First Step Act II

Floor Speech

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Mr. DURBIN. Mr. President, I wanted to thank the Senator from Florida for his kind words of encouragement on this criminal justice reform bill that is pending before the Senate. I thank him. I know his personal interest in this subject. I am going to miss his service and his friendship here in the Senate Chamber. I want to thank him for his many years of serving the people of Florida and for standing by me in many causes. It is rare that one of these causes is so bipartisan, and this one is.

I heard the testimony or the statement earlier by the Senator from Louisiana, Mr. Kennedy. I count him as a friend. We have cosponsored bills together, and I like him. We disagree on some issues, but we do it in a very positive way, and in the comments I am about to make, I want to be as positive as possible.

Senator Kennedy brought a chart to the floor and suggested that there was no support by national law enforcement for the bill that is before us, and he said that most of the State and local law enforcement groups were opposed to it as well. I beg to differ with him.

I would like to submit for the record that currently we have the support on this Grassley-Durbin bill from the American Correctional Association, the American Federation of Government Employees, the AFL- CIO, and the Council of Prisons. The very prison guards whom Senator Kennedy referred to on his chart are in support of our position. The Association of Prosecuting Attorneys, the Association of State Correctional Administrators, and the Fraternal Order of Police supports our bill, and, in addition, the International Association of Chiefs of Police.

Mukasey and Alberto Gonzales.

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Mr. DURBIN. Mr. President, at the heart of the amendments being offered by Senators Cotton and Kennedy is an effort to provide notification to crime victims. I spoke to this early this morning, and I think it bears repeating.

It is interesting to note that they are arguing that their amendments are necessary for the sake of crime victims. At the same time, virtually every leading organization in America representing crime victims supports our bill and opposes the amendment being offered by Senators Cotton and Kennedy. Why do they oppose it? Because we already have a law. The law says if you are a victim of crime, you have certain rights written into the statute--some 10 specific areas where you have the right to be consulted or notified if you are a victim and you want to know what is going to happen to the person who is accused of the crime of which you were a victim. It is only right that we do that, and we have done it for a long time.

We also have regulatory provisions where the Bureau of Prisons will not release someone without notification to the crime victims. So there is a healthy pattern established by law that victims of crime in the United States have the right to receive all of this information and, in some cases, can actually participate in the proceeding. We voted on that on a bipartisan basis years ago. That is the way it should be.

So what does the Cotton-Kennedy amendment add when it comes to crime victims? It adds something that the crime victims organizations oppose. Let me tell you what it is. You have a right as a crime victim to be notified, but you are not mandated and required to be notified. That is your call. It turns out that 10 percent of crime victims over the last 5 years--over 160,000 American crime victims--have chosen not to be informed. They don't want to be notified. Why? Why would they not want to be notified? What if the victim is a child in your family who was the victim of a crime at an early age and you have decided, for the sake of that child or our family, that you want to put this behind you? Don't put me on the list, then, to notify me about what happens with a criminal defendant. We want to put that chapter behind us. We want to move forward as a family.

Or perhaps as a crime victim you are dealing with psychological trauma--understandable. You are going through counseling, and you believe that constant reminders about the criminal defendant don't help you get well and don't help you move forward. You can make an individual personal decision--you have the right to make it--that you don't want to be notified.

Then, comes the amendment that will be on the floor tonight or tomorrow. The amendment by Senators Cotton and Kennedy says: Forget that; you are going to be notified whether you want to or not.

I think that is wrong.

Don't take my word for it. Go to the crime victims organizations and ask them what they think. They think this mandatory notification will retraumatize many crime victims. They respect the right for a crime victim to say: I don't want to learn this. I don't want to know about it. Don't send me these notifications.

They respect the crime victims and the circumstances, and the Cotton- Kennedy amendment does not. So at the heart of their amendment process, in an effort to ``help crime victims,'' they have drafted a provision that the leading crime victims organizations oppose. No Senator of either party should vote for the Cotton-Kennedy amendments in this bill and believe they are helping crime victims. They are not. The existing law gives all crime victims the right to know and the right to be informed, as well as the right to say: I don't want to know. Don't contact me anymore. I want to put that behind me.

That is up to the individuals. The Cotton-Kennedy amendment, unfortunately, moves into new territory and forces this information on people who are not looking for it.

In addition to that, they have a list of crimes, if you have committed these crimes and have been convicted--a list of crimes that would be ineligible. You couldn't get the prison reform package that we are talking about, the possibility of early release, if you commit certain crimes. Well, we tried to take care to create a process that was sensitive to this, and we started with a challenge. There were 5,000 Federal crimes. You wouldn't believe how many there are. We had to go through and pick those that clearly should disqualify you from getting any special treatment when it comes to your prison sentence. We came up with a list that was 20 pages long of specific crimes--over 60 crimes--and after we produced the list, Members would come to us and say: Well, what about this crime? Well, if we thought it was a legitimate concern, we added it to the list. So we tried to be as inclusive as possible and to cover the most serious crimes, whether they involve violence or harm to an individual, and to be sensitive to them.

Along the way, Senator Ted Cruz of Texas produced a list that he wanted included. We took a good-faith look at it, and we agreed with him on about 8 or 10 of the provisions he made. We said: We will include these in our list. If you committed the crimes that Senator Cruz came up with, you would be ineligible for this prison recidivist program.

So we started to put it in the bill, and we thought it was in the bill, incidentally, and we learned it had not been included. We asked for unanimous consent to amend our own bill to include these new categories and, unfortunately, the Republican leadership and Senator Cotton objected. They wouldn't let us include a new list of crimes which would make a person ineligible. That is unfortunate.

Sadly, the provision of one of the amendments from Senator Cotton is now attempting to include some of those crimes in his list. We made a good-faith effort to do this on a bipartisan basis, and we will continue to do that.

I see the Senator from Pennsylvania has come to the floor.

The last point is that there is a provision in one of the Cotton- Kennedy amendments that redefines the crimes that would make you ineligible to participate in this program. It is a new definition. It includes a reference to something that you don't see often--violence to property. I am not sure what that means. The use of physical force on property is in the law in many places, but the terms ``violence against property'' is something that I am not sure what Senator Cotton is trying to achieve with this. It is going to create confusion.

Unfortunately, if you add every crime that might involve some damage to property, you can see that it would expand the list dramatically and go way beyond what we are trying to achieve. We are trying to give those incarcerated who truly want to turn their lives around and who truly want to have training and be ready to move forward the opportunity to do just that.

So at this point I am going to conclude my remarks.

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Mr. DURBIN. I recognize that we have had this same debate in the Appropriations Committee. Its champion in the committee is Senator James Lankford of Oklahoma, who has at least for 2 years, or maybe longer, suggested the change the Senator from Pennsylvania brings to the floor. I think he made a compelling argument, and I voted with him for the change he wished to see in the law. We did not prevail in the Appropriations Committee--at least didn't prevail in changing the budget rules--but Senator Lankford, with his effort in the committee, has prevailed in changing the allocation of funds.

The amendment Mr. Toomey, the Senator from Pennsylvania, offers creates a new point of order against any CJS appropriations bill if it doesn't spend at least the 3-year average of collections in the Crime Victims Fund. There is good news. Because of Senator Lankford's effort and the support of Senator Shelby, which the Senator from Pennsylvania noted, the amendment is not necessary. Since fiscal years 2015 through 2018, the CJS appropriations bill has spent at least the 3-year average of collections--a total of $12.4 billion--which has been returned to crime victims. So we have, in fact, changed the budget policy that governs how the Crime Victims Compensation fund is distributed.

What I would suggest, though, is that this good, worthy issue and battle, which I would be happy to join, does not belong on this bill. In fact, the result could complicate this bill and its passage. We have been working to put this measure together for 6 years, Democrats and Republicans. There were some 82 or more Senators--I know the Senator from Pennsylvania was not one of them--who voted for cloture on this bill because we felt we should move forward in this debate.

I might say, some of the amendments the Senator from Pennsylvania said he is going to support for this bill are not helpful. They are opposed by those who are behind the bill. Let's save this budget debate for another day.

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Mr. DURBIN. Mr. President, I would like to respond to the statements made by the Senator from Arkansas in terms of the pending business before the Senate. We are close to reaching agreement to bring the underlying bill--the criminal justice reform bill--for a vote this evening. It is a bill that has been literally years in the making. I believe we have discussed it at great length, and we are prepared to make a decision in the Senate.

There will be three amendments offered by the Senator from Arkansas, Mr. Cotton. After those amendments are offered, then we will launch into another consideration of a change to the bill which has been characterized as a Cruz-Lankford amendment. For the record, we reached an agreement with Senator Cruz about this amendment. We reached an agreement with Senator Lankford about his amendment on a bipartisan basis, and I included a provision in there which required annual reports on the success of this program, so we can measure it carefully and see if it is working as we hoped it would.

There were three pieces to this for Senator Cruz, for Senator Lankford, and a piece I offered for this annual report. We accepted that language which will be considered in the Senate. I certainly hope that when the request is made to include that language, the annual report will be included in it so we can move forward very quickly on the three Cotton amendments, as he suggested this evening.

We can agree on the Cruz, Lankford, and Durbin amendment. I think that would not create any burden to move on that, and we are in a position to consider final passage this evening. That seems to be the lineup.

As I said to Senator Grassley and Senator Lee, my partners in this effort, as well as Senator Booker, worked long and hard on this. We have had police groups, prosecutors, civil liberties groups--all have carefully reviewed this. No one is getting what they wanted completely. This is a product of compromise. That is how you pass a bill in the Senate--at least, that is my experience.

This is the strongest bipartisan bill I have seen in terms of Democrats and Republicans working for final passage. It will be significant and historic if we are successful, but I will not presume that until we go through the process of the amendments this evening.

I, again, thank my colleagues who have patiently waited for us to reach this moment, but I think we have a chance to even move forward this evening if we reach a basic agreement.

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