[Congressional Record Volume 157, Number 165 (Tuesday, November 1, 2011)]
[Senate]
[Pages S6983-S6986]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CRIMINAL JUSTICE REFORM
Mr. WEBB. Mr. President, 11 days ago, all but four of the Republicans
in this body filibustered a commonsense piece of legislation that would
have created a national commission designed to bring together some of
the best minds in America to examine our broken and frequently
dysfunctional criminal justice system and to make recommendations as to
how we can make it more effective, more fair, and more cost-efficient.
This legislation was the product of more than 4 years of effort. It
was paid for. It would have gone out of business after 18 months. It
was balanced philosophically. It guaranteed equal representation among
Democrats and Republicans in its membership. It was endorsed by 70
organizations from across the country and from across the philosophical
spectrum--from the National Sheriffs' Association, the Fraternal Order
of Police, the International Association of Chiefs of Police, to the
ACLU, the U.S. Conference of Mayors, and the Sentencing Project.
[[Page S6984]]
I must say that at first I was stunned by this filibuster at the
hands of 43 Republicans. But on the other hand, it is impossible not to
notice over the past 2 years the lamentable decline in bipartisan
behavior in this body, even in addressing serious issues of actual
governance. I say this with a great deal of regret, both personally and
politically.
I think I can fairly say there is no one in this Chamber who has
tried harder to work across party lines. In fact, one of my Republican
friends joked not long ago that I was the only ``nonpolitical'' Member
of the Senate. I spent 4 years in the Reagan administration as an
Assistant Secretary of Defense and Secretary of the Navy. I am proud of
that. I consciously sought out Senators John Warner and Chuck Hagel as
two of my three principal cosponsors when I introduced the post-
9/11 GI bill.
I voted with the Republicans 17 times during the health care debate.
I was the only Member of Congress in either party or in either House to
send a letter to President Obama, when he claimed he would come back
from the climate change summit in Copenhagen with a politically binding
agreement, stating my belief the President did not have the
constitutional authority to bind the American people to an
international agreement without the approval of the Congress. I have
taken issue with this administration with respect to closing down our
facilities at Guantanamo. I have consistently opposed any tax increases
on ordinary earned income.
I took that same bipartisan approach when I introduced the criminal
justice commission bill in 2009, obtaining the cosponsorship of a
number of Republicans, including Senators Lindsey Graham and Orrin
Hatch, both of whom serve on the Judiciary Committee. The filibuster of
a commonsense measure that might assist this Nation in resolving the
national disgrace that now comprises our criminal justice system is a
sad metaphor for the obstructionism that is too frequently replacing
commonsense leadership in our national debate.
We spent more than 4 years reaching out to all sides of the
philosophical spectrum. We worked with liberals, we worked with
conservatives, we worked with law enforcement, we sought the views of
many Republicans, and we also worked in close coordination with the
other body. Toward that end, it is interesting to note that in the last
Congress, the House of Representatives approved the same legislation by
a voice vote. It was not even considered controversial. In fact,
Congressman Lamar Smith, a Republican, now the chairman of the House
Judiciary Committee, was a cosponsor of the legislation.
But let us speak frankly. In the aftermath of the 2010 elections and
in anticipation of the 2012 Presidential election, the mood in this
historic body has frequently become nothing short of toxic. In that
environment, even this carefully developed and much needed legislation
is suddenly considered controversial and not only controversial, it was
also alleged to be unconstitutional.
Just before the vote, Senator Coburn of Oklahoma said: ``We're
absolutely ignoring the U.S. Constitution if you do this.''
Senator Hutchison from Texas said: ``This is the most massive
encroachment on States rights I have seen in this body.''
With all due respect, I am pretty comfortable with the legal
education I received at Georgetown University Law Center. I care about
the Constitution. I keep a copy of the Constitution on my desk, and I
refer to it frequently. I think I have a pretty good idea of what is in
it and what is not and there is nothing in the Constitution that
precludes the Congress from asking some of the best minds in America to
come together and to give us advice and recommendations on the entire
gamut of challenges that face our criminal justice system. Certain
Senators may not like that idea. That is their prerogative. They may
not even want to hear the advice. They may not even want to believe
there is a problem in our criminal justice system. But to claim the
Constitution precludes this process is nothing short of absurd.
In fact, our national leadership has received such advice before,
most notably in 1965, during the Johnson administration, which is the
last time we have had a comprehensive examination of our criminal
justice system.
I am not alone in this judgment. Over the past 11 days, there have
been a number of editorials and articles pointing out the unfortunate
nature of this filibuster: Sunday, masthead editorial, New York Times;
Sunday, masthead editorial, Washington Post; a very observant article
in the Politico the day of the vote; editorial, Newsday. The lead
editorial in the Virginian-Pilot in my home State reads: ``Senate
Negligence on Crime Reform.'' Very interestingly, an article in the
National Review--one of the most conservative magazines in the United
States--is titled: ``An Absolute Scandal.'' The first sentence of that
article reads: ``The insane refusal of 43 Senate Republicans to back
the National Criminal Justice Act.''
Mr. President, I ask unanimous consent to have printed in the Record
at the end of my remarks all these articles I have referred to.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WEBB. Mr. President, for nearly 2 years, our legislative process
has too often become sidetracked by what can only be termed an
``indiscriminate obstructionism.'' A lot of good ideas have fallen by
the wayside, having become hostages in the larger debate about who
should comprise our national leadership and how we should solve long-
term problems, such as our fiscal crisis. This larger debate has
affected the willingness of many in the other party to come together
and address a number of serious issues of governance that should be
resolved no matter who is President and no matter how we end up
addressing the economy. I would ask my friends on the other side of the
aisle to think hard about the overwhelming frustration across our
country with the persistent failure of the Congress to address these
kinds of issues.
Nowhere is the need to think creatively for the good of the country
more clear than where it affects our dysfunctional criminal justice
system, the challenges of which threaten the safety and the well-being
of every single community and every single American. This system will
not be fixed by sticking our heads in the sand and pretending not to
see its failings. It will only be fixed by bringing together the good
minds of those who have dedicated years of thought and action to
finding answers. That is what we have been trying to do. Unfortunately,
that is what we were stopped from doing by this filibuster.
People in this country are looking for leadership, and obstructionism
is not leadership. We will continue to pursue this effort, and I would
ask my Republican colleagues to join the unanimous position of the
Democratic Party as we do.
Exhibit 1
[From The New York Times, Oct. 30, 2011]
Editorial: Falling Crime, Teeming Prisons
Senator Jim Webb, Democrat of Virginia, has a smart
proposal to create a bipartisan commission to review the
nation's troubled criminal justice system and offer
recommendations for reform. The National Criminal Justice
Commission Act would be a valuable first step toward reducing
crime as well as punishment. Unfortunately, Senate
Republicans derailed the bill recently, with some falsely
claiming that it would encroach on state's rights.
As a means of controlling crime, America's prisons are
notoriously inefficient and only minimally effective, often
creating hardened criminals out of first-time offenders. The
United States has 5 percent of the world's population, yet 25
percent of the world's prisoners. In the past generation, the
imprisonment rate per capita in this country has multiplied
by five. There are 2.3 million Americans in prisons and
jails. Spending on prisons has reached $77 billion a year.
While crime has gone down notably, just 10 to 25 percent of
the decline can be credited to the increase in imprisonment.
The rest is from the waning of the crack epidemic, the aging
of the baby boomers and other factors.
Even as the prison population has grown, less than half of
the inmates are serving time for violent crimes. Far too
often, prison has become a warehouse for people with drug or
alcohol addiction. More than half of the population has some
form of mental illness. Without proper addiction and
psychiatric treatment, many end up back in prison soon after
their release.
The incarceration rate has had a devastating effect on
minority communities. African-Americans, who make up one-
eighth of the population, now make up about 40 percent of
those in prison. African-American
[[Page S6985]]
men have a one-in-three chance of spending a year or more in
prison. The trend affects whole communities, depressing
earnings and increasing recidivism.
There are, however, ways to end this cycle of
incarceration. This could be done by reducing sentences for
nonviolent offenses, ending mandatory minimum sentences and
cleaning up drug markets nationally. Reasonable senators
should support the bipartisan commission that Senator Webb is
calling for, which would cost only $5 million and could help
bring about compelling reforms.
____
[From The Washington Post, Oct. 30, 2011]
Editorial: Shaky Arguments Block Federal Commission on Crime
The United States remains the world's leading jailer, with
more than 2 million individuals locked up. The annual price
tag is $50 billion.
Who are the individuals behind bars? What crimes were they
convicted of and what penalties did they receive? What
relationship is there between the rate of incarceration and
the drop in violent crime? Are there more effective and
inexpensive ways to deal with lawbreakers?
These and other questions would be tackled by a bipartisan
commission proposed by Sen. James Webb (D-Va.). Republican
and Democratic leaders would pick the 14 members of the
National Criminal Justice Commission, including experts on
law enforcement, prison administration, mental health and
drug abuse. The commission, supported by the Fraternal Order
of Police and the International Association of Police Chiefs,
would have a budget of $5 million and would issue a report
after 18 months,,This approach is long overdue: The last
comprehensive review of criminal justice was conducted
roughly 45 years ago during the Johnson administration.
Yet Mr. Webb's efforts were dealt a blow last week when
Republicans in the Senate blocked consideration of the
measure.
Sen. Kay Bailey Hutchison (R-Tex.) criticized the proposal
for stomping on states' rights. Sen. Tom Coburn (R-Okla.)
deemed it unconstitutional. The National District Attorneys
Association, which opposes the measure, wrote that the
``federal government should never be in the business of
auditing state and local criminal justice systems.''
These criticisms fall flat. The panel would only study the
policies of local, state and national law enforcement
entities and make recommendations about best practices. It
would have no power to issue mandates. The federal
government, which distributes federal dollars as incentives
for states and localities to adopt best practices, has a
legitimate need to know which policies work.
Some critics question whether a commission appointed by
politicians will issue fair recommendations; a nonpartisan
academic group may be better-suited for the task. Critics
also worry that 18 months--the length of time the Johnson
commission was up and running--is not enough time. These are
points that should be addressed, but they are not valid
arguments against conducting a review.
____
[From Politico, Oct. 20, 2011]
Republicans Block Justice Review Proposal in Senate
(By David Rogers)
Invoking ``states rights'' and the Constitution, Senate
Republicans Thursday torpedoed an ambitious plan to create a
national blue ribbon bipartisan commission to do a top-to-
bottom review of the U.S. criminal justice system and report
back potential reforms in 18 months.
The 57-43 roll call--three short of the 60 supermajority
needed--dramatized again how politically divided the chamber
has become.
Almost identical legislation cleared the House in the last
Congress on a simple voice vote with Republican backing and
had been approved with bipartisan support in the Senate
Judiciary Committee last year as well.
Given endorsements from the American Bar Association and
many police and sheriffs organizations, proponents had hoped
to clear the 60 vote supermajority required in the Senate.
But under a barrage of last-minute attacks, Republican
support wilted. And the chief sponsor, Sen. Jim Webb (D-Va.),
found himself deserted by even his long time associate and
fellow Vietnam veteran, Sen. John McCain (R-Ariz.).
``We're not done,'' Webb told Politico. ``There were very
specific answers to everything that was raised there. There
is no states rights issue in convening the best minds in
America to give you advice and observations about the overall
criminal justice system.''
``I thought he was voting with us,'' Webb said of McCain.
The Arizona Republican argued in a separate hallway interview
that the state-rights complaint was valid and also took issue
with how the 14-member commission, seven Republicans and
seven Democrats, would be chosen.
Indeed, Republicans argued that the White House would have
too much influence, effectively creating a 9-7 majority for
the administration. But Webb said the specific language that
one set of commission seats be chosen ``in agreement'' with
the White House had been the exact phrasing chosen by the
GOP. And Republicans are specifically promised control over
one of the two co-chairs.
Sen. Kay Bailey Hutchison (R-Texas) took the lead in the
GOP's attacks, describing the commission as ``an overreach of
gigantic proportions'' and ``not a priority in these tight
budget times.''
``We're absolutely ignoring the U.S. Constitution if you do
this,'' said Sen. Tom Coburn (R-Okla.) in closing. ``We have
no role unless we're violating human rights or the U.S.
Constitution to involve ourselves in the criminal court
system or penal system in my state or any other state . . . I
would urge a no vote against this and honor our
Constitution.''
The scene was in sharp contrast with events before the 2010
mid-term elections.
In July that same year, nearly identical legislation sailed
through the House with the backing of Hutchison's fellow
Texan, Rep. Lamar Smith--now chairman of the House Judiciary
Committee. Support was so strong that the bill was called up
under expedited proceedings and passed without any member
even demanding a recorded vote.
By contrast, just four Senate Republicans backed Webb
Thursday: Sens. Lindsey Graham of South Carolina, Orrin Hatch
of Utah, Olympia Snowe of Maine and Scott Brown of
Massachusetts.
Hatch is a former Senate Judiciary Committee chairman. And
Graham, a close friend of McCain, is prominent as well on the
committee which reported a similar version of the bill in
January last year--also before the 2010 elections.
Individual Republican senators said they had come under
pressure from local district attorneys and judges in drug
courts to oppose Webb. But the Democrat countered that he had
strong support from the drug court judiciary and the model
for his proposal was the influential presidential commission
on crime and the judicial system in the mid 1960's led by
then-Attorney General Nicholas Katzenbach.
Webb said that 40 years later it is reasonable to have a
second review, especially given the high incarceration rate
in the U.S. at a time of relatively low crime rates.
``Our criminal justice system is broken in many areas,'' he
told the Senate in his own floor comments. ``We need a
national commission to look at the criminal justice system
from point of apprehension through reentry into society of
people who have been incarcerated.''
____
[From Newsday, Oct. 24, 2011]
Keeler: Justice System Needs To Be Studied
(By Bob Keeler)
If we're ever going to get a handle on why we lock up so
many Americans and find out if we're paying too much for too
little benefit, this is the time. The cut-the-deficit chorus
in Washington seems to have made even the law-and-order hawks
have second thoughts about prison costs.
But last week, a perfectly sensible proposal for a broad
examination of the nation's criminal justice system died in
the Senate. Sponsored by Sen. Jim Webb (D-Va.), it would have
done nothing more radical than create a blue-ribbon
commission to spend 18 months looking into the system, then
recommend reforms. The United States has a far higher per
capita rate of prisoners than the world average. If we're
locking up people for too long, or for the wrong reasons, and
if we can save billions of dollars without increasing crime,
it's an idea whose time has come.
In fact, Webb's bill enjoys broad support among law
enforcement groups, such as the International Association of
Chiefs of Police and the National Sheriffs' Association. In
2010, the House of Representatives passed it. And last week,
Webb tried to get it adopted in the Senate as an amendment to
an appropriations measure.
It got 57 votes, including four Republicans--not enough to
get past the 60-vote filibuster barrier. The 43 nay votes all
came from Republicans. And Webb was mightily miffed.
``Their inflammatory arguments defy reasonable explanation
and were contradicted by the plain language of our
legislation,'' Webb said in a statement after the vote. ``To
suggest, for example, that the nonbinding recommendations of
a bipartisan commission threaten the Constitution is
absurd.''
Webb's strong words should come as no surprise. He's a
fighter, like the Scots-Irish forebears he celebrated in a
book called ``Born Fighting: How the Scots-Irish Shaped
America.''
He's a graduate of the U.S. Naval Academy and a Marine
Corps veteran of Vietnam, where he earned the Navy Cross, the
Silver Star, two Bronze Stars and two Purple Hearts. Later,
he served as Navy secretary under President Ronald Reagan.
He's a prolific author, including a novel of Vietnam,``Fields
of Fire.''
So Webb is tough--not the soft liberal often associated
with prison reform. His passion for it goes back decades. In
the military, he served on courts-martial. Later, as an
attorney, he defended pro bono a young ex-Marine convicted of
murder in Vietnam. In 1984, for Parade Magazine, he went to
Japan to write about its justice system. ``Since then,'' he
wrote in 2009 in Parade, ``Japan's prison population has not
quite doubled to 71,000, while ours has quadrupled to 2.3
million. The UnitedStates has by far the world's highest
incarceration rate. With 5% of the world's population, our
country now houses nearly 25% of the world's reported
prisoners.''
He argues that we're locking up people who don't have to be
in prison--like nonviolent drug offenders--but not doing
enough to protect the public from violent gangs and drug
cartels.
[[Page S6986]]
Over the years, I've spent a lot of time in prison, as a
reporter--starting with the Attica uprising in 1971 and
including a prison guard strike in 1979--and as a visitor.
I've interviewed inmates who make me glad there are stout
bars and high walls between them and society. And I've known
sad-sacks, whose incarceration protects no one and helps no
one.
Crime is a long-term problem, but short-term legislators
try to solve it with fixes that don't work, but do add
unnecessarily to the prison population. Now it's time to undo
some of the damage they've done.
Webb isn't running for re-election in 2012. That gives him
14-plus months to get this bill through the Senate. I'm
betting he keeps fighting, as he should.
____
[From The Virginia-Pilot, Oct. 22, 2011]
Editorial: Senate Negligence on Crime Reform
To get an idea of how disconnected from reality, and how
utterly dysfunctional, Congress has become, look no further
than the fate this week of Sen. Jim Webb's proposal for a
blue-ribbon commission to examine the nation's criminal
justice system.
The proposal had bipartisan support among legislators and
special-interest groups ranging from the American Civil
Liberties Union to the Fraternal Order of Police.
It promised to have two co-chairs--one Republican, one
Democrat--and a 14-member panel evenly represented by both
parties.
It restricted itself to completing its task--a top-to-
bottom review of strengths and weaknesses in the federal,
state and local criminal justice systems, with an aim to
identify ways to become fairer, more efficient and more cost-
effective--within just 18 months.
And it was designed to carry out all of its work--convening
hearings, calling experts, analyzing data, issuing reports--
on a budget of $5 million.
Last year, the legislation rolled through the House with
virtually no opposition. But this week, Webb's proposal was
shelved after a few Republicans dropped their support.
Excuses varied, but Texas Sen. Kay Bailey Hutchison managed
to articulate her opposition in a way that underscored the
kind of myopia that has rendered Congress, and particularly
the Senate, a counterproductive force in American government.
She described the legislation, according to Politico, as
``not a priority in these tight budget times,'' a tenuous
claim if there ever were one. Even in tough times, spending
what amounts to less than a drop in the bucket (the
Department of Justice alone spends more than $28 billion) as
a means to save far more should be viewed as a financially
and morally prudent move.
Oklahoma Sen. Tom Coburn offered his own reason: Such a
commission would violate states' rights and the Constitution.
The claim is nonsense, given that the commission's intent is
to offer recommendations, not binding directives.
But those spurious arguments were sufficient to sway enough
Republican senators to disown the notion of improving a
system that, as Webb has repeatedly noted, puts four times as
many mentally ill Americans into prisons as into mental
health institutions.
The system accounts for 25 percent of the world's prison
population, even though the United States is home to just 5
percent of the people. It has funneled more than $1 trillion
into a war on drugs that has ruined countless lives, resulted
in thousands of deaths and sent inmate populations soaring.
Perhaps the most revealing commentary on Webb's proposal--
and on the nation's criminal justice system and America's
readiness to change it--was delivered this week.
It originated far from the halls of Congress. It came in
the form of a poll, conducted by Gallup, that showed that for
the first time in modern U.S. history, half of Americans
favored the legalization of marijuana, a drug that has
created millions of criminals in America and cost untold
billions of dollars.
____
[From National Review Online, Oct. 21, 2011]
An Absolute Scandal
(By Reihan Salam)
The insane refusal of 43 Senate Republicans to back the
National Criminal justice Commission Act. Even Sen. Tom
Coburn of Oklahoma, easily one of my favorite legislators,
covered himself in non-glory on this one by suggesting that
the commission might be unconstitutional, despite the fact
that all it established was a bipartisan panel empowered to
make nonbinding recommendations.
There were, however, four Senate Republicans who backed the
proposal: Sens. Lindsey Graham of South Carolina, Orrin G.
Hatch of Utah, Olympia Snowe of Maine and Scott Brown of
Massachusetts.
Why do we need a commission? Senator Webb, the sponsor of
the proposal, offered a fact sheet recounting the scale of
the problem:
The United States has by far the world's highest
incarceration rate. With five per cent of the world's
population, our country now houses twenty-five percent of the
world's reported prisoners. More than 2.3 million Americans
are now in prison, and another 5million remain on probation
or parole.
Our prison population has skyrocketed over the past two
decades as we have incarcerated more people for non-violent
crimes and acts driven by mental illness or drug dependence.
The costs to our federal, state, and local governments of
keeping repeat offenders in the criminal justice system
continue to grow during a time of increasingly tight budgets.
Existing practices too often incarcerate people who do not
belong in prison, taking resources away from locking up high-
risk, violent offenders who are a threat to our communities.
2.3 million + 5 million = 7.3 million. Roughly 24 percent
of the 310 million U.S. residents are under the age of 18,
leaving us with roughly 235.6 million adults. So that means
that 3.1 percent of adults are behind bars, on probation, or
on parole right now. There are, of course, millions of ex-
offenders.
This population is disproportionately male and
disproportionately black, which means that the impact of mass
incarceration is particularly significant for African
American children. Basically, doing a bid limits your ability
to acquire the kind of skills you need to climb the jobs
ladder, in part because employers are (understandably)
reluctant to hire ex-offenders.
If we're even incarcerating five percent of these
individuals needlessly, we're causing a massive amount of
damage. Why? Apart from the collateral damage on families and
children, we might actually make the crime problem worse. The
more we incarcerate people, the less severe the stigma
associated with being incarcerated. And reducing the stigma
actually reduces the effectiveness of incarceration as a
deterrent.
Having grown up in central Brooklyn during the crack
epidemic, I have some familiarity with fear of crime.
Reducing crime should be an urgent priority, in my view. Even
the so-called ``great American crime decline'' has left us
with rates of violent crime radically higher than what we saw
in the early 20th century, as William Stuntz observed in his
last book:
New York is America's safest large city, the city that saw
crime fall the most and the fastest during the 1990s and the
early part of this decade. Yet New York's murder rate is 80
percent higher now than it was at the beginning of the
twentieth century--notwithstanding an imprisonment rate four
times higher now than then. That crime gap is misleadingly
small; thanks to advances in emergency medicine, a large
fraction of those early twentieth-century homicide victims
would survive their wounds today. Taking account of medical
advances, New York is probably not twice as violent as a
century ago, but several times more violent At best, the
crime drop must be counted a pyrrhic victory.
If locking people up in increasingly large numbers were
really the most cost-effective way to keep our cities safe,
I'd be all for it. Overwhelming evidence suggests that this
is not in fact the case. The people who profit most from
today's approach to mass incarceration are not potential
crime victims. Rather, they are the workers--most of them
unionized public sector workers--who staff our prisons.
So yes: why would we want to study more cost-effective
alternatives to reducing crime when we can pour billions of
dollars in taxpayer money into the hands of an industry that
channels that money back into lobbying and political
advertising on behalf of longer prison sentences, all to keep
the gravy train going?
Mr. WEBB. 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.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. SANDERS. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________