[Congressional Record Volume 153, Number 170 (Monday, November 5, 2007)]
[Senate]
[Pages S13769-S13773]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. DOMENICI (for himself, Mr. Kennedy, Mr. Specter, and Mr. 
        Leahy):
  S. 2304. A bill to amend title I of the Omnibus Crime Control and 
Safe Streets Act of 1968 to provide grants for the improved mental 
health treatment and services provided to offenders with mental 
illnesses, and for other purposes; to the Committee on the Judiciary.
  Mr. DOMENICI. Mr. President, I rise today with my colleagues, Senator 
Kennedy, Senator Leahy, and Senator Specter to introduce the Mentally 
Ill Offender Treatment and Crime Reduction Reauthorization and 
Improvement Act of 2007. This bill will reauthorize and improve several 
programs intended to provide Federal support for collaborations between 
criminal justice and mental health systems.
  It is estimated that approximately 16 percent of adult U.S. jail and 
prison inmates suffer from mental illness and the numbers are even 
higher in the juvenile justice system. Many of these individuals are 
not violent or habitual criminals. Most have been charged or convicted 
of nonviolent crimes that are a direct consequence of not having 
received needed treatment and supportive services for their mental 
illness.
  The presence of defendants with mental illnesses in the criminal 
justice system imposes substantial costs on that system and can cause 
significant harm to defendants. In response to this problem, a number 
of communities around the country are implementing mental health 
courts, a specialty-court model that utilizes a separate docket, 
coupled with regular judicial supervision, to respond to individuals 
with mental illnesses who come in contact with the justice system.
  This past spring, I visited the courtroom of Judge Michael Vigil in 
the First Judicial Court of Santa Fe, NM. Judge Vigil operates a mental 
health court that helps individuals who have been involved in 
nonviolent crimes that do not involve weapons and who have been 
diagnosed with a mental illness. It is a 14-month program that attempts 
to keep defendants with mental illness out of jail. The court meets 
every Friday for about an hour. Defendants are required to attend 
individually designed therapy sessions, take their medications, and 
submit to random drug tests and breathalyzer tests. The appearances 
before Judge Vigil are akin to ``check-ups'' to make sure the defendant 
is on course, taking his or her medications, and that the defendant is 
in good health. If a participant violates the rules, they are 
sanctioned. If the violations are serious enough, the defendant can be 
removed from the program and sentenced to jail.
  The day I visited Judge Vigil's court, I witnessed a participant 
graduate from the program. I spoke with the defendant and his mother 
after the hearing. They told me how this program

[[Page S13770]]

had helped turn his life around. Participation in this program had kept 
him out of jail and more importantly helped him access treatment, 
housing, and other critical supports. By addressing the mental illness 
that contributed to his criminal act, this man received the services he 
needed to hopefully prevent him from repeating his crime or committing 
a more serious crime. Furthermore, the program helped reduce the burden 
on the judicial system allowing for resources to be focused on violent 
criminals.
  Many communities are not prepared to meet the comprehensive treatment 
and needs of individuals with mental illness when they enter the 
criminal justice system. The bill we are introducing today is intended 
to help provide resources to help States and counties design and 
implement collaborative efforts between criminal justice and mental 
health structures. The bill will reauthorize the Mentally Ill Offender 
Treatment and Crime Reduction grant program and reauthorize the Mental 
Health Courts Program. It will create a new grant program to help law 
enforcement identify and respond to incidents involving persons with 
mental illness and it will fund a study and report on the prevalence of 
mentally ill offenders in the criminal justice system. All of these 
reforms will help to address this problem from both a public safety and 
a public health point of view. This will help save taxpayers money, 
improve public safety, and link individuals with the treatment they 
need to become productive members of their community.

  Certainly, not every crime committed by an individual diagnosed with 
a mental illness is attributable to their illness or to the failure of 
public mental health. Mental health courts are not a panacea for 
addressing the needs of the growing number of people with mental 
illnesses who come in contact with the criminal justice system. But 
they should be one part of the solution. Evidence has shown that in 
communities where mental health and criminal justice interests work 
collaboratively on solutions it can make a significant impact in 
fostering recovery, improving treatment outcomes and decreasing 
recidivism.
  I want to thank my good friends for working with me on this very 
important issue. I appreciate their commitment to advancing these 
important programs and I look forward to working with them to pass this 
legislation this Congress.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There geing no objection, the text of the bill was ordered to be 
printed in the Record, as follows.

                                S. 2304

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Mentally 
     Ill Offender Treatment and Crime Reduction Reauthorization 
     and Improvement Act of 2007''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Reauthorization of the Adult and Juvenile Collaboration Program 
              Grants.
Sec. 4. Law enforcement response to mentally ill offenders improvement 
              grants.
Sec. 5. Improving the mental health courts grant program.
Sec. 6. Study and report on prevalence of mentally ill offenders.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Communities nationwide are struggling to respond to the 
     high numbers of people with mental illnesses involved at all 
     points in the criminal justice system.
       (2) A 1999 study by the Department of Justice estimated 
     that 16 percent of people incarcerated in prisons and jails 
     in the United States, which is more than 300,000 people, 
     suffer from mental illnesses.
       (3) Los Angeles County Jail and New York's Rikers Island 
     jail complex hold more people with mental illnesses than the 
     largest psychiatric inpatient facilities in the United 
     States.
       (4) State prisoners with a mental health problem are twice 
     as likely as those without a mental health problem to have 
     been homeless in the year before their arrest.

     SEC. 3. REAUTHORIZATION OF THE ADULT AND JUVENILE 
                   COLLABORATION PROGRAM GRANTS.

       (a) Authorization of Appropriations Through 2013.--Section 
     2991(h) of title I of the Omnibus Crime Control and Safe 
     Streets Act of 1968 is amended--
       (1) in paragraph (1), by striking at the end ``and'';
       (2) in paragraph (2), by striking ``for fiscal years 2006 
     through 2009.'' and inserting ``for each of the fiscal years 
     2006 and 2007; and''; and
       (3) by adding at the end the following new paragraph:
       ``(3) $75,000,000 for each of the fiscal years 2008 through 
     2013.''.
       (b) Allocation of Funding for Administrative Purposes.--
     Section 2991(h) of such title is further amended--
       (1) by redesignating paragraphs (1), (2), and (3) (as added 
     by subsection (a)(3)) as subparagraphs (A), (B), and (C), 
     respectively;
       (2) by striking ``There are authorized'' and inserting 
     ``(1) In general.--There are authorized''; and
       (3) by adding at the end the following new paragraph:
       ``(2) Allocation of Funding for Administrative Purposes.--
     For fiscal year 2008 and each subsequent fiscal year, of the 
     amounts authorized under paragraph (1) for such fiscal year, 
     the Attorney General may obligate not more than 3 percent for 
     the administrative expenses of the Attorney General in 
     carrying out this section for such fiscal year.''.
       (c) Additional Applications Receiving Priority.--Subsection 
     (c) of such section is amended to read as follows:
       ``(c) Priority.--The Attorney General, in awarding funds 
     under this section, shall give priority to applications 
     that--
       ``(1) promote effective strategies by law enforcement to 
     identify and to reduce risk of harm to mentally ill offenders 
     and public safety;
       ``(2) promote effective strategies for identification and 
     treatment of female mentally ill offenders; or
       ``(3)(A) demonstrate the strongest commitment to ensuring 
     that such funds are used to promote both public health and 
     public safety;
       ``(B) demonstrate the active participation of each co-
     applicant in the administration of the collaboration program;
       ``(C) document, in the case of an application for a grant 
     to be used in whole or in part to fund treatment services for 
     adults or juveniles during periods of incarceration or 
     detention, that treatment programs will be available to 
     provide transition and reentry services for such individuals; 
     and
       ``(D) have the support of both the Attorney General and the 
     Secretary.''.

     SEC. 4. LAW ENFORCEMENT RESPONSE TO MENTALLY ILL OFFENDERS 
                   IMPROVEMENT GRANTS.

       (a) In General.--Part HH of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 is amended by adding at 
     the end the following new section:

     ``SEC. 2992. LAW ENFORCEMENT RESPONSE TO MENTALLY ILL 
                   OFFENDERS IMPROVEMENT GRANTS.

       ``(a) Authorization.--The Attorney General is authorized to 
     make grants to States, units of local government, Indian 
     tribes, and tribal organizations for the following purposes:
       ``(1) Training programs.--To provide for programs that 
     offer law enforcement personnel specialized and comprehensive 
     training in procedures to identify and respond appropriately 
     to incidents in which the unique needs of individuals with 
     mental illnesses are involved.
       ``(2) Receiving centers.--To provide for the development of 
     specialized receiving centers to assess individuals in the 
     custody of law enforcement personnel for mental health and 
     substance abuse treatment needs.
       ``(3) Improved technology.--To provide for computerized 
     information systems (or to improve existing systems) to 
     provide timely information to law enforcement personnel and 
     criminal justice system personnel to improve the response of 
     such respective personnel to mentally ill offenders.
       ``(4) Cooperative programs.--To provide for the 
     establishment and expansion of cooperative efforts by 
     criminal and juvenile justice agencies and mental health 
     agencies to promote public safety through the use of 
     effective intervention with respect to mentally ill 
     offenders.
       ``(5) Campus security personnel training.--To provide for 
     programs that offer campus security personnel training in 
     procedures to identify and respond appropriately to incidents 
     in which the unique needs of individuals with mental 
     illnesses are involved.
       ``(b) BJA Training Models.--For purposes of subsection 
     (a)(1), the Director of the Bureau of Justice Assistance 
     shall develop training models for training law enforcement 
     personnel in procedures to identify and respond appropriately 
     to incidents in which the unique needs of individuals with 
     mental illnesses are involved.
       ``(c) Matching Funds.--The Federal share of funds for a 
     program funded by a grant received under this section may not 
     exceed 75 percent of the costs of the program unless the 
     Attorney General waives, wholly or in part, such funding 
     limitation. The non-Federal share of payments made for such a 
     program may be made in cash or in-kind fairly evaluated, 
     including planned equipment or services.
       ``(d) Authorization of Appropriations.--There are 
     authorized to be appropriated to the Department of Justice to 
     carry out this section $10,000,000 for each of the fiscal 
     years 2008 through 2013.''.
       (b) Conforming Amendment.--Such part is further amended by 
     amending the part heading to read as follows: ``GRANTS TO 
     IMPROVE TREATMENT OF OFFENDERS WITH MENTAL ILLNESSES''.

[[Page S13771]]

     SEC. 5. IMPROVING THE MENTAL HEALTH COURTS GRANT PROGRAM.

       (a) Reauthorization of the Mental Health Courts Grant 
     Program.--Section 1001(a)(20) of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3793(a)(20)) 
     is amended by striking ``fiscal years 2001 through 2004'' and 
     inserting ``fiscal years 2008 through 2013''.
       (b) Additional Grant Uses Authorized.--Section 2201 of such 
     title (42 U.S.C. 3796ii) is amended--
       (1) in paragraph (1) at the end, by striking ``and'';
       (2) in paragraph (2) at the end, by striking the period and 
     adding ``; and''; and
       (3) by adding at the end the following new paragraphs:
       ``(3) pretrial services and related treatment programs for 
     offenders with mental illnesses; and
       ``(4) developing, implementing, or expanding programs that 
     are alternatives to incarceration for offenders with mental 
     illnesses.''.

     SEC. 6. STUDY AND REPORT ON PREVALENCE OF MENTALLY ILL 
                   OFFENDERS.

       (a) Study.--The Attorney General shall provide for a study 
     of the following:
       (1) The rate of occurrence of serious mental illnesses in 
     each of the following populations:
       (A) Individuals, including juveniles, on probation.
       (B) Individuals, including juveniles, incarcerated in a 
     jail.
       (C) Individuals, including juveniles, incarcerated in a 
     prison.
       (D) Individuals, including juveniles, on parole.
       (2) For each population described in paragraph (1), the 
     percentage of individuals with serious mental illnesses who, 
     at the time of the arrest, are eligible to receive 
     Supplemental Security Income benefits, Social Security 
     Disability Insurance benefits, or medical assistance under a 
     State plan for medical assistance under title XIX of the 
     Social Security Act.
       (3) For each such population, with respect to a year, the 
     percentage of individuals with serious mental illnesses who--
       (A) were homeless (as defined in section 103 of the 
     McKinney-Vento Homeless Assistance Act (42 U.S.C. 11302)) at 
     the time of arrest; and
       (B) were homeless (as so defined) during any period in the 
     previous year.
       (b) Report.--Not later than 18 months after the date of the 
     enactment of this Act, the Attorney General shall submit to 
     Congress a report on the results of the study under 
     subsection (a).
       (c) Definition of Serious Mental Illness.--For purposes of 
     this section, the term ``serious mental illness'' has the 
     meaning given such term for purposes of title V of the Public 
     Health Service Act.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated to carry out this section $2,000,000 for 
     2008.

  Mr. KENNEDY. Mr. President, it is a privilege to join my colleague 
from New Mexico in introducing the Mentally Ill Offender Treatment and 
Crime Reduction Reauthorization and Improvement Act of 2007. This 
bipartisan, bicameral legislation will authorize continued Federal 
support for cooperation between the criminal justice and mental health 
systems on jail diversion, correctional treatment, and community 
reentry of offenders with a mental illness, and cross-training of 
criminal justice and mental health personnel. With full funding, this 
proposal has the potential to achieve significant reforms in the 
treatment of offenders diagnosed with a mental illness.
  I commend Senator Domenici for his leadership on this bill and on 
many other initiatives to improve our Nation's mental health systems. I 
also welcome the support and leadership of Representatives Scott and 
Forbes in the House of Representatives. We all agree that this 
legislation can promote cooperative initiatives that will significantly 
reduce recidivism and improve treatment outcomes.
  Based on the most recent studies by the Bureau of Justice, more than 
half of all prison and jail inmates had a mental health problem in 
2005, including 56 percent of inmates in State prisons, 45 percent of 
Federal prisoners and 64 percent of jail inmates. The high rate of 
symptoms of mental illness among jail inmates may reflect the role of 
local jails in the criminal justice system, which operate as locally-
run correctional facilities that receive offenders pending arraignment, 
trial, conviction or sentencing. Among other functions, local jails 
also hold mentally ill persons pending their relocation in appropriate 
mental health facilities.
  Far too often, individuals encounter the criminal justice system when 
what is really needed is treatment and support for mental illness. 
Families often resort to the police in desperation in order to obtain 
treatment for a loved one suffering from an extreme episode of a mental 
illness. During such extreme distress, families may face no other 
alternative, because persons with symptoms such as paranoia, 
exaggerated actions or impaired judgment may be unable to recognize the 
need for treatment.
  It is unconscionable, and may well be unconstitutional, for these 
vulnerable individuals to be further marginalized once they are 
incarcerated. Too often, they are denied even minimal treatment because 
of inadequate resources.
  Most mentally ill offenders who come into contact with the criminal 
justice system are charged with low-level, nonviolent crimes. Once 
behind bars, they may well face an environment that further exacerbates 
symptoms of mental illness, which might otherwise be manageable with 
proper treatment. Caught in a revolving door, they may soon be back in 
prison as a result of insufficient and inadequate transitional services 
when they are released.
  This bill reauthorizes critical programs to move away from troubled 
systems that often result in the escalating incarceration of 
individuals with mental illness. Through this legislation, State and 
local correctional facilities will be able to create appropriate, cost-
effective solutions. Low-level, nonviolent mentally ill offenders will 
have greater access to continuity of care.
  Congress must also address an unfunded mandate that has been imposed 
on the States for decades. In Estelle v. Gamble in 1967, the Supreme 
Court held that deliberate indifference to serious medical needs of 
inmates is unconstitutional, ``whether the indifference is manifested 
by prison doctors in their response to the prisoner's needs or by 
prison guards in intentionally denying or delaying access to medical 
care or intentionally interfering with the treatment once prescribed.'' 
In Ruiz v. Estelle in 1980, the Supreme Court established minimum 
standards for mental health services in correctional settings. Yet more 
than twenty years later, Federal, State, and local facilities still do 
not have nearly enough resources to come even close to meeting these 
constitutional requirements.
  Congress must do its part to assist State and local governments in 
meeting this burden. We cannot tolerate a system that fails to meet 
constitutional safeguards, or that fails to dedicate resources 
effectively so that people will get help instead of jail time. As a 
result of State budget cuts, more and more communities are looking to 
the Federal Government for support.
  This call for change can not be ignored. We have seen too many news 
stories reflecting the need for action on this issue. A New York Times 
editorial by Bernard Harcourt on January 15, 2007, highlighted problems 
facing the mentally ill behind bars, noting two extreme examples in 
different parts of the country. In August 2006, a prison inmate, 
described by authorities as ``floridly psychotic,'' died in Michigan 
shackled to a concrete slab, waiting for a mental health transfer that 
never happened. Six months later, the head of Florida's social services 
department resigned in the face of charges for failing to transfer 
severely mentally ill jail inmates to State hospitals.
  To date, we have seen only a fraction of the possible potential under 
this legislation, because only 50 planning and implementation grants 
have been awarded. Because of limited Federal funding, only 11 percent 
of applicants were able to receive one of these grants for which there 
is high demand. In Massachusetts, the Norfolk District Attorney's 
office received one of the planning grants. Right now, the office is 
working hard to implement a program to ensure that a trained mental 
health professional will serve in police departments, so that a 
qualified person on the scene can assist in a situation involving a 
mentally ill person.
  The program will also reduce the likelihood that a mentally ill 
person charged with a low-level crime will be inappropriately jailed, 
and will give such persons the treatment they need and provide life 
skills training, housing placement, vocational training and job 
placement. Several local mental health centers have already expressed 
their support for the program and their willingness to cooperate in 
providing valuable services to this long-neglected population.
  The expanded funding in this bill could help support ongoing efforts 
like

[[Page S13772]]

the Massachusetts Mental Health Diversion & Integration Program, 
MMHDIP, which is part of the Center for Mental Health Services Research 
at the University of Massachusetts Medical School. The center for 
Mental Health Services Research has supported a series of research and 
training programs to assist persons with mental illness who come in 
contact with the criminal justice system and have worked with police 
departments in Boston, Worcester, and Attleboro. The center is also 
working on programs to develop evidence on which future practices may 
be based. They also disseminate best practices for crisis intervention 
and risk management to police, courts, probation, prosecutors, defense 
attorneys, schools, and social service providers. The goal of the 
program is to reduce reliance on the criminal justice system as an 
access point for social service provision, thereby freeing police and 
other portions of the criminal justice system to more effectively 
fulfill their public safety function.
  The current programs in Massachusetts reflect the continuing legacy 
of the nationwide movement that began when Dorothea Dix entered an East 
Cambridge Jail in 1841. Discovering that the mentally ill inmates were 
being housed together in terrible conditions without any heat, Dorothea 
began documenting prison conditions for the mentally ill throughout our 
Commonwealth. Her advocacy, and her determination to pursue ideas that 
seemed radical at the time, achieved significant reforms in 
Massachusetts. She went on to lead the first national legislation to 
provide for the mentally ill. Today, we are still a long way to achieve 
the goals set forth by Dorothea so many years ago.
  In every State, interactions between law enforcement and individuals 
suffering from mental illness continue to rise and the need for 
effective solutions is critical. This legislation will continue to 
``foster local collaborations'' between law enforcement and mental 
health providers. What works in one community will not necessarily work 
or be desired in another--solutions must take into account the existing 
problem as well as the social and political dynamics within each 
community. With so many complex issues involved at the intersection of 
mental illness and the criminal justice system, no magic solution will 
solve the problems faced in communities across America. This bill 
encourages funding for specialized programs that will most effectively 
address the needs of these local communities. With this legislation, 
Congress will join local communities in their response to this problem.
  In addition, members of State and local law enforcement need access 
to training and other alternatives to improve safety and 
responsiveness. The bill reauthorizes the Mentally Ill Offender 
Treatment Program and increases the funding to $75 million a year. The 
legislation also authorizes $10 million for grants to States and local 
governments to train law enforcement personnel on procedures to 
identify and respond more appropriately to persons with mental 
illnesses, and to develop specialized receiving centers to assess 
individuals in custody.
  In his last public bill signing in 1963, President Kennedy signed a 
$3 billion authorization bill to create a national network of community 
mental health facilities across the country. With the escalation of the 
Vietnam War, not one penny of the $3 billion was ever appropriated. 
Now, decades later, we face a crisis in which far too many mentally ill 
individuals are facing jail time rather than treatment.
  Last year, more than 1 million persons with serious mental illnesses 
were arrested. Noting the breadth of this national problem, Judge 
Leifman of the Criminal Division of the Miami-Dade County Court has 
stated that, ``Jails and prisons have become the asylums of the new 
millennium.''
  The broad support for this legislation--ranging from the Council of 
State Governments, the National Alliance on Mental Illness, the 
National Sheriffs Association, the Bazelon Center for Mental Health 
Law, the National Council for Community Behavioral Healthcare, the 
National Alliance for the Mentally Ill, the Council of State 
Governments, the Campaign for Mental Health Reform and Mental Health 
America--demonstrates that it will provide much-needed support to help 
solve this complex problem. The courts, law enforcement, corrections 
and mental health communities have all come together in support of this 
legislation, and Congress must respond.
  Individuals and their loved ones struggle with countless challenges 
and barriers during a mental health crisis. With this bill, Congress 
can provide significant support to needed cooperation efforts between 
law enforcement and mental health experts. I urge my colleagues to 
support this legislation, so that we can achieve its enactment before 
the end of this current session of Congress.
  Mr. LEAHY. I have joined today with Senators Domenici, Kennedy, and 
Specter to introduce legislation to reauthorize the Mentally Ill 
Offender Treatment and Crime Reduction Act. I was a sponsor of the 
original authorization of this act in 2004, and I am proud that these 
programs have helped our State and local governments reduce crime by 
providing more effective treatment for the mentally ill.
  All too often, people with mental illness rotate repeatedly between 
the criminal justice system and the streets of our communities, 
committing a series of minor offenses. Offenders find themselves in 
prisons or jails, where little or no appropriate medical care is 
available for them. This bill gives State and local governments the 
tools to break this cycle, for the good of law enforcement, corrections 
officers, the public's safety, and mentally ill offenders. More than 16 
percent of adults incarcerated in U.S. jails and prisons have a mental 
illness, about 20 percent of youth in the juvenile justice system have 
serious mental health problems, and almost half the inmates in prison 
with a mental illness were incarcerated for committing a nonviolent 
crime. This is a serious problem that I hear about often when I talk 
with law enforcement officials and others in Vermont.
  Under this bill, State and local governments can apply for funding to 
create or expand mental health courts or other court-based programs, 
which can divert qualified offenders from prison to receive treatment; 
create or expand programs to provide specialized training for criminal 
justice and mental health system personnel; create or expand local 
treatment programs that serve individuals with mental illness or co-
occurring mental illness and substance abuse disorders; and promote and 
provide mental health treatment for those incarcerated in or released 
from a penal or correctional institution.
  The grants created under this program have been in high demand, but 
only about 11 percent of the applications submitted have been able to 
receive funding due to inadequate Federal funds. This bill would 
increase funding of these programs and authorize $75 million to help 
communities address the needs of the mentally ill in our justice 
system. The bill also provides $10 million for law enforcement training 
grant programs to help law enforcement recognize and respond to 
incidents involving mentally ill persons.
  This legislation brings together law enforcement, corrections, and 
mental health professionals to help respond to the needs of our 
communities. They know that the states have been dealing with the 
unique problems created by mentally ill offenders for many years, and 
that a federal support is invaluable. I look forward to working with 
them, and with Senators Domenici, Kennedy, Specter, and other Members, 
to see this bill enacted this Congress.
                                 ______
                                 
      By Mr. WHITEHOUSE (for himself, Mr. Leahy, Mrs. Feinstein, Mr. 
        Feingold, Mr. Nelson of Florida, Mr. Brown, Ms. Klobuchar, Mrs. 
        Clinton, Mr. Kerry, Mr. Menendez, Mr. Obama, Mr. Schumer, and 
        Mr. Dodd):
  S. 2305. A bill to prevent voter caging, to the Committee on Rules 
and Administration.
  Mr. WHITEHOUSE. Mr. President, it is an unfortunate reality that with 
so much at stake in the ballot box, organized efforts to suppress the 
vote go nearly as far back as the right to vote itself. These efforts 
have cast a shadow over what Justice Earl Warren called ``the essence 
of a Democratic society'': the right to vote freely for the candidate 
of one's choice.

[[Page S13773]]

  The first voter suppression in America was direct: blanket 
restrictions based on race, based on gender, based on class. Over the 
years, these overt efforts were eventually replaced by more indirect 
and nefarious means: poll taxes, literacy tests, Whites-only primaries, 
and myriad other disenfranchisement laws aimed directly at minority 
voters. These crafty legal obstacles were often supplemented by blunt 
physical violence. But despite the many and varied efforts to impede 
the franchise, American democracy has shown an extraordinary 
resilience--and the American people have shown an abiding dedication, 
sometimes paying with life and limb, to defend the right of their 
fellow citizens to vote.
  This Senate, of course, has a checkered past on voting rights. For 
many years, the Senate is where civil rights bills came to die, stalled 
by filibusters and tangled in parliamentary technique. Eventually, of 
course, the tide turned, and Congress ushered in a series of laws that 
remain among the most important ever enacted: the 24th amendment 
banning poll taxes; the Civil Rights Act; and the Voting Rights Act of 
1965, which banned literacy tests, authorized the Attorney General to 
appoint Federal voting examiners to ensure fair administration of 
elections, and required the Federal Government to ``pre-clear'' certain 
changes in the voting laws of local jurisdictions.
  That law has been improved and reauthorized a number of times--as 
recently as last year--and is a cornerstone of our democracy. 
Nevertheless, as we all know, efforts to suppress the vote persist and 
continue to erode the promise of democracy for many Americans. For 
example, in the last election cycle, we saw organized efforts to 
deceive voters by sending out fliers with false information about the 
location of polling places or with phony endorsements, we saw threats 
that immigrants could be imprisoned if they voted.
  The Judiciary Committee, under the wise leadership of Chairman Leahy, 
has responded with the Deceptive Practices and Voter Intimidation 
Prevention Act, which would criminalize various forms of voter 
intimidation and election misinformation.
  In recent years, we have also seen the rise of another voter 
suppression tactic, which has come to be known as ``vote caging.'' 
Caging is a voter suppression tactic whereby a political campaign sends 
mail marked ``do not forward/return to sender'' to a targeted group of 
voters--often targeted into minority neighborhoods. The campaign then 
challenges the right of those citizens whose mail was returned as 
``undeliverable'' on the grounds that the voter does not live at the 
registered address. Of course, as the Presiding Officer knows, there 
are many reasons why a piece of mail might be ``returned to sender'' 
that have nothing whatsoever to do with the voter's eligibility. For 
example, a voter might be an active member of the armed services and 
stationed far from home or a student lawfully registered at their 
parents' address. Even a typographical error during entry of the 
voter's registration information might result in a ``false negative.'' 
Nevertheless, these individuals end up facing a challenge to their vote 
and possibly losing their right to vote.
  Caging came into the media spotlight this summer during Congress's 
investigation into the political dismissal of U.S. attorneys, but this 
practice is not new, and it is not rare. In fact, since 1982, the 
Republican National Committee has been operating under a consent 
decree, filed in New Jersey U.S. District Court, which states that the 
RNC shall ``refrain from undertaking any ballot security activities in 
polling places or election districts where the racial or ethnic 
composition of such districts is a factor in the decision to conduct, 
or the actual conduct of, such activities.''
  This consent decree was entered into after the Republican National 
Committee, during the 1981 New Jersey gubernatorial election, initiated 
a massive voter-caging operation, sending mailers marked ``do not 
forward'' to voters in predominantly African-American and Latino 
neighborhoods throughout the State. The Republican National Committee 
then compiled a caging list based solely on the returned letters and 
challenged these voters at the polls. They did it again in Louisiana, 
in 1986, when the Republican National Committee hired a consultant to 
send 350,000 pieces of mail marked ``do not forward'' to districts that 
were mostly African American, and the consent decree was then modified 
to require the U.S. District Court in New Jersey to preclear any so-
called ballot security programs undertaken by the Republican National 
Committee.
  However, in part because the Federal consent decree does not apply to 
State parties or other campaigns, caging has continued. During the past 
few election cycles, there has been credible evidence of caging in 
Ohio, in Florida, in Pennsylvania, and elsewhere. Not every caging 
operation has been successful, but the failure of a voter suppression 
attempt is no excuse for it. Therefore, I am introducing the Caging 
Prohibition Act, which would prohibit challenging a person's 
eligibility to vote--or to register to vote--based on a caging list. 
Simply put, eligible voters should not fear their right to vote might 
be challenged at the polls because a single piece of mail never reached 
them.
  The bill would also require any private party who challenges the 
right of another citizen to vote--or to register to vote--to set forth 
in writing, under penalty of perjury, the specific grounds for the 
alleged ineligibility. The principle here is simple: If you are going 
to challenge one of your fellow citizen's right to vote, you should at 
least have cause and be willing to stand behind it.
  I am very proud of the extraordinary group of Senators who have 
agreed to be original cosponsors of this piece of legislation: Chairman 
Leahy of the Judiciary Committee, Senator Feinstein, Senator Dodd, 
Senator Kerry, Senator Feingold, Senator Schumer, Senator Nelson of 
Florida, Senator Clinton, Senator Obama, Senator Menendez, Senator 
Brown, and Senator Klobuchar. I was proud to work closely with the 
Brennan Center for Social Justice and the Lawyers Committee for Civil 
Rights Under Law to develop the language of this bill. I would also 
like to thank People for the American Way for its support of this 
legislation.
  In the 1964 case of Reynolds v. Sims, the U.S. Supreme Court stated:

       [T]he right to exercise the franchise in a free and 
     unimpaired matter is preservative of other basic civil and 
     political rights. . . .

  In other words, every right we have depends upon the right to vote. 
Organized voter-suppression efforts, including vote-caging schemes, 
infringe on this right and undermine our democracy. Congress should 
rise to the occasion and say ``enough is enough'' to vote caging.
  I thank my many distinguished colleagues who have cosponsored this 
bill, and I ask my colleagues on both sides of the aisle to join us in 
stopping this nefarious voter suppression activity.
  I yield the floor.

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