Caging Prohibition Act of 2007

Mr. President, it is a privilege to join my colleague from New Mexico in introducing the Mentally Ill Offender Treatment and Crime Reduction Reauthorization and Improvement Act of 2007. This bipartisan, bicameral legislation will authorize continued Federal support for cooperation between the criminal justice and mental health systems on jail diversion, correctional treatment, and community reentry of offenders with a mental illness, and cross-training of criminal justice and mental health personnel. With full funding, this proposal has the potential to achieve significant reforms in the treatment of offenders diagnosed with a mental illness.

I commend Senator Domenici for his leadership on this bill and on many other initiatives to improve our Nation's mental health systems. I also welcome the support and leadership of Representatives Scott and Forbes in the House of Representatives. We all agree that this legislation can promote cooperative initiatives that will significantly reduce recidivism and improve treatment outcomes.

Based on the most recent studies by the Bureau of Justice, more than half of all prison and jail inmates had a mental health problem in 2005, including 56 percent of inmates in State prisons, 45 percent of Federal prisoners and 64 percent of jail inmates. The high rate of symptoms of mental illness among jail inmates may reflect the role of local jails in the criminal justice system, which operate as locally- run correctional facilities that receive offenders pending arraignment, trial, conviction or sentencing. Among other functions, local jails also hold mentally ill persons pending their relocation in appropriate mental health facilities.

Far too often, individuals encounter the criminal justice system when what is really needed is treatment and support for mental illness. Families often resort to the police in desperation in order to obtain treatment for a loved one suffering from an extreme episode of a mental illness. During such extreme distress, families may face no other alternative, because persons with symptoms such as paranoia, exaggerated actions or impaired judgment may be unable to recognize the need for treatment.

It is unconscionable, and may well be unconstitutional, for these vulnerable individuals to be further marginalized once they are incarcerated. Too often, they are denied even minimal treatment because of inadequate resources.

Most mentally ill offenders who come into contact with the criminal justice system are charged with low-level, nonviolent crimes. Once behind bars, they may well face an environment that further exacerbates symptoms of mental illness, which might otherwise be manageable with proper treatment. Caught in a revolving door, they may soon be back in prison as a result of insufficient and inadequate transitional services when they are released.

This bill reauthorizes critical programs to move away from troubled systems that often result in the escalating incarceration of individuals with mental illness. Through this legislation, State and local correctional facilities will be able to create appropriate, cost- effective solutions. Low-level, nonviolent mentally ill offenders will have greater access to continuity of care.

Congress must also address an unfunded mandate that has been imposed on the States for decades. In Estelle v. Gamble in 1967, the Supreme Court held that deliberate indifference to serious medical needs of inmates is unconstitutional, ``whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.'' In Ruiz v. Estelle in 1980, the Supreme Court established minimum standards for mental health services in correctional settings. Yet more than twenty years later, Federal, State, and local facilities still do not have nearly enough resources to come even close to meeting these constitutional requirements.

Congress must do its part to assist State and local governments in meeting this burden. We cannot tolerate a system that fails to meet constitutional safeguards, or that fails to dedicate resources effectively so that people will get help instead of jail time. As a result of State budget cuts, more and more communities are looking to the Federal Government for support.

This call for change can not be ignored. We have seen too many news stories reflecting the need for action on this issue. A New York Times editorial by Bernard Harcourt on January 15, 2007, highlighted problems facing the mentally ill behind bars, noting two extreme examples in different parts of the country. In August 2006, a prison inmate, described by authorities as ``floridly psychotic,'' died in Michigan shackled to a concrete slab, waiting for a mental health transfer that never happened. Six months later, the head of Florida's social services department resigned in the face of charges for failing to transfer severely mentally ill jail inmates to State hospitals.

To date, we have seen only a fraction of the possible potential under this legislation, because only 50 planning and implementation grants have been awarded. Because of limited Federal funding, only 11 percent of applicants were able to receive one of these grants for which there is high demand. In Massachusetts, the Norfolk District Attorney's office received one of the planning grants. Right now, the office is working hard to implement a program to ensure that a trained mental health professional will serve in police departments, so that a qualified person on the scene can assist in a situation involving a mentally ill person.

The program will also reduce the likelihood that a mentally ill person charged with a low-level crime will be inappropriately jailed, and will give such persons the treatment they need and provide life skills training, housing placement, vocational training and job placement. Several local mental health centers have already expressed their support for the program and their willingness to cooperate in providing valuable services to this long-neglected population.

The expanded funding in this bill could help support ongoing efforts like

the Massachusetts Mental Health Diversion & Integration Program, MMHDIP, which is part of the Center for Mental Health Services Research at the University of Massachusetts Medical School. The center for Mental Health Services Research has supported a series of research and training programs to assist persons with mental illness who come in contact with the criminal justice system and have worked with police departments in Boston, Worcester, and Attleboro. The center is also working on programs to develop evidence on which future practices may be based. They also disseminate best practices for crisis intervention and risk management to police, courts, probation, prosecutors, defense attorneys, schools, and social service providers. The goal of the program is to reduce reliance on the criminal justice system as an access point for social service provision, thereby freeing police and other portions of the criminal justice system to more effectively fulfill their public safety function.

The current programs in Massachusetts reflect the continuing legacy of the nationwide movement that began when Dorothea Dix entered an East Cambridge Jail in 1841. Discovering that the mentally ill inmates were being housed together in terrible conditions without any heat, Dorothea began documenting prison conditions for the mentally ill throughout our Commonwealth. Her advocacy, and her determination to pursue ideas that seemed radical at the time, achieved significant reforms in Massachusetts. She went on to lead the first national legislation to provide for the mentally ill. Today, we are still a long way to achieve the goals set forth by Dorothea so many years ago.

In every State, interactions between law enforcement and individuals suffering from mental illness continue to rise and the need for effective solutions is critical. This legislation will continue to ``foster local collaborations'' between law enforcement and mental health providers. What works in one community will not necessarily work or be desired in another--solutions must take into account the existing problem as well as the social and political dynamics within each community. With so many complex issues involved at the intersection of mental illness and the criminal justice system, no magic solution will solve the problems faced in communities across America. This bill encourages funding for specialized programs that will most effectively address the needs of these local communities. With this legislation, Congress will join local communities in their response to this problem.

In addition, members of State and local law enforcement need access to training and other alternatives to improve safety and responsiveness. The bill reauthorizes the Mentally Ill Offender Treatment Program and increases the funding to $75 million a year. The legislation also authorizes $10 million for grants to States and local governments to train law enforcement personnel on procedures to identify and respond more appropriately to persons with mental illnesses, and to develop specialized receiving centers to assess individuals in custody.

In his last public bill signing in 1963, President Kennedy signed a $3 billion authorization bill to create a national network of community mental health facilities across the country. With the escalation of the Vietnam War, not one penny of the $3 billion was ever appropriated. Now, decades later, we face a crisis in which far too many mentally ill individuals are facing jail time rather than treatment.

Last year, more than 1 million persons with serious mental illnesses were arrested. Noting the breadth of this national problem, Judge Leifman of the Criminal Division of the Miami-Dade County Court has stated that, ``Jails and prisons have become the asylums of the new millennium.''

The broad support for this legislation--ranging from the Council of State Governments, the National Alliance on Mental Illness, the National Sheriffs Association, the Bazelon Center for Mental Health Law, the National Council for Community Behavioral Healthcare, the National Alliance for the Mentally Ill, the Council of State Governments, the Campaign for Mental Health Reform and Mental Health America--demonstrates that it will provide much-needed support to help solve this complex problem. The courts, law enforcement, corrections and mental health communities have all come together in support of this legislation, and Congress must respond.

Individuals and their loved ones struggle with countless challenges and barriers during a mental health crisis. With this bill, Congress can provide significant support to needed cooperation efforts between law enforcement and mental health experts. I urge my colleagues to support this legislation, so that we can achieve its enactment before the end of this current session of Congress.

Mr. President, it is an unfortunate reality that with so much at stake in the ballot box, organized efforts to suppress the vote go nearly as far back as the right to vote itself. These efforts have cast a shadow over what Justice Earl Warren called ``the essence of a Democratic society'': the right to vote freely for the candidate of one's choice.

The first voter suppression in America was direct: blanket restrictions based on race, based on gender, based on class. Over the years, these overt efforts were eventually replaced by more indirect and nefarious means: poll taxes, literacy tests, Whites-only primaries, and myriad other disenfranchisement laws aimed directly at minority voters. These crafty legal obstacles were often supplemented by blunt physical violence. But despite the many and varied efforts to impede the franchise, American democracy has shown an extraordinary resilience--and the American people have shown an abiding dedication, sometimes paying with life and limb, to defend the right of their fellow citizens to vote.

This Senate, of course, has a checkered past on voting rights. For many years, the Senate is where civil rights bills came to die, stalled by filibusters and tangled in parliamentary technique. Eventually, of course, the tide turned, and Congress ushered in a series of laws that remain among the most important ever enacted: the 24th amendment banning poll taxes; the Civil Rights Act; and the Voting Rights Act of 1965, which banned literacy tests, authorized the Attorney General to appoint Federal voting examiners to ensure fair administration of elections, and required the Federal Government to ``pre-clear'' certain changes in the voting laws of local jurisdictions.

That law has been improved and reauthorized a number of times--as recently as last year--and is a cornerstone of our democracy. Nevertheless, as we all know, efforts to suppress the vote persist and continue to erode the promise of democracy for many Americans. For example, in the last election cycle, we saw organized efforts to deceive voters by sending out fliers with false information about the location of polling places or with phony endorsements, we saw threats that immigrants could be imprisoned if they voted.

The Judiciary Committee, under the wise leadership of Chairman Leahy, has responded with the Deceptive Practices and Voter Intimidation Prevention Act, which would criminalize various forms of voter intimidation and election misinformation.

In recent years, we have also seen the rise of another voter suppression tactic, which has come to be known as ``vote caging.'' Caging is a voter suppression tactic whereby a political campaign sends mail marked ``do not forward/return to sender'' to a targeted group of voters--often targeted into minority neighborhoods. The campaign then challenges the right of those citizens whose mail was returned as ``undeliverable'' on the grounds that the voter does not live at the registered address. Of course, as the Presiding Officer knows, there are many reasons why a piece of mail might be ``returned to sender'' that have nothing whatsoever to do with the voter's eligibility. For example, a voter might be an active member of the armed services and stationed far from home or a student lawfully registered at their parents' address. Even a typographical error during entry of the voter's registration information might result in a ``false negative.'' Nevertheless, these individuals end up facing a challenge to their vote and possibly losing their right to vote.

Caging came into the media spotlight this summer during Congress's investigation into the political dismissal of U.S. attorneys, but this practice is not new, and it is not rare. In fact, since 1982, the Republican National Committee has been operating under a consent decree, filed in New Jersey U.S. District Court, which states that the RNC shall ``refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities.''

This consent decree was entered into after the Republican National Committee, during the 1981 New Jersey gubernatorial election, initiated a massive voter-caging operation, sending mailers marked ``do not forward'' to voters in predominantly African-American and Latino neighborhoods throughout the State. The Republican National Committee then compiled a caging list based solely on the returned letters and challenged these voters at the polls. They did it again in Louisiana, in 1986, when the Republican National Committee hired a consultant to send 350,000 pieces of mail marked ``do not forward'' to districts that were mostly African American, and the consent decree was then modified to require the U.S. District Court in New Jersey to preclear any so- called ballot security programs undertaken by the Republican National Committee.

However, in part because the Federal consent decree does not apply to State parties or other campaigns, caging has continued. During the past few election cycles, there has been credible evidence of caging in Ohio, in Florida, in Pennsylvania, and elsewhere. Not every caging operation has been successful, but the failure of a voter suppression attempt is no excuse for it. Therefore, I am introducing the Caging Prohibition Act, which would prohibit challenging a person's eligibility to vote--or to register to vote--based on a caging list. Simply put, eligible voters should not fear their right to vote might be challenged at the polls because a single piece of mail never reached them.

The bill would also require any private party who challenges the right of another citizen to vote--or to register to vote--to set forth in writing, under penalty of perjury, the specific grounds for the alleged ineligibility. The principle here is simple: If you are going to challenge one of your fellow citizen's right to vote, you should at least have cause and be willing to stand behind it.

I am very proud of the extraordinary group of Senators who have agreed to be original cosponsors of this piece of legislation: Chairman Leahy of the Judiciary Committee, Senator Feinstein, Senator Dodd, Senator Kerry, Senator Feingold, Senator Schumer, Senator Nelson of Florida, Senator Clinton, Senator Obama, Senator Menendez, Senator Brown, and Senator Klobuchar. I was proud to work closely with the Brennan Center for Social Justice and the Lawyers Committee for Civil Rights Under Law to develop the language of this bill. I would also like to thank People for the American Way for its support of this legislation.

In the 1964 case of Reynolds v. Sims, the U.S. Supreme Court stated:

[T]he right to exercise the franchise in a free and

unimpaired matter is preservative of other basic civil and

political rights. . . .

In other words, every right we have depends upon the right to vote. Organized voter-suppression efforts, including vote-caging schemes, infringe on this right and undermine our democracy. Congress should rise to the occasion and say ``enough is enough'' to vote caging.

I thank my many distinguished colleagues who have cosponsored this bill, and I ask my colleagues on both sides of the aisle to join us in stopping this nefarious voter suppression activity.

I yield the floor.

Mr. President, it is an unfortunate reality that with so much at stake in the ballot box, organized efforts to suppress the vote go nearly as far back as the right to vote itself. These efforts have cast a shadow over what Justice Earl Warren called ``the essence of a Democratic society'': the right to vote freely for the candidate of one's choice.

The first voter suppression in America was direct: blanket restrictions based on race, based on gender, based on class. Over the years, these overt efforts were eventually replaced by more indirect and nefarious means: poll taxes, literacy tests, Whites-only primaries, and myriad other disenfranchisement laws aimed directly at minority voters. These crafty legal obstacles were often supplemented by blunt physical violence. But despite the many and varied efforts to impede the franchise, American democracy has shown an extraordinary resilience--and the American people have shown an abiding dedication, sometimes paying with life and limb, to defend the right of their fellow citizens to vote.

This Senate, of course, has a checkered past on voting rights. For many years, the Senate is where civil rights bills came to die, stalled by filibusters and tangled in parliamentary technique. Eventually, of course, the tide turned, and Congress ushered in a series of laws that remain among the most important ever enacted: the 24th amendment banning poll taxes; the Civil Rights Act; and the Voting Rights Act of 1965, which banned literacy tests, authorized the Attorney General to appoint Federal voting examiners to ensure fair administration of elections, and required the Federal Government to ``pre-clear'' certain changes in the voting laws of local jurisdictions.

That law has been improved and reauthorized a number of times--as recently as last year--and is a cornerstone of our democracy. Nevertheless, as we all know, efforts to suppress the vote persist and continue to erode the promise of democracy for many Americans. For example, in the last election cycle, we saw organized efforts to deceive voters by sending out fliers with false information about the location of polling places or with phony endorsements, we saw threats that immigrants could be imprisoned if they voted.

The Judiciary Committee, under the wise leadership of Chairman Leahy, has responded with the Deceptive Practices and Voter Intimidation Prevention Act, which would criminalize various forms of voter intimidation and election misinformation.

In recent years, we have also seen the rise of another voter suppression tactic, which has come to be known as ``vote caging.'' Caging is a voter suppression tactic whereby a political campaign sends mail marked ``do not forward/return to sender'' to a targeted group of voters--often targeted into minority neighborhoods. The campaign then challenges the right of those citizens whose mail was returned as ``undeliverable'' on the grounds that the voter does not live at the registered address. Of course, as the Presiding Officer knows, there are many reasons why a piece of mail might be ``returned to sender'' that have nothing whatsoever to do with the voter's eligibility. For example, a voter might be an active member of the armed services and stationed far from home or a student lawfully registered at their parents' address. Even a typographical error during entry of the voter's registration information might result in a ``false negative.'' Nevertheless, these individuals end up facing a challenge to their vote and possibly losing their right to vote.

Caging came into the media spotlight this summer during Congress's investigation into the political dismissal of U.S. attorneys, but this practice is not new, and it is not rare. In fact, since 1982, the Republican National Committee has been operating under a consent decree, filed in New Jersey U.S. District Court, which states that the RNC shall ``refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities.''

This consent decree was entered into after the Republican National Committee, during the 1981 New Jersey gubernatorial election, initiated a massive voter-caging operation, sending mailers marked ``do not forward'' to voters in predominantly African-American and Latino neighborhoods throughout the State. The Republican National Committee then compiled a caging list based solely on the returned letters and challenged these voters at the polls. They did it again in Louisiana, in 1986, when the Republican National Committee hired a consultant to send 350,000 pieces of mail marked ``do not forward'' to districts that were mostly African American, and the consent decree was then modified to require the U.S. District Court in New Jersey to preclear any so- called ballot security programs undertaken by the Republican National Committee.

However, in part because the Federal consent decree does not apply to State parties or other campaigns, caging has continued. During the past few election cycles, there has been credible evidence of caging in Ohio, in Florida, in Pennsylvania, and elsewhere. Not every caging operation has been successful, but the failure of a voter suppression attempt is no excuse for it. Therefore, I am introducing the Caging Prohibition Act, which would prohibit challenging a person's eligibility to vote--or to register to vote--based on a caging list. Simply put, eligible voters should not fear their right to vote might be challenged at the polls because a single piece of mail never reached them.

The bill would also require any private party who challenges the right of another citizen to vote--or to register to vote--to set forth in writing, under penalty of perjury, the specific grounds for the alleged ineligibility. The principle here is simple: If you are going to challenge one of your fellow citizen's right to vote, you should at least have cause and be willing to stand behind it.

I am very proud of the extraordinary group of Senators who have agreed to be original cosponsors of this piece of legislation: Chairman Leahy of the Judiciary Committee, Senator Feinstein, Senator Dodd, Senator Kerry, Senator Feingold, Senator Schumer, Senator Nelson of Florida, Senator Clinton, Senator Obama, Senator Menendez, Senator Brown, and Senator Klobuchar. I was proud to work closely with the Brennan Center for Social Justice and the Lawyers Committee for Civil Rights Under Law to develop the language of this bill. I would also like to thank People for the American Way for its support of this legislation.

In the 1964 case of Reynolds v. Sims, the U.S. Supreme Court stated:

[T]he right to exercise the franchise in a free and

unimpaired matter is preservative of other basic civil and

political rights. . . .

In other words, every right we have depends upon the right to vote. Organized voter-suppression efforts, including vote-caging schemes, infringe on this right and undermine our democracy. Congress should rise to the occasion and say ``enough is enough'' to vote caging.

I thank my many distinguished colleagues who have cosponsored this bill, and I ask my colleagues on both sides of the aisle to join us in stopping this nefarious voter suppression activity.

I yield the floor.

Mr. President, I rise today with my colleagues, Senator Kennedy, Senator Leahy, and Senator Specter to introduce the Mentally Ill Offender Treatment and Crime Reduction Reauthorization and Improvement Act of 2007. This bill will reauthorize and improve several programs intended to provide Federal support for collaborations between criminal justice and mental health systems.

It is estimated that approximately 16 percent of adult U.S. jail and prison inmates suffer from mental illness and the numbers are even higher in the juvenile justice system. Many of these individuals are not violent or habitual criminals. Most have been charged or convicted of nonviolent crimes that are a direct consequence of not having received needed treatment and supportive services for their mental illness.

The presence of defendants with mental illnesses in the criminal justice system imposes substantial costs on that system and can cause significant harm to defendants. In response to this problem, a number of communities around the country are implementing mental health courts, a specialty-court model that utilizes a separate docket, coupled with regular judicial supervision, to respond to individuals with mental illnesses who come in contact with the justice system.

This past spring, I visited the courtroom of Judge Michael Vigil in the First Judicial Court of Santa Fe, NM. Judge Vigil operates a mental health court that helps individuals who have been involved in nonviolent crimes that do not involve weapons and who have been diagnosed with a mental illness. It is a 14-month program that attempts to keep defendants with mental illness out of jail. The court meets every Friday for about an hour. Defendants are required to attend individually designed therapy sessions, take their medications, and submit to random drug tests and breathalyzer tests. The appearances before Judge Vigil are akin to ``check-ups'' to make sure the defendant is on course, taking his or her medications, and that the defendant is in good health. If a participant violates the rules, they are sanctioned. If the violations are serious enough, the defendant can be removed from the program and sentenced to jail.

The day I visited Judge Vigil's court, I witnessed a participant graduate from the program. I spoke with the defendant and his mother after the hearing. They told me how this program

had helped turn his life around. Participation in this program had kept him out of jail and more importantly helped him access treatment, housing, and other critical supports. By addressing the mental illness that contributed to his criminal act, this man received the services he needed to hopefully prevent him from repeating his crime or committing a more serious crime. Furthermore, the program helped reduce the burden on the judicial system allowing for resources to be focused on violent criminals.

Many communities are not prepared to meet the comprehensive treatment and needs of individuals with mental illness when they enter the criminal justice system. The bill we are introducing today is intended to help provide resources to help States and counties design and implement collaborative efforts between criminal justice and mental health structures. The bill will reauthorize the Mentally Ill Offender Treatment and Crime Reduction grant program and reauthorize the Mental Health Courts Program. It will create a new grant program to help law enforcement identify and respond to incidents involving persons with mental illness and it will fund a study and report on the prevalence of mentally ill offenders in the criminal justice system. All of these reforms will help to address this problem from both a public safety and a public health point of view. This will help save taxpayers money, improve public safety, and link individuals with the treatment they need to become productive members of their community.

Certainly, not every crime committed by an individual diagnosed with a mental illness is attributable to their illness or to the failure of public mental health. Mental health courts are not a panacea for addressing the needs of the growing number of people with mental illnesses who come in contact with the criminal justice system. But they should be one part of the solution. Evidence has shown that in communities where mental health and criminal justice interests work collaboratively on solutions it can make a significant impact in fostering recovery, improving treatment outcomes and decreasing recidivism.

I want to thank my good friends for working with me on this very important issue. I appreciate their commitment to advancing these important programs and I look forward to working with them to pass this legislation this Congress.

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

There geing no objection, the text of the bill was ordered to be printed in the Record, as follows.

I have joined today with Senators Domenici, Kennedy, and Specter to introduce legislation to reauthorize the Mentally Ill Offender Treatment and Crime Reduction Act. I was a sponsor of the original authorization of this act in 2004, and I am proud that these programs have helped our State and local governments reduce crime by providing more effective treatment for the mentally ill.

All too often, people with mental illness rotate repeatedly between the criminal justice system and the streets of our communities, committing a series of minor offenses. Offenders find themselves in prisons or jails, where little or no appropriate medical care is available for them. This bill gives State and local governments the tools to break this cycle, for the good of law enforcement, corrections officers, the public's safety, and mentally ill offenders. More than 16 percent of adults incarcerated in U.S. jails and prisons have a mental illness, about 20 percent of youth in the juvenile justice system have serious mental health problems, and almost half the inmates in prison with a mental illness were incarcerated for committing a nonviolent crime. This is a serious problem that I hear about often when I talk with law enforcement officials and others in Vermont.

Under this bill, State and local governments can apply for funding to create or expand mental health courts or other court-based programs, which can divert qualified offenders from prison to receive treatment; create or expand programs to provide specialized training for criminal justice and mental health system personnel; create or expand local treatment programs that serve individuals with mental illness or co- occurring mental illness and substance abuse disorders; and promote and provide mental health treatment for those incarcerated in or released from a penal or correctional institution.

The grants created under this program have been in high demand, but only about 11 percent of the applications submitted have been able to receive funding due to inadequate Federal funds. This bill would increase funding of these programs and authorize $75 million to help communities address the needs of the mentally ill in our justice system. The bill also provides $10 million for law enforcement training grant programs to help law enforcement recognize and respond to incidents involving mentally ill persons.

This legislation brings together law enforcement, corrections, and mental health professionals to help respond to the needs of our communities. They know that the states have been dealing with the unique problems created by mentally ill offenders for many years, and that a federal support is invaluable. I look forward to working with them, and with Senators Domenici, Kennedy, Specter, and other Members, to see this bill enacted this Congress.