First Step Act

Floor Speech

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Mr. DURBIN. Madam President, let me first acknowledge my good friend and my colleague Chuck Grassley, who has just paid tribute to a member of his staff who has served for more than 30 years. I don't know her personally, but we can tell his words were heartfelt and could tell of his appreciation for her public service.

On behalf of the Senate, I want to thank her and all of the staff people who make our careers possible. As talented as we may think we are, we wouldn't be anywhere without staffers who are determined to serve the people and serve us.

His tribute to his chief of staff--chief of everything, as he described her--was certainly heartfelt from a man I know is a very sincere and positive individual. I just wanted to say those words.

Tribute to Joe Donnelly

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Mr. DURBIN. Madam President, I also wanted to add my comments to what was said earlier by the Democratic leader, Senator Schumer, about our departing colleague Joe Donnelly. We are really going to miss him. We are going to miss all four who are not going to be back with us.

Joe is my neighbor in the State of Indiana. There is hardly a meeting of Democratic Senators where you don't hear some laughter and look at the center of the meeting and see that it is Joe Donnelly. He makes us all feel good about who we are and what we do, even when some of these assignments we receive are pretty tough.

I want to join Chuck Schumer in saying thanks to Joe Donnelly for serving Indiana and for being such a great colleague during these last 6 years. We will miss him.

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Mr. DURBIN. Madam President, on a separate subject, this bill, S. 3747, is a bill which is historic. It is 149 pages, and the first 60 are pages that address prison reform. This bill in its entirety has been endorsed by the political spectrum of America. I would say to Senator Grassley that I can't remember another bill that had this kind of support, left and right, liberal, conservative, Republican, Democrat. It is all there, supporting this legislation.

To have a bill that Senator Grassley and I worked on with Senator Lee and Senator Booker tells a story in and of itself--the four leaders on this legislation--but then to consider the fact that President Trump has endorsed it, that Vice President Pence has come to the Republican conference lunch saying he is behind it and urging the Republican caucus to support it as well, really speaks to the political bipartisanship that we rarely, if ever, have seen in Washington.

The groups who are behind it are equally amazing. To have the support, on an important criminal justice reform bill, of the Fraternal Order of Police is a great starting point, as far as I am concerned. Then to have the leading prosecutors--the leading criminal prosecutors association--join with the police really tells us that on the law enforcement side, we have the major players. On the other side, incredibly, we have the American Civil Liberties Union supporting this and most of the major civil rights organizations.

I think we have really struck a good point here where we have worked and compromised for 5 or 6 years to reach this moment. It is possible that as early as today, this bill will be up for us to vote on, but before we reach that point, there is the possibility of amendments that are going to be offered--three amendments, as we understand it, under the current procedure. I would like to address generally the amendments that will be offered.

Senator Cotton of Arkansas is the lead sponsor of these amendments. There are three amendments because Senator Cotton took his original amendment and literally divided it into three pieces, which is his right under the Senate Rules of Procedure. I have taken a look at those--a very close look, I might add--and I want to put on the record some facts that I hope Members of the Senate on both sides will consider when the Cotton amendments come before us on the floor.

One of the major elements in Senator Cotton's amendment is ``notification of victims.'' In other words, if we are going to change the status of a person in Federal prison to the point where they may be released early, Senator Cotton suggests that we must--we must--notify crime victims. It sounds reasonable on its face, and it is. In fact, it is so reasonable that we currently have a law that guarantees that.

The Crime Victims' Rights Act is the Federal statute, and under the Crime Victims' Rights Act, we say to victims: You have the right to know if a criminal defendant who perpetrated a crime against you is going to have a change in their status as a prisoner. We spell out many other things in about 10 different provisions giving rights to crime victims.

This isn't the only guarantee of crime victims learning what is happening to the criminal defendant who perpetrated the crime. It turns out that the Bureau of Prisons does the same thing. They notify crime victims of change in status of the criminal defendant.

What is the difference? What is Senator Cotton trying to add to this? He is adding to it an element that is very worrisome, and I am afraid he hasn't thought it through clearly.

You see, under the Crime Victims Act, it is up to the crime victim to determine whether they want to be notified. It turns out that over the last 5 years, 10 percent of the crime victims, when given the offer of being notified about a change in status of the criminal defendant, 10 percent of them--about 160,000--have said: No, we don't want to be notified. We have consciously decided. Don't notify us.

Why? Why would a crime victim say: Don't notify me. Well, there are a myriad of reasons. Consider the possibility that the victim is an infant or a child who has gone through the horrible experience involved in this crime, and the guardians or parents of that crime victim, who is a child, have decided that they don't want their child to be exposed to all of this information about some criminal defendant, for whatever reason. It could be as a result of psychological counseling. It could be that they don't want them to face retraumatization by going through--reliving that horrible criminal experience.

Think of an adult who decides as a crime victim: I want to put this behind me. I don't care to hear anything more about this. My life is going to go on on a separate track, and this is the past. I want to look to the future.

So a crime victim--even an adult--can decide, don't notify me. It is their decision. It is not a government decision; it is an individual decision. We give to crime victims the respect and the freedom to decide if they will be notified. Senator Cotton does not. Senator Cotton mandates notification, requires notification of the change in status. That is serious, and it could have a serious impact on someone who has already been victimized, forced into some horrible condition in their life that they would be forced again to revisit again when they do not want it, when they consciously do not want it.

What have the crime victims associations said about the Cotton amendment? It is universal--they have said it is wrong, and they have said that in very explicit terms. Let me tell you one group that I think is important for us to consider: the Crime Survivors for Safety and Justice. We believe it is the leading, largest crime victims organization in America. Over 30,000 crime victims are part of this organization to stand up for the rights of those who have been victimized by crime. What do they have to say about the Cotton amendment that would force notification on people who do not want it? Here is what they say:

A mandatory notification requirement is contrary to the victim-centered approach of avoiding re-traumatization. Current law and DOJ policy permit a victim to determine whether he or she wants notification of release. A mandate--

The Cotton amendment-- like this requires notification for those who may not want it and could trigger trauma for thousands of victims many years later after the crime.

They go on to say:

[Bureau of Prisons] data on the release date of any prisoner is publicly available on the [Bureau of Prisons] website. Victim notification is already required by law if victims choose to receive the notice. The Crime Victims' Rights Act provides the right to timely notice of any release.

Victim notification already occurs through the [Department of Justice's] Automated Victim Notification System if victims opt to receive the notice. This system is a partnership with the [Bureau of Prisons], the FBI, the U.S. Postal Inspection Service, and the United States Attorney's Office. It is a free, computer-based system, which provides victims with information on scheduled court events, the outcomes of events, custody status and release dates.

In other words, all of the information about the disposition of a criminal defendant is currently available online, easily accessible by crime victims if they choose to receive it. Ten percent of them--1 out of 10--say: No, we don't want to receive it. Senator Cotton, with his amendment, does not respect that decision by the 10 percent and says they will be required to receive it. That is not good for crime victims. It certainly violates the spirit of the Crime Victims' Rights Act, where we leave that decision, when it comes to minors and even adult victims, to the families affected. Why would we override that provision in the law?

There is another group who has come forward, a woman by the name of Tricia Forbes, a regional training manager with the Texas-based Crime Survivors for Safety and Justice. In The Hill newspaper that was published this morning, she has a lengthy article opposing the Cotton amendments. Here is what she says:

Cotton and Senator Kennedy claim they are trying to protect victims with an amendment to force the Federal Bureau of Prisons to notify victims of a crime when the perpetrator is being transferred to pre-release custody, but their real goal is simply to delay, dilute, and derail the bill. The existing draft of the FIRST STEP Act was the result of careful, bipartisan and bicameral negotiations. By adding their last- minute amendments, Cotton and Kennedy want nothing more than to break up the broad bipartisan coalition that has come together to support this bill.

There is also a letter from Anne Seymour, project director for Fairness, Dignity & Respect for Crime Victims & Survivors. This letter, which she sent to all Members of the Senate, says:

I write today to urge you to vote No on Senators Cotton and Kennedy's ``Victim Notification'' Amendment. It is clear that Congress can and must do more to support the needs and rights of crime victims and survivors. I am disappointed that almost no elements of the FIRST STEP Act are tailored specifically to the needs of victims. However, Senators Cotton and Kennedy's proposed amendments neither comply with best practices in trauma-informed victim services, nor improve this bill.

She closes by saying:

I urge you to vote No on Senators Cotton and Kennedy's amendments, and encourage you to offer solutions that are better tailored to identify and address the critical needs of crime victims and survivors in a manner that is survivor- centered and trauma-informed.

So crime victims groups have come forward and said that the Cotton amendments would be harmful to crime victims.

Those who wish to be notified have every right to be, and they are provided that notification under statute and under existing policy of the Bureau of Prisons. Those who opt out and say ``I don't want to be notified'' should be respected. We should not force this on them.

I encourage my friends--those who are considering this bill and discussing it with their staffs--to look closely at what the crime victims organizations say about the Cotton amendments and understand that if we are going to be respectful of these people who have been victimized by crime, we have to vote no on those amendments.

The second element that has been raised by Senator Cotton in the amendments relates to the crimes that are listed as making someone ineligible for prison reform programs or early release programs. Our bill is 60 pages long. More than a third of the bill is filled with a list of over 60 different Federal crimes, and we say: If you committed this crime, you are not eligible as a Federal prisoner for the rehabilitation program in this bill. There are 60 different ones that we have added.

Members would come up to us--Senator Grassley, myself, Senator Booker, Senator Lee--and say: We think you ought to add such-and-such crime. We would take a careful look at it, and in most cases, we agreed to do it. Let me give an example.

Senator Ted Cruz, a conservative Republican from Texas--and I think he wears that label proudly--said he would consider voting for our bill if we would consider adding a number of crimes to the list of crimes that would make a criminal defendant ineligible to ask for help under this bill. We looked at it carefully. There were about six or eight of these that we thought were acceptable. We asked if we could add those to the list--a list of already 60 crimes. Unfortunately, Senator Cotton objected. He did not want that added to the bill. Now it turns out he is going to argue in his amendment that he wants part of the Cruz list to be added at this point.

Well, we had a chance to do it, and it was a bipartisan measure, but he objected to our adding it. However, he has one provision in his amendment that goes far beyond Senator Cruz's list or the enumerated crimes that we said make you ineligible. He has created a new category of crime. I have read a lot of definitions over the years, but it is really hard to follow what he is trying to achieve here because, in addition to the enumerated crimes that would make you ineligible, he adds the following: any offense that is not otherwise listed in the subsection for which the offender is sentenced to a term of imprisonment of more than 1 year and ``has as an element, the use, attempted use, or threatened use of physical force against the person or property of another.'' I have never seen that definition--``physical force against the person or property of another.''

We went to the Sentencing Commission and said: How many crimes would that include? They said: It is impossible to calculate. But we think that at least 30,000 people would be ruled ineligible--by those words that I have just read--who might otherwise be eligible for earlier release.

So what he has come up with is his own definition of criminal standard, one which we have never seen before, and he wants that to apply to this bill, which we worked on for 6 years.

So I would say, when it comes to the Cotton amendments, Members of the Senate really have a very clear and stark choice: They can support a bill that has been worked on on a bipartisan basis and enjoys the support of police, prosecutors, and those groups which protect our constitutional rights--all together, right and left, supporting; they can support a bill that has bipartisan support here on the floor of colleagues and Members who rarely come together, but we have come together on this bill because we found a good compromise; they can support a bill that has the support of survivors and criminal victims organizations; or they can vote for the Cotton amendments.

Supporting the Cotton amendments that are being offered--opposed by crime victims' rights groups across the board, by the leading crime victims' rights groups--is basically saying to these crime victims: We are going to force this information on you whether it is in the best interests of your family, whether you want it or not. That is not respectful of crime victims.

I hope my colleagues will join me in opposing the Cotton amendments.

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Mr. DURBIN. I thank the Senator.

Yesterday, our colleague Senator Cornyn, a Republican from Texas, came forward and said that his State of Texas and other States are showing that they can reduce recidivism--in other words, committing another crime after you are released--by treating prisoners differently in their State prisons. As I said on the floor, you may be shocked to think that Texas would be a leader in this, but they have been, and they have seen a reduction in the incidence of crime and a reduction in the incidence of incarceration--things we like to see happen. Reduce the cost to taxpayers of the prisons, but reduce crime on the streets too. Make sure you do both.

He believes they have achieved it. What they did was they looked at programs that work. So what we did was the same thing. Senator Grassley and I, as well as, as you mentioned, Senator Cornyn and Senator Whitehouse, looked at these prison reform programs in the States and said: What can we learn from them?

What we did was to establish the obligation of the Attorney General-- this is not the obligation of social workers but the obligation of the Attorney General of the United States to take a hard look at the programs that work for prisoners. What can we do to make sure they don't commit another crime, create another victim, and come back to prison?

We spell out exactly what we are looking for: the most effective and efficient, evidence-based recidivism-reduction programs. That is a long title. What that basically means is that we don't want to waste any more time here. We want to focus tax dollars on programs that have proven results, and unless they commit one of the crimes that make them ineligible, we offer these to prisoners. By participating in them, they can reduce the time they serve or be released to a halfway house or something similar to that. That is what this is all about, start to finish, and we believe this will work.

What if they mess up in the course of being enrolled in the program? We have a provision in here that says: You are done. You are either going to do this in good faith, positively, without any violations of your responsibilities as a Federal prisoner--we will give you a chance for less time but no nonsense.

Good program. Good participation. We hope good results, and we are going to measure it. We are going to come back. The General Accounting Office is going to give us a report on our success--of those who are released, how many turned around and committed another crime? So we are going to take a hard look at this--an honest look, I might say. I believe this is the best way to do it. Make sure it is evidence-based. Make sure it is a fair opportunity for those who want to participate and turn their lives around to do just that.

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