North Korea Refugee Relief and Reconstruction Act of 2006

Mr. President, today I am pleased to introduce the ``Preserving Crime Victims' Restitution Act of 2006.'' The Act would clarify the rule of law and procedures that should be applied when a criminal defendant, such as former Enron CEO Kenneth Lay, dies after he has been

duly convicted, but before his appeals are final.

I am pleased that Senator Sessions is joining me as a cosponsor in introducing this bill. We have worked closely with the Department of Justice in crafting this legislation, and have used much of DOJ's transmitted language. DOJ fully supports the principles contained in this bill, and has indicated its support for this bill's efforts to fix this problem now to ensure that, despite a defendant's death, hard-won convictions are preserved and restitution remains available for the victims of crime.

This bill that I introduce today would do the following: Establish that, if a defendant dies after being convicted of a Federal offense, his conviction will not be vacated. Instead, the court will be directed to issue a statement stating that the defendant was convicted (either by a guilty plea or a verdict finding him guilty) but then died before his case or appeal was final.

It would codify the current rule that no further punishments can be imposed on a person who is convicted if they die before a sentence is imposed or they have an opportunity to appeal their conviction.

It would clarify that, unlike punishment, all other relief, such as restitution to the victims, that could have been sought against a convicted defendant can continue to be pursued and collected after the defendant's death.

It would establish a process to ensure that after a person dies, a representative of his estate can stand in the shoes of the defendant and challenge or appeal his conviction if they want, and can also secure a lawyer--either on their own or by having one appointed, and

If the Government had filed a criminal forfeiture action--in which it had sought to reach the defendant's assets that were linked to his crimes--the Government would get an extra 2 years after the defendant's death to file a parallel civil forfeiture lawsuit so that it could try to recover those same assets in a different, and traditionally-accepted manner.

The need for this legislation was vividly demonstrated last month. On October 17, 2006, U.S. District Judge Sim Lake, of the Southern District of Texas, wiped clean the criminal record of Enron founder Kenneth Lay, even after a jury and judge had unanimously found him guilty of 10 criminal charges, including securities fraud, wire fraud involving false and misleading statements, bank fraud and conspiracy.

That decision was not based on an error in the trial or any suggestion of unfairness in the proceedings. Instead, it was simply based on the fact that Mr. Lay died before his conviction had been affirmed on appeal, under a common law rule known as ``abatement.''

In other words, this order essentially means that Mr. Lay is ``convicted but not guilty''--``innocent by reason of his death.''

Judge Lake granted this dismissal even in the face of DOJ Enron Task Force filings, which noted how Mr. Lay's conviction ``provided the basis for the likely disgorgement of fraud proceeds totaling tens of millions of dollars.'' In other words, the dismissal means that millions dollars, that the jury found were obtained by Mr. Lay illegally, will now remain untouched in the Lay estate. And everyone agrees that former Enron employees and shareholders will now find it much harder to lay claim to these ill-gotten gains held by Mr. Lay's estate, because they will be unable to point to his criminal conviction as proof of his wrongdoing.

I do not fault Judge Lake for issuing this order. He made it clear that he was simply following the binding precedent issued in 2004 by the full U.S. Court of Appeals for the 5th Circuit, in a case called United States v. Estate of Parsons.

But as I noted in a letter I wrote to Attorney General Gonzales on October 20, 2006, the Fifth Circuit's Parsons decision goes far beyond the traditional rule of law in this area. While the common-law doctrine of abatement has historically wiped out ``punishments'' following a criminal defendant's death, the Supreme Court has never held that it must also wipe out a victim's right to other forms of relief such as restitution, which simply compensate third parties who were injured by criminal misconduct.

As the six dissenters in Parsons noted, the majority's `` `finality rationale' is a completely novel judicial creation which has not been embraced or even suggested by . . . other courts.'' The Third and Fourth Circuits, for example, have expressly refused to take this position, and upheld a restitution order after a criminal defendant's death.

The Parsons decision was remarkable in several other respects, including the fact that (as the dissenters noted), its new rule of law was apparently inspired by a single law review article. That academic piece boldly claimed that a criminal defendant's right of appeal is ``evolving into a constitutional right,'' and suggested that a conviction untested by appellate review is unreliable and illegitimate. This notion runs contrary to the traditional rule applied in virtually every other context--where a jury's findings are typically respected under the law.

Of course a defendant is presumed innocent at the outset of his case. After a jury has deliberated and unanimously issued a formal finding of guilt, however, that presumption of innocence no longer stands.

The Parsons ``finality'' rationale raises the absurd possibility that even a defendant who fully admitted his wrongdoing and pleaded guilty, but who then died while an appeal of his sentence was pending, could have his entire criminal conviction erased. In fact, this has already occurred, in the 1994 case of United States v. Pogue, where the D.C. Circuit ordered the dismissal of a conviction of a defendant whose appeal was pending--even though the docketing statement had said that the defendant intended to challenge only his sentence, and not his underlying conviction.

I have urged the Attorney General to continue to fight for Enron victims by appealing Judge Lake's dismissal to the Supreme Court. There, he should ask for a resolution of this split in the law between these Circuits, so that he can try to get the Parsons rule overturned. Unfortunately, the Justice Department has been noncommittal--it refuses to say if it will appeal the Ken Lay dismissal or not, even with the filing deadline fast approaching.

In the meantime, rather than remaining silent on this issue, and hoping that the Attorney General will appeal the Lay case as he should, I believe the time has come for Congress to take action.

While I have no desire for our Government to punish a criminal defendant who dies, the calculation should be different when we are determining how to make up for harm suffered by other individuals.

There is surely a legal and moral basis for not punishing the dead. But there is also, more importantly, a legal and moral basis for defending the living. The legislation that I introduce today codifies that distinction.

This legislation offers a fair solution and orderly process in the event that a criminal defendant dies prior to his final appeal.

Enron's collapse in 2001 wiped out thousands of jobs, more than $60 billion in market value, and more than $2 billion in pension plans. When America's seventh largest company crumbled into bankruptcy after its accounting tricks could no longer hide its billions in debt, countless former Enron employees and shareholders lost their entire life savings after investing in Enron's 401(k) plan.

Many of these Enron victims have been following closely the years of preparation by the Enron Task Force, and the four-month jury trial and separate one-week bench trial, hoping to finally recover some restitution in this criminal case. And despite Mr. Lay's vigorous efforts to avoid being held accountable for his actions, a conviction was finally secured.

Yet now these people have essentially been victimized again. They will be forced to start all over in their efforts to get back some portion of the pension funds on which they expected to subsist, and the other hard-earned assets that will remain beyond their reach, despite the unanimous, hard-fought verdicts finding Mr. Lay guilty of all ten counts with which he had been charged.

The time has come for Congress to end this injustice--hopefully, by acting quickly enough to assist these Enron victims, but in any event in a way that

will prevent this type of injustice from ever happening again in the future.

I urge my colleagues to support this legislation.

Mr. President, I have sought recognition to comment on legislation that the distinguished Senator from Hawaii, Senator Akaka, and I are introducing today. This bill would expand the number of eligible recipients of retroactive payments under the Traumatic Injury Protection under Servicemembers' Group Life Insurance, or ``TSGLI'', benefit. Most of my colleagues have perhaps heard the story of how this important benefit became law and what its intended purpose is, but I believe it is worth repeating.

In April of 2005 I was visited by three servicemembers who were seriously injured during Operation Iraqi Freedom (OIF). They were members of an organization called the Wounded Warrior Project, and they told me of their lengthy recovery times at Walter Reed Army Medical Center and the financial toll that that period of convalescence had on them and their families. They talked about wives, parents, and other relatives who had taken long absences from work, and some who had even quit their work, in order to spend time with those recovering at Walter Reed. And they told me that the Department of Veterans Affairs compensation system was no help because, by law, those benefits do not kick in until after separation from service.

Based on their experiences, these wounded warriors recommended that I pursue legislation to create a new insurance benefit for those with traumatic injuries such as theirs. The insurance would pay between $25,000 and $100,000 as soon as possible after an injury occurred, thereby bridging the gap in assistance needed during the time of a wounded servicemember's recovery and the time of his or her separation from service. They asked that I make the legislation prospective only, meaning that they, and hundreds of others, would go without any TSGLI payment. I honored that request and, together with Senator Akaka and other Members of the Committee on Veterans' Affairs, introduced an amendment to the 2005 Emergency Supplemental Appropriations bill then pending before the Senate.

A second degree amendment was later unanimously agreed to which authorized retroactive benefit payments to all of those injured in the Operation Iraqi Freedom and Operation Enduring Freedom (OEF) theaters of operation--providing for TSGLI payments to hundreds of servicemembers who had been seriously injured since the start of the wars in Afghanistan and Iraq. At the time, the retroactive TSGLI provision was consistent with other retroactive benefits approved within the Emergency Supplemental bill, such as $238,000 in combined Servicemembers' Group Life Insurance (SGLI) and death gratuity benefits that were provided retroactively to survivors of those killed in combat operations since the start of the War on Terror. Needless to say, the TSGLI amendments were approved by the Congress and enacted into law.

Fast forward to the present. TSGLI has been up and running since December 1, 2005, and provides financial assistance of $25,000 to $100,000 to traumatically injured servicemembers within, on average, 60 days of the date of the injury causing event. As of September 2006, almost 2,300 wounded OIF/OEF servicemembers have benefited under the retroactive portion of the program. For those with injuries post December 1, 2005, it does not matter if an injury occurs as a result of combat operations or training exercises--payment under TSGLI is available in either situation.

The Senate Committee on Veterans' Affairs held a hearing on the TSGLI benefit this past September. The Committee received testimony from the Wounded Warrior Project, the organization largely responsible for TSGLI's conception. While very pleased with the program overall, a serious concern was raised regarding the equity of only extending retroactive TSGLI payments to those injured during Operations Iraqi and Enduring Freedom. Mr. Jeremy Chwat, testifying for the Wounded Warrior Project that day, used the example of one servicemember as representative of others who are not now eligible for benefits:

Brave men and women like Seaman Robert Roeder who was

injured on January 29, 2005 when an arresting wire on the

aircraft carrier, the USS Kitty Hawk, severed his left leg

below the knee. . . . Although the ship was on its way to the

Gulf and the training exercises being conducted were in

preparation for action in either Operation Enduring or Iraqi

Freedom, Robert's injury does not qualify for payment.

Furthermore, since enactment of the 2005 Emergency Supplemental, retroactive SGLI and death gratuity benefits combining $238,000 have been expanded to provide payments to survivors of all servicemembers who died on active duty, whether in combat or not. The reason behind the expansion of retroactive benefits was a recognition that military service is universal in character; that each military man or woman, no matter where they are serving, contributes in a unique way to make the United States Armed Forces second to none.

The legislation I am introducing today, along with Senate Akaka, will make the TSGLI retroactive payment eligibility criteria consistent with the other benefit program retroactive payment criteria I just mentioned. Thus, if this legislation is enacted, all traumatically injured servicemembers who served between October 7, 2001, and December 1, 2005, will be eligible for TSGLI payments, irrespective of where their injuries occurred. Unofficial estimates from the Department of Veterans Affairs suggest that approximately 700 individuals would be covered under this bill.

Both the Wounded Warrior Project and the National Military Families Association have expressed their support for this bill. And I now ask my colleagues for their support. This is the right thing to do for our military men and women.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to introduce, along with Senators Cochran, Kennedy, Baucus, Rockefeller, Salazar, Boxer and Kerry, the Summer of Service Act of 2006. This bill offers middle school students the chance to spend a summer in service to their communities as they transition into high school.

Summer of Service creates a competitive grant program that enables States and localities to offer middle school students an opportunity to participate in a structured community service program over the summer months. It employs service-learning to teach civic participation skills, help young people see themselves as resources to their communities, expand educational opportunities and discourage ``summer academic slide.'' Providing tangible benefits to their communities, Summer of Service projects direct grantees to work on unmet human, educational, environmental and public safety needs and encourage all youth, regardless of age, income, or disability, to engage in community service. The program also grants participants with an educational award of up to $500 which can later be used to pay for college.

Volunteerism not only brings support and services to communities in need, it also provides significant benefits to the students who participate. When young people participate in service activities they feel better able to control their lives in a positive way, avoiding risk behaviors, strengthening their community connections and become more engaged in their studies. When service is tied to what students are learning in school, they make gains on achievement tests, complete their homework more often, and increase their grade point average. Students who engage in service learning also improve their communication skills, gain increased awareness of career possibilities, and develop more positive workplace attitudes, setting the foundation for their place as America's future leaders. Studies also show that students who participate in community service are more likely to graduate high school and demonstrate interest in going to college.

We often hear today of the tremendous pressures our young people face at home, in school and in the afterschool hours. Summer of Service provides young people with the chance to be a positive change in their communities. For this reason, I urge my colleagues to join me in supporting the Summer of Service Act of 2006. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, for the Committee on Armed Services I report favorably the following nomination lists which were printed in the Records on the dates indicated, and ask unanimous consent, to save the expense of reprinting on the Executive Calendar that these nominations lie at the Secretary's desk for the information of Senators.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.