[Congressional Record Volume 155, Number 52 (Thursday, March 26, 2009)]
[Senate]
[Pages S3900-S3904]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WEBB (for himself, Mr. Specter, Mr. Reid, Mr. Leahy, Mr. 
        Durbin, Mr. Graham, Mr. Schumer, Mrs. Murray, Mr. Wyden, Mr. 
        Brown, Mr. Warner, Mrs. Gillibrand, Mr. Burris, Mr. Kennedy, 
        Mr. Cardin, and Mrs. McCaskill):
  S. 714. A bill to establish the National Criminal Justice Commission; 
to the Committee on the Judiciary.
  Mr. WEBB. Today I am pleased to be introducing a piece of legislation 
designed to establish a national criminal justice commission. I do so 
with, at the moment, 12 cosponsors, including our majority leader, the 
chairman and the ranking Republican on the Senate Judiciary Committee, 
the chairman and the ranking member of the Judiciary Subcommittee on 
Crime and Drugs, and other members of our leadership. I introduce this 
bill after more than 2 years of effort here in the Senate that I will 
explain shortly; also with the prior conferral with Supreme Court 
Justice Kennedy and having discussed this matter with the President and 
the Attorney General, both of whom I think are strongly supportive of 
this concept.
  Our design, our goal in this legislation, is to create a national 
commission with an 18-month timeline, not to simply talk about the 
problems that we have in our criminal justice system but actually to 
look at all of the elements in this system, how they are interrelated 
in terms of the difficulties that we have in remedying issues of 
criminal justice in this country, and to deliver us from a situation 
that has evolved over time where we are putting far too many of the 
wrong people into prison and we are still not feeling safer in our 
neighborhoods; we are still not putting in prison or bringing to 
justice those people who are perpetrating violence and criminality as a 
way of life.
  I would like to say that, although I am not on the Judiciary 
Committee, I come to this issue as someone who first became interested 
in criminal justice issues while I was serving as a U.S. marine, 
serving on a number of courts-martial and thinking about the 
interrelationship between discipline and fairness; then after that, 
from having spent time as an attorney at one point representing, pro 
bono, a young former marine who had been convicted of murder in 
Vietnam. I represented him for 6 years pro bono. He took his life 
halfway through this process. I cleared his name 3 years later, but I 
became painfully aware of how sometimes inequities infect our process.
  Prior to joining the Senate, I spent time as a journalist, including 
a stint 25 years ago as the first American journalist to have been 
inside the Japanese prison system, where I became aware of the systemic 
difficulties and challenges

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we have. At that time, 25 years ago, Japan was half our population, and 
had only 40,000 sentenced prisoners in jail. We had 480,000. Today, we 
have 2.38 million prisoners in our criminal justice system and another 
5 million involved in the process, either due to probation or parole 
situations.
  This is a system that is very much in need of the right sort of 
overarching examination. I do note the senior Senator from Pennsylvania 
has joined me on the Senate floor. I am very gratified he has also 
joined me as the lead Republican on this measure. I look forward to 
hearing from him as soon as I am finished with my remarks.
  The third thing I would like to say at the outset is, I believe very 
strongly, even though we are a Federal body, that there is a compelling 
national interest for us to examine this issue and reshape and reform 
our criminal justice system at the Federal, State, and local levels. I 
believe the commission I am going to present would provide us with that 
opportunity.
  I start with a premise I do think not a lot of Americans are aware 
of. We have 5 percent of the world's population. We have 25 percent of 
the world's known prison population. We have an incarceration rate in 
the United States, the world's greatest democracy, that is five times 
as high as the incarceration rate in the rest of the world.
  There are only two possibilities. Either we have the most evil people 
on Earth living in the United States or we are doing something 
dramatically wrong in terms of how we approach the issue of criminal 
justice. And I would ask my fellow Senators and my fellow citizens to 
think about the challenges that attend these kind of numbers when we 
are looking at people who have been released from prison and are 
reentering American society.
  We have hundreds and thousands of American people who are reentering 
American society without the sort of transition that would allow a 
great percentage of them to again become productive citizens.
  I think we need to look at this in terms of our own history, our own 
recent history. This is a chart that shows our incarceration rate from 
1925 until today. Beginning in about 1980, our incarceration rate 
started to skyrocket. What has happened since 1980 is not reflective of 
where our own history has been on this issue. That is another need, why 
we need to examine it fuller. We also, for a complex set of reasons, 
are warehousing the mentally ill in our prisons. We now have four times 
as many mentally ill people in our prisons than we do in mental 
institutions. There are a complex set of reasons for that, but the main 
point for all of us to consider is, these people who are in prison are 
not receiving the kind of treatment they would need in order to remedy 
the disabilities that have brought them to that situation.
  Drug incarceration has sharply increased over the past three decades. 
In 1980, we had 41,000 drug offenders in prison. Today we have more 
than 500,000. That is an increase of 112 percent.
  Those blue disks represent the numbers in 1980. The red disks 
represent the numbers in 2007. A significant percent of these 
individuals are incarcerated for possession or nonviolent drug 
offenses, and in many cases, criminal offenses that stem from drug 
addiction and those sorts of related behavioral issues.
  African Americans are about 12 percent of our population. Contrary to 
a lot of thought and rhetoric, their drug use, in terms of frequent 
drug use rate, is about the same as all other elements of our society, 
about 14 percent. But they end up being 37 percent of those arrested on 
drug charges, 59 percent of those convicted, and 74 percent of those 
sentenced to prison, by the numbers that have been provided to us and 
to the Joint Economic Committee. This is a disturbing statistic for us. 
I emphasize to my colleagues and to others that the issues we face with 
respect to criminal justice are not overall racial issues. They involve 
issues, in many cases, of how people are treated based on their ability 
to have proper counsel and other issues like that. But this is a 
statistic with respect to drugs that we all must come to terms with.
  At the same time, I say we are putting too many of the wrong people 
in prison, and we are not solving the problems that will bring safety 
to our communities. Gangs are a hot issue today. I am on the Armed 
Services Committee. I am on the Foreign Relations Committee. There has 
been a lot of back and forth in recent months about the transnational 
gangs that are emanating across the Mexican border. Approximately 1 
million gang members are currently in our country today. And I emphasis 
this is not an issue that is simply existent along the Mexican border. 
This is an issue that affects every community in the United States, and 
it is not simply an issue with respect to the Mexican drug cartels, 
although theirs are the most violent and the most visible today.
  The Mexican drug cartels are operating in more than 230 American 
cities, not simply along the border. The incidents along on the border 
illuminate the largeness of this problem and of this challenge. Gangs 
in many areas of the United States commit 80 percent of the crimes. 
They are heavily involved in drug distribution, but they are involved 
in other violent activities as well.
  There has been some talk over the past few days about how our 
position toward drugs and our gun policies feed this problem. I would 
ask my colleagues to think very hard about that. Drugs are a demand-
pull problem in the United States, there is no question about that. 
There are a lot of weapons that are going back and forth across the 
border. But we should remember the Mexican drug cartels are capable of 
very sophisticated levels of quasi-military violence.
  Many of the members who are brought into the gangs by the drug 
cartels are former Mexican military. Some of them have been trained by 
our own special forces, and the weapons they use are not the kind of 
weapons you are going to buy at a gun show. You do not get automatic 
weapons, RPGs, and grenades at a gun show.
  We have to realize these cartels have a lot of money. By some 
indications they make profit levels of about $25 billion a year. They 
can buy the weapons they want. We have to get on top of this as a 
national priority. Again, it is not simply the transnational gangs that 
come out of Mexico. Many of them are Central American.
  In Northern Virginia, right across the Potomac River, we have 
thousands of members who belong to the MS-13 gangs emanating out of 
Central America, who are very active up the I-95 corridor. There are 
Asian gangs. We have to get our arms around this problem as we address 
the other problem of mass incarceration in the United States.
  Another piece of this issue I hope we will be able to address with 
this national criminal justice commission is what happens inside our 
prisons. When I was looking at the Japanese system many years ago, 
their model in terms of prison administration was basically designed 
after a traditional military model. You could not be a warden in a 
Japanese jail unless you started as a turnkey. They had national 
examinations. They had a year of preparation, training in psychology, 
in counseling techniques, before an individual was allowed to be a 
turnkey in a jail. The promotion systems were internal, like the U.S. 
military. It provided a quality career path, and it brought highly 
trained people in at the very beginning.
  We do not have that in America. Prisons vary warden to warden; they 
vary locality to locality. We need to examine a better way to do that 
in our country.
  We also have a situation in this country with respect to prison 
violence and sexual victimization that is off the charts. We must get 
our arms around this problem.
  We also have many people in our prisons who are among what are called 
the criminally ill, people who are suffering from hepatitis and HIV who 
are not getting the sorts of treatment they deserve.
  I started, once I arrived in the Senate, working on this issue. I was 
pleased to be working with Senator Schumer on the Joint Economic 
Committee. He allowed me to chair hearings to try to get our arms 
around this problem and see what sort of legislative approach might 
help. I chaired a hearing on mass incarceration in October of 2007. I 
chaired another hearing last year on the overall impact of illegal 
drugs from point of origin through the criminal justice system. How 
does this work in terms of the underground

[[Page S3902]]

business environment? How does it work in terms of the disparity in 
treatment of people who end up incarcerated? How does it affect 
people's long-term lives? What are the costs associated with it?
  I was able to work with the George Mason University Law Center to put 
together a forum bringing people in from across the country to talk 
about our overall drug policy. Once we started talking about this, 
particularly over the last year, we started being contacted by people 
all across the country, people from every different aspect of the 
political and the philosophical areas that come into play when we talk 
about incarceration. It is a very emotional issue.
  As I said, I heard from Justice Kennedy at the Supreme Court. I have 
heard from prosecutors, judges, defense lawyers, former offenders, 
people in prison, police on the street. All of them are saying we have 
a mess; we have a mess. We have to get a holistic view of how to solve 
it. There are many good pieces of legislation that have been introduced 
in the Congress to deal with different pieces of this issue. But after 
going through this process over the past year, I have come to the 
conclusion that the way we should address this is with a national 
commission that will examine all of these pieces together and make 
specific findings so we can turn it around.
  These are examples of some of the editorial support that we have 
received. I have written a piece for Parade magazine which will be out 
this weekend to summarize the challenges we have; I hope our fellow 
citizens will take a look at it.
  As to the design of this legislation, we are looking for two things. 
One is to shape a commission with bipartisan balance: the President 
nominating the chairman; the majority and minority leaders in the 
Senate, in consultation with the Judiciary Committee, each nominating 
two members; the Speaker of the House and the House Minority Leader, in 
concert with the Judiciary Committee, each nominating two members; and 
the National Governors Association, Republican and Democrat, each 
getting one member. The idea is not to have a group of people who are 
going to sit around and simply remonstrate about the problem. It is to 
get a group of people with credibility and wide expertise to examine 
specific findings and to come up with policy recommendations on an 18-
month time period.
  This commission will be asked to investigate the reasons in our own 
history that we have seen this incredible increase in incarceration. 
What do other countries do, particularly countries that have the same 
basic governmental systems we do? How do they handle comparable types 
of crime? What should we do about prison administration policies, 
prison management? How can we bring more quality, stability, and 
predictability in terms of the prison environment itself? What are the 
costs of our current incarceration policies, not only in terms of the 
billions of dollars we spend on building prisons or the billions we 
spend on housing people in prisons but also in terms of lost 
opportunities with our post-prison systems, and how we can better 
manage that area. What is the impact of gang activities, including 
these transnational gangs, and how should we approach that issue, not 
simply in terms of incarceration but as a nation that is under duress 
from not being able to respond properly? Importantly, what are we going 
to do about drug policy, the whole area of drug policy, and how does 
that affect sentencing procedures and other alternatives we might look 
at? We need to examine the policies as they relate to the mentally ill. 
We should look at the historical role of the military when it comes to 
how we are approaching these cross-border situations, particularly on 
the Mexican border. Finally, importantly, any other area the Commission 
deems relevant.
  This is our best effort, after 2 years of coming up with the universe 
of issues that need to be examined. There are many people, including 
the senior Senator from Pennsylvania, who have worked on these areas 
for a number of years. If they have specific findings they believe the 
Commission should review, we are very happy to accommodate that.
  The first step for the commission would be to give us findings, 
factual findings. From those findings, then give us recommendations for 
policy changes. The same areas I addressed in terms of findings apply 
in terms of the policy recommendations: How we can refocus our 
incarceration policies, work toward properly reducing the incarceration 
rate in fair, cost-effective ways that still protect communities; how 
we should address the issue of prison violence in all forms; how we can 
improve prison administration; how we can establish meaningful reentry 
programs. I believe with the high volume of people coming out of 
prisons, we must, on a national level, assist local and State 
communities in figuring out a way to transition these people so those 
former offenders who are not going to become recidivists will have a 
true pathway to get away from the stigma of incarceration and move into 
a productive future.
  Again, importantly, the last category, any other aspect of the system 
the Commission or the people participating in it determine necessary.
  This is our approach. I am gratified to have had as initial 
cosponsors six members of the Senate Judiciary Committee, including the 
chairman, Senator Leahy; the ranking Republican, Senator Specter; the 
chairman of the Subcommittee on Crime and Drugs, Senator Durbin; the 
ranking Republican on that subcommittee, Senator Graham; and a number 
of others, including key Democratic leadership--most importantly, our 
leader.
  I hope we can get this legislation done this year. This is an issue 
that does not percolate up in the same way. It doesn't have a 
programmatic element to it in many cases, but it is an issue that 
threatens every community and begs for the notion of fairness.
  I see the senior Senator from Pennsylvania is on the floor. I greatly 
admire the work he has done in this area over many years, and I 
appreciate his support on this endeavor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. I begin by complimenting my distinguished colleague from 
Virginia for his initiative in proposing the creation of a national 
commission to examine criminal justice. There have been many 
Commissions in recent years, recent decades. But the problems which we 
are now confronting warrant a fresh look. Senator Webb has proposed 
that. This Commission has the potential to be not just another 
Commission but to make some very significant advances on this very 
serious problem.
  The principal issue on crime is public security, protection from 
violent criminals. I have long believed the issue could be divided into 
two parts. One is the violent career criminals. They are defined as 
someone who has committed three or more serious crimes. One of the 
first bills which I authored was the armed career criminal bill, which 
was enacted in 1984, which made it a Federal offense punishable by what 
is the equivalent of a life sentence under the Federal system, 15 years 
to life, for anyone caught in possession of a firearm who has committed 
three or more offenses--a robbery, burglary, rape, arson or the sale of 
drugs. Statistics show that about 70 percent of violent crimes are 
committed by career criminals. It is my view, shared by many, that 
those people ought to be sent to jail for life. They ought to be 
separated from society. The second category involves those who have 
been convicted of crimes and who are going to be released. With respect 
to juveniles, we call that juvenile delinquency, at least in 
Pennsylvania we do, as opposed to a criminal charge. They are going to 
be released. First and second offenders are going to be released. The 
object is, how do we deal with them to, No. 1, protect society and, No. 
2, to take them out of the crime cycle so they can have productive, 
contributing lives in society? We know what to do, but we have never 
done it. The steps are to work with those who suffer from drug abuse or 
alcohol abuse. We find that 70 to 80 percent of the people arrested 
have drug or alcohol problems. They have to be treated, detoxification. 
Then they need literacy training. So many cannot read or write. Then 
they need job training so they will have a trade or skill. Then they 
need to be placed in society.
  It is no surprise, when someone who is a functional illiterate, 
without a trade or skill, gets out of jail, that the

[[Page S3903]]

odds are high they will go back to jail. There are a number of programs 
but not enough, not sufficiently carefully thought through, to place 
people. We have tax credits which will encourage employers to hire 
people. In the stimulus package for veterans or juvenile offenders, 
there is a 40-percent tax break on the first $6,000 of a job which is 
paid. That is a start. But it doesn't go very far. We have been 
unwilling to make the kind of investment to provide that kind of 
realistic rehabilitation. Therefore, we have recidivism and the 
revolving door in our jails. The public is the principal loser because 
these people come out and commit more crimes. Individuals are lost. So 
both in terms of the individual on rehabilitation, to have a productive 
role in society, a decent life, and for public safety. Candidly, you 
don't get too far on legislation looking out for the criminals on 
rehabilitation. But when you talk about the threat to society from 
repeat crimes, then people pick up their ears.
  There has been a fascinating debate recently about whether we can 
afford to have a criminal justice system that keeps people in jail and 
protects the public, whether we can afford to have the death penalty 
imposed. Is it too expensive to undertake the litigation process for 
society. I do not think we can make a decision on public safety based 
upon cost. Security is the basic purpose, fundamental first purpose of 
Government. National security on the international scene, protection 
from attacks; now we have a new form of security in terrorism. When we 
come to the domestic scene, it is a matter of having safety on the 
streets. There is a debate as to whether we ought to have the death 
penalty. That is a worthwhile debate. The Supreme Court has been moving 
in a number of areas to limit the application of the death penalty.
  From my experience as district attorney of Philadelphia, I believe 
the death penalty is a deterrent. I questioned FBI Director Mueller 
about it yesterday in the Judiciary oversight hearing. Director Mueller 
thinks the death penalty ought to be retained.
  When I was an assistant DA many years ago, I had a case in the 
Pennsylvania Supreme Court when I was chief of the appeals division. 
There were three young hoodlums, Williams, Caters, and Rivers. They 
were 19, 18, and 17. They planned a robbery. The two younger ones, 
Cater and Rivers, said to Williams, who had a gun: We are not going if 
you take the gun along. They had IQs under 100 but were smart enough to 
know that if a gun was taken, there might be a killing. That would be 
felony murder and they could get the death penalty. Williams said: I 
won't take the gun. He put it in the drawer, slammed it shut. Then, 
unbeknownst to Cater and Rivers, he took the gun back, put it in his 
pocket, went to rob a grocer in north Philadelphia, a tussle ensued. 
Williams pulled the gun and shot and killed a man named Viner. All 
three were sentenced to death in the electric chair. Williams actually 
was executed. This goes back to about 1960. Cater and Rivers got a life 
sentence.
  I argued the case in the State Supreme Court which upheld the death 
penalties and then later, when I was district attorney, I joined in the 
recommendation of a life sentence for Cater and Rivers. The point is 
that even with a marginal IQ, there was a deterrent effect. The 
critical factor in my thinking on their not having the death penalty 
was they didn't want to take the weapon. In the eyes of the law, they 
were as guilty as Williams. They were coconspirators. When you rob and 
a killing ensues, a murder ensues, it is murder in the first degree and 
calls for the death penalty.
  The commission which has been proposed here today ought to take a 
look at white-collar crime, and ought to make an evaluation of the 
sentencing which has been imposed and whether it is adequate. If you 
are dealing with a domestic quarrel, a husband-wife dispute--there are 
many homicides arising in that context--a jail sentence is not a 
deterrent. If you are dealing with white-collar crime, there is a 
deterrent.
  Today, we have--and I questioned FBI Director Mueller about this 
yesterday. He said they have many investigations being undertaken as a 
result of what has happened with corporate fraud, the misrepresentation 
of assets, leading us to the tremendous economic problems which we face 
today. There is no doubt about the deterrent effect. I urged Director 
Mueller to expedite some of the cases.
  There is great public concern about whether there will be 
accountability. I said yesterday--and repeat to--we do not want to send 
anybody to jail who does not deserve to go to jail, but you do not have 
to investigate a case for years and bring forth 100 charges, 100 counts 
of an indictment. It can be done on a much more rapid pace and have an 
appropriate trial and have a result, and it would be important to show 
the example and to show the American people there is accountability.
  When we talk about the jails, the commission ought to make a 
determination as to whether there are people in jail who ought not to 
be in jail. This morning's news has a report about the State of New 
York reexamining sentencing on drug laws. There is a lot of thought 
that the drug laws catch too many people, and many people go to jail 
who ought not to be in jail. Well, that is a question that ought to be 
examined.
  Our whole prison system in Pennsylvania is called a correctional 
system, which is a misnomer. It does not correct people. It does not 
have the facilities to correct people. What they do is warehouse.
  A related issue that considerable work has been done on recently is 
the issue of mentoring. We have some 80,000 at-risk youth in the city 
of Philadelphia, determined by a hearing which was held recently. Those 
at-risk youth can go one of two ways: They can move through the 
education system, if they have proper guidance; or they can be on the 
streets and turn into criminals, as so many of them do.
  Mentoring is a way of providing some guidance. There are so many 
single-parent homes--a working mother, nobody to give guidance. We have 
appropriated federally, recently, $25 million nationally for five 
target cities, one of which is Philadelphia, but that is a very modest 
beginning. But to be a surrogate parent, you have an opportunity. That 
is a subject which a commission ought to undertake.
  Those are some of the ideas which are current in this very complex 
field. In trying to estimate the cost of crime, it is hard to do. My 
own judgment would be, if you put a billion-dollar price figure on the 
cost of robberies, burglaries, corporate fraud, automobile thefts, to 
say nothing about the pain and suffering people have--the anxiety in 
the middle of the night when there is a loud noise in your house; the 
consolation you have, to some extent, from an alarm system that does 
not go too far--but this is a big problem in America, and it is a 
problem which has largely gone unsolved.
  Problems of crime are the same today as they were when I first 
entered the field as an assistant district attorney decades ago. There 
are ways to deal with violent crime. There are ways to deal with 
realistic rehabilitation. There are ways to deal with deterrence on 
white-collar crime--that it ought not to be only a fine, which turns 
out to be a license to do business. In the confirmation hearing of the 
new Assistant Attorney General for the Criminal Division, that point 
was emphasized.
  But what Senator Webb has had to say today, and the blueprint he has 
outlined, could be a major advance on a very complex problem, which 
needs a--I was about to say ``solution,'' but there is not going to be 
a solution--but there can be an enormous amelioration if we tackle the 
problem with the guidance that could be provided by the Webb 
commission. May I give it the name: The Webb commission? Hearing no 
objection, so ordered.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WEBB. I wish to express my appreciation to the senior Senator 
from Pennsylvania for joining me on this legislation and in this 
endeavor because it will be an endeavor, as the Senator knows, well 
beyond the legislative approval of the commission. I think this is 
going to take years. But I wish to express my appreciation for that, 
for his comments today, and for all the work he has done in this field.
  I wish to emphasize a couple of things, in reaction to what the 
Senator mentioned. I agree. I do believe we can

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meaningfully address this problem. And ``solution'' is perhaps a more 
illusive word. But we can certainly meaningfully address this problem. 
I think it is very important to say that it is in the interest of every 
American we do so.
  There are a lot of people who will look at this and talk about 
specific elements of who has committed a crime and whether you should 
do the time and these sorts of things, but we do need to sort it out. 
When we have 5 percent of the world's population and 25 percent of the 
world's prison population, there are better ways. When we still have 
public safety issues in every community because of gang violence, and 
particularly transnational gang violence at this moment, there are 
better ways.
  That is the purpose of having a commission: getting the greatest 
minds in this area in the country together, with a specific timeline, 
to bring us specific findings and recommendations for the entire gamut 
of criminal justice in the country--not simply incarceration, not 
simply gang violence, not simply reentry--but all of those and other 
issues together, so we can have a much needed and long overdue 
restructuring of how we address the issue of crime in this country.
  I ask unanimous consent that Senator Kennedy be added as an original 
cosponsor on this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
                                 ______