First Step Act
Floor Speech
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Mr. KENNEDY. Mr. President, I want to spend a few minutes talking about the so-called criminal justice bill that we will soon be voting on in the U.S. Senate. I want to make it very clear that I don't believe there is a single, solitary Member of this body who would do anything intentionally to jeopardize public safety. I don't believe that for a moment. I do believe, though, that there will be some sharp divisions over the merits of this bill. I don't intend to vote for the bill, but I recognize that sometimes fairminded people disagree. What I want to do today is to just share with you my perspective on this legislation.
There are some things in this bill I really like--the provisions to try to give prisoners job training and mental health counseling, and, in some cases, give them the opportunity to obtain a GED--the so-called anti-recidivism provisions. I support them. For years, I have argued that there is no reason, with technology, that we can't give every prisoner in State and Federal prison the opportunity to get a GED. I support the part of the bill that would house inmates, when we can, within 500 miles of their homes, so they can receive visits from family. I think that might help them not to recidivate.
There are other things in the bill that I like, but let me explain why I am not going to support--not going to vote for--the bill, although I will have some amendments to try to make it better.
My objection is to the approach of the legislation. I think it is backward. I believe the primary goal of a criminal justice system is not deterrence. It is an important goal, but it is not the most important goal. Neither is retribution nor rehabilitation. Rehabilitation, deterrence, and retribution are important goals of a criminal justice system, but they are not the most important. For most Americans, the most important goal of a criminal justice system is justice. Again, that is not to say that deterrence and rehabilitation aren't important, but they go to the effectiveness of your penal system. They have nothing to do with justice, which is what we try to do here in the U.S. Congress when we establish rules for sentencing criminals.
What is justice? It has been talked about, debated, and discussed through the ages. I can tell you what justice means to me and what it means to many people who are smarter than I.
Justice exists when people receive what they deserve. For example, justice exists when the people of Tibet are allowed to worship the Dalai Lama, because they deserve freedom of religion. Justice exists when a rapist receives a penalty that is proportionate to his crime. That, to me, is justice. I will say it again. Justice exists when people receive what they deserve. I didn't say that--not first. I agree with it. C. S. Lewis did in an essay called ``The Humanitarian Theory of Punishment.'' Before C. S. Lewis said it, Immanuel Kant said it, and before Immanuel Kant said it, Saint Augustine said it. I will say it again. Justice exists when people receive what they deserve, and that is what the American criminal justice system is about. It is not supposed to be primarily about deterrence and rehabilitation, though those are important goals. The ultimate goal is justice. That is why I think this bill is backward.
This bill says our sentencing provisions, as established by the U.S. Senate and the U.S. House of Representatives, are unjust. That is the assumption in the bill. Rather than try to fix them, we are going to give almost unfettered discretion--if you read the 150-page bill carefully, and I have--to the bureaucrats in the department of corrections to fix our mistakes. If you follow the logic of the proponents of this bill, it is like putting paint on rotten wood. The sentences are unjust, they assume. Therefore, we are going to give the wardens and the Director of Bureau of Prisons the authority to let out whomever he or she wants to.
I know there are checks and balances, supposedly, built in there, but read the bill carefully. In the final analysis, this is going to be a subjective call as to who gets out early and who doesn't.
If you wanted a debate on this floor of our sentencing provisions and whether they are just, I would pounce on it like a ninja--I would be here all day and all night--but I am not going to vote to pass the buck to the bureaucracy and trust it to do the right thing. That is our job. If the sentences are unjust, then, by golly--by God--let's fix them, but let's not just give our authority to the Bureau of Prisons and expect it to fix our so-called mistakes.
Now, I am not conceding that we have made mistakes. I don't know because we haven't focused on the sentencing part. I am not sure that this body has the courage. I am just not sure we have the courage, and that disappoints me. That is why I am against this bill. We have talked a lot about rehabilitation, and we have talked a lot about deterrence, which are both important things. Yet we have talked very, very little about justice, and in the final analysis, that is what the American people expect from us.
I am going to offer two amendments that, I think, will improve this bill, and if my glasses had not fallen off, I would have read them to you. Instead, I am going to tell you about them, but I wrote them down carefully so I could try to be precise. They are very simple amendments. Senator Cotton and I are offering these amendments together. I am going to let him explain his amendment. Here is what my two amendments would do.
My first amendment would say that victims count, that victims matter. It would direct the Director of the Bureau of Prisons, before he releases an inmate early--a rapist, for example, because the warden or the director thinks he is nonviolent--to contact the victim of that rape and say: Hey, I have made the decision to let this guy out early, and I wanted to tell you about it, and I wanted to give you the date that he is going to be released. I want to give you a chance to write me a statement about how you feel about it, and I promise to read it.
It doesn't give the victim veto power. I wish it could. All it says is that before a warden lets a child molester or a pedophile or a rapist or a fentanyl dealer go, he has to call the victim, and if the victim is dead, he has to call the victim's next of kin and say: Hey, I have made the decision to let this person out. I wanted to tell you about it. Here is the date I am going to let him out. You have the right to write a statement about it, and I promise you I will read it.
Some of our colleagues call that a poison pill. I call it fairness to the victims. I call it common sense. I call it justice.
The second amendment is equally simple. It just says to the Director of Bureau of Prisons: You are going to be letting these criminals go. Once a quarter, you have to make available to the public, without naming the inmates names--we are going to keep them anonymous--a list of the people you let out of prison early. You have to publish the crimes for which they were in prison. You have to publish their rap sheets so we can know what else they served time for, if any, in prison. You also have to tell the public whether they have been rearrested and, if so, what for.
That is it. Some of my colleagues call this a poison pill. I call it transparency, and I call it common sense.
I deeply regret--and I will conclude on this note--that I cannot support this legislation, because I think there are ways we can improve our penal system. In my opinion, if we want to do justice in a piece of legislation, let's not do it by giving our discretion and our law- making authority to the bureaucracy to decide who gets to stay in prison and who gets to go home early. We make those decisions ourselves on the floor of the U.S. Senate, in front of God and country and the voters. We don't hide behind a bureaucracy. That is why I am going to oppose this bill.
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Mr. KENNEDY. Certainly, I will.
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Mr. KENNEDY. Certainly, my colleague Senator Durbin wouldn't, nor would Senator Grassley or Senator Lee. My problem with this amendment, which Senator Grassley explained very well, has nothing to do with an objection to faith-based organizations participating in anti-recidivism. In fact, I am amazed that the bill got this far with a provision that would prevent our faith-based organizations from participating in the anti-recidivism program. I am stunned that it got this far. So I certainly don't object to that. Indeed, later on, I hope we can offer that amendment separately.
I certainly don't object to Senator Cruz's suggestion that we not let dangerous people out of prison. So I am all for that portion of the amendment, and I hope we can deal with that separately.
What I am not for is extending the sentencing review commission and, yet again, creating more bureaucracy, because that is my problem with the whole bill. If you believe our sentencing laws are unjust, then I am prepared to stay here night and day through Christmas, and let's debate them and let's fix them, but that is not what this is doing. What this is doing is giving away all of our authority as U.S. Senators to nameless bureaucrats--I am not using that term in a pejorative sense--in the Bureau of Prisons to decide who gets to leave prison early and who doesn't. It is like putting paint on rotten wood.
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Mr. KENNEDY. Mr. President, this amendment is very, very simple. This is what it does. It requires the Director of the Bureau of Prisons to do four things: No. 1, notify each victim--or if the victim of a crime is deceased, the victim's next of kin--that the Bureau of Prisons expects to release the inmate who committed the crime to the victim. So step 1, the Bureau of Prisons has to notify the victim that the person who committed the crime is about to be released.
No. 2, the Bureau of Prisons has to tell the victim--that word is used enough in this bill--the date that the inmate will be released.
No. 3, the Director of the Bureau of Prisons has to allow the victim or the victim's next of kin to make a statement about the inmate's release. It doesn't give the victim veto power, but the victim is allowed to make a statement. Finally, it requires the Director of the Bureau of Prisons to review that statement.
Now, this bill spends billions of dollars on our criminal justice system and on criminals--certainly hundreds of millions of dollars--but it doesn't do much for victims. All this bill would do is say that victims have some rights, too, and the victims' rights are very simple.
Let me give an example. If a rapist is about to be released from prison early, the Bureau of Prisons has to tell the rape victim that we are letting him out early and the date we are letting him out. The victim is entitled to make a statement, and the Bureau of Prisons has to read it. That is the least we can do for victims under this bill.
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Mr. KENNEDY. Mr. President, I know there has been some confusion about these amendments, as one sort of bleeds into the other, so without repeating myself, I want to describe this amendment very quickly.
This amendment would require the Director of the Bureau of Prisons, on a quarterly basis and without using the released inmate's name--so it would be anonymous--to publish, No. 1, the crime for which the inmate is or was imprisoned--I am talking about the released inmate-- the Bureau has to publish, No. 1, the crime for which the released inmate was in prison; No. 2, prior crimes for which the inmate was in prison--some would call that his rap sheet; No. 3, whether the released inmate has been rearrested, and if he or she has, what for, and the information would be broken down by State. This is merely reporting, and the objective is transparency.
Now there are provisions of this amendment--I don't want to mislead anyone--that will reassert the right of the victim to be notified when an inmate is released. I will just sum up by saying that I don't want to mislead anyone. There is a victim's right of notification provision in this amendment as well, but it is primarily a transparency provision.
I will be glad to answer any questions.
I yield my time.
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