F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman from California (Mr. Cunningham).

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 4306) to amend section 274A of the Immigration and Nationality Act to improve the process for verifying an individual's eligibility for employment, as amended.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 4453) to improve access to physicians in medically underserved areas, as amended.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 4453.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, H.R. 4453, introduced by the gentleman from Kansas (Mr. Moran), would extend the program under which foreign doctors can avoid having to return home for 2 years by agreeing to practice in medically underserved areas here in America. Aliens who participate in medical residencies in the United States on the ``J'' exchange program visas must generally leave the U.S. after the completion of their residencies and reside abroad for at least 2 years. The intent behind the policy is to encourage American-trained foreign doctors to return home to improve health conditions and advance the medical profession in their native countries. In 1994, Congress created a waiver of the 2-year foreign residence requirement. State departments of public health may request a waiver for foreign doctors who commit to practicing medicine for no less than 3 years in geographic areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals. The number of foreign doctors who can receive this waiver is limited to 30 per State each year. The waiver program has proven to be an important means of ensuring quality medical care in areas of the United States with physician shortages. This bill would extend the program to June 2006. It would also allow each State to place five of the doctors it sponsors each year in areas not designated by HHS as physician-shortage areas. The bill continues the practice of allowing foreign doctors receiving a waiver to receive an H-1B visa regardless of the H-1B visa quota and will allow doctors receiving waivers to practice specialty medicine. I urge my colleagues to support this bill. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Kansas (Mr. Moran), the author of the bill.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I offer an amendment.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, on September 22, 2004, the Committee on the Judiciary met and considered this combined Victim Rights-DNA bill. It was reported voted favorably, without amendment, on a voice vote. At the time, I assured my colleagues who raised concerns about the legislation that we would work with them as well as the Department of Justice to address the concerns. I believe this amendment represents a positive compromise in our efforts to address those concerns while protecting victims and ensuring DNA testing will be available to exonerate the innocent and to identify the guilty. In the victims' rights portion of the legislation, we worked out a number of provisions with the authors of that part of the bill and the victims' rights groups to address issues raised by the Department of Justice, the courts, and outside groups. The result was a compromise that I believe effectively addresses the needs of victims of crime to be more involved in the criminal justice process but will not result in delaying court proceedings nor infringing on the right of a defendant to a speedy trial. To address privacy concerns raised about DNA databases, my amendment includes increased penalties for misuse of DNA analyses from $100,000 to $250,000, and the possibility of a year in prison to discourage any person who would seek to misuse DNA for personal gain. The amendment also requires a report to Congress if the Justice Department plans to modify or supplement the core generic markers needed for compatibility with the national DNA database. This is essential to reassure those who raise civil liberty concerns that DNA samples entered into the combined database would not be used for inappropriate purposes. The legislation authorizes a substantial amount of money to provide grants to States to eliminate their DNA backlogs. Some have raised the concern that there may be some States that do not have a substantial backlog and, thus, would not receive funds. To ensure that the States are effectively using their resources, the amendment allows a State that has no DNA backlog to apply for grants for other forensic sciences. With regard to the provision relating to the post-conviction DNA testing, the amendment offers a compromise, as I have previously stated, between those who wish to have no time limit on the ability of convicted persons seeking DNA testing and those who insist on a limitation of time, lest convicted persons game the system by waiting until the witnesses have died or waiting until the evidence has evaporated, thus effectively preventing a retrial. The compromise provides for a 5-year period in which there would be a rebuttable presumption in favor of granting the DNA test. After 5 years, there is a presumption against granting a test unless the court finds that the applicant was incompetent, there is newly discovered DNA evidence, denial would result in a manifest injustice, or for other good cause shown. The amendment also includes tighter language to ensure that defendants cannot make repetitive motions for relief. Because some of my colleagues in the Department of Justice raised concern about the standard for granting a new trial, the amendment increases the standard for obtaining a new trial to require that there be compelling evidence that a new trial would result in an acquittal. This represents a compromise from the preponderance of evidence and clear and convincing evidence. With respect to funding prosecution and defense representation in capital cases, the original bill and this amendment do not allow funds to be used directly or indirectly to fund representation in specific capital cases. Additionally, report language on the DNA provision prohibits the creation of capital resource centers. This amendment tightens the provisions relating to the training and appointment of capital counsel. The amendment specifies that no less than 75 percent of the funds shall be used to carry out training for representation and the creation of an effective system at the trial court level. No more than 25 percent of the funds shall be used to carry out training and systems for appellate representation. The amendment also reduces the authorization of grants to States to provide training to defense attorneys and prosecutors, and to establish a system of appointment of counsel in capital cases. Finally, the amendment provides for notification 180 days before the destruction of biological evidence, and provides that the time period will not begin to run until any direct appeal of the conviction was complete. This will ensure that the evidence in the case is preserved to benefit both the defendant and the government if the conviction is reversed. I believe this amendment represents a good compromise package which will help ensure justice for all. I urge my colleagues to support it. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Wisconsin (Mr. Green).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the original author of the Innocents Protection Act, the gentleman from Illinois (Mr. LaHood). (Mr. LaHOOD asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Arizona (Mr. Flake).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, the issue raised by the gentleman from Arizona (Mr. Flake) was one of the most vexatious issues in the negotiations that are leading up to the manager's amendment, which I will offer shortly. And the most difficult of the issues that the manager's amendment deals with relates to the time limit for seeking post-conviction DNA testing. On one side there were a group of people who wanted to have no time limit at all, and a motion could be made at any time as long as the defendant was still alive and in jail. On the other side, there were people who wanted to have a hard and fast limit, and the shorter the limitation possible they were in favor of. Those people said that defendants would simply game the system waiting until the witnesses had died and the DNA had evaporated and, consequently, there would not be enough evidence to conduct a retrial. The compromise that was worked out, I think, is a fair one. For the first 5 years after conviction, there is a rebuttable presumption in favor of the test. After 5 years, there is a rebuttable presumption against the test, but the defendant can get a motion granted if the court finds that the applicant was incompetent at trial, there is newly discovered DNA evidence, or that denial of the motion to retest would result in manifest injustice or for good cause shown. So, for the first 5 years, the burden is on the prosecution to show that the test should not be granted. After 5 years, the burden effectively is on the defendant to show that the test should be granted for the reasons that I have enumerated. I believe that takes care of the concerns that the gentleman from Arizona (Mr. Flake) has expressed, and I would urge adoption of the manager's amendment and overwhelming support of the bill. Mr. Speaker, I ask unanimous consent that a letter from the National District Attorneys Association expressing support for the manager's amendment to H.R. 5107 be included in the Record. National District Attorneys Association, Alexandria, VA, October 6, 2004. Hon. Jim Sensenbrenner, Committee on the Judiciary, Rayburn House Office Building, Washington, DC. Hon. John Conyers Jr., Committee on the Judiciary, Rayburn House Office Building, Washington, DC. Dear Chairman Sensenbrenner and Congressman Conyers: As President of the National District Attorneys Association I want to express my support for the Managers Amendment that I understand has been offered to H.R. 5107 the ``Justice For All Act.'' The Amendment has addressed our major concerns with the ``Advancing Justice Through DNA Technology Act.'' The clear indication that Capital Resource Centers are not to be funded through federal funds is important as is the stipulation that the funding is to be used for training counsel in capital cases. While the compromise standard for new trials does not reach our criteria of a ``preponderance'' it is a marked improvement over prior efforts. The importance of DNA to our system of criminal justice cannot be over emphasized and the problems that our laboratories and courts are encountering are in our daily headlines. ``The Justice For All Act'' provides the resources desperately needed by the states to overcome serious impediments to the effective use of DNA to seek justice and truth in our criminal justice system. Sincerely, Paul F. Walsh Jr., District Attorney, Bristol County, MA, President, National District Attorneys Association.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 823, I call up the bill (H.R. 5107), to protect crime victims' rights, to eliminate the substantial backlog of DNA samples collected from crime scenes and convicted offenders, to improve and expand the DNA testing capacity of Federal, State, and local crime laboratories, to increase research and development of new DNA testing technologies, to develop new training programs regarding the collection and use of DNA evidence, to provide post-conviction testing of DNA evidence to exonerate the innocent, to improve the performance of counsel in State capital cases, and for other purposes, and ask for its immediate consideration.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise today in support of H.R. 5107, the Justice for All Act of 2004. This bill is called ``justice for all'' because it will enhance the rights and protections of all persons who are involved in the criminal justice system. It does this through two different but complimentary mechanisms. First, a new set of statutory victims' rights that are both enforceable in a court of law and supported by fully-funded victims-assistance programs; and, two, a comprehensive DNA bill that seeks to ensure that the true offender is caught and convicted of the crime. Victims of crime have long complained that theirs are the forgotten voices in the criminal justice system. For example, Roberta Roper, whose daughter Stephanie was kidnapped, brutally raped, tortured and murdered in 1982, testified before the Subcommittee on the Constitution that, unlike her daughter's killers, she had no right to be informed, no rights to attend the trial and no rights to be heard before sentencing. Her experience, and that of many others like her, have led victims' rights advocates to push for a victims' rights statute to counterbalance the rights provided to the accused under the Constitution. The victims' rights portion of this bill originated with S. 2329, which passed the Senate on April 22, 2004, by a vote of 96 to 1. Like S. 2329, this bill contains eight enumerated rights for the victim, including the right to be reasonably protected from the accused, the right to timely notice of public court proceedings involving the crime, the right not to be excluded from such public court proceedings, the right to be reasonably heard at those proceedings, the reasonable right to confer with the prosecutor, the right to restitution, the right to proceedings free from unreasonable delay and the right to be treated with fairness and respect. Each of these rights is enforceable by both the prosecutor and the crime victim. The crime victim and the prosecutor may assert the crime victim's right and, if necessary, seek a stay of any proceedings in which the victim's rights are being denied. The government or the crime victim can then seek a writ of mandamus from the appropriate Court of Appeals to ensure that the crime victim's rights are protected. In addition, the Justice for All Act contains important provisions to ensure that the criminal justice system will continue to operate in an efficient manner and that there will be an appropriate level of finality to all proceedings. Finally, this legislation will provide funds for victims' assistance programs at both the Federal and State level. Of particular importance are funds to support programs that provide legal counsel for crime victims. These funds will help to develop a body of laws to protect the rights of victims in the Federal courts. The National Crime Victim Law Institute is but one example of an organization that provides the type of legal counsel envisioned by the bill. The bill is not identical to the Senate-passed bill, but it is close. Since Senate passage, the committee has worked with many interested parties on these issues. That process resulted in H.R. 5107 which, as introduced, addressed many of the concerns raised by S. 2329. However, at the Committee on the Judiciary's markup, I stated that we will continue to work on this bill until we have the best bill possible. After several more weeks of negotiations, I believe that the manager's amendment, which I will offer in a bit, moves even further in the right direction and now represents that best possible bill. The second important element of the Justice for All Act contained in titles II through IV pertains to the use of DNA technology. These provisions come from H.R. 3214 which passed the House by a vote of 357 to 67 on November 5, 2003, but continues to await action in the Senate. The DNA portion of the Justice for All Act as introduced was identical to the version of H.R. 3214 passed by the House last November. Titles II through IV of the Justice for All Act seek to resolve another problem that victims face, the frustration and depression over the length of time it takes to track down and apprehend the attacker. DNA samples can help to quickly apprehend offenders and solve crimes if law enforcement agencies have access to the most up-to-date testing capabilities. Additionally, DNA technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system. DNA can identify criminals with incredible accuracy when biological evidence exists, and DNA can be used to clear suspects and exonerate persons mistakenly accused or convicted of crimes. The current Federal and State DNA collection and analysis system needs improvement. The Justice for All Act will provide the necessary funding to ensure these critical programs have access to the necessary equipment and training. It will provide funds to eliminate the backlog of DNA samples in need of testing and provide greater access to potentially exculpatory evidence to those who may have been wrongfully convicted of a crime. However, as we did with the victims' rights portion of the bill, we have continued to work with all parties to address concerns relating to the DNA testing portions of the bill. Those changes, which are reflected in the manager's amendment, greatly improve the bill, and I will describe them in greater detail when the amendment comes up. As I mentioned earlier, this bill has been the process of lengthy negotiations among many different parties. Most of the parties have worked to get this result, and I think they now believe that this is a good product. Unfortunately, however, the Department of Justice was unable to come to this conclusion. I, and the other cosponsors of this legislation, bent over backwards to satisfy their concerns. No matter how much we bent, nothing would satisfy them. As chairman of the committee with the authorizing jurisdiction over the department, I am very disappointed with its position on this bill. This bill contains many, many good things for the department, and its absolute obstinence despite many, many efforts to compromise is completely unreasonable. This reminds me of the debate over the breakup of the Immigration and Naturalization Service in 2002, a clearly dysfunctional agency that needed reform. Out of blind bureaucratic inertia, the department opposed that much-needed legislation until the very last moment. In short, Mr. Speaker, I sincerely hope that the department will come to its senses, throw off its blinders and endorse this good and important legislation. I would finally like to thank those who did cooperate in this process. The chairman of the Subcommittee on the Constitution, the gentleman from Ohio (Mr. Chabot) has been a tireless advocate for victims' rights, as well as the gentleman from Michigan (Ranking Member Conyers), the gentleman from Massachusetts (Mr. Delahunt), the gentleman from Wisconsin (Mr. Green), the gentleman from Illinois (Mr. LaHood), the gentlewoman from New York (Mrs. Maloney), and all of the other important cosponsors for this important bill. In addition, I want to thank my own staff, Katy Crooks, and general counsel, Philip Kiko, Jay Apperson, and Stewart Jeffries, as well as staffers of the gentleman from Massachusetts (Mr. Delahunt), Mark Agrast and Christine Leonard. This would not have happened without their tireless work. I urge my colleagues to support this very good bill. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 5107.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that the gentleman from Texas (Mr. Barton) and I be allowed to yield portions of the time that has been yielded to us by the majority leader.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 6 minutes. Mr. Speaker, I thank the majority leader for calling up this bill which is appropriately named in tribute to our colleague, the gentleman from Louisiana (Mr. Tauzin), who will retire at the end of this year after having served the citizens of Louisiana for more than a quarter century. This bill is a product of a remarkable collaborative effort that has involved members of the Committee on the Judiciary and Committee on Energy and Commerce. I would like to especially thank the gentleman from Texas (Mr. Barton) for his excellent cooperation through this entire process. The manager's amendment to the bill, which the Committee on the Judiciary approved unanimously on July 7, 2004, incorporates H.R. 4501 which was the Committee on Energy and Commerce version of the bill reported on July 22. The manager's amendment incorporates important refinements to both the copyright and communications acts. These provisions are designed to extend for an additional 5 years the license that permits satellite TV companies such as DirecTV and EchoStar to retransmit to their subscribers TV programming shown on distant network stations and superstations. The extension will ensure that Americans who live in rural areas where they have trouble receiving signals from the regular broadcast stations will continue to have access to network TV programming. Significantly, this bill does not simply preserve the status quo for the statutory period. Instead, the bill changes both the copyright and communications acts to ensure, first, that consumers will have greater choice in programming; second, that satellite providers will have greater freedom to deliver the content consumers desire; third, that free, over-the-air local broadcasters will have the opportunity to serve needs that are specific to their communities; and, fourth, the copyright owners will enjoy the first compulsory royalty fee adjustment in nearly 5 years. The amendments have been carefully negotiated and crafted. They have benefited from an open process which has involved at least four committee hearings, the introduction and mark-up of two committee- reported bills to the House, and a willingness to consider numerous refinements to achieve the right policy and to gain consensus. As a result, the bill is supported by numerous organizations including the National Association of Broadcasters, numerous local broadcast stations, and the Capital Broadcasting Company. In addition, the royalty provision contained in the judiciary title has been specifically endorsed by effective stakeholders. This is a culmination of a painstaking effort under the leadership of the gentleman from Texas (Mr. Smith) and the ranking member, the gentleman from California (Mr. Berman), who encouraged affected parties to negotiate a voluntary agreement. As a result, the section 119 rate provisions contained in the manager's amendment are now supported by the two largest DBS providers, DirecTV and EchoStar; their trade association, the Satellite Broadcasting and Communications Association, and major copyright owners including the Motion Picture Association and the Office of the Commission of Baseball. Together those entities represent the copyright owners who receive the overwhelming majority of copyright royalties paid under the license and the satellite carriers who make the vast majority of such payments. In return for extending the license to satellite companies, the bill does require the beneficiaries to accept certain reporting requirements. These requirements are designed to protect the legitimate interests of copyright owners and free over-the-air broadcasters. I would like to take a moment to acknowledge the contributions of the subcommittee chairman, the gentleman from Texas (Mr. Smith). We could not have reached this point without his steady work. I also want to thank the gentleman from Texas (Mr. Barton) for all his help and support during the process. Thanks also go to other key players, the gentleman from Michigan (Mr. Upton), the gentleman from Michigan (Mr. Conyers), the gentleman from California (Mr. Berman), the gentleman from Michigan (Mr. Dingell), and the gentleman from Massachusetts (Mr. Markey), all of whom have made significant contributions to this effort. I appreciate all their efforts. I am pleased that we have been able to work together in developing this joint bill, and I look forward to building on this success next year. The bill promotes the interests of consumers, satellite providers, broadcasters, and copyright owners. It is a balanced bill and deserves the support of this House. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield the balance of my time to the gentleman from Texas (Mr. Smith), the chairman of the Subcommittee on Courts, the Internet, and Intellectual Property. (Mr. SMITH of Texas asked and was given permission to revise and extend his remarks, and include extraneous material.)

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I rise in support of the amendment offered by the gentleman from Idaho. And I know that an underlying argument on both sides of the aisle is whether one likes or dislikes the controversial decisions the Ninth Circuit has rendered from time to time. I would hope that we would disregard that and look at the statistics, that the Ninth Circuit has become unwieldy. I agree with the gentleman from Idaho that the Ninth Circuit is going to get split sooner or later. I believe that he has an amendment to accomplish this split in the best manner possible. Now, let us look at why the Ninth Circuit needs to be split. First, it has 48 judges already serving, seven more are created in this bill, and that is a figure that approaches twice the number of total judges in the next largest circuit. Second, the population of the territory within the Ninth Circuit is 56 million people, and that is roughly one-fifth of the Nation's population, and 25 million more than the population of the next largest circuit. The Ninth Circuit comprises nearly 40 percent of the geographic area of the United States. So that means, to come to get your appeal heard, one, in many instances, has to travel much farther, to San Francisco, than litigants in the other circuits to get to where those circuits sit. The Ninth Circuit has the most number of appeals filed and the highest percentage increase in number of appeals filed, the most number of appeals still pending, and the longest median time until disposition. Now, having said all of these statistics, why should we delay in dealing with the split of the Ninth Circuit? There are some who have proposed only one additional circuit be created, whether it includes all the States outside of California, Hawaii, Guam, and the northern Mariana Islands or whether the circuit should be divided into three pieces. I think that what the gentleman from Idaho has done in dividing the Ninth Circuit into three, a new Ninth Circuit, a new 12th Circuit and a new 13th Circuit will make for the most efficient administration of justice. I grant the point that most of the appeals arise from California, and that is why the gentleman's amendment has all seven of the new judges, five permanent and two temporary, sit with the newly reconstituted Ninth Circuit in the State of California. This is an idea whose time has come. If we delay adopting this amendment, we are just going to have more administrative problems caused by higher caseloads, so we might as well do it now; and I would urge the committee to support the amendment.