Floor Statements

Mr. President, let's go back to the fundamentals of what actually happened and what the amendment of the Senator from South Carolina would actually do. The Congress did not create laws to deal with terrorists, primary to the beginning of the war on terrorism. Questions arose as to the executive branch's treatment of these terrorists in detention. Absent congressional direction, the U.S. Supreme Court had to interpret an existing statute, section 2241. It held that, since Congress had not expressed any intention outside of section 2241 in interpreting that section, the courts had jurisdiction to consider habeas corpus petitions regarding the status of these detainees. That is all that the Court has held.

As Justice Scalia said in his dissent, ``the petitioners do not argue that the Constitution independently requires jurisdiction here.'' So let's be plain, that the Great Writ does not apply to terrorists. No one argued in the Rasul case that the Constitution required habeas corpus petitions. It was, rather, a matter of statutory interpretation. As the Justice said:

Accordingly, the case turns on the words of section 2241.

How did the Court in the majority opinion treat that?

Considering that section 2241 draws no distinction between

Americans and aliens held in Federal custody, there is little

reason to think that Congress intended it not to apply . . .

The bottom line is that the Congress has, on numerous occasions, statutorily limited the writ of habeas corpus to American citizens. In 1996, when the courts were plugged up with habeas petitions, Congress passed a substantial revision of the habeas corpus laws, reducing this backlog of habeas petitions in Federal court from U.S. citizens. We have the statutory jurisdiction to write whatever kinds of laws we want. We clearly have the statutory jurisdiction to say it does not apply to foreign terrorists. And nothing in the Rasul case says otherwise.

So let's be very clear about this Great Writ. It does not apply to terrorists, and it should not apply to terrorists, and nothing in this amendment goes any further than to say it applies to U.S. citizens. It does not apply to terrorists.

Another argument is that we should not suspend the writ of habeas corpus. We are not suspending the writ of habeas corpus. It does not apply. The only reason the Court in Rasul said the Court had jurisdiction to consider it is because the language in 2241 was not explicit enough to exclude the aliens, the terrorists who were detained at Guantanamo Bay from asserting that jurisdiction.

Third, our chairman, Senator Specter, has said we need a comprehensive way to deal with the prisoner claims. And he is absolutely correct about that. And this amendment provides such a mechanism.

What Senator Specter says is: I'm not sure that we should be granting a circuit court of appeals review right.

That's a pretty good right, I would say. That's what this amendment does. Either we are arguing we are not giving these detainees enough rights or we are giving them too many rights, but let's get one or the other here. I think what we are doing is granting a substantial right to appeal the issue of status when, first of all, it is determined by the CSRT procedures in the military tribunals at Guantanamo Bay and then there is an automatic right to appeal this, not just to a Federal court but to the U.S. court of appeals, on the record. That is a substantial right.

But what we have gotten rid of are these hundreds of habeas petitions that will be clogging the Federal courts. We have already seen them making medical malpractice claims against the doctors, saying they want one kind of food as opposed to another kind of food and so on. It is going to get like it did

with prisoners. One of the real-life cases that came out of Arizona that we tried to take care of in 1996 law is a prisoner said: I want chunky peanut butter, I don't want creamy peanut butter. And that was the habeas petition. You have a right to question food in a habeas petition. Do we want our Federal courts clogged with terrorists making these kind of petitions? No.

As a result, what Senator Graham has done here is very sensible, to say there is going to be a military tribunal to determine status. By the way, it is reviewed every single year. When that status is first determined, there is an automatic right to appeal to the U.S. Court of Appeals for the District of Columbia. But the writ of habeas corpus, which has never been intended to apply to prisoners of war, much less terrorists, does not apply in this case.

We are not going to clog up the courts with habeas corpus petitions. You can have an automatic right to the circuit court of appeals.

It gets us back to the point that Senator Graham made in the beginning. Let us recognize that we are not dealing with criminal defendants. We are dealing with people who have committed acts of war against the United States. They certainly should not be accorded greater privileges than U.S. citizens or prisoners of war.

A final point: There has been a suggestion by some that this would somehow undercut the McCain antitorture amendments. I think Senator Graham laid that to rest. But make it crystal clear. Under McCain, there is not private right of action. They are enforced by the constitutional requirement that the President take care that the laws be executed. The Graham amendment does not take away the right of action to enforce McCain because there is no right of action to enforce McCain in the McCain amendments.

This is a very good amendment. It gets us back to the basics of what kind of folks these terrorists are. It grants them substantial rights to contest their status but not the right to clog up Federal courts.

Mr. President, reducing overall Federal spending on farm programs is important if we are to succeed in reducing the Federal budget deficit. The current budget-reconciliation package includes $39 billion in savings, including $3 billion from agriculture programs. To achieve these savings, the Senate Agriculture Committee cuts farm spending by implementing an-across-the-board 2.5 percent reduction in payments for all farm commodities. I wholeheartedly support these cuts in farm spending.

However, I cannot support waiving the Budget Act to consider the Grassley Dorgan amendment to impose more restrictive payment limits on farm commodities. This amendment is being offered as a substitute to the cost savings achieved by the fair, across-the-board reductions currently in the package. Substituting the Grassley-Dorgan payment limits is eerily reminiscent of the flawed formula in the highway bill: Instead of all States bearing the burden equally, the farm cuts would be achieved on the backs of Arizona farmers and other farmers of capital intensive crops in the West and South.

The advocates of the Grassley-Dorgan amendment claim that reducing payment limits preserves the family farm. What they meant to say is that it preserves family farms in North Dakota, Iowa, and other Midwestern States that grow certain commodities: namely grains and oilseeds such as corn, wheat, and soybeans. Family farmers in Arizona farm cotton. It is a highly capital intensive crop, in fact, one of the two most expensive program crops to grow. To illustrate, cotton program payments represent 39 percent of western farmers' cash costs of production. Corn and wheat program payments represent 49 percent and 50 percent of Midwestern farmers' cash costs, respectively.

Thus, in order to achieve economies of scale and remain competitive, Arizona farms must be large. According the Economic Research Service, over 30 percent of cotton production occurs on farms operating on an average of 3,500 acres. Are we to believe that none of these large farms are owned by Arizona families? I know for a fact that they are.

The average farming operation in Arizona consists of about 7,000 acres. Using a farm in near Buckeye, AZ as an example, this family farm is run by four brothers. Several children are managers of the operation, including performing marketing and financial services. About a third of the farm grows cotton, about a third grows feed grains, and the remaining third alfalfa. The annual budget is $5 million, and the brothers draw an annual salary of about $50,000 each when the farm generates sufficient income. This farm would be hit hard by the payment limitations in the Grassley-Dorgan amendment. Its operators would be forced to cut the amount of acres on which they grow cotton. In years when prices decline at harvest, their cash flow would be restricted and their ability to qualify for financing would be severely hampered.

The Grassley-Dorgan amendment, in equating large with bad, ultimately favors growers of corn, wheat, and soybeans at the expense of farmers of cotton, rice, and peanuts. To further illustrate what I am talking about, let us apply the limitations in the amendment: a farm that produces cotton or rice would, at today's world prices and average yields, hit the limit on payments at about 400 to 600 acres. This acreage is generally deemed to be too small to sustain the investment in the specialized equipment necessary for cotton and rice production. In contrast, a corn farmer with an expected yield of 190 bushels per acre, would not hit the limit on payments until just over 3,100 acres. Clearly, very few corn farmers will ever feel the effects of the Grassley-Dorgan amendment.

It has been further estimated that the more restrictive eligibility rules that are part of the amendment, combined with the limits on direct payments, would reduce direct payments to Arizona growers by $24.6 million. This represents a reduction of 62 percent, the highest of any State. Iowa would see a loss of just 4 percent and North Dakota, 10 percent.

I am not going to argue that the farm law is off limits for the purpose of finding savings for the American taxpayer. However, I encourage my colleagues to look closely at the ways we achieve that savings. It is simply not fair to use a faulty perception of what

constitutes a family farm to favor one farming region of the country at the expense of another. Yet, that is exactly what the Grassley-Dorgan amendment would do. Thus, I cannot support a motion to waive the Budget Act with respect to this amendment and must vote against it.

Mr. President, America mourns the passing of a quiet hero, Rosa Parks, who died yesterday in Detroit at the age of 92.

On December 1, 1955, in Montgomery, AL, a seamstress named Rosa Parks refused to move from her seat near the front of a city bus so a White person could sit there. Like a shot heard round the world, her act of civil disobedience spurred the movement to gain social and political equality for Black people in this country.

It is almost hard to recover, half a century later, a sense of how much courage it took for her to do what she did. By remaining seated, she violated a local segregation law that consigned African Americans to second-class citizenship. She was arrested for disorderly conduct, and the incident galvanized the Montgomery bus boycott, propelling Martin Luther King, Jr., the boycott's leader, to a national role in the civil rights movement.

As the ancient poet once said, ``A good reputation is more valuable than money.'' Rosa Parks' sterling reputation was what civil rights leaders banked on in putting her in the spotlight for the cause that day--and they were never disappointed. Throughout her long life she exemplified honesty, integrity, and dignity, and articulated the all- important principle that political and social equality is every American's due.

Mrs. Parks, along with Dr. King, A. Philip Randolph, Medgar Evers, Fannie Lou Hamer, Bob Moses, and the other campaigners for civil rights during the 1940s, 1950s, and early 1960s, had faith in the legal process. They had faith, too, in the moral conscience of America. They knew time had come. Their patience, their discipline, and their understanding that these two qualities would win the White majority to their cause, were admirable. Mrs. Parks deserves a share of the credit for accomplishments in the decade following the famous bus boycott: passage of the landmark Civil Rights Act of 1964 and Voting Rights Act of 1965.

These laws made illegal racial segregation in public accommodations, in housing, in education, and in the workforce. These and other civil rights laws have not eradicated bigotry. They have not gotten us all the way to a colorblind society yet. But they were huge strides toward making America live up to its founding doctrine that ``All men are created equal.''

Mrs. Parks took risks to vindicate ideas that transcend race, color, and religious creed. She said: ``To this day I believe we are here on the planet Earth to live, grow up and do what we can to make this world a better place for all people to enjoy freedom.''

She stood for what is universal. That is why interest in one seamstress' act on a December day long ago in Alabama has never flagged. There are books, songs, and television shows about the bus boycott and its humble heroine, proving that unassuming people can do great things when they are animated by the highest ideals.

Rosa Parks, Godspeed.

Mr. President, I appreciate the comments of the Senator from Wisconsin. Senator Inhofe from Oklahoma wishes to speak in a moment. When he arrives, I will call upon him to speak.

Let me make a couple of comments about the reasons for this amendment at this time. There have been times in the past when Members have allowed the cost-of-living adjustment to proceed. It is not technically a pay raise but rather a cost-of-living adjustment. That cost-of-living adjustment is provided for all Federal employees, including Members of Congress, although it is lower for Members of Congress than it is for other Federal employees by about half a percent. In the past, when we have been in good economic times and we have had either lowered deficits or even surplus conditions, Congress has allowed, most of the time, though not every year, that cost-of-living adjustment to go into effect.

This year is a special circumstance. Especially since we are going to be asking our colleagues and people who are recipients of Federal program benefits potentially to make a sacrifice in order to help offset the spending that the Federal Government is going to commit to the rebuilding of the gulf coast area following Hurricane Katrina, it seemed to me and those of us who have cosponsored the amendment that if we are going to ask others to make a sacrifice so that not all of the spending for Katrina recovery is added to the Federal deficit and therefore the Federal debt but, rather, some of it is offset from programs that we have already decided to fund, that we could start by demonstrating a willingness to sacrifice a small measure ourselves.

It is true the $2 million that this saves is hardly noticeable in the overall tens of billions of dollars that are going to be spent on the Katrina recovery. It is symbolic. I recognize that. But sometimes symbolism is important. For Members of Congress to be able to justify reductions in spending in other programs, where some of our constituents will push back and say, Wait a minute, why should I make a sacrifice to rebuild after Katrina, at least we have the ability to say: We all have to make a little sacrifice. Members of Congress are willing to make a sacrifice as well. While it is not much money to the overall Federal budget, some of our families certainly recognize it as being substantially helpful to offset the cost of inflation for families.

It is important for us to do this. It won't always be appropriate, but it is clearly appropriate this year to make the point that we are ready to sacrifice, and clearly it is not something that we cannot afford. In areas that we are going to ask for reductions in spending, we will make the point that these are not areas that simply can't stand any kind of reduction. We are going to try to put forth maybe $50 billion in spending reductions from programs that can afford to be cut or spending deferred for a short period of time. That is a way to at least offset some of the spending that we are going to be doing for Katrina and yet not add further to the deficit or ultimately to our Federal debt. That is the reason for the amendment. I hope my colleagues will support it.

If the Senator from Oklahoma is prepared, I certainly yield to him at this time.

Mr. President, I ask unanimous consent to add Senator Chambliss as an original cosponsor of the amendment.

Mr. President, if there is no one else who desires to speak at this time, I suggest the absence of a quorum.

Mr. President, I ask the Chair, do I need to ask unanimous consent to set aside the pending business to offer an amendment, or may I simply offer an amendment at this time?

Mr. President, I ask unanimous consent that be done so I can offer an amendment.

Mr. President, I send an amendment to the desk and ask for its consideration.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, I will simply describe the amendment's content.

What this amendment does is provide that for this coming year--the fiscal year which began this October--the annual COLA for Members of Congress not go into effect. That pay increase, in effect, is estimated to be at about 1.9 percent for Members of Congress, and it actually takes effect in January or February. The amendment is projected to save about $2 million for the Federal Treasury.

Mr. President, as you know, some years the COLA has gone into effect and other years Congress has not had the COLA go into effect for Members of Congress. The reason for not having it go into effect this year, frankly, is symbolic. We know we are going to be spending a lot of taxpayer dollars to help rebuild the gulf coast area following the hurricane and the related events to that. We also know that unless we find ways to offset that spending, we are going to go further into debt, that our deficit for this year will increase. So the leaders of both the House and the Senate have asked the various committees to find ways to reduce spending in other areas so we can offset some of the expense of this reconstruction with that reduced spending.

It seemed to me and others--and I will ask unanimous consent in a moment to have some others added as original cosponsors--one way we might encourage others to come forth with potential savings is to demonstrate we ourselves are willing to forgo this COLA, this cost-of- living increase, for this coming year. As I said, while it is not a lot of money in the overall Federal budget, for each Member of the Senate, obviously, it represents an increase in salary that I am sure would be appreciated by all of our families. Nonetheless, it is a contribution we can make to these rebuilding efforts. I hope my colleagues will agree with me this would be an appropriate thing to do.

Mr. President, I ask unanimous consent that Senators Santorum and Cornyn be added as original cosponsors of the amendment.

Mr. President, just one other point. The 2006 budget resolution instructions require savings of $34.7 billion. The House is expected to modify that resolution to increase the amount of savings to at least $50 billion for the expenditures I talked about earlier.

We have approved already about $71 billion, approximately $20 billion of which has already been spent, as I am informed, for the Katrina- related relief spending. That is why it seems to me it would be useful to demonstrate our commitment to offsetting part of this spending so that the budget deficit for this year and eventually the debt of the United States would not be unduly increased as a result of our desire to rebuild part of the gulf coast following the hurricane.

I hope at the appropriate time my colleagues will agree with me that this is a gesture the Members of the Senate ought to make and that we can make and that it will help us in the overall goal we have of trying to watch taxpayer dollars as much as we can and

ensure we do not spend unnecessarily, notwithstanding our commitment to try to rebuild after that tragedy in the gulf coast.

Mr. President, if there is no one else to speak, I suggest the absence of a quorum.

Mr. President, I am gratified that it was possible for the Senate to consent to the adoption of amendment No. 1903, offered by Senator Salazar of Colorado. I am grateful to Senator Salazar for introducing this amendment, which will ensure that students attending a number of schools receiving assistance through the Impact Aid program-- including the Window Rock Unified School District located on the Navajo Nation in Arizona--are not punished for administrative errors made by district personnel. I am also grateful to the chairman and ranking member of the Defense Appropriations Subcommittee and the Health, Education, Labor, and Pensions Committee for consenting to the inclusion of this amendment in this bill.

The Window Rock district is known is a 100 percent impacted district. That is, because the land it encompasses is federally owned, it cannot rely on a local property tax base to fund school operations as most districts in our country can. It is important to note that the administrative error that triggered this penalty--the loss of $1.2 million--was a one-time occurrence, and that Senator Enzi, the chairman of the committee with jurisdiction over this matter plans to address that ongoing administrative problem that has occurred here the next time Impact Aid is reauthorized. Moreover, as Senator Salazar rightly emphasized, the money here is not new money but previously appropriated funds that had been withheld.

There is no question that district must take pains to ensure that rules and procedures are adhered to but in this case I agree with Senator Salazar that the penalty here was disproportionate and that, in any case, punishing reservation schoolchildren is not a particularly well-targeted penalty. This amendment will rectify that, and I am pleased that it will be accepted.

Mr. President, let me speak briefly to a related subject dealing with relief for those adversely affected by hurricanes in the gulf region, the other side of the coin. We have a lot of programs we are going to have to fund for the relief of the people who suffered. A lot of us have felt we ought to be careful about how we spend that money and even make sure as much as possible we cut spending in other areas to pay for it. There are those who say the way to ensure we have enough money for these programs is to raise taxes. What I want to address is the fact that raising taxes, especially at this point, taxes that ironically would impact the very people who have suffered, would be absolutely the wrong thing for those people, for their communities, for the families of our country, for the economy, and for job creation.

Raising taxes is not something you do when you want to help people, especially since we know the bulk of the growth that is going to occur in that region is going to come from the private sector. You don't make the private sector more healthy by extracting more money from it.

Specifically, we are talking about a process in the Senate whereby we put real life into the budget we passed earlier this year through two bills we call the reconciliation bills, essentially reconciling income to our outgo. One of those bills deals with some of the tax policy we first effected in the year 2001 and then in the year 2003. Remember, the economy wasn't doing so well back then. When President Bush was elected in 2001, he said: We need to reduce taxes in some areas and thereby help the economy get back on its feet.

In 2003, we brought that tax relief forward to that date and the economy took off. Marginal rates were reduced for all taxpayers. There were two taxes especially that helped with investment and job creation. We reduced substantially the tax on dividends issued by

businesses, by corporations. We also reduced the taxes on capital gains. Capital gains are paid on virtually anything you sell and make a profit on.

As a result of reducing those tax rates, did we have less money come into the Treasury? No. The reduction of the tax rates ironically caused all kinds of economic activity to occur because people weren't going to pay as much taxes on it, with the result that the taxes came rolling into the Federal Treasury. That is the situation we see today: Record- breaking revenues coming in from the payment of taxes because we reduced the tax rate.

Were we to allow those tax rates to go back up again, we can fully expect the exact opposite effect: less economic activity to tax; therefore, less taxes collected. It doesn't make any difference if you raise the tax rate; if there is nothing to tax, then you are not going to bring more revenue into the Treasury. Both because it would hurt the people you are trying to help in the gulf and around the country, and because it would bring in less revenue to the Treasury, a tax increase at this time is exactly the wrong response.

There is an interesting phenomenon--I know the Presiding Officer is aware of it because he takes a significant role in studying the economy and its effects--economists who look at this say we will be able to rebuild from the effects of the two hurricanes. Our economy is big and strong, and there won't be any lingering damage. There will be a blip in this third quarter. But by the fourth quarter, our economy will be strong again.

What they are worried about is the signals coming out of Washington that maybe in this reconciliation bill, we won't continue to support the lower capital gains and dividends tax rates, that we will in effect allow those tax rates to increase by not doing anything. Those tax rates are scheduled to increase in the year 2008, if we don't stop it. We are going to have a tax increase then, if we don't say we are going to continue the 15-percent rate. We have the chance to do that this year. I will explain why it is important to do it this year.

What we are asking for is the ability to continue the tax rate as it is on capital gains and dividends 2 more years, from 2008 to 2010. That is important for a reason I will discuss in a moment. Some people say: At a time that we have to pay for hurricane damage and reconstruction and rebuilding, we ought to raise taxes, not keep the same rate we have.

The point is, the tax rate we have today extends on through the year 2008. We don't gain anything by raising that tax rate to so-called pay for the hurricane rebuilding. That doesn't happen until the beginning of the year 2009. We are not able to gain revenue by allowing that tax rate to go back up again, since it is not going to go back up again, if at all, until the year 2009. There is nothing to be gained by not acting and everything to be gained by sending a signal to the markets that we are serious about keeping these rates at the level they are.

Why is this important? It is important because when people decide whether to invest, they foresee what the length of their investment will be, what they have to pay for it now, what they are going to make on it, and what kind of taxes they will have to pay. That is how they decide whether to invest. They capitalize their investment based upon the expectation of profit which is a condition of both what they will sell for and what the tax rate will be. We know what the tax rate will be through the year 2008. The question they ask is, what about the year 2009 and 2010?

Most of the investments made today are investments that are going to play out over the next 3, 4, or 5 years. It doesn't do a lot of good to look at the tax rates tomorrow or the next day. We do want to look at the tax rates in the years 2008, 2009, and 2010. That is when the profits will be realized, the taxes will be paid. It is hugely important what the tax rate is going to be in the year 2009 and 2010. That is why we have to act this year to extend the current law to make sure those rates stay right where they are, that we don't have a rate increase.

There are some interesting statistics which I know the Chair is aware of, but I want to remind my colleagues with respect to the state of the economy today and the impact of the hurricane damage on it. The Congressional Budget Office estimates the two hurricanes will have only minimal effect on economic growth. They project that GDP growth in the second half of 2005 could be one-half percent slower than was previously predicted, but that by the fourth quarter and beyond, economic growth will return to its normal levels. We do know the economy was firing on all cylinders before the hurricane. In August, the month of the hurricane, CBO forecast the economy would ``continue to expand at a healthy pace during the second half of 2005'', and CBO projected GDP growth would grow by 3.7 percent in 2005, by 3.4 percent in 2006. As I said, the economy is doing great, firing on all cylinders.

In August, the unemployment rate dropped to 4.9 percent, one of the lowest percentages ever. In May 2003, when the tax cuts were enacted, the unemployment rate was 6.1 percent. So it went from 6.1 down to 4.9. Most economists believe the tax cuts had a lot to do with that.

I might contrast to our European friends. Through the first half of 2005, the growth rate in the Euro area was 1.1 percent. The unemployment rate there stands at 8.6 percent. So we are doing very well in this country. Our economy is moving right along. It is not going to be adversely affected by the hurricane rebuilding. What we don't want to do is anything to slow that economic growth down, stop this engine of production. Tax increases would do exactly that.

Since the year 2003, when the tax cuts were enacted into law, we have seen a sharp increase in revenues coming into the Treasury. While private economists expected that, it didn't show up in official Government estimates. In August, the CBO acknowledged that the revenues for 2005 will be $85 billion more than they were projected in March of this year. That is how wrong the Government was. It could even be more than that. So from March to now, we know we are going to have at least $85 billion more in Federal revenues than were projected.

Here is the great statistic: CBO now projects the Treasury will collect $262 billion more in revenues in 2005 than in 2004, an unprecedented increase--$262 billion more. This is at lower tax rates. How can that be? When you have lower tax rates, it encourages people to invest more because they are not going to have to pay as much taxes. That investment produces economic growth which, in turn, is taxed, and that is why we are getting all the increased revenues to the Treasury.

Interestingly, corporate income tax payments are up 42 percent this year. They were able to expand their operations because they have been able to attract additional investment. They are being attracted in part by the lower rates on dividends and capital gains.

What would happen if we allowed those rates to increase? The nonwithheld income tax receipts are up 28 percent. What are these? These are the tax payments that don't come from employer withholding. In other words, they come from things such as capital gains and dividend income. Clearly, the 2003 reductions in the cap gains and dividends are having an impact there. We have to use the reconciliation bill this year to maintain the lower rates for capital gains and dividends and keep our economy growing.

In summary, there is a strong economy that we don't want to hurt by raising taxes. Beyond being concerned about the tax dollars coming into the Treasury, we know the primary reason to keep the rates on dividends and capital gains relatively low is to give individuals and businesses the opportunity to invest, give businesses the capital they need to expand and create jobs. It expands the economic pie. It improves the standard of living for everyone. All Americans will benefit from keeping the 2003 tax rate on dividends and capital gains in place through the year 2010. I urge my colleagues not to respond to the siren song of raising money to rebuild from the hurricanes by raising taxes. It won't work. It will slow the economy down and that will hurt not only general revenues to the Treasury, but American families and individuals as well.

I suggest the absence of a quorum.

Madam President, I ask unanimous consent that the order for the quorum call be dispensed with.

Madam President, I ask unanimous consent that the pending amendments be set aside so I may call up amendment No. 1718.

Madam President, I send an amendment to the desk.

Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Madam President, let me briefly describe what this amendment does, and then I understand the representative of the minority will interpose an objection.

This is an amendment that embodies a bill to prohibit Internet gambling and permit the enforcement of that prohibition. Most States, if not all States, already have laws on the books that prohibit Internet gambling. The problem is that those bills are difficult to enforce by the individual State attorneys general because the Internet is ubiquitous--it is across the State lines--and the attorney general in Arizona can't go to Montana and enforce such prohibition in that State.

About 10 years ago, the State Attorneys General Association came before our subcommittee and asked for this Federal legislation so that there could be a national enforcement that would enable them to give force to all of the different States' laws prohibiting Internet gambling. We have worked on this now for a decade, and twice the legislation has passed the Senate. Twice the legislation has passed the House of Representatives, each time in somewhat different form. But we have never been able to get the two bodies to pass legislation in the same year in order to effectuate that.

It is very troublesome because the process by which we have to consider legislation makes it very difficult for something like this to get floor time and have a week or several days on the floor to debate back and forth, get it passed, and do the same thing with the House and then work out a conference committee and the like. That is why we have had to resort to attaching amendments such as this to appropriations bills or other bills that are on the floor already and moving forward so that we can gain consideration of this issue. It is not particularly contentious. It is certainly not partisan. The legislation has enjoyed wide bipartisan support in both bodies.

Let me briefly describe it. All it does is it allows banks and credit card companies to do what most of them are already doing voluntarily; that is, simply not honoring a credit card debt for Internet gambling. When some Internet gambling site in Aruba, for example, submits the bill to Master Charge or Bank of America and says, Joe Blow here gambled away $1,000 of his money, put it on the credit card, and you now owe that to our Internet gambling site in Aruba, the bank or credit card company says, No. That was against the law. You can't do that. We are not paying.

It has had some effect on these operations. But to show you why it hasn't had enough, when we started a decade ago, there were 20-some sites. Today, there are over 2,000 sites. The amount of money was relatively insignificant back then. Now it is hundreds of billions of dollars. It is incredible.

A Harvard law professor described this kind of Internet gambling with regard to kids doing it on the Internet. He said it is like the crack cocaine of gambling; it is so addictive; there is no supervision.

We have gambling in Las Vegas, Atlantic City, and on Indian reservations, and it is tightly supervised and regulated. Even our subcommittee found testimony from the New Jersey Gambling Commission and said one reason we can do it is we highly regulate it. But there is no way to regulate these offshore sites. That is why it is against the law in every State.

We have a Federal act called the Wire Act which prohibits horse gambling. That is now being done on the Internet. There is a means of enforcing existing law in a meaningful way and ensuring that all of the State laws can be enforced as well. I want to indicate who is in favor of this, and then I will allow the process here to occur.

Obviously, sports groups are very concerned about the adulteration of sports. We have seen it in college sports. Even one of the universities in my State was involved in a point-shaving scandal not too long ago. Why did this young athlete involved have to shave points in the games in which he played? It was because he got into trouble with gambling debts.

The NFL, Major League Baseball, the National Hockey League, National Baseball Association, National Collegiate Athletic Association, and the NCAA strongly support this legislation because they understand that if Internet gambling becomes part of their sports, nobody can count on those sports being pure. There is always the possibility that they have been adulterated by gambling.

There are a lot of groups. The National Gambling Commission called for legislation such as this, and a lot of the groups that testified before that Commission are also strongly in support. The National Coalition Against Gambling Expansion and groups such as the Family Research Council, Focus on the Family, Concerned Women for America, the Christian Coalition, United Methodist Church, Southern Baptist Convention, together with their comembers of the National Council of Churches, and the National Coalition Against Gambling Expansion--it includes a whole host of organizations.

Madam President, I ask unanimous consent to have this list printed in the Record.

This is a page and a half of religious institutions in support of this legislation.

Even groups that also are involved in sports that do involve some form of gambling, such as the National Thoroughbred Racing Association, understand that for their sport to remain pure--and it is highly regulated, as well--for them not to have the taint of gambling, they support this kind of legislation.

It has been very frustrating for me because there is such broad-based support, it makes such sense. It is so dangerous, especially for the kids in our

society. We have a very tight bill. It is quite similar to the bill that got through the Committee on Banking last year. The various groups directly involved in this are supportive of the legislation, or at least are not in opposition.

It is time to get this done before this phenomenon explodes any further and--and I underline this--before the lobbying money of these groups defeats it again. I will not name names, but people who are today in trouble with the law were partially responsible for the defeat of this legislation previously.

This kind of money should not be brought to bear as a special interest on our bodies to keep us from adopting important legislation such as this. That is why I have attempted to use the appropriations bill that is before the Senate as the vehicle to bring up this matter again. I understand from a purely technical parliamentary point of view it is incumbent upon the distinguished ranking member of the subcommittee to interpose a rule XVI objection. I understand that. I appreciate her need to maintain the committee jurisdiction and the process.

However, I note in conclusion we have legislated on appropriations bills in the past. So this is not something that has never been done before. I had hoped we would be permitted to do it in this case because of the importance of the issue, the fact that there is a very large consensus to get this done. It is very difficult to do it any other way. I am disappointed we are not able to do it at this time.

When the objection is interposed, I ask the Presiding Officer's indulgence to direct a brief inquiry to the ranking member of the subcommittee.

With the Presiding Officer's indulgence, I ask a question, and I appreciate that the ranking member may not know the answer to this question.

Can the ranking member advise me who it is that is requiring the imposition of this so I can speak to that Senator or those Senators to try to reach some kind of an accommodation so we can take this matter up in the future?

I appreciate that. I appreciate the words of the ranking member and make this point that this will proceed in some way at some time when we find out who is making the objections, if anyone. It may simply be a procedural matter to preserve the committee's jurisdiction.

We will proceed. It will become law at some point at some time. I ask my colleagues on both sides of the aisle, if you have problems with this legislation, please let me know so we can try to work on those problems. There should be no reason we cannot move forward. We will be back. The next time I am back, I hope there is no one who is interposing an objection.

I appreciate the comments of the ranking member.

Mr. President, the death of William Hubbs Rehnquist leaves us saddened but also grateful for his more than three decades of service to his country as a Justice of the U.S. Supreme Court, including 19 years as its Chief Justice.

I first met Chief Justice Rehnquist when he was a lawyer in Phoenix. He spent most of the 1950s and 1960s practicing law in our State, and raising a family there with his wife, Natalie, who passed away in 1991. He made an annual return to Arizona from 1994 until last year, to teach a course on Supreme Court history at the University of Arizona College of Law, my alma mater.

Appointed to his seat by President Nixon in 1972, and elevated to Chief Justice by President Reagan in 1986, he provided steady leadership at the Court through turbulent decades. He showed that one man of integrity really can make a difference.

He was a conservative whose philosophy did not always carry the day, especially in his early years on the Court. More recently, there has been greater acceptance of his notion of balance between the authority of States and the Federal Government. His decisions helped prevent the rights of criminal suspects from being overemphasized to the point that law enforcement was hampered in doing its job. They curbed the Government's use of racial quotas, deemed by most Americans to be a squandering of the moral authority of the civil rights movement. They reaffirmed the religious freedom clause of the first amendment. They upheld restrictions on the practice of abortion, again in keeping with the views of most Americans.

On a personal level, William Rehnquist had a quick, dry wit and a manner that was warm and courteous. He was a straight shooter, devoid of pretentiousness, yet deeply learned in the law and many other things. The legacy he leaves includes the histories he wrote, namely his four books on the Court and the American legal system: ``The Supreme Court: How It Was, How It Is,'' 1987; ``Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson,'' 1992; ``All the Laws But One: Civil Liberties in Wartime,'' 1998; and ``Centennial Crisis: The Disputed Election of 1876,'' 2004.

Notice those titles. We had, during his tenure as Chief Justice, a Presidential impeachment--over which he presided with a dignity and good sense that were reassuring to all, in and out of the Senate Chamber. We had a disputed election--in which he led the Court in delivering the U.S. Government and the country from a nightmare of litigation and partisan combat.

His death has left mourners even among those who disagreed with him. The liberal law professor Laurence H. Tribe offered words of praise for his brilliance, his honesty, and his calm leadership. He called Chief Justice Rehnquist ``a master'' at enabling the Court to ``earn the respect of all who take part in its proceedings or are affected by its rulings.'' Justice Ruth Bader Ginsburg said he ``was the fairest, most efficient boss I have ever had.''

The admiration he inspired in people all across the political spectrum is due also to the superb job he did as the Federal judiciary's top administrator, which is part of the role of Chief Justice. He staunchly asserted the independence of the Federal court system and fought to see that those who worked in it were adequately compensated.

William Rehnquist loved his family; he loved the law; he loved America and its history; and he loved the Supreme Court as an institution. The courage and tenacity he showed, despite suffering from thyroid cancer, were typical of him. He presided over oral arguments in the spring and continued his work on that group of cases until just last month.

It is the right of every citizen to be tried by judges as

free, impartial, and independent as the lot of humanity will

admit.

So said the Massachusetts Constitution of 1780, which influenced the writing of the U.S. Constitution. William Rehnquist was a free, an impartial, and an independent judge. His combination of strong- mindedness and meticulous fairness made him perfect for the position he held. He makes Americans, and especially Arizonans, very proud. We mourn his loss.

I thank you, Madam President. I thank my colleague. I know that the chairman of the committee is anxious to conclude the legislation so I will be brief.

I simply reiterate the point that I hope colleagues sincerely consider the points made by the senior Senator from Arizona--not meant to embarrass but to get us to focus on how we could better fund our transportation needs in the country. We are all pretty bright and pretty good on identifying what is necessary, but far better it would be, as he pointed out, to let the States keep the money raised in the States and for them to decide how best to use the money in their own States. It would be much more fair than taxing some States and giving it to residents of other States. Even for the donor States such as ours, instead of getting close to 100 percent of the targeted amount that was provided in the bill in the first year, some are lucky if they get there at the very end of the period of time. There needs to be a fix to this problem sooner or later. I hope my colleagues again will sincerely consider the remarks of those who regrettably are required to vote against this legislation because of its unfairness and because of the way taxpayer dollars are used for projects, some of which do not even relate to highways or to transportation.

Madam President, I yield the floor.

SteeLGrid Reinforced Concrete Decking

Mr. President, I understand the need for a good highway and transit bill.

As debate on this bill has dragged on over the last year and a half, I have heard from many Arizonans in industry, as well as users of our surface transportation system detailing the pressing needs in our state.

But throughout that time, I have expressed concern that the reauthorization legislation that has been brought before this Chamber has had certain fundamental deficiencies.

The conference report before us today preserves two of the most objectionable defects: a grossly unfair formula for apportioning highway funds among the States and a staggering quantity of pork-barrel earmarks.

It is simply impossible to explain to my constituents why more than 9.5 cents out of every dollar in gas taxes they pay at the pump goes to subsidize road construction in other States.

And while it is true that this conference report makes the barest progress toward equity by ensuring that rate of return to high-growth States like Arizona will inch up to 92 cents on the dollar, I believe that much more progress could have been attained given that this bill expends some 30 percent more than its predecessor.

This conference report preserves Arizona's rock-bottom standing in the donor/done sweepstakes.

And it does so in a way that adds insult to injury, for even as Arizona and other high-growth states continue to heavily subsidize the others, and are only moved up to the higher rate of return in the bill's fourth year, others are raised up immediately.

Even as the sponsors of this legislation suggested that we ignore the extent to which Arizona highway users will be compelled to subsidize those in other States, but they ensured that their own apportionments were promptly and generously supplemented.

I must also object to the out-of-control earmarking in this conference report.

Earmarking is, of course, the insertion into the bill of projects selected not through a merit-based process, but through the influence of Members.

Consider: The 1982 highway bill contained 10 such projects. The 1991 bill had 538. The 1998 bill had 1,800. This bill has somewhere in the neighborhood of 6,000. The list alone goes on for 250 pages.

Among those listed is the notorious ``Bridge to Nowhere,'' the 200 foot high $223 million bridge connecting Ketchikan, AK, to an island that is home to 50 people and is currently accessible to the mainland by a 10 minute ferry ride.

I hope that between now and the next time Congress takes up a highway bill, we will take a serious look at the flawed process that results in the diversion of funds from fast-growing States, as well as at the unsustainable rate at which earmarking has been proliferating.

But for now I can only note my disappointment in what we have produced, a bill the Wall Street Journal today describes as a monument to ``extravagance''--and vote against this conference report.

I ask unanimous consent that the article from the Wall Street Journal be printed in the Record.

Mr. President, I rise today to introduce the Law Enforcement Officers' Protection Act of 2005. This act will guarantee tough, mandatory punishment for criminals who murder or assault police officers, firefighters, judges, court employees, ambulance-crew members, and other public-safety officers in the course of their duties. Attacks on police officers and judges are serious crimes. They merit the toughest penalties. LEOPA imposes the following terms of imprisonment for attacks on public-safety officers: (1) second degree murder, 30 years to life; (2) voluntary manslaughter, 15 to 40 years; (3) assault resulting in serious bodily injury, 15 to 40 years; (4) assault with a dangerous weapon, 15 to 40 years; and (5) assault resulting in bodily injury, 5 to 20 years. The act also imposes commensurate penalties for retaliatory murders, kidnappings, and assaults committed against the family members of public-safety officers.

LEOPA includes additional provisions that will deter attacks upon police officers. The act expedites Federal-court review of state convictions for murder of a public-safety officer; it limits the damages that can be recovered by criminals for any injuries experienced during their arrest; it removes arbitrary barriers to retired officers' right to carry concealed weapons under Federal law; it makes it a crime to publicize a public-safety officer's identity in order to threaten or intimidate him; and it increases existing penalties for obstruction of justice and interference with court proceedings.

Aggravated assaults against police officers are a serious national problem. According to the most recent F.RI. report on the subject, 52 law-enforcement officers were feloniously killed in the United States in 2003. In the 10 year period from 1994 through 2003, a total of 616 lawenforcement officers were feloniously killed in the line of duty in the United States.

These officers' assailants unquestionably are among the worst criminals. Of those individuals responsible for unlawful killings of police officers between 1994 and 2003, 521 had a prior criminal arrest, including 153 who had a prior arrest for assaulting a police officer or resisting arrest. The individuals who commit these types of offenses are among the most dangerous members of the criminal class. Tough sentences for these criminals not only protect those who risk their lives to protect us; they also directly protect the public at large by removing a dangerous class of criminals from society.

Ordinary assaults against police officers have become a widespread problem. More than 57,000 law enforcement officers were assaulted in the course of their duties in 2003, and more than a quarter of these assaults resulted in injury to the officer. These numbers represent more than one of every 10 officers serving in the United States. Our society apparently has reached a point where criminals feel entitled to assault a police officer when they are being arrested. LEOPA is designed to change that understanding, to show criminals that assaults against police officers are unacceptable.

It bears mention that because of improvements in technology, recent years' numbers of officers killed in the line of duty even understate the extent of the violence that officers face. As the Los Angeles Times noted in 1994, ``the number of officers killed--an average of 60 to 70 a year since the late 1980s--would have broken records, too, if not for the advent of bulletproof vests, police experts say; about 400 officers have survived shootings over the last decade because they were wearing protective armor.'' (Faye Fiore & Miles Corwin, Toll of Violence Haunts Families of Police Officers, N.Y. Times, Feb. 21, 1994, at 1). As the executive director of the Fraternal Order of Police noted recently, ``there's less respect for authority in general and police officers specifically. The predisposition of criminals to use firearms is probably at the highest point in our history.'' (Jerry Nachtigal, Crime Down, but Number of Police Officers Killed Holds Steady, Associated Press Newswires, Apr. 11, 1999).

Violence against police officers also inhibits effective law enforcement. It breeds caution among officers and hinders robust investigation. LEOPA is designed to restore balance to the law. It is designed to ensure that police officers do not fear for their safety when enforcmg the law, but instead, that criminals fear the consequences of breaking the law.

Finally, aside from their broader effects on law enforcement and society, aggravated assaults and murders of police officers simply are terrible crimes. The victims often are young and in the prime of life, leaving behind young children, spouses, and grieving parents. A few recent incidents in the news serve to illustrate the horrific toll that these homicides take on the surviving victims:

Los Angeles County Deputy Sheriff Shayne York, 26 years old, was murdered during an invasion robbery while waiting for his fiancee at a hair salon on August 16, 1997. He was killed solely because of his status as a police officer. The Los Angeles Times gave the following account of the crime from the testimony at the killer's trial:

The robbers yelled racial slurs and ordered customers and

employees to the floor, snatching valuables from everyone

inside. When one of the bandits found a law enforcement badge

in York's wallet, he kicked York as he lay on the ground,

according to testimony from [York's fiancee], also a Los

Angeles County sheriff's deputy. The gunman asked York if he

ever mistreated blacks and Crips gang members at Los Angeles

County's Pitchess Detention Center, where York worked. York

responded, ``No, sir.'' [The killer,] an alleged Crips gang

member, then pointed a pistol at the back of York's head and

squeezed the trigger, prosecutors said. [York's fiancee]

testified she saw York's body go limp as she felt his blood

flowing onto her legs. She said she heard the gunman say, ``I

always wanted to kill a pig.'' (Jack Leonard & Monte Morin,

Man Guilty of Killing Off-Duty Deputy, L.A. Times, Aug. 23,

2000, at B1.)

Deputy York's killer never expressed any remorse over this senseless crime. When jurors read their verdict at his trial, he shouted at them, ``May Allah kill you all, pagans, infidels.'' (Stuart Pfeifer & Richard Marosi, Jury Recommends Death for Robber Who Killed Deputy, L.A. Times, Sept. 8, 2000, at B7.)

California Highway Patrol Officer Don Burt, 25 years old, was shot seven times by a member of a street gang during a traffic stop on July 13, 1996. As Officer Burt lay wounded on the ground, the killer shot him in the head. The Los Angeles Times, covering the killer's trial, gave the following account of the testimony describing the devastating impact of Officer Burt's death on his family:

[Don Burt's father] relived some of his happiest memories

with his son--the wedding of his son and [daughter-in-law]

Kristin, and the day he was told he was going to be a

grandfather. But the proudest moment for both father and son

was when the younger Burt joined the Highway Patrol. ``I

pinned on his badge and 1 hugged him,'' the father said,

tearfully. ``The proudest I'd ever seen him. The gleam he had

in his eye--he was so proud.''

It was a quiet summer night the night his son died, [Burt's

father] told the 12-member jury. He and his wife had just

finished dinner. The telephone rang. It was their daughter-

in-law's father, also a CHP officer, saying there had been a

shooting in the area that the younger Burt patrolled. The

elder Burt, a 30-year veteran trooper, called the CHP

dispatch center to learn more. A patrol car arrived to take

the parents to the hospital. ``We drove [to the hospital] in

dead silence,'' Burt said. ``I knew my son was dead and 1

couldn't tell my wife. She was sitting there with hope and 1

couldn't tell her.''

Jeannie Burt said she didn't realize how serious her son's

injuries were until a few minutes after they arrived at the

hospital. ``I thought he wasn't hurt too bad, that everything

was going to be all right,'' Jeannie Burt told jurors. But

then, ``I saw Kristin's brother and he just shook his head.

And 1 knew my son was dead.'' Tears streamed down Jeannie

Burt's cheeks through most of her testimony. ``He wasn't

perfect, but pretty close to it,'' the mother said through

her tears. ``I'm grateful 1 had my son for the 25 years 1 had

him. 1 wouldn't trade that with anything. I'm just so sad

that my daughter-in-law has lost the love of her life. That

his son does not have a father.''

Kristin Burt, widow of the slain officer, said she was

seven months pregnant with their first child when her husband

of nearly three years was killed. She took the stand Monday,

faltering and fighting back tears as she described how the

coroner told her that her husband was dead. The coroner

``held my hand and slipped Don's wedding ring into my hand,''

Kristin Burt said. (Louis Roug & Meg James, Rage in the

Courtroom, L.A. Times, Apr. 18, 2000, at B1.)

Officer Burt's son, Cameron, was born two months after he was killed.

Compton Police Officers Kevin Burrell and James MacDonald were shot and killed by a wanted criminal during a traffic stop on February 22, 1993. Newspapers gave the following account of the crime: ``The officers were wearing bulletproof vests when they stopped a red pickup truck about 11 p.m., but were knocked to the ground by bullet wounds to their limbs. With the officers lying in the rain-soaked street, [the killer] pumped bullets into their heads, execution-style.'' (Jodi Wi1goren, Killer of 2 Compton Police Officers Sentenced to Death, L.A. Times, Aug. 16, 1995, at 1.)

Officers Burrell and MacDonald were both young men, with all of their parents still living, at the time of their deaths. At the killer's trial, their families described the deep trauma that the crime created. The Los Angeles Times gave the following account:

One after another, the mothers and fathers of Officers

James Wayne MacDonald and Kevin Michael Burrell took the

stand to cry out their losses. Three could not complete their

testimony without breaking down so badly that court recessed.

Burrell's mother told how she had heard the shots that killed

her son a few blocks from her home. MacDonald's father,

sobbing uncontrollably, blurted, ``Come home, Jimmy, let me

trade places with you,'' when he was asked what he would tell

his son if he could bring him back.

James and Tonia MacDonald told how they visit their son's

grave twice each day in their hometown of Santa Rosa, just to

chat. Clark and Edna Burrell told how neither of them can

bear to visit the cemetery where their son now lies.

``I heard the shots,'' Edna Burrell said. Then she told how

she reasoned that her son had been hit. ``I was listening to

my police scanner,'' she said, ``and I knew it was Kevin

because I didn't hear them call his name'' on other dispatch

calls. ``So when she (a police officer) knocked on my door,

all I could do is scream, 'Oh God, they shot my baby. ``,

With that, Edna Burrell broke down. Overwhelmed, she was led

from the courtroom, past where [ the killer] sat staring

straight ahead. Sobbing softly, she repeated what she had

said on the stand: ``How could he do that? How could he do

that?''

Both sets of parents said the deaths of their sons left

them feeling empty, lost and angry. ``The whole time I was

praying, just to let Jimmy live until I could see him

again,'' Tonia MacDonald sobbed, remembering the hours after

she was told about the

shooting. ``And then I was so mad at God. All I wanted was to

see him one more time.''

All four parents said old friends have fallen away as grief

consumed their lives. Mother's Day, James MacDonald

testified, has become unbearable. ``This year, when I got up,

I didn't tell her (his wife) 'Happy Mother's Day' because

it's a tough day,'' he said. ``I could see the tears in her

eyes.'' (Emily Adams, Slain Officers'' Parents Tell of Pain,

L.A. Times, June 1, 1995, at 1.)

It bears mention that all of the criminals responsible for the murders described here were convicted of capital offenses, and will be subject to the expedited federal review provisions in section 6 of LEOPA once they complete their State appeals.

Section 6 of the bill is named for Dr. John B. Jamison, a Coconino County, AZ, Reserve Sheriffs Deputy who was murdered while responding to a fellow deputy's call for assistance on September 6, 1982. The killer fired 30 rounds from an assault rifle into Dr. Jamison's car, killing the deputy before he could reach his gun or even unbuckle his seatbelt. Dr. Jamison was survived by his 13-year-old son and 10-year- old daughter. State courts completed their review of the killer's conviction and sentence in 1985. Federal courts then delayed the case for an additional 15 years. One judge on the U.S. Court of Appeals for the Ninth Circuit even tried to postpone the killer's final execution date on the alleged basis that the killer was wrongfully denied state funds to investigate a rare neurological condition that his lawyer had learned of while watching television. Dr. Jamison's killer ultimately was executed in 2000--18 years after the crime occurred, and 15 years after federal habeas-corpus proceedings began.

Section 6 is designed to prevent these kinds of delays in Federal review of cases involving state convictions for the murder of a public- safety officer. In the district court, parties will be required to move for an evidentiary hearing within 90 days of the completion of briefing, the court must act on the motion within 30 days, and the hearing must begin 60 days later and last no longer than 3 months. All district-court review must be completed within 15 months of the completion of briefing. In the court of appeals, the court must complete review within 120 days of the completion of briefing. In most cases, these limits will ensure that federal review of a defendant's appeal is completed within less than 2 years. This section also makes these deadlines practical and enforceable by limiting federal review to those claims presenting meaningful evidence that the defendant did not commit the crime--defendants would be barred from re-litigating claims unrelated to guilt or innocence. (Defendants still will be permitted to litigate all their legal claims in state court on direct review and state-habeas review, and in petitions for certiorari in the U.S. Supreme Court.)

The need for this provision is particularly stark in the judicial circuit that includes my home state of Arizona. The U.S. Court of Appeals for the Ninth Circuit's pattern of blocking capital punishment for all murderers--including those who kill police officers--is well documented. A recent committee report of the U.S. Senate, for example, notes that: ``Data for the last ten years show that outside of the Ninth Circuit, usually 70 to 80 percent of death sentences are affirmed by a [federal] Court of Appeals on collateral review. In almost every year, however, the Ninth Circuit has reversed the majority of death sentences that it reviews. Moreover, this percentage has climbed sharply in recent years . . . In the last three years, the Ninth Circuit has reversed 88 percent, 80 percent, and 86 percent of the death sentences that it has reviewed.'' (S. Rep. No. 107-315 (2002), at 72-73) The Senate report also notes that a core group of Ninth Circuit judges vote to reverse virtually every death sentence that they review. Judge Stephen Reinhardt, for example, had reviewed 31 death sentences by 2002, and voted to reverse every single one. Other Ninth Circuit judges have similar records.

As Ninth Circuit Judge Alex Kozinski has noted, ``there are those of my colleagues who have never voted to uphold a death sentence and doubtless never wil1.'' He continued: ``Refusing to enforce a valid law is a violation of the judges' oath--something that most judges consider a shameful breach of duty. . . . [But] to slow down the pace of executions by finding fault with every death sentence is considered by some to be highly honorable.'' (Alex Kozinski, Tinkering with Death, The New Yorker, Feb. 10, 1997, at 48-53)

This pattern of behavior extends to the Ninth Circuit's review of death sentences imposed for the murder of police officers. In the nine States under the Ninth Circuit's jurisdiction, 34 criminals have been sentenced to death for murdering police officers since the late 1970's. Only one--the man who killed Dr. Jamison--has ever been executed. The Ninth Circuit consistently has obstructed all other death sentences for criminals convicted of murdering police officers in the western States.

As one Orange County newspaper columnist notes, these numbers reflect poorly on our society's commitment to ensuring justice for slain police officers and their families:

When California voters reinstated the death penalty in

1978, they made killing an on-duty peace officer one of the

``special circumstances'' that could subject the killer to

execution. The idea behind that was simple enough. If you

made killing a cop a death-penalty offense, maybe it would

make criminals think twice before doing it. . . . But it's

doubtful that the special circumstance concerning peace

officers strikes any fear into the heart of a would-be cop-

killer. Because in the 24 years since the new death-penalty

law was passed, not one cop-killer has been executed in

California. During that time, more than 200 California peace

officers have been murdered in the line of duty, including

eight in Orange County, and dozens of cop-killers have been

sent to death row. But not one has died for his crime. True,

California hasn't been in any hurry to execute other

murderers, either. Since 1978, more than 700 killers have

been sent to death row, but only 10 have been executed. But

the justice system seems particularly reluctant to actually

enforce the death penalty against cop-killers. ``That sends a

terrible message,'' says Marianne Wrede of Anaheim Hills,

whose son, West Covina Police Officer Kenneth Wrede, was

murdered in 1983. ``It says the justice system doesn't

respect the sacrifices of police officers and their

families.'' (Gordon Dillow, State Balks at Executing Cop-

Killers, The Orange County Reg., Dec. 5, 2002)

These unconscionable delays have greatly increased the suffering experienced by the surviving families of murdered police officers. Again, a few examples from recent news stories illustrate the nature of the problems created by the current system of decades-long post- conviction review:

On August 31, 1983, West Covina Police Officer Kenneth Wrede, 26 years old, responded to a call about a man behaving strangely in a residential neighborhood. Wrede confronted the man, who became abusive and tried to hit Wrede with an 8-foot tree spike. Wrede could have shot the man, but instead attempted to defuse the situation. The man then reached into Wrede's car and ripped the shotgun and rack from the dashboard. Wrede drew his gun and persuaded the man to lay down the shotgun, but the man picked it up again when Wrede lowered his revolver and shot Wrede in the head, killing him instantly.

Years later, Wrede's parents described the terrible impact of this crime on their family. Marianne Wrede told of how ``a half hour before local television newscasts would broadcast the story, her doorbell rang. On the steps stood her son's commander and a police lieutenant. Between them stood Kenneth Wrede's distraught wife. `I knew it was bad news,' Marianne Wrede said. `I shut the door in their faces and I said, `It can't be my boy.' '' (Laura-Lynne Powell, Grief Unites Kin of Fallen Officers, The Orange County Reg., June 20,1991, at EO1) Many years after the crime, she reflected that ``every day I miss my son and it never goes away.'' (Anne C. Mulkern & Tiffany Montgomery, Caring Counts in Line of Duty, The Orange County Reg., Sept. 25, 1996, at BO1) Ken Wrede's father also described the impact of the loss of his son. ``My life will never be the same. I deal with it every day; when I hear a police siren and immediately think of my son, when I pull up next to a police car and think that that could have been him. I still stop as often as I can and tell the officers to have a good day and be careful.'' (David Haldane & Michael Wagner, For Some, a Reminder of Past Tragedy, L.A. Times, July 15, 1996, at A3)

Officer Wrede's killer was sentenced to death in 1984, and that conviction was affirmed by the California Supreme Court in 1989. Then in 2000--17 years after Ken Wrede's murder--a divided panel of the Ninth Circuit reversed the killer's death sentence. The

Ninth Circuit found that the killer's lawyer provided ineffective assistance of counsel at the penalty phase because he did not present additional evidence of the killer's abusive childhood and drug use.

At the time, Marianne Wrede noted, ``We thought we finally were close to getting this behind us. And now this.'' (Gordon Dillow, Long Wait for Justice Gets Worse, The Orange County Reg., May 11, 2000, at BO1) A California Deputy Attorney General denounced the decision, stating that ``it can always be suggested a jury should have heard something else in the penalty phase of a death penalty case.'' (Richard Winston, Reversal of Death Penalty in Officer's Killing Decried Courts, L.A. Times, May 10, 2000, at B3) West Covina Corporal Robert Tibbets, the original investigator at the scene of Wrede's murder, described the Ninth Circuit's decision as a ``miscarriage of justice.'' (Id.) He had promised Wrede's parents that he would accompany them to every court hearing for their son's killer. He made good on his promise, even 19 years later, when the killer was retried and again sentenced to death in 2002. But the Wredes now face another round of state and then federal appeals. At the retrial, Ken's father noted that ``my family and 1 had endured 19 years of trial, appeals, delays, causing us to relive the trauma of Kenny's death over and over again.'' The trial judge agreed. He stated, ``It is an obscenity to put anyone through this needlessly for 19 years. It is inexcusable for us in the system that we need to look at this case for 19 years to get it resolved. The system at some point in the line has become clogged and broken.'' (Larry Welborn, 19 Years and no Resolution for Parents, The Orange County Reg., Sept. 21, 2002)

Riverside Police Officers Dennis Doty and Philip Trust were killed by a man whom they attempted to arrest at his home on May 13, 1982. The man was in bed when the officers arrived and they permitted him to dress. The man then pulled out a gun that he had been sitting on and shot and killed both officers. He apparently sought revenge for injuries that he sustained when he was shot while committing a bank robbery. Officer Doty had served a tour of duty in Vietnam, where he had received a purple heart and bronze star. The State supreme court affirmed the killer's conviction and death sentence in 1991.

In 2002, 20 years after the murders, Federal district court reversed the killer's death sentence, finding that he had received ineffective assistance of counsel because he did not trust his lawyers. Local Superior Court judge Edward Webster denounced the decision, declaring that he was ``outraged by the entire federal process.'' He declared that ``this [ decision] is just a product of judges'' personal opinions and philosophies opposing the death penalty.'' (Marlowe Churchill, Riverside Judge Takes Federal Court to Task, The Press-Enterprise, July 22, 1995, at BO1) The Riverside assistant police chief noted that the decision was particularly unfortunate for the officers' families: ``They lived this 20 years ago, and not to have closure on the trial process is particularly difficult'' (Mike Kataoka, Court Annuls Death Decree, The Press Enterprise, May 31, 2002, at BO1)

Los Angeles Police Detective Tom Williams was shot and killed by a man against whom he had testified several hours earlier in a robbery trial on October 31, 1985. Detective Williams was killed while picking up his son at a day-care center. A local newspaper gave the following account of the crime: ``With [his son] Ryan sitting beside him in the front seat of his truck, Williams, 42, saw the man in the ski mask, saw the automatic weapon pointing out of the driver's side window of the passing car. But he was helpless to do anything to protect himself. All he had time to do was scream for Ryan to get down, then cover the boy with his own body.'' (Dennis McCarthy, Youth Feels Need to Serve, L.A. Daily News, Aug. 24, 1993, at Nl) The Los Angeles Times gave the following account of testimony from the killer's trial:

A seventh-grade pupil at a Canoga Park church school

testified Wednesday that he saw 6-year-old Ryan Williams

sitting on the ground crying moments after the boy's father,

a Los Angeles police detective, had been gunned down in the

street on Oct. 31,1985. Thomas C. Williams, 42, was picking

up Ryan from school at 5:40 p.m. when he was struck by eight

bullets from an automatic weapon. The detective died, slumped

against the driver's side of his orange pickup truck. . . .

[The pupil] said he looked toward Williams' truck, parked in

front of the Faith Baptist Church school, and saw the

windshield shatter. ``It split into pieces,'' [he] said.

``Then I ducked. I couldn't see anything. I got up because I

heard some little boy cry. I walked over. He was sitting on

the ground and he was crying and he had a bloody lip.'' (Lynn

Steinberg, Boy Tells of Fatal Attack on Detective, L.A.

Times, Feb. 11, 1998, at 12)

Detective Williams's killer remains on death row today, 20 years after committing this crime.

Garden Grove police officer Donald Reed was shot and killed while arresting a man at a bar on June 7, 1980. The killer appeared at first to cooperate with police, but then pulled a pistol from his jacket and began firing. One officer who comforted Reed as he lay on the ground describe the scene: ``I could see a sense of panic in Don's eyes. He said, `I am not gonna make it' '' (Daniel Yi, Slain Officer's Family Testifies, L.A. Times, Feb. 9, 2000, at B1)

When Reed died, he had two toddler sons, ages 3 and 1\1/2\. Reed's killer was sentenced to death, but the sentence was reversed on appeal, and he was retried and sentenced to death again in 2000. Reed's sons were 22 and 21 by the time of the retrial. Still coping with the loss of their father, they chose not to attend the second trial. ``I was a mother, a father, I had to teach them everything,'' Reed's widow stated. (Id.) Of her husband, she simply noted, ``He was taken unnecessarily.'' (John McDonald, Officer's Widow Details Trauma, The Orange County Reg., Feb. 9, 2000, at B01) She also described the impact on her family of holding a second trial 20 years after the crime. ``We had all moved on, and then this came back and smacked us in the face. It really just tears you apart.'' (Daniel Yi, Slain Officer's Family Testifies, L.A. Times, Feb. 9, 2000, at B1)

Los Angeles Police Officer Paul Verna was gunned down during a traffic stop on June 2, 1983, by two men who earlier had committed a series of violent robberies. The first man shot Verna from inside the car, and the second then exited the vehicle and shot Verna five more times as he lay on the ground. Verna was survived by his wife and two young sons. Years later, the state supreme court reversed the death sentence of one of the killers. A new trial was held in 2000. At the first trial, Verna's widow described the devastating impact of the crime on her family. She spoke of how ``no one who has not done it can know how difficult it is to tell two young boys that the daddy they loved so much is gone.'' (Janet Rae-Dupree, 2 Sentenced to Die for Killing Policeman, L.A. Times, Sept. 21, 1985, at 6) A local newspaper gave the following accounts of the sentencing retrial:

Vema's sons were young boys, 4 and 9, when he was murdered.

This past week, they testified as young men. They told the

jury that they did not have a lot of first-hand recollection

of their dad. They did have the memories of stories from

their mom and many others as to what their dad was like. Ryan

[the younger son] spoke of sometimes feeling uneasy at being

told how much he looked like and even acted like his dad,

whom he does not remember. Sandy, Verna's widow, spoke of the

challenge of properly raising two very young boys alone. (Jim

Tatreau, Who Was Paul Verna? Murdered Officer Deeply Missed

Hero, L.A. Daily News, Oct. 22, 2000, at V3)

``At age 33, to be a widow--my roles in life completely

changed. The very hardest part was when they were very young

kids--when Ryan, who was 4 years old when his father died,

would get hurt and would cry to his mother at bedtime,

`Mommy, I just want my daddy.' I couldn't give that to him,

no matter how hard I tried. I could do everything else, but I

couldn't give him his daddy.'' (Jason Kandel, Retrial Brings

Victim's Family to Tears, L.A. Daily News, Sept. 27, 2000, at

Mr. President, I rise today with my colleague, Senator Cornyn of Texas, to introduce the ``DNA Fingerprint Act of 2005.'' This act will allow State and Federal law enforcement to catch rapists, murderers, and other violent criminals whom it otherwise would be impossible to identify and arrest.

The principal provisions of the DNA Fingerprint Act make it easier to include and keep the DNA profiles of criminal arrestees in the National DNA Index System, where that profile can be compared to crime-scene evidence. By removing current barriers to maintaining data from criminal arrestees, the act will allow the creation of a comprehensive, robust database that will make it possible to catch serial rapists and murderers before they commit more crimes.

The impact this act will have on preventing rape and other violent crimes is not merely speculative. We know from real life examples that an all-arrestee database can prevent many future offenses. In March of this year, the city of Chicago produced a case study of eight serial killers in that city who would have been caught after their first offense--rather than after their fourth or tenth--if an all-arrestee database had been in place. This study is included in the record at the conclusion of my remarks.

The first example that the Chicago study cites involves serial rapist and murderer Andre Crawford. In March 1993, Crawford was arrested for felony theft. Under the DNA Fingerprint Act, the state of Illinois would have been able to take a DNA sample from Crawford at that time and upload and keep that sample in NDIS, the national DNA database. But at that time--and still today--Federal law makes it difficult to upload an arrestee's profiles to NDIS, and bars States from keeping that profile in NDIS if the arrestee is not later convicted of a criminal offense. As a result, Crawford's DNA profile was not collected and it was not added to NDIS. And as a result, when Crawford murdered a 37- year-old woman on September 21, 1993, although DNA evidence was recovered from the crime scene, Crawford could not be identified as the perpetrator. And as a result, Crawford went on to commit many more rapes and murders.

On December 21, 1994, a 24-year-old woman was found murdered in an abandoned building on the 800 block of West 50th place in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the September 1993 murder, and this December 1994 murder could have been prevented.

On April 3, 1995, a 36-year-old woman was found murdered in an abandoned house on the 5000 block of South Carpenter Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the two earlier murders that he had committed, and this April 1995 muurder could have been prevented.

On July 23, 1997, a 27-year-old woman was found murdered in a closet of an abandoned house on the 900 block of West 51st Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the three earlier murders that he had committed, and this July 1997 murder could have been prevented.

On December 27, 1997, a 42-year-old woman was raped in Chicago. As she walked down the street, a man approached her from behind, put a knife to her head, dragged her into an abandoned building on the 5100 block of South Peoria Street, and beat and raped her. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders that he had committed, and this December 1997 rape could have been prevented.

In June 1998, a 31-year-old woman was found murdered in an abandoned building on the 5000 block of South May Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders and one rape that he had committed, and this June 1998 murder could have been prevented.

On August 13, 1998, a 44-year-old woman was found murdered in an abandoned house on the 900 block of West 52nd Street. Her clothes were found in the alley. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the five earlier murders and one rape that he had committed, and this August 1998 murder could have been prevented.

Also on August 13, 1998, a 32-year-old woman was found murdered in the attic of a house on the 5200 block of South Marshfield. Her body was decomposed, but DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the six earlier murders and one rape that he had committed, and this additional murder could have been prevented.

On December 8, 1998, a 35-year-old woman was found murdered in a building on the 1200 block of West 52nd Street. She had rope marks around her neck and injuries to her face. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the seven earlier murders and one rape that he had committed, and this December 1998 murder could have been prevented.

On February 2, 1999, a 35-year-old woman was found murdered on the 1300 block of West 51st Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the eight earlier murders and one rape that he had committed, and this February 1999 murder could have been prevented.

On April 21, 1999, a 44-year-old woman was found murdered in the upstairs of an abandoned house on the 5000 block of South Justine Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the nine earlier murders and one rape that he had committed, and this April 1999 murder could have been prevented.

And on June 20, 1999, a 41-year-old woman was found murdered in the attic of an abandoned building on the 1500 block of West 51st Street. DNA evidence was recovered from blood on a nearby wall, indicating a struggle. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the ten earlier murders and one rape that he had committed, and this additional murder could have been prevented.

As the city of Chicago case study concludes:

In January 2000, Andre Crawford was charged with 11 murders

and 1 Aggravated Criminal Sexual Assault. If his DNA sample

had been taken on March 6, 1993, the subsequent 10 murders

and 1 rape would not have happened.

The city of Chicago study goes on to discuss the cases of 7 other serial rapists and murders from that city. Collectively, together with Andre Crawford, these 8 serial rapists and

killers represent 22 murders and 30 rapes that could have been prevented had an all-arrestee database been in place.

The DNA Fingerprint Act eliminates current federal statutory restrictions that prevent states from adding and keeping arresttee profiles in NDIS. In effect, the Act would make it possible to build a comprehensive, robust national all-arrestee DNA database.

Here is how the DNA Fingerprint Act works: First, under current Federal law, a DNA profile from an arrestee cannot be uploaded to NDIS until the arrestee is charged in an indictment or information. Thus today, even an arrestee charged in a pleading cannot have his DNA uploaded to the national index. The act eliminates this restriction, allowing arrestees to be included as soon as they are arrested. It also eliminates a statutory restriction that bars inclusion of profiles from suspects who provide so-called ``exoneration'' samples. The act recognizes that criminal suspects have no legitimate interest in evading identification for crimes that they have committed.

Second, the act requires an arrestee to take the initiative to opt out of NDIS if charges against him have been dismissed or he has been acquitted, and he does not want his DNA profile compared to future crime scene evidence. Current law places the burden of determining who may be removed from the index on the administrator of the DNA database, thus requiring the administrator to track the progress of individual criminal cases. This bureaucratic burden discourages states from creating and maintaining comprehensive, all-arrestee DNA databases. It also effectively precludes the creation of a genuine national all- arrestee database. In effect, only convicts' DNA profiles can be kept in the database over the long term. The act would allow arrestee profiles to be kept in the database as well.

Third, the DNA Fingerprint Act would allow expanded use of CODIS grants. Congress currently appropriates funds for use by states to expand their DNA databases. Current law restricts the use of these grants, however, to only building databases of convicted felons. This bill expands this authorization to allow use of these funds to build a database of all DNA samples collected under lawful authority--including samples taken from arrestees.

Fourth, the DNA Fingerprint Act allows the Federal Government to take and keep DNA samples from arrestees. The act gives the Attorney-General the authority to develop regulations allowing collection of DNA profiles from federal arrestees or detainees. The authority to issue such regulations would give the Attorney General the flexibility needed to respond to new legal developments and changes in technology.

And finally, the act tolls the statute of limitations for Federal sex offenses. Current law generally tolls the statute of limitations for felony cases in which the perpetrator is implicated in the offense through DNA testing. The one exception to this tolling is the sexual- abuse offenses in chapter 109A of title 18. When Congress adopted general tolling, it left out chapter 109A, apparently because those crimes already are subject to the use of ``John Doe'' indictments to charge unidentified perpetrators. The Justice Department has made clear, however, that John Doe indictments are ``not an adequate substitute for the applicability of [tolling].'' The Department has criticized the exception in current law as ``work[ing] against the effective prosecution of rapes and other serious sexual assaults under chapter 109A,'' noting that it makes ``the statute of limitation rules for such offenses more restrictive than those for all other Federal offenses in cases involving DNA identification.'' The DNA Fingerprint Act corrects this anomaly by allowing tolling for chapter 109A offenses.

Further evidence of the potential effectiveness of a comprehensive, robust DNA database is available from the recent experience of Great Britain. The British have taken the lead in using DNA to solve crimes, creating a database that now includes 2,000,000 profiles. Their database has now reached the critical mass where it is big enough to serve as a highly effective tool for solving crimes. In the U.K., DNA from crime scenes produces a match to the DNA database in 40 percent of all cases. This amounted to 58,176 cold hits in the United Kingdom 2001. (See generally ``The Application of DNA Technology in England and Wales,'' a study commissioned by the National Institute of Justice.) A broad DNA database works. The same tool should be made available in the United States.

Some critics of DNA databasing argue that a comprehensive database would violate criminal suspects' privacy rights. This is simply untrue. The sample of DNA that is kept in NDIS is what is called ``junk DNA''-- it is impossible to determine anything medically sensitive from this DNA. For example, this DNA does not allow the tester to determine if the donor is susceptible to particular diseases. The Justice Department addressed this issue in its statement of views on S. 1700, a DNA bill that was introduced in the 108th Congress:

[T]here [are no] legitimate privacy concerns that require

the retention or expansion of these [burdensome expungement

provisions]. The DNA identification system is already subject

to strict privacy rules, which generally limit the use of DNA

samples and DNA profiles in the system to law enforcement

identification purposes. See 42 U.S.C. 14132(b)-(c).

Moreover, the DNA profiles that are maintained in the

national index relate to 13 DNA sites that do not control any

traits or characteristics of individuals. Hence, the

databased information cannot be used to discern, for example,

anything about an individual's genetic illnesses, disorders,

or dispositions. Rather, by design, the information the

system retains in the databased DNA profiles is the

equivalent of a ``genetic fingerprint'' that uniquely

identifies an individual, but does not disclose other facts

about him.

Elsewhere in its Views Letter, the Justice Department also explained why the restrictive expungement provisions in current law are unnecessary and contrary to sound public policy. The letter noted that the FBI maintains a database of fingerprints of arrestees--without regard to whether the arrestee later was acquitted or convicted. The letter states, ``With respect to the . . . exclusion of DNA profiles of unindicted arrestees, it should be noted by way of comparison that there is no Federal policy that bars States from including fingerprints of arrestees in State and Federal law enforcement databases prior to indictment.'' The Justice Department also pointed out that ``[t]here is no reason to have a . . . Federal policy mandating expungement for DNA information. If the person whose DNA it is does not commit other crimes, then the information simply remains in a secure database and there is no adverse effect on his life. But if he commits a murder, rape, or other serious crime, and DNA matching can identify him as the perpetrator, then it is good that the information was retained.''

From the Chicago study--which examines the experience of just one American city over recent years--we know that an all-arrestee database can and inevitably will make the critical difference in solving and preventing violent sex offenses. From the British experience, we know that a comprehensive database can be a highly effective tool in solving crimes. And we know that DNA databasing does not violate the right to privacy. I urge the Congress to enact the DNA Fingerprint Act--before another preventable sex crime occurs.

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

Mr. President, I rise today to introduce the Law Enforcement Officers' Protection Act of 2005. This act will guarantee tough, mandatory punishment for criminals who murder or assault police officers, firefighters, judges, court employees, ambulance-crew members, and other public-safety officers in the course of their duties. Attacks on police officers and judges are serious crimes. They merit the toughest penalties. LEOPA imposes the following terms of imprisonment for attacks on public-safety officers: (1) second degree murder, 30 years to life; (2) voluntary manslaughter, 15 to 40 years; (3) assault resulting in serious bodily injury, 15 to 40 years; (4) assault with a dangerous weapon, 15 to 40 years; and (5) assault resulting in bodily injury, 5 to 20 years. The act also imposes commensurate penalties for retaliatory murders, kidnappings, and assaults committed against the family members of public-safety officers.

LEOPA includes additional provisions that will deter attacks upon police officers. The act expedites Federal-court review of state convictions for murder of a public-safety officer; it limits the damages that can be recovered by criminals for any injuries experienced during their arrest; it removes arbitrary barriers to retired officers' right to carry concealed weapons under Federal law; it makes it a crime to publicize a public-safety officer's identity in order to threaten or intimidate him; and it increases existing penalties for obstruction of justice and interference with court proceedings.

Aggravated assaults against police officers are a serious national problem. According to the most recent F.RI. report on the subject, 52 law-enforcement officers were feloniously killed in the United States in 2003. In the 10 year period from 1994 through 2003, a total of 616 lawenforcement officers were feloniously killed in the line of duty in the United States.

These officers' assailants unquestionably are among the worst criminals. Of those individuals responsible for unlawful killings of police officers between 1994 and 2003, 521 had a prior criminal arrest, including 153 who had a prior arrest for assaulting a police officer or resisting arrest. The individuals who commit these types of offenses are among the most dangerous members of the criminal class. Tough sentences for these criminals not only protect those who risk their lives to protect us; they also directly protect the public at large by removing a dangerous class of criminals from society.

Ordinary assaults against police officers have become a widespread problem. More than 57,000 law enforcement officers were assaulted in the course of their duties in 2003, and more than a quarter of these assaults resulted in injury to the officer. These numbers represent more than one of every 10 officers serving in the United States. Our society apparently has reached a point where criminals feel entitled to assault a police officer when they are being arrested. LEOPA is designed to change that understanding, to show criminals that assaults against police officers are unacceptable.

It bears mention that because of improvements in technology, recent years' numbers of officers killed in the line of duty even understate the extent of the violence that officers face. As the Los Angeles Times noted in 1994, ``the number of officers killed--an average of 60 to 70 a year since the late 1980s--would have broken records, too, if not for the advent of bulletproof vests, police experts say; about 400 officers have survived shootings over the last decade because they were wearing protective armor.'' (Faye Fiore & Miles Corwin, Toll of Violence Haunts Families of Police Officers, N.Y. Times, Feb. 21, 1994, at 1). As the executive director of the Fraternal Order of Police noted recently, ``there's less respect for authority in general and police officers specifically. The predisposition of criminals to use firearms is probably at the highest point in our history.'' (Jerry Nachtigal, Crime Down, but Number of Police Officers Killed Holds Steady, Associated Press Newswires, Apr. 11, 1999).

Violence against police officers also inhibits effective law enforcement. It breeds caution among officers and hinders robust investigation. LEOPA is designed to restore balance to the law. It is designed to ensure that police officers do not fear for their safety when enforcmg the law, but instead, that criminals fear the consequences of breaking the law.

Finally, aside from their broader effects on law enforcement and society, aggravated assaults and murders of police officers simply are terrible crimes. The victims often are young and in the prime of life, leaving behind young children, spouses, and grieving parents. A few recent incidents in the news serve to illustrate the horrific toll that these homicides take on the surviving victims:

Los Angeles County Deputy Sheriff Shayne York, 26 years old, was murdered during an invasion robbery while waiting for his fiancee at a hair salon on August 16, 1997. He was killed solely because of his status as a police officer. The Los Angeles Times gave the following account of the crime from the testimony at the killer's trial:

The robbers yelled racial slurs and ordered customers and

employees to the floor, snatching valuables from everyone

inside. When one of the bandits found a law enforcement badge

in York's wallet, he kicked York as he lay on the ground,

according to testimony from [York's fiancee], also a Los

Angeles County sheriff's deputy. The gunman asked York if he

ever mistreated blacks and Crips gang members at Los Angeles

County's Pitchess Detention Center, where York worked. York

responded, ``No, sir.'' [The killer,] an alleged Crips gang

member, then pointed a pistol at the back of York's head and

squeezed the trigger, prosecutors said. [York's fiancee]

testified she saw York's body go limp as she felt his blood

flowing onto her legs. She said she heard the gunman say, ``I

always wanted to kill a pig.'' (Jack Leonard & Monte Morin,

Man Guilty of Killing Off-Duty Deputy, L.A. Times, Aug. 23,

2000, at B1.)

Deputy York's killer never expressed any remorse over this senseless crime. When jurors read their verdict at his trial, he shouted at them, ``May Allah kill you all, pagans, infidels.'' (Stuart Pfeifer & Richard Marosi, Jury Recommends Death for Robber Who Killed Deputy, L.A. Times, Sept. 8, 2000, at B7.)

California Highway Patrol Officer Don Burt, 25 years old, was shot seven times by a member of a street gang during a traffic stop on July 13, 1996. As Officer Burt lay wounded on the ground, the killer shot him in the head. The Los Angeles Times, covering the killer's trial, gave the following account of the testimony describing the devastating impact of Officer Burt's death on his family:

[Don Burt's father] relived some of his happiest memories

with his son--the wedding of his son and [daughter-in-law]

Kristin, and the day he was told he was going to be a

grandfather. But the proudest moment for both father and son

was when the younger Burt joined the Highway Patrol. ``I

pinned on his badge and 1 hugged him,'' the father said,

tearfully. ``The proudest I'd ever seen him. The gleam he had

in his eye--he was so proud.''

It was a quiet summer night the night his son died, [Burt's

father] told the 12-member jury. He and his wife had just

finished dinner. The telephone rang. It was their daughter-

in-law's father, also a CHP officer, saying there had been a

shooting in the area that the younger Burt patrolled. The

elder Burt, a 30-year veteran trooper, called the CHP

dispatch center to learn more. A patrol car arrived to take

the parents to the hospital. ``We drove [to the hospital] in

dead silence,'' Burt said. ``I knew my son was dead and 1

couldn't tell my wife. She was sitting there with hope and 1

couldn't tell her.''

Jeannie Burt said she didn't realize how serious her son's

injuries were until a few minutes after they arrived at the

hospital. ``I thought he wasn't hurt too bad, that everything

was going to be all right,'' Jeannie Burt told jurors. But

then, ``I saw Kristin's brother and he just shook his head.

And 1 knew my son was dead.'' Tears streamed down Jeannie

Burt's cheeks through most of her testimony. ``He wasn't

perfect, but pretty close to it,'' the mother said through

her tears. ``I'm grateful 1 had my son for the 25 years 1 had

him. 1 wouldn't trade that with anything. I'm just so sad

that my daughter-in-law has lost the love of her life. That

his son does not have a father.''

Kristin Burt, widow of the slain officer, said she was

seven months pregnant with their first child when her husband

of nearly three years was killed. She took the stand Monday,

faltering and fighting back tears as she described how the

coroner told her that her husband was dead. The coroner

``held my hand and slipped Don's wedding ring into my hand,''

Kristin Burt said. (Louis Roug & Meg James, Rage in the

Courtroom, L.A. Times, Apr. 18, 2000, at B1.)

Officer Burt's son, Cameron, was born two months after he was killed.

Compton Police Officers Kevin Burrell and James MacDonald were shot and killed by a wanted criminal during a traffic stop on February 22, 1993. Newspapers gave the following account of the crime: ``The officers were wearing bulletproof vests when they stopped a red pickup truck about 11 p.m., but were knocked to the ground by bullet wounds to their limbs. With the officers lying in the rain-soaked street, [the killer] pumped bullets into their heads, execution-style.'' (Jodi Wi1goren, Killer of 2 Compton Police Officers Sentenced to Death, L.A. Times, Aug. 16, 1995, at 1.)

Officers Burrell and MacDonald were both young men, with all of their parents still living, at the time of their deaths. At the killer's trial, their families described the deep trauma that the crime created. The Los Angeles Times gave the following account:

One after another, the mothers and fathers of Officers

James Wayne MacDonald and Kevin Michael Burrell took the

stand to cry out their losses. Three could not complete their

testimony without breaking down so badly that court recessed.

Burrell's mother told how she had heard the shots that killed

her son a few blocks from her home. MacDonald's father,

sobbing uncontrollably, blurted, ``Come home, Jimmy, let me

trade places with you,'' when he was asked what he would tell

his son if he could bring him back.

James and Tonia MacDonald told how they visit their son's

grave twice each day in their hometown of Santa Rosa, just to

chat. Clark and Edna Burrell told how neither of them can

bear to visit the cemetery where their son now lies.

``I heard the shots,'' Edna Burrell said. Then she told how

she reasoned that her son had been hit. ``I was listening to

my police scanner,'' she said, ``and I knew it was Kevin

because I didn't hear them call his name'' on other dispatch

calls. ``So when she (a police officer) knocked on my door,

all I could do is scream, 'Oh God, they shot my baby. ``,

With that, Edna Burrell broke down. Overwhelmed, she was led

from the courtroom, past where [ the killer] sat staring

straight ahead. Sobbing softly, she repeated what she had

said on the stand: ``How could he do that? How could he do

that?''

Both sets of parents said the deaths of their sons left

them feeling empty, lost and angry. ``The whole time I was

praying, just to let Jimmy live until I could see him

again,'' Tonia MacDonald sobbed, remembering the hours after

she was told about the

shooting. ``And then I was so mad at God. All I wanted was to

see him one more time.''

All four parents said old friends have fallen away as grief

consumed their lives. Mother's Day, James MacDonald

testified, has become unbearable. ``This year, when I got up,

I didn't tell her (his wife) 'Happy Mother's Day' because

it's a tough day,'' he said. ``I could see the tears in her

eyes.'' (Emily Adams, Slain Officers'' Parents Tell of Pain,

L.A. Times, June 1, 1995, at 1.)

It bears mention that all of the criminals responsible for the murders described here were convicted of capital offenses, and will be subject to the expedited federal review provisions in section 6 of LEOPA once they complete their State appeals.

Section 6 of the bill is named for Dr. John B. Jamison, a Coconino County, AZ, Reserve Sheriffs Deputy who was murdered while responding to a fellow deputy's call for assistance on September 6, 1982. The killer fired 30 rounds from an assault rifle into Dr. Jamison's car, killing the deputy before he could reach his gun or even unbuckle his seatbelt. Dr. Jamison was survived by his 13-year-old son and 10-year- old daughter. State courts completed their review of the killer's conviction and sentence in 1985. Federal courts then delayed the case for an additional 15 years. One judge on the U.S. Court of Appeals for the Ninth Circuit even tried to postpone the killer's final execution date on the alleged basis that the killer was wrongfully denied state funds to investigate a rare neurological condition that his lawyer had learned of while watching television. Dr. Jamison's killer ultimately was executed in 2000--18 years after the crime occurred, and 15 years after federal habeas-corpus proceedings began.

Section 6 is designed to prevent these kinds of delays in Federal review of cases involving state convictions for the murder of a public- safety officer. In the district court, parties will be required to move for an evidentiary hearing within 90 days of the completion of briefing, the court must act on the motion within 30 days, and the hearing must begin 60 days later and last no longer than 3 months. All district-court review must be completed within 15 months of the completion of briefing. In the court of appeals, the court must complete review within 120 days of the completion of briefing. In most cases, these limits will ensure that federal review of a defendant's appeal is completed within less than 2 years. This section also makes these deadlines practical and enforceable by limiting federal review to those claims presenting meaningful evidence that the defendant did not commit the crime--defendants would be barred from re-litigating claims unrelated to guilt or innocence. (Defendants still will be permitted to litigate all their legal claims in state court on direct review and state-habeas review, and in petitions for certiorari in the U.S. Supreme Court.)

The need for this provision is particularly stark in the judicial circuit that includes my home state of Arizona. The U.S. Court of Appeals for the Ninth Circuit's pattern of blocking capital punishment for all murderers--including those who kill police officers--is well documented. A recent committee report of the U.S. Senate, for example, notes that: ``Data for the last ten years show that outside of the Ninth Circuit, usually 70 to 80 percent of death sentences are affirmed by a [federal] Court of Appeals on collateral review. In almost every year, however, the Ninth Circuit has reversed the majority of death sentences that it reviews. Moreover, this percentage has climbed sharply in recent years . . . In the last three years, the Ninth Circuit has reversed 88 percent, 80 percent, and 86 percent of the death sentences that it has reviewed.'' (S. Rep. No. 107-315 (2002), at 72-73) The Senate report also notes that a core group of Ninth Circuit judges vote to reverse virtually every death sentence that they review. Judge Stephen Reinhardt, for example, had reviewed 31 death sentences by 2002, and voted to reverse every single one. Other Ninth Circuit judges have similar records.

As Ninth Circuit Judge Alex Kozinski has noted, ``there are those of my colleagues who have never voted to uphold a death sentence and doubtless never wil1.'' He continued: ``Refusing to enforce a valid law is a violation of the judges' oath--something that most judges consider a shameful breach of duty. . . . [But] to slow down the pace of executions by finding fault with every death sentence is considered by some to be highly honorable.'' (Alex Kozinski, Tinkering with Death, The New Yorker, Feb. 10, 1997, at 48-53)

This pattern of behavior extends to the Ninth Circuit's review of death sentences imposed for the murder of police officers. In the nine States under the Ninth Circuit's jurisdiction, 34 criminals have been sentenced to death for murdering police officers since the late 1970's. Only one--the man who killed Dr. Jamison--has ever been executed. The Ninth Circuit consistently has obstructed all other death sentences for criminals convicted of murdering police officers in the western States.

As one Orange County newspaper columnist notes, these numbers reflect poorly on our society's commitment to ensuring justice for slain police officers and their families:

When California voters reinstated the death penalty in

1978, they made killing an on-duty peace officer one of the

``special circumstances'' that could subject the killer to

execution. The idea behind that was simple enough. If you

made killing a cop a death-penalty offense, maybe it would

make criminals think twice before doing it. . . . But it's

doubtful that the special circumstance concerning peace

officers strikes any fear into the heart of a would-be cop-

killer. Because in the 24 years since the new death-penalty

law was passed, not one cop-killer has been executed in

California. During that time, more than 200 California peace

officers have been murdered in the line of duty, including

eight in Orange County, and dozens of cop-killers have been

sent to death row. But not one has died for his crime. True,

California hasn't been in any hurry to execute other

murderers, either. Since 1978, more than 700 killers have

been sent to death row, but only 10 have been executed. But

the justice system seems particularly reluctant to actually

enforce the death penalty against cop-killers. ``That sends a

terrible message,'' says Marianne Wrede of Anaheim Hills,

whose son, West Covina Police Officer Kenneth Wrede, was

murdered in 1983. ``It says the justice system doesn't

respect the sacrifices of police officers and their

families.'' (Gordon Dillow, State Balks at Executing Cop-

Killers, The Orange County Reg., Dec. 5, 2002)

These unconscionable delays have greatly increased the suffering experienced by the surviving families of murdered police officers. Again, a few examples from recent news stories illustrate the nature of the problems created by the current system of decades-long post- conviction review:

On August 31, 1983, West Covina Police Officer Kenneth Wrede, 26 years old, responded to a call about a man behaving strangely in a residential neighborhood. Wrede confronted the man, who became abusive and tried to hit Wrede with an 8-foot tree spike. Wrede could have shot the man, but instead attempted to defuse the situation. The man then reached into Wrede's car and ripped the shotgun and rack from the dashboard. Wrede drew his gun and persuaded the man to lay down the shotgun, but the man picked it up again when Wrede lowered his revolver and shot Wrede in the head, killing him instantly.

Years later, Wrede's parents described the terrible impact of this crime on their family. Marianne Wrede told of how ``a half hour before local television newscasts would broadcast the story, her doorbell rang. On the steps stood her son's commander and a police lieutenant. Between them stood Kenneth Wrede's distraught wife. `I knew it was bad news,' Marianne Wrede said. `I shut the door in their faces and I said, `It can't be my boy.' '' (Laura-Lynne Powell, Grief Unites Kin of Fallen Officers, The Orange County Reg., June 20,1991, at EO1) Many years after the crime, she reflected that ``every day I miss my son and it never goes away.'' (Anne C. Mulkern & Tiffany Montgomery, Caring Counts in Line of Duty, The Orange County Reg., Sept. 25, 1996, at BO1) Ken Wrede's father also described the impact of the loss of his son. ``My life will never be the same. I deal with it every day; when I hear a police siren and immediately think of my son, when I pull up next to a police car and think that that could have been him. I still stop as often as I can and tell the officers to have a good day and be careful.'' (David Haldane & Michael Wagner, For Some, a Reminder of Past Tragedy, L.A. Times, July 15, 1996, at A3)

Officer Wrede's killer was sentenced to death in 1984, and that conviction was affirmed by the California Supreme Court in 1989. Then in 2000--17 years after Ken Wrede's murder--a divided panel of the Ninth Circuit reversed the killer's death sentence. The

Ninth Circuit found that the killer's lawyer provided ineffective assistance of counsel at the penalty phase because he did not present additional evidence of the killer's abusive childhood and drug use.

At the time, Marianne Wrede noted, ``We thought we finally were close to getting this behind us. And now this.'' (Gordon Dillow, Long Wait for Justice Gets Worse, The Orange County Reg., May 11, 2000, at BO1) A California Deputy Attorney General denounced the decision, stating that ``it can always be suggested a jury should have heard something else in the penalty phase of a death penalty case.'' (Richard Winston, Reversal of Death Penalty in Officer's Killing Decried Courts, L.A. Times, May 10, 2000, at B3) West Covina Corporal Robert Tibbets, the original investigator at the scene of Wrede's murder, described the Ninth Circuit's decision as a ``miscarriage of justice.'' (Id.) He had promised Wrede's parents that he would accompany them to every court hearing for their son's killer. He made good on his promise, even 19 years later, when the killer was retried and again sentenced to death in 2002. But the Wredes now face another round of state and then federal appeals. At the retrial, Ken's father noted that ``my family and 1 had endured 19 years of trial, appeals, delays, causing us to relive the trauma of Kenny's death over and over again.'' The trial judge agreed. He stated, ``It is an obscenity to put anyone through this needlessly for 19 years. It is inexcusable for us in the system that we need to look at this case for 19 years to get it resolved. The system at some point in the line has become clogged and broken.'' (Larry Welborn, 19 Years and no Resolution for Parents, The Orange County Reg., Sept. 21, 2002)

Riverside Police Officers Dennis Doty and Philip Trust were killed by a man whom they attempted to arrest at his home on May 13, 1982. The man was in bed when the officers arrived and they permitted him to dress. The man then pulled out a gun that he had been sitting on and shot and killed both officers. He apparently sought revenge for injuries that he sustained when he was shot while committing a bank robbery. Officer Doty had served a tour of duty in Vietnam, where he had received a purple heart and bronze star. The State supreme court affirmed the killer's conviction and death sentence in 1991.

In 2002, 20 years after the murders, Federal district court reversed the killer's death sentence, finding that he had received ineffective assistance of counsel because he did not trust his lawyers. Local Superior Court judge Edward Webster denounced the decision, declaring that he was ``outraged by the entire federal process.'' He declared that ``this [ decision] is just a product of judges'' personal opinions and philosophies opposing the death penalty.'' (Marlowe Churchill, Riverside Judge Takes Federal Court to Task, The Press-Enterprise, July 22, 1995, at BO1) The Riverside assistant police chief noted that the decision was particularly unfortunate for the officers' families: ``They lived this 20 years ago, and not to have closure on the trial process is particularly difficult'' (Mike Kataoka, Court Annuls Death Decree, The Press Enterprise, May 31, 2002, at BO1)

Los Angeles Police Detective Tom Williams was shot and killed by a man against whom he had testified several hours earlier in a robbery trial on October 31, 1985. Detective Williams was killed while picking up his son at a day-care center. A local newspaper gave the following account of the crime: ``With [his son] Ryan sitting beside him in the front seat of his truck, Williams, 42, saw the man in the ski mask, saw the automatic weapon pointing out of the driver's side window of the passing car. But he was helpless to do anything to protect himself. All he had time to do was scream for Ryan to get down, then cover the boy with his own body.'' (Dennis McCarthy, Youth Feels Need to Serve, L.A. Daily News, Aug. 24, 1993, at Nl) The Los Angeles Times gave the following account of testimony from the killer's trial:

A seventh-grade pupil at a Canoga Park church school

testified Wednesday that he saw 6-year-old Ryan Williams

sitting on the ground crying moments after the boy's father,

a Los Angeles police detective, had been gunned down in the

street on Oct. 31,1985. Thomas C. Williams, 42, was picking

up Ryan from school at 5:40 p.m. when he was struck by eight

bullets from an automatic weapon. The detective died, slumped

against the driver's side of his orange pickup truck. . . .

[The pupil] said he looked toward Williams' truck, parked in

front of the Faith Baptist Church school, and saw the

windshield shatter. ``It split into pieces,'' [he] said.

``Then I ducked. I couldn't see anything. I got up because I

heard some little boy cry. I walked over. He was sitting on

the ground and he was crying and he had a bloody lip.'' (Lynn

Steinberg, Boy Tells of Fatal Attack on Detective, L.A.

Times, Feb. 11, 1998, at 12)

Detective Williams's killer remains on death row today, 20 years after committing this crime.

Garden Grove police officer Donald Reed was shot and killed while arresting a man at a bar on June 7, 1980. The killer appeared at first to cooperate with police, but then pulled a pistol from his jacket and began firing. One officer who comforted Reed as he lay on the ground describe the scene: ``I could see a sense of panic in Don's eyes. He said, `I am not gonna make it' '' (Daniel Yi, Slain Officer's Family Testifies, L.A. Times, Feb. 9, 2000, at B1)

When Reed died, he had two toddler sons, ages 3 and 1\1/2\. Reed's killer was sentenced to death, but the sentence was reversed on appeal, and he was retried and sentenced to death again in 2000. Reed's sons were 22 and 21 by the time of the retrial. Still coping with the loss of their father, they chose not to attend the second trial. ``I was a mother, a father, I had to teach them everything,'' Reed's widow stated. (Id.) Of her husband, she simply noted, ``He was taken unnecessarily.'' (John McDonald, Officer's Widow Details Trauma, The Orange County Reg., Feb. 9, 2000, at B01) She also described the impact on her family of holding a second trial 20 years after the crime. ``We had all moved on, and then this came back and smacked us in the face. It really just tears you apart.'' (Daniel Yi, Slain Officer's Family Testifies, L.A. Times, Feb. 9, 2000, at B1)

Los Angeles Police Officer Paul Verna was gunned down during a traffic stop on June 2, 1983, by two men who earlier had committed a series of violent robberies. The first man shot Verna from inside the car, and the second then exited the vehicle and shot Verna five more times as he lay on the ground. Verna was survived by his wife and two young sons. Years later, the state supreme court reversed the death sentence of one of the killers. A new trial was held in 2000. At the first trial, Verna's widow described the devastating impact of the crime on her family. She spoke of how ``no one who has not done it can know how difficult it is to tell two young boys that the daddy they loved so much is gone.'' (Janet Rae-Dupree, 2 Sentenced to Die for Killing Policeman, L.A. Times, Sept. 21, 1985, at 6) A local newspaper gave the following accounts of the sentencing retrial:

Vema's sons were young boys, 4 and 9, when he was murdered.

This past week, they testified as young men. They told the

jury that they did not have a lot of first-hand recollection

of their dad. They did have the memories of stories from

their mom and many others as to what their dad was like. Ryan

[the younger son] spoke of sometimes feeling uneasy at being

told how much he looked like and even acted like his dad,

whom he does not remember. Sandy, Verna's widow, spoke of the

challenge of properly raising two very young boys alone. (Jim

Tatreau, Who Was Paul Verna? Murdered Officer Deeply Missed

Hero, L.A. Daily News, Oct. 22, 2000, at V3)

``At age 33, to be a widow--my roles in life completely

changed. The very hardest part was when they were very young

kids--when Ryan, who was 4 years old when his father died,

would get hurt and would cry to his mother at bedtime,

`Mommy, I just want my daddy.' I couldn't give that to him,

no matter how hard I tried. I could do everything else, but I

couldn't give him his daddy.'' (Jason Kandel, Retrial Brings

Victim's Family to Tears, L.A. Daily News, Sept. 27, 2000, at

Mr. President, I rise today with my colleague, Senator Cornyn of Texas, to introduce the ``DNA Fingerprint Act of 2005.'' This act will allow State and Federal law enforcement to catch rapists, murderers, and other violent criminals whom it otherwise would be impossible to identify and arrest.

The principal provisions of the DNA Fingerprint Act make it easier to include and keep the DNA profiles of criminal arrestees in the National DNA Index System, where that profile can be compared to crime-scene evidence. By removing current barriers to maintaining data from criminal arrestees, the act will allow the creation of a comprehensive, robust database that will make it possible to catch serial rapists and murderers before they commit more crimes.

The impact this act will have on preventing rape and other violent crimes is not merely speculative. We know from real life examples that an all-arrestee database can prevent many future offenses. In March of this year, the city of Chicago produced a case study of eight serial killers in that city who would have been caught after their first offense--rather than after their fourth or tenth--if an all-arrestee database had been in place. This study is included in the record at the conclusion of my remarks.

The first example that the Chicago study cites involves serial rapist and murderer Andre Crawford. In March 1993, Crawford was arrested for felony theft. Under the DNA Fingerprint Act, the state of Illinois would have been able to take a DNA sample from Crawford at that time and upload and keep that sample in NDIS, the national DNA database. But at that time--and still today--Federal law makes it difficult to upload an arrestee's profiles to NDIS, and bars States from keeping that profile in NDIS if the arrestee is not later convicted of a criminal offense. As a result, Crawford's DNA profile was not collected and it was not added to NDIS. And as a result, when Crawford murdered a 37- year-old woman on September 21, 1993, although DNA evidence was recovered from the crime scene, Crawford could not be identified as the perpetrator. And as a result, Crawford went on to commit many more rapes and murders.

On December 21, 1994, a 24-year-old woman was found murdered in an abandoned building on the 800 block of West 50th place in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the September 1993 murder, and this December 1994 murder could have been prevented.

On April 3, 1995, a 36-year-old woman was found murdered in an abandoned house on the 5000 block of South Carpenter Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the two earlier murders that he had committed, and this April 1995 muurder could have been prevented.

On July 23, 1997, a 27-year-old woman was found murdered in a closet of an abandoned house on the 900 block of West 51st Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the three earlier murders that he had committed, and this July 1997 murder could have been prevented.

On December 27, 1997, a 42-year-old woman was raped in Chicago. As she walked down the street, a man approached her from behind, put a knife to her head, dragged her into an abandoned building on the 5100 block of South Peoria Street, and beat and raped her. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders that he had committed, and this December 1997 rape could have been prevented.

In June 1998, a 31-year-old woman was found murdered in an abandoned building on the 5000 block of South May Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders and one rape that he had committed, and this June 1998 murder could have been prevented.

On August 13, 1998, a 44-year-old woman was found murdered in an abandoned house on the 900 block of West 52nd Street. Her clothes were found in the alley. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the five earlier murders and one rape that he had committed, and this August 1998 murder could have been prevented.

Also on August 13, 1998, a 32-year-old woman was found murdered in the attic of a house on the 5200 block of South Marshfield. Her body was decomposed, but DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the six earlier murders and one rape that he had committed, and this additional murder could have been prevented.

On December 8, 1998, a 35-year-old woman was found murdered in a building on the 1200 block of West 52nd Street. She had rope marks around her neck and injuries to her face. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the seven earlier murders and one rape that he had committed, and this December 1998 murder could have been prevented.

On February 2, 1999, a 35-year-old woman was found murdered on the 1300 block of West 51st Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the eight earlier murders and one rape that he had committed, and this February 1999 murder could have been prevented.

On April 21, 1999, a 44-year-old woman was found murdered in the upstairs of an abandoned house on the 5000 block of South Justine Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the nine earlier murders and one rape that he had committed, and this April 1999 murder could have been prevented.

And on June 20, 1999, a 41-year-old woman was found murdered in the attic of an abandoned building on the 1500 block of West 51st Street. DNA evidence was recovered from blood on a nearby wall, indicating a struggle. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the ten earlier murders and one rape that he had committed, and this additional murder could have been prevented.

As the city of Chicago case study concludes:

In January 2000, Andre Crawford was charged with 11 murders

and 1 Aggravated Criminal Sexual Assault. If his DNA sample

had been taken on March 6, 1993, the subsequent 10 murders

and 1 rape would not have happened.

The city of Chicago study goes on to discuss the cases of 7 other serial rapists and murders from that city. Collectively, together with Andre Crawford, these 8 serial rapists and

killers represent 22 murders and 30 rapes that could have been prevented had an all-arrestee database been in place.

The DNA Fingerprint Act eliminates current federal statutory restrictions that prevent states from adding and keeping arresttee profiles in NDIS. In effect, the Act would make it possible to build a comprehensive, robust national all-arrestee DNA database.

Here is how the DNA Fingerprint Act works: First, under current Federal law, a DNA profile from an arrestee cannot be uploaded to NDIS until the arrestee is charged in an indictment or information. Thus today, even an arrestee charged in a pleading cannot have his DNA uploaded to the national index. The act eliminates this restriction, allowing arrestees to be included as soon as they are arrested. It also eliminates a statutory restriction that bars inclusion of profiles from suspects who provide so-called ``exoneration'' samples. The act recognizes that criminal suspects have no legitimate interest in evading identification for crimes that they have committed.

Second, the act requires an arrestee to take the initiative to opt out of NDIS if charges against him have been dismissed or he has been acquitted, and he does not want his DNA profile compared to future crime scene evidence. Current law places the burden of determining who may be removed from the index on the administrator of the DNA database, thus requiring the administrator to track the progress of individual criminal cases. This bureaucratic burden discourages states from creating and maintaining comprehensive, all-arrestee DNA databases. It also effectively precludes the creation of a genuine national all- arrestee database. In effect, only convicts' DNA profiles can be kept in the database over the long term. The act would allow arrestee profiles to be kept in the database as well.

Third, the DNA Fingerprint Act would allow expanded use of CODIS grants. Congress currently appropriates funds for use by states to expand their DNA databases. Current law restricts the use of these grants, however, to only building databases of convicted felons. This bill expands this authorization to allow use of these funds to build a database of all DNA samples collected under lawful authority--including samples taken from arrestees.

Fourth, the DNA Fingerprint Act allows the Federal Government to take and keep DNA samples from arrestees. The act gives the Attorney-General the authority to develop regulations allowing collection of DNA profiles from federal arrestees or detainees. The authority to issue such regulations would give the Attorney General the flexibility needed to respond to new legal developments and changes in technology.

And finally, the act tolls the statute of limitations for Federal sex offenses. Current law generally tolls the statute of limitations for felony cases in which the perpetrator is implicated in the offense through DNA testing. The one exception to this tolling is the sexual- abuse offenses in chapter 109A of title 18. When Congress adopted general tolling, it left out chapter 109A, apparently because those crimes already are subject to the use of ``John Doe'' indictments to charge unidentified perpetrators. The Justice Department has made clear, however, that John Doe indictments are ``not an adequate substitute for the applicability of [tolling].'' The Department has criticized the exception in current law as ``work[ing] against the effective prosecution of rapes and other serious sexual assaults under chapter 109A,'' noting that it makes ``the statute of limitation rules for such offenses more restrictive than those for all other Federal offenses in cases involving DNA identification.'' The DNA Fingerprint Act corrects this anomaly by allowing tolling for chapter 109A offenses.

Further evidence of the potential effectiveness of a comprehensive, robust DNA database is available from the recent experience of Great Britain. The British have taken the lead in using DNA to solve crimes, creating a database that now includes 2,000,000 profiles. Their database has now reached the critical mass where it is big enough to serve as a highly effective tool for solving crimes. In the U.K., DNA from crime scenes produces a match to the DNA database in 40 percent of all cases. This amounted to 58,176 cold hits in the United Kingdom 2001. (See generally ``The Application of DNA Technology in England and Wales,'' a study commissioned by the National Institute of Justice.) A broad DNA database works. The same tool should be made available in the United States.

Some critics of DNA databasing argue that a comprehensive database would violate criminal suspects' privacy rights. This is simply untrue. The sample of DNA that is kept in NDIS is what is called ``junk DNA''-- it is impossible to determine anything medically sensitive from this DNA. For example, this DNA does not allow the tester to determine if the donor is susceptible to particular diseases. The Justice Department addressed this issue in its statement of views on S. 1700, a DNA bill that was introduced in the 108th Congress:

[T]here [are no] legitimate privacy concerns that require

the retention or expansion of these [burdensome expungement

provisions]. The DNA identification system is already subject

to strict privacy rules, which generally limit the use of DNA

samples and DNA profiles in the system to law enforcement

identification purposes. See 42 U.S.C. 14132(b)-(c).

Moreover, the DNA profiles that are maintained in the

national index relate to 13 DNA sites that do not control any

traits or characteristics of individuals. Hence, the

databased information cannot be used to discern, for example,

anything about an individual's genetic illnesses, disorders,

or dispositions. Rather, by design, the information the

system retains in the databased DNA profiles is the

equivalent of a ``genetic fingerprint'' that uniquely

identifies an individual, but does not disclose other facts

about him.

Elsewhere in its Views Letter, the Justice Department also explained why the restrictive expungement provisions in current law are unnecessary and contrary to sound public policy. The letter noted that the FBI maintains a database of fingerprints of arrestees--without regard to whether the arrestee later was acquitted or convicted. The letter states, ``With respect to the . . . exclusion of DNA profiles of unindicted arrestees, it should be noted by way of comparison that there is no Federal policy that bars States from including fingerprints of arrestees in State and Federal law enforcement databases prior to indictment.'' The Justice Department also pointed out that ``[t]here is no reason to have a . . . Federal policy mandating expungement for DNA information. If the person whose DNA it is does not commit other crimes, then the information simply remains in a secure database and there is no adverse effect on his life. But if he commits a murder, rape, or other serious crime, and DNA matching can identify him as the perpetrator, then it is good that the information was retained.''

From the Chicago study--which examines the experience of just one American city over recent years--we know that an all-arrestee database can and inevitably will make the critical difference in solving and preventing violent sex offenses. From the British experience, we know that a comprehensive database can be a highly effective tool in solving crimes. And we know that DNA databasing does not violate the right to privacy. I urge the Congress to enact the DNA Fingerprint Act--before another preventable sex crime occurs.

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

I thank the Senator. I thank the Chair.

Let me get back to the Levin amendment which is our pending business. This amendment was tabled last year, and it should be again defeated or tabled. It is an amendment which would, in effect, be a poison pill for the entire bill because, in effect, what it says is if you allege gross negligence or recklessness, then the exemption the bill provides evaporates. So you are a lawyer. All you do is allege gross negligence or recklessness and, bingo, you are back in court again. So it totally undercuts the purpose of this legislation.

Secondly, last year the bill didn't contain a definition of gross negligence or recklessness. This year that was corrected, at least after a manner of speaking. But what definition do we have of gross negligence, for example? The bill provides that we turn to section B of the Bill Emerson Good Samaritan Food Donation Act. The definition of gross negligence under the Bill Emerson Good Samaritan Food

Donation Act is totally different from the case law definition of any State in the Union. It is totally different from the settled or standard concept of gross negligence in tort law.

Let me illustrate the difference. Under this bill, the term would mean: Voluntary and conscious conduct, including a failure to act by a person who at the time of the conduct knew that the conduct was likely to be harmful to the health or well being of another person.

That is not gross negligence. Black's Law Dictionary captures the essence of the definition. It defines gross negligence as the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. And it consists of the conscious and voluntary act or omission which is likely to result in grave injury when in the face of clear and present danger of which the alleged tortfeasor is aware. And the standard, obviously in comparison to the Levin standard to be inserted into the statute this year, is quite different. Even if the judge were to look to the standard itself, he would find that that standard is significantly different than the usual concept of the term and does not rise, in any meaningful way, to what any of us who have practiced tort law would understand gross negligence to mean.

Third, this is a highly regulated industry by law, by Federal law and State law and even some local laws. And most of the acts that would meet the definition of gross negligence would already be in violation of law. And if they are in violation of law, they are not exempted from this legislation. We don't try to exempt any gun manufacturer for conduct which is in violation of law. So by definition that would be an exemption from the provisions of the bill, if it becomes law, and therefore would not need to be included.

The bottom line here is that if there really is a problem, that is to say, the conduct is so bad that it is a violation of law, no lawsuit is precluded under our bill in any way. And if it doesn't rise to that level, then it should not be considered to be within the concept of gross negligence under that term as it has always been applied in tort law. The definition that is to be substituted this year is clearly not a definition most of us would deem appropriate under these circumstances.

So in fact if the gross negligence or reckless conduct of a person was the proximate cause of death or injury--that is the allegation--you are in court irrespective of this bill, and clearly it totally undercuts the purpose of the bill.

So, Mr. President, I urge that our colleagues vote against the Levin amendment or table it, as was done last year, and recognize that this is designed to totally undercut the bill and, for that reason, would not be an appropriate amendment to be adopted.

Mr. President, today: I am pleased to join with Senator McCain to introduce the City of Yuma Improvement Act of 2005. This bill authorizes the conveyance to the city of Yuma of six small parcels of Federal land currently held by the Bureau of Reclamation in exchange for three railroad parcels owned by the city on which the Bureau of Reclamation rail line exists. A companion bill has already been introduced in the House by Congressmen Grijalva and Franks.

These land conveyances will enable the city to complete the redevelopment of the riverfront in downtown Yuma. The Riverfront Master Redevelopment Plan was approved by the City Council in November, 2001. The plan was developed through a joint planning process with the city and the developer. The city's responsibility is to amass the property along the riverfront. The developer must raise the needed capital. The redevelopment includes the development of a welcome center, a new hotel, a conference center, and mixed-use retail stores. This redevelopment is designed to connect Main Street with the Heritage Area and the river to enhance the quality of life of Yuma's citizens and one of the primary economic assets of the area--tourism.

Most of the land in this 22 acre area is already city-owned. However, the Bureau of Reclamation does own several parcels within the redevelopment area that the city seeks to acquire. Since 2001, when the redevelopment plan was approved, the city and the Bureau have been working together to effectuate this acquisition for this public purpose. These efforts include: relocating, at the city's expense, the Bureau facilities that were within the redevelopment area and completing the necessary environmental analyses of the project area, including historic resource studies, site assessments, and asbestos and lead-based paint inspections.

Essentially, the deal is complete with one exception: the authority to accomplish the conveyances. Currently, the Bureau of Reclamation does not have the authority to exchange the lands it possesses for the railroad parcels it seeks--it must be done legislatively. There is broad support in Yuma for this legislated land swap given its public purpose objectives, thorough planning, and the economic opportunity it brings. I hope my colleagues agree and will work with me to pass this legislation this year.

Mr. President, today: I am pleased to join with Senator McCain to introduce the City of Yuma Improvement Act of 2005. This bill authorizes the conveyance to the city of Yuma of six small parcels of Federal land currently held by the Bureau of Reclamation in exchange for three railroad parcels owned by the city on which the Bureau of Reclamation rail line exists. A companion bill has already been introduced in the House by Congressmen Grijalva and Franks.

These land conveyances will enable the city to complete the redevelopment of the riverfront in downtown Yuma. The Riverfront Master Redevelopment Plan was approved by the City Council in November, 2001. The plan was developed through a joint planning process with the city and the developer. The city's responsibility is to amass the property along the riverfront. The developer must raise the needed capital. The redevelopment includes the development of a welcome center, a new hotel, a conference center, and mixed-use retail stores. This redevelopment is designed to connect Main Street with the Heritage Area and the river to enhance the quality of life of Yuma's citizens and one of the primary economic assets of the area--tourism.

Most of the land in this 22 acre area is already city-owned. However, the Bureau of Reclamation does own several parcels within the redevelopment area that the city seeks to acquire. Since 2001, when the redevelopment plan was approved, the city and the Bureau have been working together to effectuate this acquisition for this public purpose. These efforts include: relocating, at the city's expense, the Bureau facilities that were within the redevelopment area and completing the necessary environmental analyses of the project area, including historic resource studies, site assessments, and asbestos and lead-based paint inspections.

Essentially, the deal is complete with one exception: the authority to accomplish the conveyances. Currently, the Bureau of Reclamation does not have the authority to exchange the lands it possesses for the railroad parcels it seeks--it must be done legislatively. There is broad support in Yuma for this legislated land swap given its public purpose objectives, thorough planning, and the economic opportunity it brings. I hope my colleagues agree and will work with me to pass this legislation this year.