Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield to me?

Mr. FRANK of Massachusetts. Mr. Chairman, I rise to offer my support for the amendment that will now not be offered. But I want to express my admiration to the gentleman from Illinois. Taking the position he is taking so vigorously is not an easy one around here. But I hope Members will listen to what he said, separate out views that Members may have on particular judges and particular decisions from the more important question. We all agree that there is going to be Federal law. We agree that there is going to be Federal criminal law and Federal civil law. We certainly all agree, I hope, that we want our constituents well served by thoughtful, intelligent people. We want people who are at the top of the profession in temperament, and intelligence, and ability. Paying them as little as we do is a mistake. We are not going to get justice on the cheap that way, and we do not serve well this cause of justice for our constituents.

Mr. FRANK of Massachusetts. Mr. Chairman, I think the issue is not that my friend didn't go to law school, the question is in what language did he not go to law school, because I am talking about English here; not law. What I am talking about is the phrase that says you cannot release nonviolent felons because of the effects of actions by government officials on the lives of persons confined in prison. In other words, nothing to do with overcrowding, but conscious abuse of people's rights. I do think in some cases where you have got that pattern of abuse, ordering the release of nonviolent felons might be something they may want to consider. For that reason, while I would have voted the amendment the gentleman described, I cannot vote for the gentleman's amendment as offered.

Mr. FRANK of Massachusetts. I yield to the gentleman from Texas.

Mr. FRANK of Massachusetts. Mr. Chairman, I do not think where we are talking about conscious misbehavior that violates the rights of nonviolent criminals. What we are talking about is saying if you have prison officials who are consciously abusing the rights of nonviolent felons, people who have committed fraud, it has nothing to do with overcrowding or violence, under no circumstances should a judge be able to say the remedy is, if you don't stop abusing these people, we are going to make you let them loose. I don't think under all circumstances we ought to say no to that.

Mr. FRANK of Massachusetts. And I am glad the gentleman from Texas does, and therefore there is no reason to interrupt me. Let me just say to my friend he should only interrupt me when he disagrees with me. He need not interrupt me when he agrees with me. He should just nod his head and we will all notice that. But I appreciate the agreement. So we are now in agreement that we are talking about nonviolent felons, and they said including people who may have been convicted of tax fraud or insurance fraud. Secondly, though, this does say no release could be a remedy because of conditions of confinement or. Now the gentleman says it is only overcrowding, but the word ``or'' apparently means something different to me than it does to the gentleman. ``Or'' generally means there is something else that is involved. It says these insurance fraud perpetrators cannot be released either because of conditions of confinement or because of the effects of actions by government officials on the lives of persons confined in prison. In other words, if prison officials are grossly violating people's rights, and even people who have committed fraud have rights, as we all agree, even if it is not overcrowded, but if it deals with violations of their rights by conscious acts, one of the remedies cannot be to release people.

Mr. FRANK of Massachusetts. I yield to the gentleman from Texas.

Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the requisite number of words. Madam Chairman, I listened to the gentleman from Texas describe an amendment that I would be prepared to vote for but I do not see it before me. The gentleman talked about murderers and rapists walking the streets of our districts, and I do not want that to happen. And if it was an amendment that was limited as the gentleman said, I suspect it would get virtually no opposition here, but the amendment is far broader. It is not limited to murderers and rapists, it is not even limited to people who committed violent crimes. It applies to anybody convicted under any felony. Now there are some nonviolent felonies. There are also situations where prison conditions have been outrageous. The gentleman said we should not release murderers because of overcrowding. I agree. But what about people who might have violated a securities law or people who might have been guilty of nonsupport, if that were a felony, or some other nonviolent felony which we have, insurance fraud. I do not like people committing insurance fraud, but they are not all murderers and rapists. Most of them are probably not. It is probably kind of a distinction in the criminal class. And it also is not just overcrowding. It says prison conditions means conditions of confinement are the effect of actions by government officials on the lives of persons confined in prison. If in fact there are situations where particular prison officials have behaved in a outrageous fashion abusive of people's rights, may even have put these people in danger, and we are talking about nonviolent felons, I am not prepared to say that no judge ever ought to let them out. Now, as I said, if the gentleman had offered the amendment he described, I would not be up on my feet talking about it and I would not expect anyone else to be. If we were talking about violent criminals, particularly murderers and rapists, but muggers and others who were being released surely for overcrowding, I would agree with him. We have an amendment that goes far broader. It does not just deal with overcrowding. It would immunize prison officials, as it is written, even by actions they took that were violative of people's rights and even for nonviolent criminals. It also is completely retroactive. It says any order now in effect is ended, and I think that would be a very unwise idea.

Mr. FRANK of Massachusetts. Madam Chairman, my colleague said that there is an exception for criminal, but let me read what might be more relevant here, the title of her amendment as she wrote it: Parent/Child Testimonial Privileges in Federal Civil and Criminal Proceedings. If the gentlewoman in fact intends to exempt criminal, putting ``criminal'' in the title is not the most artful drafting I have ever seen.

Mr. FRANK of Massachusetts. Madam Chairman, will the gentlewoman yield to me?

Mr. FRANK of Massachusetts. Madam Chairman, let me give another example. Two people for whom I have an enormous amount of respect are two people who may be considered to have betrayed the family tie, but they are the Kaczynskis, Ted Kaczynski's brother and mother. They were not compelled, but they came forward. But that is an example. They came forward. Since they came forward, I think lives were saved, innocent lives were saved because they took this dangerous murderer off the streets. If, in fact, the prosecutor became aware that Mrs. Kaczynski had information that could have led, as it in fact did, to the apprehension of her son, I do not see why we would want to give absolute privilege for a man in his 50s and his mother so that she could not be compelled to testify. In her case it was voluntary, but we could have seen a situation where that compulsory testimony could have been useful. Yes, where we are talking about a small child, maybe a teenager, it is a very appealing situation. Maybe we ought to tailor a privilege for that. But where we are talking about Ted Kaczynski's mother and Ted Kaczynski, I do not think it is at all immediately obvious that we ought to, on this floor today, to vote to give somebody like that preference.

Mr. FRANK of Massachusetts. Madam Chairman, will the gentlewoman yield?

Mr. FRANK of Massachusetts. Madam Chairman, the better view means more people hold that view than hold the other view. It means more courts have gone one way more than the other. But it also means some courts have gone the other way. So the gentlewoman is agreeing that, under the law to which she would refer us, this is an unsettled question and some judges go one way and some another. Well, I think if we are going to deal with this kind of privilege, we ought to decide whether we want it to cover murder cases. And, again, what the gentlewoman has here is a blanket provision that applies equally as between adults who may have conspired together to murder and minor children. And we all think about children. We all think about protecting young children. That is a very valid thing to do. It seems to me Massachusetts has a good idea by talking differently about minor children. That is not what the gentlewoman's amendment does. To rush into this now and to lock it in would be an emotional response to an understandable provocation, but it would be, I think, an inappropriate way to legislate. I would say, as the senior minority member of the committee, this is the first time I have heard of this issue, today, yesterday, taking it back to the Committee on Rules. I would be glad to go and lobby my colleague from North Carolina and let us address this issue of privilege. There may be other privileges we want to look at. The question of lawyer/client privilege when the client has died might be a problem. I suppose lawyer/client privilege when the lawyer has died is less problematic, except for Shirley MacLaine. But, in general, this whole question of privilege could be looked at, but not hastily in reaction to a very politicized situation involving the current Independent Counsel, without many Members knowing what they should about it or having a chance to explore it. So I urge the Members to vote ``no'' on this, and let us deal with this very, very important issue in a more thoughtful context.

Mr. FRANK of Massachusetts. Madam Chairman, I thank the gentlewoman. As she knows, the better view means, for the nonlawyers, understand my colleague is talking lawyer now, not English. That is not her fault. That is the language.

Mr. FRANK of Massachusetts. Madam Chairman, let me say this. I think the gentlewoman has made something of an assumption that is not fair to the gentleman from North Carolina. I do not see why she would assume that we could not have a hearing on this issue. I would be surprised if the gentleman from North Carolina said at an appropriate time he will not do this. I will note that, on a bill that has been a bill for less than a month, it certainly would not be fair to criticize, and the gentlewoman was not criticizing. We have only been back in session for about a week and a half. But I think this is something we should be considering. But taking it up on the floor now, when nobody knows much about it, without any of these questions, on a blanket basis, seems to me a very poor way to legislate. I also want to add again, I disagree at this point. I do not understand why a 40-year-old who may have murdered someone should be shielded from his or her 60-year-old parent testifying. I do not understand that. It is a very different situation if we are talking about a 14-year-old. But having one blanket to cover all of these situations seems to me to be a mistake.

Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the requisite number of words. I rise to disagree with my friend on the general principle, also on one specific. He said, in the course of discussion of good conversations with our parents, we should put our money where our mouth is. My mother always told me never to put any money in my mouth. So I want to be truth to what she taught me. But I have both substantive and procedural objections to this amendment. I understand that a lot of my colleagues were unhappy with what Kenneth Starr did. I have been often unhappy about what Kenneth Starr did. We might even want to come back after we have adjourned in a special session and call it the Kenneth Starr correction session. Because there are a number of things I would like to do to change some of the things Kenneth Starr has done, beginning with the underlying statute, but not in this manner. Hard cases make bad law we are told. Well, it can also be bad law if we react too quickly because we have a specific objection to a particular act. I am sorry that he subpoenaed Marcia Lewis. But what if we were talking about a case of murder? What if we were talking about a kidnapping? What if we were talking about a 60-year-old parent and a 35-year-old child? What if the criminal was the 60-year-old parent and the 35-year-old child had valuable information dealing with a serious felony? This bill extends the privilege equally to a 35-year-old child of a 60-year-old accused criminal as it does to a 35-year-old mother of an 8-year-old child, or vice versa. So, for instance, one of the questions I have and I noted my staff pointed out to me, the State of Massachusetts has such a privilege for minor children only. Now, that is an interesting idea I would like to explore. Maybe there ought to be some kind of privilege for minors. But that is not in this bill. This bill went through subcommittee. It went through hearing and subcommittee and committee. This is the first I have heard of it. I notice the gentlewoman from California (Ms. Lofgren) did file this as part of her bill on March 28, the Friday before we went out. It is just not enough time. This is civil and criminal. Maybe there should be a privilege in civil cases. Although, even in civil cases, I note when I read about insider trading, a crime which a lot of people on my side do not like, that very often those involved in insider trading are relatives, they are adult relatives, the adult stockbroker son of a lawyer father or mother. Well, I do not know that I want to give those people a privilege. I do not see that there is any problem in saying that adult children and adult parents who are in the financial business can conspire to do inside trading without talking to each other. These are all the issues that ought to be talked about, and they have not been. I do not think it is a good idea in anger against Kenneth Starr to bring this forward at this point without knowing a lot more about it. Maybe there are Members here who know a lot more than I do about this subject. That would not be hard. But that is precisely the point. I doubt that very many of us are very familiar with this. The gentleman from New York (Mr. Nadler) acknowledged that he was surprised, as many were, that there was no such privilege. I do not think we should go as a body from ignorance about it, which I certainly had, to within a month or so passing a law that governs every civil case and every criminal case in the Federal system and every parent and every child no matter what their age. Madam Chairman, I yield to the gentlewoman from California (Ms. Lofgren).

Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the requisite number of words. After the passionate appeal of the gentleman from North Carolina, I thought I would try to restore a sense of calm to the Chamber. I also do not regard this as an amendment of enormous significance. I may approach it, however, from the opposite direction. I do not like the underlying provision. I think requiring witnesses to a trial to be on camera, I think, is a mistake. I think where you are talking about appellate courts, it is reasonable, and I think the Supreme Court of the United States deserves criticism for not allowing its arguments to be run. I can think of few things that would be more useful and more informative for the country than for people to be able to watch Supreme Court arguments. The notion that the nine Supreme Court justices and members of the Supreme Court bar would somehow be intimidated or thrown off by this is nonsensical. But when you get to witnesses, I think it is a mistake. I am not offering an amendment now; I do not want to take the time in the House. I do think the gentleman's amendment makes a situation that I regard as an unfortunate one a little less unfortunate. I think it is a good idea to have the face obscured. On the other hand, I do have to say the gentleman said, well, people might be afraid of being made to look foolish. They will still be made to look foolish. They will, however, be made to look foolish with their face obscured. There may be a large number of people in this society who do not mind being made to look foolish, when everyone knows who they are, as long as their faces are obscured. But I think the, okay, put a mask over me and make me look silly group is smaller than my friend may make. So therefore I would rather not see this at all with regard to witnesses. I do think anybody ought to have a right to object. When you talk about people who are involuntary participants, private citizens, not used to the public debate being thrust into the public this way in a trial, I do not think it is a good idea to require them to be cross- examined, perhaps, and made to look foolish to be there. But that is not the issue now. This is an amendment that, as I said, makes what I regard as an unfortunate situation a little less unfortunate, so I will also vote for the amendment.

Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the requisite number of words. Madam Chairman, I want to, as did the gentleman from California, express my appreciation for the spirit of cooperation that the gentleman from Florida, to say yes. I think this is something we could work on in a cooperative way. I would just like to express my appreciation to the gentleman from California, the gentleman from South Carolina, who joined in this bipartisan effort, and I think it is very likely in the spirit that is developing here we will be able to address these issues. So I welcome this support, I thank my colleagues for the cooperation, and I shut up.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last word. Mr. Chairman, I think it is a very good idea. I have nothing absolutely to add to this debate.

Mr. FRANK of Massachusetts. Mr. Chairman, reserving the right to object, not having been consulted on something of this importance, we are constrained to object, and so I do now object.

Mr. FRANK of Massachusetts. Mr. Chairman, I rise in support of the amendment. Mr. Chairman, I agree with the gentleman from North Carolina (Mr. Coble).

Mr. FRANK of Massachusetts. Mr. Chairman, to close for us, I yield the balance of my time to the gentleman from North Carolina (Mr. Watt).

Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes to the gentlewoman from California (Ms. Waters), a member of the committee. (Ms. WATERS asked and was given permission to revise and extend her remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), the ranking member of the full committee.

Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my time.