Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, Senator Grassley was here earlier. I understand he may be modifying his amendment. Senator Graham is prepared to move ahead. Then we will alternate back and forth. The Senator from California, Mrs. Feinstein, is ready to go. I see the Senator from South Carolina. If he is prepared to proceed, we will go ahead with his amendment.

Mr. KENNEDY. Mr. President, I have a good deal of respect for my friends from South Carolina and Georgia, but I am somewhat mystified by this proposal. Let me illustrate why. First of all, this proposal by the Senator from South Carolina is a large Federal mandate. Do you understand? It is a large Federal mandate. Why? Because the Bureau of Federal Prisons now says it takes up to 45 to 60 days for any individual who is found guilty in the lower courts to get to a Federal prison. Who pays for that? The local people pay for that. First, it takes 45 to 60 days--all of which will be included in this amendment--which is going to be paid by the local people. So we are saddling all the local communities, as they start off in their proposal. Now, after we hear the speeches about how we are going to be tough on crime, let's look specifically at the current law and what our bill does and then what this amendment does. For the entry of an alien after removal--no deportation or denied admission, no criminal history--under current law: fine, or not more than 2 years, or both. Our bill is the same as current law. But the Graham amendment says: not less than 60 days in jail--60 days in jail. So we want to let Arizona, California, Texas, New Mexico know that for all those people whom we all heard about coming back across the border, they are going to be for 45 to 60 days in the local jails. Is there any kind of report about how they can handle it? Is there any sense about whether the jails are crowded? Is there any idea about what the Governors say? Is there any idea about what local communities say? No. But this happens to be the fact. There are seven different places where they put these mandatory penalties in. Under current law, for the entry of criminal offenders, with three or more misdemeanors involving drugs, crimes against persons, or both, or a felony: fine, not less than 10 years, or both. In the bill, S. 1348, we say, three misdemeanors or one felony gets a penalty of not more than 10 years in jail. What does the Graham amendment say? New mandatory minimum creates minimum penalty of 1 year. So they say you get 1 year. We say you can get up to 10 years. Why the difference? Because we want the judge to make the decision on the severity of the crime. Here, we go down to the prior aggravated felony conviction penalty, which under current law is not more than 20 years. We, in the bill, say the penalty can be 15 years, or a fine, or both. Under the Graham amendment, it is 2 years and a fine. Once more, we leave it up to the judge. If we have the serious kinds of penalties, they ought to get the serious time. Who is being tougher on crime? We are listening to the Senators from South Carolina and Georgia: We are tough on crime. Who is tough on crime? Come on. The list goes on. If you are caught, you are a repeater, you are caught back across the border with a prior conviction for murder, rape, kidnapping, slavery, terrorism, then the penalty is not more than 20 years. Under the Graham amendment, it is 5 years--the new mandatory is 5 years. Ours is 20 years. We let the judge make that decision, but his is 5 years. Now, I have been a strong supporter of sentencing reform from the very beginning. We have had these enormous disparities on the issue of sentencing. The Sentencing Commission was supposedly to make an evaluation about the nature of the crimes taking place in the country, the space that exists in the various States and Federal institutions and to make recommendations in terms of what the scope ought to be in terms of various crimes and what the availability is in these various penal institutions and how they compare to other kinds of crimes. It seems to me that is what we ought to be doing with the penalties in this legislation as well. Let's listen to Supreme Court Justice Kennedy, who has vigorously criticized mandatory minimums as unfair and inconsistent with the fundamental principles of justice. In February, he was very clear in his opposition to penalties in his testimony before the Senate Judiciary Committee. He also said mandatory minimums are wrong because they restrict the ability of judges to strike the best balance between the goal of consistent sentencing and the need to give judges discretion to make the punishment fit the crime in individual cases. That is what we have in the underlying law. In 2003, Justice Kennedy said: I can accept neither the necessity nor the wisdom of Federal mandatory minimum sentences. In too many cases mandatory minimum sentences are unwise and unjust. The legislative branch has the obligation to determine whether a policy is wise. Now, I am more than willing to establish tough penalties where appropriate, but we have to draw the line with a rash of mandatory minimum sentences in current law. We have a new Congress and a new opportunity to stop the madness with mandatory minimums that impose long and costly sentences. Moreover, there is no suggestion that these penalties make a great deal of sense. If anything, they are already causing a terrible burden. There is no epidemic of leniency in the Federal courts today. We have not heard, in hearings in the Judiciary Committee, about leniency in terms of the crimes--we have not--nor with regard to these different provisions. The Federal prison population has quadrupled in the last 20 years. Now it is larger than any State system. The addition of new mandatory minimums only places further strains on the Federal prisons, which are already struggling with a growing population, along with diminishing budgets. Justice Rehnquist made the following observation about mandatory minimums: Our resources are misspent, our punishments too severe, our sentences too long. That is his statement in opposition to mandatory minimums. We have the statements that have been made by the 2006 Conference of Mayors, representing 1,100 mayors and cities with populations over 300 that passed a resolution opposing the mandatory minimum sentences. It called for a fair and effective sentencing policy. The Nation's mayors are opposed to mandatory sentences on both Federal and State levels. Our mayors believe we should have laws that permit judges to define appropriate sentences based on the specific circumstances of the crime and the perpetrator's individual situation, and that States should review the effects of both Federal and State mandatory minimum sentencing and move forward. As I say, that is my position on this. I am under no illusions about what the desire and the will of this institution is on this particular proposal. I yield the floor.

Mr. KENNEDY. Mr. President, I indicated in my earlier comments about the different provisions that exist in the law, the kind of flexibility that is out there to deal with serious crimes. But with the mandatory minimums you have a blunderbuss solution. There is no ability or flexibility at all to be able to deal with it. The Federal Bureau of Prisons estimates it costs $67 a day for each person in jail. Estimates are it costs $90 per day to detain an immigrant. Right now each immigrant spends an average of 42.5 days in detention prior to deportation, at an average cost of $3,825. Senator Graham's 60-day mandatory minimum for illegal reentry would increase the total spent in detention by 17.5 days, which increases the cost of detention per immigrant to $5,400. These increased costs couldn't be avoided because the mandatory minimum won't let the judge give any defendant a lower sentence regardless of the facts. This is a major problem with the mandatory, and this amendment would be a costly mistake. The fact is the States pick up before the individual enters the system, the States pick up the tab. So New Mexico, Arizona, California, and Texas, you are going to have this new mandate and expenditures for it. Last year, 11,000 immigrants were charged with the offense of improper entry. If this amendment passes, we are looking at increasing the costs by millions of dollars. According to 2005 data, the U.S. Government has the resources to hold 19,000 immigrants. It represents less than 1 percent of the undocumented population. This amendment may also require us to build new facilities to house these people, new prison beds, $14,000 per bed. We don't know how many beds will have to be built if this amendment is adopted. It seems the provisions we have in the legislation make sense, and if the Senator wanted to alter his amendment and say: Let's let this go to the Sentencing Commission and let them make the recommendations, which we have done on other pieces of legislation to permit the penalty to suit the crime, I would say amen. But this amendment is going to put an important additional burden on the local communities, and it doesn't have the flexibility we have in the existing legislation in terms of dealing with those who are the real bad guys in this process. We have that ability in the existing legislation. The idea we are going to make it mandatory for people to go in for this period of time takes away that kind of flexibility, which is desirable. I see my friend and colleague from New Mexico on the floor and I know he desires to speak.

Mr. KENNEDY. Mr. President, briefly, to quote from the American Bar Association, this was their comment a year ago on the previous immigration bill on the same subject, on the issue of mandatory minimums when this issue came up during that time: The American Bar Association strongly opposes the provisions in the draft legislation-- That was the draft legislation a year ago-- that would enhance or create new mandatory minimums. First, as a general matter, the mandatory minimums produce an inflexibility and rigidity in the imposition of punishment that is inappropriate for a system that we hold out to the world as a model of justice and fairness. To insist that all those convicted of a crime be lumped into the same category and be penalized indefinitely inevitably means the injustice of a sentence in particular circumstances will be ignored. Additionally, we are concerned at the high cost of imposing mandatory minimums. Numerous studies have demonstrated the extraordinary costs of incarcerating thousands of nonviolent offenders in our Nation's prisons and jails. The provisions to create the new mandatory sentences, coupled with those to increase the mandatory detention, have the potential to greatly increase the number of individuals being incarcerated in immigration-related cases at a significant cost to the American taxpayers. We have provisions in the legislation that are tough and that a judge can use and must use in those circumstances which require it. But I think to effectively tie the judge's hands in these other circumstances makes little sense. I see the Senator from California on the Senate floor. I would like to ask how the Senator wants to dispose of this amendment.

Mr. KENNEDY. Mr. President, I suggest that we proceed with the Senator from California and then come back to that.

Mr. KENNEDY. Mr. President, I ask unanimous consent that we go now to the Senator from California and her amendment.

Mr. KENNEDY. Mr. President, I will not take much time. I commend and thank the good Senator from California. This is an extraordinary humanitarian need. I have listened to the Senator from California on the floor, I have listened to her in committee, and I have listened to her at hearings. This is a matter of enormous importance. It relates to minors, children, vulnerable people, and the record of exploitation. This amendment is well thought out. She has had strong bipartisan support for it. In the past, there has not been objection to this amendment. I know of no objection to it. It is an extremely worthwhile amendment. I have spent a good deal of time commending her and talking about the amendment, but she has done an excellent job in its presentation. I certainly hope we will accept this amendment. I believe we are prepared to accept it.

Mr. KENNEDY. Mr. President, if the Senator will yield, I ask unanimous consent that the previous incomplete voice vote on amendment No. 1173 be vitiated and the amendment be agreed to. This is the Graham amendment.

Mr. KENNEDY. I had hoped we could voice vote the amendment of the Senator from California. I have been notified that we cannot voice vote it, so we will have to have a rollcall vote on that amendment. I believe the Senator from California is prepared to go ahead.

Mr. KENNEDY. Yes, I will be glad to yield for a question.

Mr. KENNEDY. Yes.

Mr. KENNEDY. That is an excellent suggestion, if the Senator from Pennsylvania thinks it is a good idea.

Mr. KENNEDY. I think we ought to do that in a few minutes. I am hopeful we will be able to do it. I hope that request will be made either during or after the debate on the amendment of the Senator from New Hampshire.

Mr. KENNEDY. So, Mr. President, just before the Senator from New Hampshire begins, we are moving along. We are going to take up the amendment of the Senator from New Hampshire, and then it will come back to our side. We have several Senators who have indicated a desire to offer an amendment. Then I believe it will go back to the other side, and I believe Senator Cornyn has an amendment. That is how we will proceed. We intend to go back and forth. We have quite a list here. We are making progress. I am grateful for all the cooperation we have had. I yield the floor.

Mr. KENNEDY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KENNEDY. The Senator from California, Mrs. Feinstein, had an amendment. I understand now that we are prepared to voice-vote that amendment.

Mr. KENNEDY. Mr. President, now we have the Gregg amendment that is pending; am I correct?

Mr. KENNEDY. Mr. President, I will say a brief word about this amendment. If others want to say a word about it, that is fine. Then I intend to make a motion to table it. Mr. President, the Judiciary Committee, long before we developed this legislation, had extensive hearings about border security. We listened to Secretary Chertoff speak. We listened to him both in open session and in closed session. I am convinced those recommendations were the best information that we had in terms of our border security and they are incorporated in this legislation. It is a reflection of a bipartisan effort to make sure that we are going to do everything that is necessary and can be done to provide a secure border. We are using the latest in technology. They are using the fence areas where they believe that is appropriate and have the support to do it. They are using the latest in terms of aerial drones, the latest in terms of barriers that are out there. All of the latest in technology will be used in terms of securing our border. Now, the Senator from New Hampshire says he wants additional kinds, as well as dramatic increases, in the total number of Customs agents. What we have to understand, what has been clear since we have started this whole kind of a process is, if we are going to control our border, as we have heard from Homeland Security, the leader of Homeland Security, it has to be comprehensive. You have to have a secure border, but you also have to have some opportunity to have a border which permits individuals to be able to come through the front door if you are going to help them. What I mean is, you are going to have to complete this in a timely way. If we just think we are going to be able to delay the completion of a comprehensive program, which the Gregg amendment will do, we are going to find out the borders are going to continue to be penetrated over the foreseeable future. That just happens to be the fact. We made those points at the time to those who have said they want to abolish or close out a temporary worker program. If you think you can build a border and have border security there and have no opportunity for any individuals to be able to come in legitimately, you have not listened to the record and you have not listened to the testimony and you have not listened to those who have been responsible for national security. They say you have to have some opportunity for individuals to choose the more hopeful aspect rather than risk their lives out in the desert. Now, with the Gregg amendment, what that will do is effectively ensure that we are denied a temporary worker program, we are denied the opportunity to have any chance for individuals to come through the front door. As Governor Napolitano pointed out very clearly in her record materials that we have used previously, if you build a 50-foot high fence, those who want to come in will build a 51-foot high ladder. That happens to be the fact. That is why we have heard from those who have been involved in national security and border security who say: You need the comprehensive approach that is the underlying bill. I think the Gregg amendment will delay the opportunity for us to do the underlying kind of effort to which we have been committed. I think, therefore, we should not accept that.

Mr. KENNEDY. Mr. President, I move to table the Gregg amendment and ask for the yeas and nays.

Mr. KENNEDY. I will.

Mr. KENNEDY. Mr. President, I see the Senator from New Hampshire. I would be glad to withhold if the Senator wanted to address the Senate; otherwise, I will make a motion to table the Gregg amendment.

Mr. KENNEDY. Mr. President, I will include in the Record the Homeland Security proposal that was shared with the members of the committee. We asked what was going to be necessary for secure borders. I have in my hand the proposal of Homeland Security. That is what we have included in this legislation, their recommendations. I am sure we could always do more and more and more, but what we have done is taken what has been the recommendations of Homeland Security in each and every one of these areas. They have made it very clear that in carrying forward and reaching these recommendations it is going to take a combination of different elements. It is going to take their own kind of manpower to be able to reach this. It is going to take the technology to be able to reach it--over what period of time in terms of the contracting, and all the rest. But as to what was necessary in terms of securing the border, that was it. We are all for it. This is what they told us. That is what we have accepted. We have gone over the list. I will make it part of the Record. It goes over the numbers of hires, going all the way into the Border Patrol agents. They come into the whole issue of border barriers and surveillance, the number of miles each year planned, what they believe is necessary. They review what they believe is the timeline for the catch and return, the number of beds that are going to be necessary. They go through the various milestones, the start-up costs, the actual recurring costs. They have outlined all of this in very careful detail. That is what we have done. Every Member of the Senate ought to understand, these are Homeland Security's recommendations to secure the border, and that is what we have included in the legislation. It is always possible, I am sure, to be able to do more. We have done what was recommended to secure it, and I think it is a very effective program. Mr. President, I ask unanimous consent that the material be printed in the Record.

Mr. KENNEDY. Mr. President, I now move to table the amendment of the Senator from New Hampshire.

Mr. KENNEDY. Mr. President, I would make a motion to table the amendment of the Senator----

Mr. KENNEDY. From New Hampshire, and I ask for the yeas and nays.