Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Finance be permitted to meet Wednesday, May 19, 1999 beginning at 10 a.m. in room SH-215, to conduct a markup. The PRESIDENT OFFICER. Without objection, it is so ordered.

Mr. HATCH

Mr. HATCH. Nobody ever agreed to 2 hours. I don't know if we ever had an agreement on that. Of course you have to have enough time to argue, but I hope it is not 2 hours.

Mr. HATCH. Mr. President, I think we are just about done with the drafting of it. I know staff on both the minority and the majority side are finishing that up as we speak, so I agree with the Senator. When we get that finally done, we will interrupt everything and set matters aside so we can pass the managers' amendment. I notice the distinguished Senator from New Jersey is prepared to offer his amendment again. Could I ask the other side, how many further gun amendments are we going to have? I would at least like to know.

Mr. HATCH. The reason I bring that up is we have had enough time on gun amendments, it seems to me. There has been a lot of getting together, and I have helped to lead that. I think it is about time we get on to the rest of this bill, which is much more important than the gun aspect of this bill. There is a huge number of things we do in this bill to try to stop juvenile crime in this country, and especially violent juvenile crime. This bill will help to alleviate that. So I want to finish the bill, and I think we ought to do the very best we can to do that.

Mr. HATCH. Reserving the right to object, I did not hear.

Mr. HATCH. I am happy to hear that.

Mr. HATCH. Could I understand what the unanimous consent request is?

Mr. HATCH. Will the Senator from New Jersey yield? Could we have a copy of the amendment. It is certainly nice to know what is going on. That is what I am concerned about. If we are going to have amendments, I at least want to know what they are, because I have gone to great lengths to try to bring both sides together. I don't want to be blind- sided by amendments at the last minute here. I would like to at least know what is in this amendment. I think I have a pretty good idea, but I would like to know.

Mr. HATCH. Mr. President, I have a managers' amendment which has been cleared on both sides as far as I know. This amendment is a compilation of amendments by Members on both sides.

Mr. HATCH. I now ask unanimous consent that any pending amendments be temporarily set aside.

Mr. HATCH. Mr. President, I send a managers' amendment to the desk and ask for its consideration.

Mr. HATCH. Let me say a few words. I think everybody in this body wants to do whatever they can to end discrimination wherever it is. I haven't heard one shred of information that proves there is discrimination here. When you prove that, I will be right there side by side with you. Nor have I heard much of a reason how you get around the fact that crimes are committed, and it is the type of crime and the quantities of crime and who is doing it that makes a difference in our society and why people are locked up. I think you have to look at the crime. You can't just get out here and say, well, there is disproportion; therefore, there has to be something wrong. You have to show what is wrong. Frankly, I do not think the other side has shown what is wrong here.

Mr. HATCH. Sure.

Mr. HATCH. I think we have more than adequately answered the arguments made by the distinguished presenter of this amendment. We yield back the remainder of our time. Mr. President, I ask unanimous consent that the first vote be 15 minutes and that the succeeding two votes be 10 minutes each.

Mr. HATCH. Let me defer my motion to table and go for 2 minutes equally divided.

Mr. HATCH. We have been debating all night. We will be glad to have 2 minutes before each amendment.

Mr. HATCH. I am prepared to yield back the remainder of our time if the other side is. But let me just put an article in the Record. It is by the Center for Equal Opportunity entitled ``Unconstitutionality of 42 U.S.C Sec. 5633(a)(23).'' It is written by Roger Clegg. I think it makes an awful lot of sense. I ask unanimous consent that it be printed in the Record.

Mr. HATCH. How much time remains for each side?

Mr. HATCH. As usual, I have to commend the Senator from Minnesota for his heart and for his desire to try to resolve problems that are difficult in our society. I have to say that I am concerned about the disproportionate confinement of minority youth, especially young African Americans and Hispanics, in our society--especially African Americans because it is disproportionate. If you really stop and think about it, the issue is who is committing the crimes. I also agree it would be wonderful if we had a perfect system of rehabilitation for these young people. The juvenile justice bill provides an additional $547 million in addition to the $4.4 billion we spend annually for helping young people to get rehabilitated or to help prevent crime to begin with. I think that is the right direction. This is probably the first bill in history that has 45 percent of the money in the bill for law enforcement and accountability purposes and 55 percent of the money for prevention purposes. But, you know, you still can't ignore the fact that these kids are committing crimes. Just because you would like the statistics to be relatively proportionate, if that isn't the case, because more young people commit crimes from one minority classification than another, it doesn't solve the problem by saying states should find a way of letting these kids out. Now, if there is another problem, if there is literally a civil rights violation or a discrimination against minority youth, then that is a problem I think would need fixing. But I don't think that is a case that has been made so far. The Democrats' amendment requires States to address efforts to reduce the proportion of juveniles who have contact with the juvenile justice system who are members of minority groups, if such proportion exceeds the proportion such groups represent in the general population. It fails to take into consideration who is committing these crimes. If a higher proportion of young African Americans are committing the crimes, do we just ignore that because we don't like the fact that it is disproportionate compared to Hispanic Americans or Anglo Americans? I don't see how you get around the fact that the ones who are committing the crimes are the ones who are arrested or incarcerated. This amendment is not only ill-advised as a matter of policy and principle, but it is also unconstitutional. The amendment makes an overt racial classification. Juveniles must be classified according to race in order for this amendment to be followed. This amendment is unconstitutional. As the Supreme Court announced in the 1979 decision of Personnel Administrator of Massachusetts v. Feeney: A racial classification, regardless of its purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. Now, such a classification could be upheld if there is an extraordinary justification, but that is not evident here. I just hear that there are more young African American kids who go to jail than white kids; therefore, there must be something wrong with the system. I don't agree with that. If there are more young African American kids committing crimes, and especially vicious crimes and violent crimes, you don't help the problem by saying they should not be punished and they should not be incarcerated somehow or other be sent to--unless there is a justification for that. Now, according to Personnel Administrator of Massachusetts v. Feeney, a 1979 decision: A racial classification, regardless of its purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. That is the law, and I think it is a correct law. More recently, in Adarand Constructors, Inc. v. Pena, the Supreme Court held that the Constitution requires the strictest judicial scrutiny ``of all race-based action'' by Government. What does that mean? It means that this amendment is subject to strict scrutiny and can be constitutional only if it is, under Adarand, ``narrowly tailored to achieve a compelling governmental interest.'' This amendment does not pass strict scrutiny. The only ``compelling interest'' the Supreme Court has recognized in this context is the remediation of past discrimination. Moreover, the Court requires a particularized showing of past discrimination. I don't think anybody would disagree with that. Here there is no such proof of discrimination, and the current law, which this amendment replicates--and, I might add, expands--is not narrowly tailored to remedy past discrimination. In fact, the Justice Department regulations under current law require States to intervene regardless of the cause of disproportionate confinement. Instead of remedying past discrimination, much of the current law is aimed at prevention programs. This amendment, and the current law it replicates, cannot pass strict scrutiny. I wish I could support this amendment, but its constitutional flaws prevent that. And, frankly, I believe that this amendment is bad social policy, because basically this amendment just says that these young people who have been engaged in criminal activity, somehow or other, should be proportionately given a break because there are more--in this case--young African Americans than young whites who are convicted. Now, that is unconstitutional in the light of Adarand and the Feeney case, and, frankly, under any principle of race neutrality in the justice system. The proponents of this amendment are motivated, in my opinion, by the best of intentions. I share their concern. That is one reason I want this juvenile justice bill to pass, so we can get serious about violent juvenile crime and so we can use the tools of this bill to help to prevent that in the future. And we have significant prevention moneys in this bill to help get these kids away from ever committing crime again. Like I say, the proponents are sincere. They want to help minority children avoid detention. However, I believe the best way to prevent the detention of juveniles is to prevent juveniles--of all races--from committing crime. I am proud that S. 254 provides $547.5 million in new funds for prevention programs. I have had to fight to get that. That is on top of and in addition to the $4.4 billion that we already have on the books every year for prevention programs. It is unhealthy for the Government to focus only on reducing the detention of minority juveniles. We should focus on preventing crime committed by juveniles of all races and recognize that detention of juvenile offenders is sometimes necessary. As this current debate illustrates, it is inherently divisive when the Government makes racial classifications. Look, if there is discrimination against minority kids, then you can count on me. I will fight alongside of my Democrat colleagues to end that discrimination. But to just say it is disproportionate without consideration to what crimes were committed, it seems to me, is not only unconstitutional, it is wrong. S. 254 has a better provision. It requires that prevention resources be directed to ``segments of the juvenile population'' that are disproportionately detained. Such ``segments of the population'' could include, for example, certain socioeconomic groups that are more likely to be at risk. S. 254 directs prevention resources to such groups who need these resources the most. Finally, not only is this amendment unconstitutional, it sets a terrible precedent. The premise of this amendment--requiring States to provide racial groups special attention if members of those groups are disproportionately likely to be detained--could be used to justify racial profiles. In my opinion, racial profiling is also unconstitutional, and I believe a significant number of constitutional authorities would agree with my analysis on that. The Government simply cannot use race as a classification or a factor in the criminal justice system, because our system of justice should be color blind. If it is not, then I will work to correct that. But I don't have any evidence that it is not at this particular point, other than the visceral feeling of some that because more young African Americans than whites are convicted and sentenced to detention, there must be something wrong with the system. Mr. President, I strongly urge the Senate to oppose this amendment. I also understand that in our society a lot of young African American kids, a lot of young Hispanic kids, a lot of young Native Americans-- and you can just go down almost every minority; there are literally dozens of minorities in this country--a lot of them don't have the best chance in this life. They are born in poverty. They are born into situations where there is no father, or they have a father who takes off on them, or they have a father who won't accept responsibility. They start off with a couple of strikes against them. I acknowledge that. We have to do something about that. But that doesn't mean we have to start racial profiling or that we have to start racial classifications to get there, unless we can show that there is prejudice, unless we can show that there is a reason to have this amendment. If I might add a final note. I have bent over backwards to craft language which addresses the concerns raised by my colleagues. I think my language is constitutional and it has bipartisan support. Senator Biden supports the underlying amendment, and with good reason, because it is constitutional. Having said all of that, again I will reiterate that I respect my colleagues. I respect their desire to right wrongs in our society. They know that I work on that too. I respect their desire to make sure that everybody is treated equally and in a decent manner. I respect their approach to try to end discrimination in our society. I join with them in those matters. But this particular amendment, it seems to me, is unconstitutional, and I certainly hope our colleagues will vote against it when I move to table it.

Mr. HATCH. Mr. President, I ask unanimous consent the amendment be agreed to and the motion to reconsider be laid upon the table.

Mr. HATCH. We throw this one out and that one out.

Mr. HATCH. Right.

Mr. HATCH. I have been trying to avoid a filibuster here on a bill that I think everybody admits is very important. The Senator has indicated he is willing to filibuster. And as somebody who has been around here a long time, who knows how to do it, I recognize one when I see one. Let me make an offer here that I think is superfair. I have tried to make an offer that the Senator get in line right behind this amendment so he has every shot at his amendment. Let me ask Senators Frist and Ashcroft, as well, would both sides be willing--since we know 60 votes is the key, would both sides be willing to do this: That we call up for a vote, after another reasonable time for final debate here, but hopefully a very short time, call up the Ashcroft-Frist/Frist-Ashcroft amendment? And if it does not get 60 votes and we call yours up right after, if neither of them gets 60 votes, we pull them both, rather than have a filibuster here--excuse me, Lautenberg and Frist. OK. Let me ask, I have to ask the Senator from Vermont. It has been suggested that since we had had problems with this amendment, which is 60 votes, if they don't get 60 votes, they pull it. We do the same with the Lautenberg; if he doesn't get 60 votes, we pull that.

Mr. HATCH. Mr. President, I ask unanimous consent that Senator Harkin be permitted to offer his amendment, and that the regular order be, for voting purposes: the Frist-Ashcroft amendment, then the Harkin amendment--so Senator Harkin's amendment will immediately follow--then the Wellstone amendment and then the Lautenberg amendment, and then we will have one from our side as well at that point. Is there any objection to that order?

Mr. HATCH

Mr. HATCH. Mr. President, this morning the Senate will resume debate on the juvenile justice bill. Under a previous order, amendments that qualify under the list may be offered until 12:20 p.m. today. At 12:20 p.m., the Senate will begin debate on amendments numbered 357, 358, 360, and 361 which were previously offered to the bill. Each of the four amendments will have 10 minutes of debate equally divided with stacked votes to begin at 1 p.m. Senators are encouraged to offer their amendments this morning so we can finish this important legislation in a timely manner. I thank my colleagues for their attention.