sentencing Commission did
not take into account the loss of life or the degree of a
defendant's intoxication. Id. Therefore, sentencing
enhancements in these cases, although routinely sought, are
difficult to substantiate and thus are rarely imposed. It is
my hope that these examples will serve to illustrate the dire
need for immediate improvements to the manslaughter statutory
penalty and sentencing guidelines.
I would like to briefly address second degree murder. As
you consider addressing manslaughter, I urge the Commission
to reexamine the murder sentencing guidelines in relationship
to the statutory maximum penalty, life imprisonment. The
Commission must evaluate whether the 33 base offense level is
appropriate given that second degree murder involves a high
level of culpability on the part of the defendant. [Footnote:
With a Criminal History of I and a 3-level adjustment for
Acceptance of Responsibility, a defendant would face an
adjusted offense level of 30 (97-121 months in custody).] For
example, Douglas Tree plead guilty to Second Degree Murder
for beating his girlfriend's 18 month old daughter. Her
injuries included a fractured clavicle and fractured ribs. He
waited until his girlfriend came home to take the child in
for medical treatment. The infant was hospitalized, placed on
life support and later died. Tree received a 142 month
sentence. Leslie Vanwinkle was also charged with Second
Degree Murder for the beating death of his 70-year-old
father. Vanwinkle was sentenced to a term of 151 months in
custody. These crimes are among the most malicious and often
occur with weapons including knives, rocks and shovels. The
use of a firearm gives prosecutors the leverage of charging a
gun violation, which drastically enhances the second degree
murder sentence.
Finally, should the Commission increase the manslaughter
sentencing guideline, it must evaluate the impact that the
existing second degree murder guideline will have relative to
any increase. I therefore encourage the Commission to
consider creating specific offense characteristics that
reflect the more egregious and aggravated type of murder.
The frustration felt by the victim families, prosecutors,
and often expressed by district court judges in imposing
sentences is all to common in my district and experienced by
every federal prosecutor with similar federal criminal
jurisdictional responsibilities. So, I am thankful and
encouraged that this Commission continues to have an interest
in this area. I am also encouraged that the Commission
developed the Native American Ad Hoc Advisory Committee to
more thoroughly review the perceptions of Indian Country
Crimes and Sentencing disparity. My colleagues and I on the
Attorney General's Native American Issues Advisory Committee
look forward to the Committee's findings. Thank you again for
extending to me the invitation to speak to you today.
Mr. LEAHY. Mr. President, I appreciate the hard work of my colleagues
in coming to agreement to proceed to final passage of this important
legislation.
This bill has been a top priority of the Federal judiciary. I
introduce it back in January, and it proceeded through regular order.
We held a hearing, issued a committee report, considered floor
amendments, and debated the measure.
Now it is time to vote for its passage. We can and we must provide
for increased security for our Federal judges.
Physical attacks on our judges threaten not only the dedicated public
servants who serve in these roles but also the institution. Our
Nation's Founders knew that without an independent judiciary to protect
individual rights from the political branches of Government, those
rights and privileges would not be preserved. Our Federal courts are
the ultimate check and balance in our system of government.
We owe it to our judges to better protect them and their families
from violence to ensure that they have the peace of mind to do their
vital and difficult jobs.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The bill having been read the third time, the question is, Shall it
pass?
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Inouye) and
the Senator from South Dakota (Mr. Johnson) are necessarily absent.
Mr. LOTT. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 97, nays 0, as follows:
[Rollcall Vote No. 135 Leg.]
YEAS--97
Akaka
Alexander
Allard
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brown
Brownback
Bunning
Burr
Byrd
Cantwell
Cardin
Carper
Casey
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Isakson
Kennedy
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCaskill
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Thomas
[[Page S4742]]
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wyden
NOT VOTING--3
Inouye
Johnson
McCain
The bill (S. 378), as amended, was passed, as follows:
S. 378
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 ``Court Security Improvement
Act of 2007''.
TITLE I--JUDICIAL SECURITY IMPROVEMENTS AND FUNDING
SEC. 101. JUDICIAL BRANCH SECURITY REQUIREMENTS.
(a) Ensuring Consultation With the Judiciary.--Section 566
of title 28, United States Code, is amended by adding at the
end the following:
``(i) The Director of the United States Marshals Service
shall consult with the Judicial Conference of the United
States on a continuing basis regarding the security
requirements for the judicial branch of the United States
Government, to ensure that the views of the Judicial
Conference regarding the security requirements for the
judicial branch of the Federal Government are taken into
account when determining staffing levels, setting priorities
for programs regarding judicial security, and allocating
judicial security resources. In this paragraph, the term
`judicial security' includes the security of buildings
housing the judiciary, the personal security of judicial
officers, the assessment of threats made to judicial
officers, and the protection of all other judicial personnel.
The United States Marshals Service retains final authority
regarding security requirements for the judicial branch of
the Federal Government.''.
(b) Conforming Amendment.--Section 331 of title 28, United
States Code, is amended by adding at the end the following:
``The Judicial Conference shall consult with the Director
of United States Marshals Service on a continuing basis
regarding the security requirements for the judicial branch
of the United States Government, to ensure that the views of
the Judicial Conference regarding the security requirements
for the judicial branch of the Federal Government are taken
into account when determining staffing levels, setting
priorities for programs regarding judicial security, and
allocating judicial security resources. In this paragraph,
the term `judicial security' includes the security of
buildings housing the judiciary, the personal security of
judicial officers, the assessment of threats made to judicial
officers, and the protection of all other judicial personnel.
The United States Marshals Service retains final authority
regarding security requirements for the judicial branch of
the Federal Government.''.
SEC. 102. PROTECTION OF FAMILY MEMBERS.
Section 105(b)(3) of the Ethics in Government Act of 1978
(5 U.S.C. App.) is amended--
(1) in subparagraph (A), by inserting ``or a family member
of that individual'' after ``that individual''; and
(2) in subparagraph (B)(i), by inserting ``or a family
member of that individual'' after ``the report''.
SEC. 103. FINANCIAL DISCLOSURE REPORTS.
(a) Extension of Authority.--Section 105(b)(3) of the
Ethics in Government Act of 1978 (5 U.S.C. App) is amended by
striking ``2005'' each place that term appears and inserting
``2009''.
(b) Report Contents.--Section 105(b)(3)(C) of the Ethics in
Government Act of 1978 (5 U.S.C. App) is amended--
(1) in clause (ii), by striking ``and'' at the end;
(2) in clause (iii), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
``(iv) the nature or type of information redacted;
``(v) what steps or procedures are in place to ensure that
sufficient information is available to litigants to determine
if there is a conflict of interest;
``(vi) principles used to guide implementation of redaction
authority; and
``(vii) any public complaints received in regards to
redaction.''.
SEC. 104. PROTECTION OF UNITED STATES TAX COURT.
(a) In General.--Section 566(a) of title 28, United States
Code, is amended by striking ``and the Court of International
Trade'' and inserting ``, the Court of International Trade,
and the United States Tax Court, as provided by law''.
(b) Internal Revenue Code.--Section 7456(c) of the Internal
Revenue Code of 1986 (relating to incidental powers of the
Tax Court) is amended in the matter following paragraph (3),
by striking the period at the end, and inserting ``and may
otherwise provide, when requested by the chief judge of the
Tax Court, for the security of the Tax Court, including the
personal protection of Tax Court judges, court officers,
witnesses, and other threatened persons in the interests of
justice, where criminal intimidation impedes on the
functioning of the judicial process or any other official
proceeding.''.
(c) Reimbursement.--The United States Tax Court shall
reimburse the United States Marshals Service for protection
provided under the amendments made by this section.
SEC. 105. ADDITIONAL AMOUNTS FOR UNITED STATES MARSHALS
SERVICE TO PROTECT THE JUDICIARY.
In addition to any other amounts authorized to be
appropriated for the United States Marshals Service, there
are authorized to be appropriated for the United States
Marshals Service to protect the judiciary, $20,000,000 for
each of fiscal years 2007 through 2011 for--
(1) hiring entry-level deputy marshals for providing
judicial security;
(2) hiring senior-level deputy marshals for investigating
threats to the judiciary and providing protective details to
members of the judiciary and assistant United States
attorneys; and
(3) for the Office of Protective Intelligence, for hiring
senior-level deputy marshals, hiring program analysts, and
providing secure computer systems.
TITLE II--CRIMINAL LAW ENHANCEMENTS TO PROTECT JUDGES, FAMILY MEMBERS,
AND WITNESSES
SEC. 201. PROTECTIONS AGAINST MALICIOUS RECORDING OF
FICTITIOUS LIENS AGAINST FEDERAL JUDGES AND
FEDERAL LAW ENFORCEMENT OFFICERS.
(a) Offense.--Chapter 73 of title 18, United States Code,
is amended by adding at the end the following:
``SEC. 1521. RETALIATING AGAINST A FEDERAL JUDGE OR FEDERAL
LAW ENFORCEMENT OFFICER BY FALSE CLAIM OR
SLANDER OF TITLE.
``Whoever files, attempts to file, or conspires to file, in
any public record or in any private record which is generally
available to the public, any false lien or encumbrance
against the real or personal property of an individual
described in section 1114, on account of the performance of
official duties by that individual, knowing or having reason
to know that such lien or encumbrance is false or contains
any materially false, fictitious, or fraudulent statement or
representation, shall be fined under this title or imprisoned
for not more than 10 years, or both.''.
(b) Clerical Amendment.--The chapter analysis for chapter
73 of title 18, United States Code, is amended by adding at
the end the following new item:
``1521. Retaliating against a Federal judge or Federal law enforcement
officer by false claim or slander of title.''.
SEC. 202. PROTECTION OF INDIVIDUALS PERFORMING CERTAIN
OFFICIAL DUTIES.
(a) Offense.--Chapter 7 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 119. Protection of individuals performing certain
official duties
``(a) In General.--Whoever knowingly makes restricted
personal information about a covered official, or a member of
the immediate family of that covered official, publicly
available--
``(1) with the intent to threaten, intimidate, or incite
the commission of a crime of violence against that covered
official, or a member of the immediate family of that covered
official; or
``(2) with the intent and knowledge that the restricted
personal information will be used to threaten, intimidate, or
facilitate the commission of a crime of violence against that
covered official, or a member of the immediate family of that
covered official, shall be fined under this title, imprisoned
not more than 5 years, or both.
``(b) Definitions.--In this section--
``(1) the term `restricted personal information' means,
with respect to an individual, the Social Security number,
the home address, home phone number, mobile phone number,
personal email, or home fax number of, and identifiable to,
that individual;
``(2) the term `covered official' means--
``(A) an individual designated in section 1114; or
``(B) a grand or petit juror, witness, or other officer in
or of, any court of the United States, or an officer who may
be serving at any examination or other proceeding before any
United States magistrate judge or other committing
magistrate;
``(3) the term `crime of violence' has the meaning given
the term in section 16; and
``(4) the term `immediate family' has the meaning given the
term in section 115(c)(2).''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 7 of title 18, United States Code, is
amended by adding at the end the following new item:
``119. Protection of individuals performing certain official duties.''.
SEC. 203. PROHIBITION OF POSSESSION OF DANGEROUS WEAPONS IN
FEDERAL COURT FACILITIES.
Section 930(e)(1) of title 18, United States Code, is
amended by inserting ``or other dangerous weapon'' after
``firearm''.
SEC. 204. CLARIFICATION OF VENUE FOR RETALIATION AGAINST A
WITNESS.
Section 1513 of title 18, United States Code, is amended by
adding at the end the following:
``(g) A prosecution under this section may be brought in
the district in which the official proceeding (whether
pending, about to be instituted, or completed) was intended
to be affected, or in which the conduct constituting the
alleged offense occurred.''.
SEC. 205. MODIFICATION OF TAMPERING WITH A WITNESS, VICTIM,
OR AN INFORMANT OFFENSE.
(a) Changes in Penalties.--Section 1512 of title 18, United
States Code, is amended--
(1) so that subparagraph (A) of subsection (a)(3) reads as
follows:
``(A) in the case of a killing, the punishment provided in
sections 1111 and 1112;'';
(2) in subsection (a)(3)--
[[Page S4743]]
(A) in the matter following clause (ii) of subparagraph (B)
by striking ``20 years'' and inserting ``30 years''; and
(B) in subparagraph (C), by striking ``10 years'' and
inserting ``20 years'';
(3) in subsection (b), by striking ``ten years'' and
inserting ``20 years''; and
(4) in subsection (d), by striking ``one year'' and
inserting ``3 years''.
SEC. 206. MODIFICATION OF RETALIATION OFFENSE.
Section 1513 of title 18, United States Code, is amended--
(1) in subsection (a)(1)(B)--
(A) by inserting a comma after ``probation''; and
(B) by striking the comma which immediately follows another
comma;
(2) in subsection (a)(2)(B), by striking ``20 years'' and
inserting ``30 years'';
(3) in subsection (b)--
(A) in paragraph (2)--
(i) by inserting a comma after ``probation''; and
(ii) by striking the comma which immediately follows
another comma; and
(B) in the matter following paragraph (2), by striking
``ten years'' and inserting ``20 years''; and
(4) by redesignating the second subsection (e) as
subsection (f).
SEC. 207. GENERAL MODIFICATIONS OF FEDERAL MURDER CRIME AND
RELATED CRIMES.
Section 1112(b) of title 18, United States Code, is
amended--
(1) by striking ``ten years'' and inserting ``20 years'';
and
(2) by striking ``six years'' and inserting ``10 years''.
TITLE III--PROTECTING STATE AND LOCAL JUDGES AND RELATED GRANT PROGRAMS
SEC. 301. GRANTS TO STATES TO PROTECT WITNESSES AND VICTIMS
OF CRIMES.
(a) In General.--Section 31702 of the Violent Crime Control
and Law Enforcement Act of 1994 (42 U.S.C. 13862) is
amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(5) by a State, unit of local government, or Indian tribe
to create and expand witness and victim protection programs
to prevent threats, intimidation, and retaliation against
victims of, and witnesses to, violent crimes.''.
(b) Authorization of Appropriations.--Section 31707 of the
Violent Crime Control and Law Enforcement Act of 1994 (42
U.S.C. 13867) is amended to read as follows:
``SEC. 31707. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated $20,000,000 for
each of the fiscal years 2007 through 2011 to carry out this
subtitle.''.
SEC. 302. ELIGIBILITY OF STATE COURTS FOR CERTAIN FEDERAL
GRANTS.
(a) Correctional Options Grants.--Section 515 of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3762a) is amended--
(1) in subsection (a)--
(A) in paragraph (2), by striking ``and'' at the end;
(B) in paragraph (3), by striking the period and inserting
``; and''; and
(C) by adding at the end the following:
``(4) grants to State courts to improve security for State
and local court systems.''; and
(2) in subsection (b), by inserting after the period the
following:
``Priority shall be given to State court applicants under
subsection (a)(4) that have the greatest demonstrated need to
provide security in order to administer justice.''.
(b) Allocations.--Section 516(a) of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3762b) is
amended by--
(1) striking ``80'' and inserting ``70'';
(2) striking ``and 10'' and inserting ``10''; and
(3) inserting before the period the following: ``, and 10
percent for section 515(a)(4)''.
(c) State and Local Governments To Consider Courts.--The
Attorney General may require, as appropriate, that whenever a
State or unit of local government or Indian tribe applies for
a grant from the Department of Justice, the State, unit, or
tribe demonstrate that, in developing the application and
distributing funds, the State, unit, or tribe--
(1) considered the needs of the judicial branch of the
State, unit, or tribe, as the case may be;
(2) consulted with the chief judicial officer of the
highest court of the State, unit, or tribe, as the case may
be; and
(3) consulted with the chief law enforcement officer of the
law enforcement agency responsible for the security needs of
the judicial branch of the State, unit, or tribe, as the case
may be.
(d) Armor Vests.--Section 2501 of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796ll)
is amended--
(1) in subsection (a), by inserting ``and State and local
court officers'' after ``tribal law enforcement officers'';
and
(2) in subsection (b), by inserting ``State or local
court,'' after ``government,''.
TITLE IV--LAW ENFORCEMENT OFFICERS
SEC. 401. REPORT ON SECURITY OF FEDERAL PROSECUTORS.
(a) In General.--Not later than 90 days after the date of
enactment of this Act, the Attorney General shall submit to
the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives a
report on the security of assistant United States attorneys
and other Federal attorneys arising from the prosecution of
terrorists, violent criminal gangs, drug traffickers, gun
traffickers, white supremacists, those who commit fraud and
other white-collar offenses, and other criminal cases.
(b) Contents.--The report submitted under subsection (a)
shall describe each of the following:
(1) The number and nature of threats and assaults against
attorneys handling prosecutions described in subsection (a)
and the reporting requirements and methods.
(2) The security measures that are in place to protect the
attorneys who are handling prosecutions described in
subsection (a), including threat assessments, response
procedures, availability of security systems and other
devices, firearms licensing (deputations), and other measures
designed to protect the attorneys and their families.
(3) The firearms deputation policies of the Department of
Justice, including the number of attorneys deputized and the
time between receipt of threat and completion of the
deputation and training process.
(4) For each requirement, measure, or policy described in
paragraphs (1) through (3), when the requirement, measure, or
policy was developed and who was responsible for developing
and implementing the requirement, measure, or policy.
(5) The programs that are made available to the attorneys
for personal security training, including training relating
to limitations on public information disclosure, basic home
security, firearms handling and safety, family safety, mail
handling, counter-surveillance, and self-defense tactics.
(6) The measures that are taken to provide attorneys
handling prosecutions described in subsection (a) with secure
parking facilities, and how priorities for such facilities
are established--
(A) among Federal employees within the facility;
(B) among Department of Justice employees within the
facility; and
(C) among attorneys within the facility.
(7) The frequency attorneys handling prosecutions described
in subsection (a) are called upon to work beyond standard
work hours and the security measures provided to protect
attorneys at such times during travel between office and
available parking facilities.
(8) With respect to attorneys who are licensed under State
laws to carry firearms, the policy of the Department of
Justice as to--
(A) carrying the firearm between available parking and
office buildings;
(B) securing the weapon at the office buildings; and
(C) equipment and training provided to facilitate safe
storage at Department of Justice facilities.
(9) The offices in the Department of Justice that are
responsible for ensuring the security of attorneys handling
prosecutions described in subsection (a), the organization
and staffing of the offices, and the manner in which the
offices coordinate with offices in specific districts.
(10) The role, if any, that the United States Marshals
Service or any other Department of Justice component plays in
protecting, or providing security services or training for,
attorneys handling prosecutions described in subsection (a).
TITLE V--MISCELLANEOUS PROVISIONS
SEC. 501. EXPANDED PROCUREMENT AUTHORITY FOR THE UNITED
STATES SENTENCING COMMISSION.
(a) In General.--Section 995 of title 28, United States
Code, is amended by adding at the end the following:
``(f) The Commission may--
``(1) use available funds to enter into contracts for the
acquisition of severable services for a period that begins in
1 fiscal year and ends in the next fiscal year, to the same
extent as executive agencies may enter into such contracts
under the authority of section 303L of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 253l);
``(2) enter into multi-year contracts for the acquisition
of property or services to the same extent as executive
agencies may enter into such contracts under the authority of
section 304B of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 254c); and
``(3) make advance, partial, progress, or other payments
under contracts for property or services to the same extent
as executive agencies may make such payments under the
authority of section 305 of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 255).''.
(b) Sunset.--The amendment made by subsection (a) shall
cease to have force and effect on September 30, 2010.
SEC. 502. BANKRUPTCY, MAGISTRATE, AND TERRITORIAL JUDGES LIFE
INSURANCE.
(a) In General.--Section 604(a)(5) of title 28, United
States Code, is amended by inserting after ``hold office
during good behavior,'' the following: ``bankruptcy judges
appointed under section 152 of this title, magistrate judges
appointed under section 631 of this title, and territorial
district court judges appointed under section 24 of the
Organic Act of Guam (48 U.S.C. 1424b), section 1(b) of the
Act of November 8, 1877 (48 U.S.C. 1821), or
[[Page S4744]]
section 24(a) of the Revised Organic Act of the Virgin
Islands (48 U.S.C. 1614(a)),''.
(b) Construction.--For purposes of construing and applying
chapter 87 of title 5, United States Code, including any
adjustment of insurance rates by regulation or otherwise, the
following categories of judicial officers shall be deemed to
be judges of the United States as described under section
8701 of title 5, United States Code:
(1) Bankruptcy judges appointed under section 151 of title
28, United States Code.
(2) Magistrate judges appointed under section 631 of title
28, United States Code.
(3) Territorial district court judges appointed under
section 24 of the Organic Act of Guam (48 U.S.C. 1424b),
section 1(b) of the Act of November 8, 1877 (48 U.S.C. 1821),
or section 24(a) of the Revised Organic Act of the Virgin
Islands (48 U.S.C. 1614(a)).
(4) Judges retired under section 377 of title 28, United
States Code.
(5) Judges retired under section 373 of title 28, United
States Code.
(c) Effective Date.--The amendment made by subsection (a)
shall apply with respect to any payment made on or after the
first day of the first applicable pay period beginning on or
after the date of enactment of this Act.
SEC. 503. ASSIGNMENT OF JUDGES.
Section 296 of title 28, United States Code, is amended by
inserting at the end of the second undesignated paragraph the
following new sentence: ``However, a judge who has retired
from regular active service under section 371(b) of this
title, when designated and assigned to the court to which
such judge was appointed, shall have all the powers of a
judge of that court, including participation in appointment
of court officers and magistrate judges, rulemaking,
governance, and administrative matters.''.
SEC. 504. SENIOR JUDGE PARTICIPATION IN THE SELECTION OF
MAGISTRATE JUDGES.
Section 631(a) of title 28, United States Code, is amended
by striking ``Northern Mariana Islands'' the first place it
appears and inserting ``Northern Mariana Islands (including
any judge in regular active service and any judge who has
retired from regular active service under section 371(b) of
this title, when designated and assigned to the court to
which such judge was appointed)''.
SEC. 505. FEDERAL JUDGES FOR COURTS OF APPEALS.
Section 44(a) of title 28, United States Code, is amended
in the table--
(1) in the item relating to the District of Columbia
Circuit, by striking ``12'' and inserting ``11''; and
(2) in the item relating to the Ninth Circuit, by striking
``28'' and inserting ``29''.
Ms. CANTWELL. Mr. President, I move to reconsider the vote, and I
move to lay that motion on the table.
The motion to lay on the table was agreed to.
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