Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. I would like to follow up on that. The company that bought them, bought your friend Jerry's business, presuming they were a broadly held stock corporation, maybe of national size--that corporation would never have to plan its economic future with the fear of having to pay an estate tax because corporations do not pay death taxes; is that correct? Isn't that a factor, an economic incentive we have created for small businesses to sell out to big businesses when really they ought to be competing against them and keeping them honest?

Mr. SESSIONS

Mr. SESSIONS. I thank the Senator from Nevada for his courtesy. I will speak about Callie--known as Ginny--Granade, who will be voted on shortly for the U.S. district judgeship for the southern district of Alabama. Ginny Granade is a nominee of the highest order. President Bush has nominated her to be the judge in the southern district of Alabama. She has the temperament, integrity, legal knowledge, and experience that will make her an outstanding jurist on the Federal bench. I know this from firsthand experience. She served as assistant U.S. attorney when I was U.S. attorney for 12 years. She had been originally appointed assistant U.S. attorney by my predecessor in the late 1970s. She served with great skill and distinction. I was there when she was named one of the first senior litigation counsels in the Department of Justice, a position that recognized her extraordinary skill and integrity in prosecuting throughout the country. Later, she became the chief of the criminal section of the U.S. Attorney's Office under my tenure, and then she became the acting U.S. attorney, until recently, when the new U.S. attorney was confirmed by the Senate. Ginny is levelheaded, fair minded, trustworthy, and very smart. She has tremendous capabilities. She graduated from the University of Texas School of Law. After graduation she served as a law clerk to the Honorable John Godbold for the U.S. Court of Appeals for the Fifth Circuit. Judge Godbold was chief judge of the Fifth Circuit. When the Fifth Circuit split, he became chief judge of the Eleventh Circuit. He was one of the great jurists in America. This old Fifth Circuit is the same circuit in which her grandfather served, one of the grand judges of the old Fifth Circuit. He is widely credited as being part of a group of judges on that court who wrestled with and moved the South out of its days of segregation into a new day of race relations. He certainly is a champion of those causes. As Senator Durbin recognized in the hearings, his was a contribution to harmony and integration in the South. Her experience has been particularly valuable for her to serve on the bench. She served for 20 years in the U.S. Attorney's Office where she practiced on a regular basis, in the very same district court for which she has been nominated, as well as her experience in appellate work in the Eleventh Circuit where she always wrote her briefs and argued her cases. The cases she tried have given her extraordinary exposure to understand how a Federal district court works, and more importantly, how a Federal district judge should conduct herself. Since Ginny joined the U.S. Attorney's Office in 1977 as the first female assistant U.S. attorney in the southern district of Alabama, she has proven her merit as an extraordinary prosecutor and leader. Her abilities in the courtroom have been demonstrated time and again in her prosecution of complex white-collar fraud cases, tax cases, public corruption cases, cases of every kind--cases she not only tried but supervised. I remember one case very distinctly. It was the longest criminal case to my knowledge ever tried in the district, 11 weeks. She was the lead attorney. It was a very intense case, with prominent attorneys on the defense side representing prominent defendants. It was well and intensely litigated. At the end of the case, she made, without a doubt in my mind, the finest closing argument I have ever heard. It was down to earth, simple, not emotional, but logical. She took every allegation, every contention of the Government's case and explained patiently and in detail, with that incredibly bright mind of hers, why the allegations in the indictment were true, and obtained a conviction in that case. To me, that is an unusual skill. It is an unusual ability she possesses. I have never in my many years of practice seen anything better. The American Bar Association has unanimously rated her well qualified, the highest rating one can receive. I thought that was a great testament to her reputation with the attorneys in the southern district of Alabama. They know her. They know her reputation. They are the ones to whom the Bar Association talks. It was a tremendous affirmation of the excellence of her career and the integrity she displayed year after year after year. Former Senator Howard Heflin of Alabama, who also was chief justice of the State of Alabama, and a Democrat, is a fan of Ginny Granade and has supported her and stated he knows of no opposition to her appointment. Her litigation skills, as well as a command of the complex issues, has won her respect and admiration and overwhelming support throughout her area of practice. I am glad we are moving on this nomination. We have a judicial crisis in the southern district of Alabama where I practiced for many years. I received a letter from our chief district judge, Judge Charles Butler, who underscored the need to get this position filled. He is the only active judge who is serving now in that district. The district is authorized three judges with a fourth approved by the Judicial Conference of the United States. One of these vacancies--the one being filled today--will be the longest district court emergency vacancy in the country, one that is a crisis because we have so few judges and such a heavy caseload. So I really appreciate the willingness of the Senate to move this nomination forward today. One of the things I think is most valuable as a judicial characteristic is that a judge should have good judgment at the basic level. You can tell people who have good judgment. When people have good judgment, people ask them for their opinion. They seek out their judgment. When I was U.S. attorney and I had a tough question and a difficult matter to wrestle with, and I often did, I went to Ginny Granade's office and asked her opinion, as did every other lawyer in the office. In fact, judges were even aware of that. Young lawyers also sought her opinion before they went to court, to ask how they should handle a case or what she thought was the legal answer to this, or is this evidence admissible, or is that evidence going to be excluded. They would get her opinion first. The story is often told that young assistant U.S. attorneys who appeared before Federal judges in the district, who were cornered about the way the Federal judge thought about the law, would say, ``Well, Ginny told me that is what it was.'' That was generally enough to get at least a respectful hearing by the judge. I suggest in the filling of this vacancy with Ginny Granade as a Federal judge, we are going to have done a good day's work. The district will have a person of integrity and ability, a person who has never been politically engaged in any way but who always has loved the law, has been a person of absolute integrity, a person who worked exceedingly hard, who I know respects the position of a Federal judge, who will work to master it in every conceivable way, and once that is done will preside with the most wonderful temperament but in charge at all times. She has had the experience to do this. I am excited for her. I am excited for the attorneys in the Southern District of Alabama who will have the honor to practice before her. In my view, a highly important characteristic of a judge is he or she is a judge you look forward to appearing before. Some judges, will give a lawyer a headache just thinking of going into their court. Other judges make the practice of law a delight. Her experience and practice make me confident that the lawyers and the litigants in the Southern District of Alabama will enjoy and appreciate their opportunity to be in the courtroom she will control and preside over. She will represent the Federal Government and the laws of the United States in an exemplary manner. I am delighted her nomination will be before this body shortly. I am confident she will receive the same unanimous vote that the ABA gave her, with their highest recommendation. I yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. SESSIONS

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

Mr. SESSIONS. That we lay aside the pending amendment and I and Senator Allen be allowed to offer an amendment.

Mr. SESSIONS. I ask unanimous consent to lay aside the pending amendment in order that I might introduce my own amendment, along with Senator Allen.

Mr. SESSIONS. Mr. President, the cost is $15 billion this year, but it saves the Treasury $15 billion next year because that money would have been paid out earlier than would otherwise have been the case. I ask that we accelerate the 25-percent individual income tax rate reduction that is now set at 27 to go to 25 by the year 2002, instead of 2006. We would accelerate that to this year providing families a break on their tax return. For example, an individual making $27,000 to $67,000 would receive a 2-percent break on their tax return. We would allow penalty-free IRA withdrawals for health insurance premiums for unemployed workers. That has the potential to help people who are hurting and need health insurance. We would increase the child tax credit from $500, as it is today for the year 2001, to $1,000 per child, allowing families to receive an additional $500 tax credit on their tax returns for this year. We would do that just for 1 year because it is my belief that we need a stimulus in the economy now. It is going to phase into a $1,000 tax credit for families over 10 years, but for 1 year we would accelerate that in these economic times to provide relief for families. We would increase from $3,000 to $5,000 the capital loss deduction. A number of plans have had that--both Democrat and Republican. We provide a 3-month $500 tax credit for the purchase of computers for elementary and secondary students, for which Senator Allen is such a passionate proponent, and who will explain in detail. We will extend the unemployment benefit by 13 weeks and provide the option for States to provide unemployment, if they choose, for part- time workers. I think that goes beyond Senator Daschle's proposal and, I believe, would be very much a compromise that would be acceptable across the aisle. We would provide $5 billion for national emergency grants to States for people who are hurting and provide temporary business relief by allowing an additional 2-year depreciation deduction of 30 percent of the adjusted basis of certain qualified properties. That is projected at an approximate $38 billion cost, and it would have a cost this year when the money is pumped into the economy. But by allowing people to take that depreciation deduction early, it would be something not available to them in the future, thereby saving Government expenditures or costs in income in the future. That is a good package. I know Senator Allen wants to talk about it. I believe it is a step in the right direction. There is nothing in this that is not bipartisan. There is nothing in this that is special interest. Every bit of it is fair and just, which stimulates the economy, over $100 billion worth, without creating a bureaucracy, without creating a welfare program, and actually doing the things we want it to do. I thank the Chair and yield the floor.

Mr. SESSIONS. Mr. President, what is the pending business?

Mr. SESSIONS. Mr. President, I thank the Senator from Nevada for his courtesy which he displays so often. The American Family Security and Stimulus Act is a stimulus package that I offered along with Senator Allen and Senator Smith. Several other Senators also support it. It is designed to provide a stimulus to this economy and to middle-class working Americans, by emphasizing help to families who tend to be hurt most in an economic slowdown and by trying to get money into this economy in a way that can move us out of here. It is time to blast out of this recession--not ease out of it. When we look at our budget numbers and our hopes for the future and jobs in America, what we know is that the sooner we get this economy humming again the better. It will even benefit the politicians because we will have more money in our Government Treasury. But, most importantly, it will help create jobs and income for American families and workers. It is time for us to quit dawdling about and get moving on something that can be reached. I know the great leadership on both sides of the aisle has worked really hard. Sometimes I have been wont to call them masters of the universe, as they told us they were going to work out something. Sooner or later, they were going to get an agreement. But time has gone by and no agreement has been reached. So I suggest the plan that we would offer today--Senator Allen and I--is a bipartisan plan that can include much of what is in other people's plans. It also includes some items that would provide stimulus to the economy that are not special interest oriented but family oriented. So everybody should be able to rally behind them. I will make a few brief remarks and then I will allow Senator Allen to make some comments. I hope I might be able to speak on it as the day goes by. The components of this plan include a number of items. I believe one of them that has not been given sufficient thought in this process is the requirement that we advance payment of the earned-income tax credit--a $31 billion program for low-income workers. They get that earned-income tax credit the year after they work as a refund on their tax return. If we could begin to put it on their paychecks now--it is 5 percent--they would receive maybe a 60-cent, 80-cent, or 90-cent-an- hour increase in their pay. It would advance payment maybe $10 billion or $15 billion in this fiscal year's economy when we need that advanced payment, and it would reduce next year's payment. It would be a one- time infusion of cash for hard-working Americans with low income with no cost to the budget over a 2-year period. In fact, I think that is the right approach. I do not believe I sent my amendment to the desk. I send it at this time.

Mr. SESSIONS

Mr. SESSIONS. Twelve minutes would be sufficient.

Mr. SESSIONS. I am delighted to follow the Senator from West Virginia.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I send to the desk a bill entitled the Drug Sentencing Reform Act of 2001. This bill provides a measured and balanced approach to improving the statutory and guidelines system that governs the sentencing of drug offenders. This bill makes two important changes to our Federal sentencing system for drug offenders: First, it reduces the disparity in sentences for crack and powder cocaine from a ratio of 100-to-1 to 20-to-1. It does so by reducing the penalty for crack and increasing the penalty for powder cocaine. Second, the bill shifts some of the sentencing emphasis from drug quantity to the nature of the criminal conduct, the degree of the defendant's criminality. The bill increases penalties for the worst drug offenders that use violence and employ women and children as couriers to traffic drugs. The bill decreases mandatory penalties on those who play only a minimal role in a drug trafficking offense, such as a girlfriend or child of a drug dealer who receives little compensation. In short, this bill will make measured and balanced improvements in the current sentencing system to ensure a more just outcome, tougher sentences on the worst and most violent drug offenders and lighter sentences on lower-level, nonviolent offenders. To understand the changes that I propose, it is necessary to review how we got to the present system. Prior to the promulgation of the Sentencing Guidelines in 1984, judges in the Federal court system had very broad discretion to sentence drug offenders. Because judges had different views on sentencing, one defendant who committed a crime could receive parole while another defendant guilty of the exact same criminal conduct could receive literally 20 years in prison. See, e.g., United States Sentencing Commission, Guidelines Manual 2 (Nov. 2000). Further, because of the existence of the parole system, convicts generally served only one-third of the sentence announced by the judge. Id. There was no truth in sentencing. Thus, the old sentencing system lacked uniformity, honesty, and certainty. In 1984, a bipartisan Congress enacted and President Reagan signed the Sentencing Reform Act as part of the Comprehensive Crime Control Act, Pub. L. No. 98-473, Title II, 98 Stat. 2019 (1984). The Sentencing Reform Act created the Sentencing Commission and instructed it to promulgate sentencing guidelines that would provide more effective, more uniform, and more fair sentences. See generally United States Sentencing Commission, Guidelines Manual 2 (Nov. 2000). As part of this reform, Congress abolished the parole system and substantially reduced good behavior adjustments. Id. at 1. The Sentencing Commission went to work in studying empirical data on average sentences imposed for various crimes prior to the Sentencing Reform Act. See United States Sentencing Commission, Guidelines Manual 9-10 (Nov. 2000). It then made adjustments for acceptance of responsibility and provision of substantial assistance to the government. Id. at 10. On April 13, 1987, the Sentencing Commission submitted its first set of Sentencing Guidelines to Congress. See United States Sentencing Commission, Guidelines Manual 1 (Nov. 2000). After the prescribed period, the Guidelines took effect on November 1, 1987, and applied to all offenses committed on or after that date. Id. at 1. In applying the Guidelines to a particular case, a judge must generally: 1. Determine the base offense level for the offense of conviction; 2. Apply applicable adjustments for the type of victim, the defendant's role in the offense, and whether the defendant obstructed justice; 3. Determine the defendant's criminal history category; and 4. Determine the guideline range based on the defendant's offense level and criminal history category. See U.S.S.G. Sec. 1B1.1 (2000). After all the factors are considered, the judge is required to sentence within a narrow range. Thus, the promulgation of the Sentencing Guidelines and the repeal of the parole system promoted uniformity, honesty, and certainty in sentencing. In 1989, in Mistretta v. United States, 488 U.S. 361 (1989), the Supreme Court upheld the constitutionality of the Sentencing Guidelines. Thus, Federal prosecutors, criminal defense attorneys, and Federal judges have been applying the Sentencing Guidelines for over a decade. In setting the guideline ranges for particular offenses, the Sentencing Commission has to take into account any minimum or maximum sentences established by Congress. In 1986, Senator Dole introduced on behalf of the Reagan administration the Drug-Free Federal Workplace Act of 1986. S. 2849, 99th Cong. 2d Sess. Sec. 502 (1986). See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 117 (1995). That bill proposed several mandatory minimum sentences for drug trafficking offenses based on the quantity of the drug involved in the offense. Under the bill, 500 grams of powder cocaine would have triggered a 5- year mandatory minimum, while it would have taken 25 grams of crack to trigger the same 5-year mandatory minimum. This was a 20-to-l ratio of powder to crack. Ultimately, Congress passed and President Reagan signed the Omnibus Anti-Drug Abuse Act of 1986 that set tough mandatory minimum sentences for various quantities of illegal drugs. Pub. L. No. 99-570, 100 Stat. 3207 (1986). With respect to cocaine, the law was amended to provide that a 5-year mandatory minimum sentence would be triggered by trafficking just 5 grams of crack cocaine or by trafficking 500 grams of powder--a 100-to-1 ratio. 21 U.S.C. Sec. 841(b)(1)(B)(ii) & (iii). A 10-year mandatory minimum sentence was imposed for trafficking 50 grams of crack or 5 kilograms of powder cocaine, again a 100-to-1 ratio. 18 U.S.C. Sec. 841(b)(a)(A)(ii) & (iii). Congress, and those of us in the law enforcement field at the time believed that there was substantial justification for a large differential between crack and powder cocaine. Because crack was cheap, addictive, and believed to serve as a catalyst for crime, Congress wanted to keep it off the streets and out of poor neighborhoods, which were largely minority neighborhoods. Congress sought to accomplish this with stiff penalties. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 115-21 (1995) (discussing legislative reasons for crack and powder cocaine sentences). Congressman Charles Rangel of New York, stated in 1986: We all know that crack is the newest and most insidious addition to the drug culture. It is cheaper than cocaine, and more addictive. Young people who experiment with crack often become habitual users because of its highly concentrated narcotic effect. They become addicts before they know what is happening.--132 Cong. Rec. H3515-02 (1986) statement of Rep. Rangel). Congressman Rangel, who chaired the Select Committee on Narcotics Abuse and Control, called drug dealers the entrepreneurs of dealing with the sale of death on the installment plan. (They) have now, in a very sophisticated way, packaged crack which allows our younger people for smaller amounts of money to become addicted.--``Crack,'' Cocaine Derivative, Called Serious Health Threat, Houston Chronicle, July 16, 1986. Senator Lawton Chiles of Florida was one of the leaders in the Senate on the fight against crack. He stated: The whole Nation now knows about crack cocaine. They know it can be bought for the price of a cassette tape, and make people into slaves. It can turn promising young people into robbers and thieves, stealing anything they can to get the money to feed their habit.--132 Cong. Rec. S 26446, 26447 (1986) (statement of Sen. Chiles). Senator Chiles also stated with regard to the bill imposing the heavy penalties on crack, The Senate bill contained the Democratic three-tiered penalty system which will impose mandatory sentences and large fines against major drug traffickers and kingpins. . . . I am very pleased that the Senate bill recognizes crack as a distinct and separate drug from [powder] cocaine. . . .-- 132 Cong. Rec. S14270-01 (1986) (statement of Sen. Chiles). A principal reason for the 1986 crack law was to keep crack from spreading across America and to keep it out of our neighborhoods, especially minority neighborhoods. Congress continued to follow this line of reasoning in 1988, when it passed and President Reagan signed into law the Anti-Drug Abuse Act. Pub. L. No. 100-690, 102 Stat. 4181 (1988). In addition to the mandatory minimum penalties enacted in 1986 for the trafficking in crack cocaine and other drugs, this act added a mandatory minimum sentence of 5 years for the simple possession of crack cocaine. 21 U.S.C. Sec. 844. Mandatory minimum sentences at the Federal and State levels for various crimes have generally been successful. They have reflected the seriousness with which we as a society take certain crimes and they have reduced crime by keeping recidivist criminals off the streets for longer periods of time. A 1982 Rand study reported that some repeat offenders committed 232 burglaries per year and some committed 485 thefts per year. See Jan M. Chaiken & Marcia R. Chairken, Varieties of Criminal Behavior 44 (Rand 1982). By locking up these repeat offenders, we could prevent a crime a day in some cases. This effort to lock up the worst offenders has resulted in a substantial increase in Federal and State prison populations. In fact, since 1990 our State and Federal prison populations have increased by a total of 79 percent. See Bureau of Justice Statistics, Prisoners in 2000 1 (2001). And mandatory minimums did not operate alone. We also made progress in reducing drug use, a cause of crime, down to very low levels. With solid leadership and antidrug education programs we drove drug use by young people down. The University of Michigan's Monitoring the Future Study showed that drug use among 12th grade school children dropped by 76 percent from 1986 to 1992. Lloyd D. Johnston, et al. Monitoring the Future: National Results on Adolescent Drug Use 14 (Univ. of Mich. 2000). This dual approach of locking up recidivists and reducing drug use drove crime rates down. From 1990 to 1999, the crime index offenses reported by the FBI, including property crimes and violent crimes, fell to their lowest level since 1973. See Federal Bureau of Investigation, Crime in the United States--1999 6(2000) (stating that crime index offenses for 1999 were the lowest since 1973); Federal Bureau of Investigation, Uniform Crime Reports 2000 1(2001), stating that during 2000, crime index offenses remained stable. Thus, the War on Drugs and the War on Crime that began in the mid and late 1980s bore fruit in the 1990s. That the system put in place in the 1980s produced good results in general, does not mean that it is perfect. With respect to drug sentencing in particular, the primary focus of the mandatory minimums and the Sentencing Guidelines on quantity has resulted in a blunt instrument that data now shows is in need of refinement. Since the establishment of mandatory minimums for drug trafficking, the Bureau of Prisons published a study on the recidivism of federal prisoners convicted for various offenses. Federal Bureau of Prisons, Recidivism Among Federal Prison Releases in 1987: A Preliminary Report (1994). For those prisoners convicted of general drug crimes and released after serving their terms, 34.2 percent were rearrested within 3 years. Id. at 12. For those convicted of firearm and explosive crimes, 48.6 percent were rearrested. Id. For those who committed crimes against the person, such as robbery or violent assault, 65 percent were rearrested. Id. Thus, possession of dangerous weapons and violence appear to be better indicators of recidivism than the quantity of drugs possessed or distributed. The 1986 mandatory minimums based on the quantity of crack cocaine sold or possessed, while appropriately reflecting that drug's more serious effects, failed to keep crack off the streets. The use of crack had grown rapidly in the early and mid-1980s and by 1987 and 1988, crack was available across America, including my home town of Mobile, AL, and small towns all over Alabama. See, e.g., Lloyd D. Johnston, et al. Monitoring the Future: National Results on Adolescent Drug Use 16 (Univ. of Mich. 2000) (noting that crack use grew rapidly from 1983- 1986); James Coates & Robert Blau, Big-City Gangs Fuel Growing Crack Crisis, Chicago Tribune, Sept. 13, 1989, at C1, noting that crack use began in Fort Wayne, IN, in 1986 and spread rapidly through that city. Though the tough penalties did not stop the geographical spread of crack, they did, in my opinion, play a role in slowing the rate of increase in use that would have occurred without the tough penalties. The mandatory minimums for crack were intended to protect minority neighborhoods from the spreading influence of crack. Still, the tough penalties for crack created the appearance of racial bias because the distributors and users of crack are largely African-American. Parenthetically, let me note that criminal statutes, as they are written, are not biased, they simply required punishment for those who break them regardless of race, sex, nationality, or religion. Thus, just because more males commit Federal crimes than females, it is not unfair or sexist to punish males with all the severity society concludes is necessary to stop or reduce crimes that both sexes commit. See United States Sentencing Commission, 2000 Sourcebook of Federal Sentencing Statistics 15 (Table 5) (reporting that 85.7 percent of Federal offenders are male and 14.3 percent are female). Because everyone knows that crack carries heavy penalties, I cannot conclude that it is discriminatory to punish all who possess or distribute it with equal severity. My experience does lead me to conclude, however, that where an overwhelming majority of those convicted of crack offenses are African-American, and the penalties for crack offenses are the most severe, we should listen to fair-minded people who argue that these sentences fall too heavily on African- Americans. One of the facts used in the argument for changing crack sentences is the percentage of crack defendants that are African-American. In 1995, the Sentencing Commission issued report showing that of the defendants convicted for crack cocaine offenses, 88.2 percent were African- American. United States Sentencing Commission, Cocaine and Federal Sentencing Policy 152 (1995). Of the persons sentenced for powder cocaine offenses, 32 percent where white, 27.4 percent African- American, and 37 percent Hispanic, Id. This generated stories in newspapers, like one from the Birmingham Post-Herald that reported: At first, many of the nation's black leaders supported the hard line against drugs. Inner-city church ministers decried the crack epidemic that seemed to blaze through their neighborhoods. But as the disparities in jail sentences became increasingly obvious, support for the policy dried up among many blacks. . . .''--Thomas Hargrove, Drug's Form Influences Length of Sentence, Birmingham Post-Herald, Nov. 17, 1997, at A1, A9 (describing differences in punishments for crack and powder cocaine). As data from the Sentencing Commission became available during the mid-1990s, many federal and state officials, including myself, began to doubt whether the 100-to-1 ratio between powder and crack cocaine continued to be justifiable. We in the public service asked ourselves: ``If in light of our experience, we can conclude that crack sentences are disproportionately severe, why should we not act to improve them?'' In 1995 and 1997, the Sentencing Commission unanimously concluded that the crack-powder disparity was no longer justified. See United States Sentencing Commission, Cocaine and Federal Sentencing Policy 198-200 (1995); United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 2 (1997). Moreover, in 1995, the Sentencing Commission, most of the members of which are federal judges, passed two amendments to the Guidelines to reduce the disparity in sentences between crack and powder cocaine. Specifically, the amendments would have adopted a starting point for the guidelines of equal amounts of crack and powder cocaine--a 1-to-1 ratio at the 500-gram level, and would have provided a sentencing enhancement for violence and other harms associated with crack cocaine. See United States Sentencing Commission, Cocaine and Federal Sentencing Policy 1 (1997). Congress, however, passed and President Clinton signed a law that rejected the amendments and directed the Sentencing Commission to study the issue more thoroughly. Pub. L. No. 104-38, 109 Stat. 334 (1995). In 1997, the Sentencing Commission responded with a study entitled, ``Cocaine and Federal Sentencing Policy.'' The study recommended a reduction in the crack-powder differential from 100-1 to approximately 5-to-1. United States Sentencing Commission, Cocaine and Federal Sentencing Policy 9 (1997). Specifically, the Commission recommended to Congress that the trigger points for the 5-year mandatory minimum for powder be lowered from 500 grams to a range of 125 to 375 grams and for crack be raised from 5 grams to a range of 25 to 75 grams. Id. Moreover, some judges who did not sit on the Sentencing Commission began speaking out against the crack-powder differential. See, e.g., Pete Bowles, Judge Known for Unusual Sentences, Newsday, May 22, 1998, at A39 (quoting Judge Jack Weinstein as characterizing the Sentencing Guidelines as ``cruel, excessive and unnecessary,'' and saying, ``I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade''). And some have said that judges may have used downward departures more often than they should have to reduce drug sentences to a level that they view as more just. Indeed, Professors Frank Bowman and Michael Heise, citing a downward trend in drug sentences have stated, ``a pervasive disposition toward discretionary evasion of Guideline and statutory law has important implications for the ongoing struggle among the courts, the Justice Department, the Congress, and the Sentencing Commission for control of sentencing policy.'' See Frank O. Bowman III & Michael Heise, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa L. Rev. 1043, 1049-50 (2001). To date, however, Congress has declined to address the issue. Many say it is because of a fear of being called ``soft on crime.'' Regardless, we can wait no longer. Based on our experience, the strong position of the Sentencing Commission, which is not a ``soft on crime'' group, and plain fairness, we must act. Congress' refusal to act, in my view, has been unfortunate. And in light of our experience, we can conclude that crack sentences are disproportionately severe, why should we not act to improve them? To improve these guidelines, to fix them where they are broken, is to strengthen the system, to reduce judicial manipulation, and to restore confidence in the system's fairness. We must remember, however, that the goals of the drug sentencing are still valid today, to save babies from being addicted to the drugs their mothers take during pregnancy, to save teenagers from wasting their youth on drugs that lead to crime, to save young girls from being forced into prostitution to feed a habit, and to save adults from wasting their lives on nonproductive and damaging drugs. I challenge any of you to visit a drug court and look at the defendants before and after the drug court program. The transformation from a hopeless criminal on drugs to productive citizen off of drugs will convince anyone of the danger and destructiveness of illegal drugs. Does an easing of these tough sentences, but not gutting of them, carry risks. Some, but not much: 1. Some will say that it represents proof that the war against drugs is a failure, but as I just explained, the War on Drugs is just as worthy a cause today as it used to be; 2. Some will say that we are less serious, but a balanced reform will treat dangerous crimes more seriously; 3. Some will say that it may ease a bit the pressure a prosecutor can put on a drug dealer to cooperate, but a balanced approach will retain sufficient leverage for a prosecutor to do his job justly; 4. Some will say that heavy sentences have had some ability to reduce distribution, but of course, after a modest decrease the penalties will remain tough. After thoughtful review, and consideration in light of my own experience in prosecuting drug offense, I have concluded that we must reform the justness of our means to match the legitimacy of our goals. We must restore justness to sentencing for crack trafficking and other drug crimes which will maintain public confidence in the federal government's anti-drug efforts and make those efforts more rational and justifiable. Today, I propose a bill to make two modest changes to the current sentencing system: First, the bill will reduce the crack-powder sentencing disparity from the current 100-to-1 ratio to a 20-to-1 ratio--the same ratio proposed by the Reagan Administration in 1986. This bill would trigger the 5-year mandatory minimum sentence for trafficking at 20 grams of crack--not 5 grams--and at 400 grams of powder cocaine--not 500 grams. The 10-year mandatory minimum would be triggered by trafficking 200 grams of crack and by trafficking 4 kilograms of powder. The reduction in the amount of powder cocaine required to trigger the mandatory minimum from 500 grams to 400 grams reflects that 400 grams is almost a pound of cocaine--a large amount--worth well over $10,000. Also, this increase in the penalty for powder cocaine reflects that powder cocaine is imported and used as the raw material used to make crack. United States Sentencing Commission, Special Report: Cocaine and Federal Sentencing Policy vi (1995). Finally, the increased penalty responds to the powder cocaine use rates among high school students. According to the University of Michigan Study entitled Monitoring the Future, powder cocaine use among 12th grade students had risen by 61.3 percent from 1992 to 2000, although there was a slight decline from 1999 to 2000. Further, more than twice as many 12th grade students used powder cocaine than crack in 1992 and in 2000. 12TH GRADERS DRUG USE [In percent] ------------------------------------------------------------------------ Drug 1992 2000 Change ------------------------------------------------------------------------ Powder.................................... 3.1 5.0 61.3 Crack..................................... 1.5 2.2 46.7 Percent Greater........................... 106.7 127.2 ------------------------------------------------------------------------ See Lloyd D. Johnston, Monitoring the Future: National Results on Adolescent Drug Use 14 (Univ. of Mich. 2000) (Table 2). We need to discourage those who are dealing powder cocaine to our high school students and those who are providing a supply market of powder cocaine that enable the manufacture of crack. This bill does this by providing a small increase in the penalty for powder cocaine. The bill's decrease in the penalty for crack reflects that a principal reason for creating the much more severe sentence on crack, to prevent the spread of crack use, has failed. Crack is used throughout America. The bill's approach of narrowing, but not eliminating, the sentencing disparity between crack and powder cocaine by changing the penalties for both drugs parallels the 1997 Sentencing Commission recommendation of increasing penalties and decreasing penalties on crack. United States Sentencing Commission, Special Report to Congress: Federal Sentencing Policy 9 (1997). Further, it is consistent with the bipartisan Act of Congress that President Clinton signed in 1995 rejecting the Sentencing Commission's attempt to equalize the penalties for crack and powder cocaine. That act stated, ``the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking a like quantity of powder cocaine.'' Pub. L. No. 104-38, 104th Cong. 1st Sess. Sec. 2(a)(1)(A) (1995). The bill changes the penalties for crack and powder to reduce the 100-to-1 disparity, but retains a reasonable distinction, a 20-to-1 ratio, between crack and powder. The bill also reduces the 5-year mandatory minimum penalty for the simple possession of 5 grams of crack to just 1 year. This reflects that crack is a more serious drug than most other drugs, but that the sentence need not be unjustifiably harsh. Second, the bill increases emphasis on defendant's criminality, as opposed to a heavy emphasis on the quantity of drug involved. This bill requires a sentencing enhancement for violence or possession of a firearm, or other dangerous weapon, associated with a drug trafficking offense. This reflects that use of a dangerous weapon or violent action results in higher recidivism rates than drug use along. See Federal Bureau of Prisons, Recidivism Among Federal Prison Releases in 1987: A Preliminary Report 12 (1994). Further, the bill requires an additional enhancement if the defendant is an organizer, leader, manager, or supervisor in the drug trafficking offense and a ``superaggravating'' factor applies. Superaggravating factors include using a girlfriend or child to distribute drugs, maintaining a crack house, distributing a drugs to minor, an elderly person, or a pregnant woman, bribing a law enforcement official, importing drugs in the United States from a foreign country, or committing the drug offense as a part of a pattern of criminal conduct engaging in as a livelihood. These sentencing enhancements will apply to offenses involving cocaine, methamphetamines, marijuana, and all illegal drugs. Aside from the girlfriend factor, many of the superaggravating factors are already available in certain cases. The bill would employ these punishments in drug cases as sentencing enhancements, instead of statutory penalties, thus allowing a Federal prosecutor to obtain the tougher penalty by proving the superaggravating criminal conduct by a preponderance of the evidence rather than beyond a reasonable doubt. Further, the bill will make some enhancements easier to establish. For example instead of proving that a victim had a particular vulnerability to a crime, a prosecutor could simply show that the victim was 16 years old. The offenders to which these sentencing enhancements apply are the most culpable members of the drug trade that prey on young women, school children, and the elderly, and bring violence into our neighborhoods. Their sentences should reflect the criminality of their conduct, not simply the quantity of drugs with which they are caught. While providing sentencing increases for the worst offenders, the bill limits the impact of mandatory minimums on the least dangerous offenders. The bill caps the drug quantity portion of a sentence for a defendant who plays a minimal role at 10 years, base offense level 32 under the Sentencing Guidelines. This is very significant because couriers, who are often low-level participants in a drug organization, can have disproportionate sentences of 20 or 30 years simply because they are caught with a large amount of drugs in their possession. By capping the impact of drug quantity on the minimal role offenders, the bill allows a greater role for the criminality, or lack of criminality, of their conduct in determining their ultimate sentence. For example, the bill provides a decrease for the super-mitigating factor of the girlfriend or child who plays a minimal role in the offense. These are often the most abused victims of the drug trade, and we should not punish them as harshly as the drug dealer who used them. Existing adjustments could then be made for factors such as the role in the offense, acceptance of responsibility, and provision of substantial assistance to the government. The bill also establishes a 3-year pilot program for placing elderly, nonviolent prisoners in home detention in lieu of prison. It allows the Attorney General to designate 1 or more Federal prisons at which prisoners who meet the following criteria could be placed in home detention. The prisoner: 1. is at least 65 years old; 2. has served the greater of 10 years or one-half of his sentence; 3. has never committed a Federal or State crime of violence; 4. is not determined by the Bureau of Prisons to have a history of violence or to have committed a violent infraction while in prison; and 5. has not escaped or attempted to escape. My experience tells me, that elderly prisoners who are nonviolent and who have served a substantial amount of their sentence generally pose no threat to the community. Removing them from prison and placing them in home detention could save the federal government money and free up space to house the most dangerous criminals. The bill, however, would require an independent study on recidivism and cost savings. At the end of 3 years, Congress could decide whether to continue or expand the pilot program. There are those on the Left of the political spectrum who want to substantially restrict or even repeal mandatory minimums for some drug offenders and oppose all drug penalty increases. I firmly disagree with such an approach. The Sentencing Guidelines and mandatory minimum statutes have been a critical component of a criminal justice system that treats equal conduct equally. It increases deterrence because criminals know they will not be able to talk themselves out of jail. It is a great system. By following the balanced approach that I have proposed, we improve the guidelines and improve sentencing. My goal is to have our sentencing system consistently impose the right sentence to incapacitate, deter, punish, and rehabilitate the criminal. Because Congress has set the rules, we must act to improve them. The courts cannot do it for us. There are those on the Right side of the political spectrum, however, who do not want to decrease any drug penalty whatsoever. While I respect their view, I can not embrace it. The mandatory minimums have been in effect since 1986 and the Sentencing Guidelines have been in effect since 1987. We are not in a position to reflect on what the effects have been. As we have seen from experience, the 100-to-1 disparity in sentencing between crack cocaine and power cocaine, which falls the hardest on African-Americans, is not justifiable. See, e.g., 145 Cong. Rec. S. 14452-14453 (1999), (statement of Sen. Sessions,to-1 ratio is a movement in the right direction,'' but questioning whether solely increasing penalties on crack was justifiable). It is simply unjust. Further, the focus of the drug sentencing system on quantity of drugs, which has sent the girlfriends of drug dealers, who act as mere couriers, to prison for long terms, should be adjusted to increase the emphasis on the criminality of conduct. This will free up prison space for violent drug offenders. Trust me on this. The federal drug sentences are tough. In practice-- as they play out in actual time served, they are tougher than any State drug sentences that I know of. This legislation will in no way change the seriousness with which drugs are taken. Please know that I will resist with all the force I can muster any attempt to destroy or undermine the integrity or effectiveness of the Sentencing Guidelines. This bill simply targets the toughest sentences to those who deserve it most. The Drug Sentencing Reform Act of 2001 takes a measured and balanced approach to modifying the sentencing system that we have used for over a decade. By increasing penalties on the worst offenders and decreasing penalties on the least dangerous offenders, we will increase the focus of our law enforcement resources on the drug traffickers that endanger our families and decrease the focus on those defendants who pose less danger. I commend this bill to my colleagues to study and debate. I challenge them to cast aside the politics of the Left and the Right and to support this bill on the merits as a matter of plain, simple justice.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I send to the desk a bill entitled the Drug Sentencing Reform Act of 2001. This bill provides a measured and balanced approach to improving the statutory and guidelines system that governs the sentencing of drug offenders. This bill makes two important changes to our Federal sentencing system for drug offenders: First, it reduces the disparity in sentences for crack and powder cocaine from a ratio of 100-to-1 to 20-to-1. It does so by reducing the penalty for crack and increasing the penalty for powder cocaine. Second, the bill shifts some of the sentencing emphasis from drug quantity to the nature of the criminal conduct, the degree of the defendant's criminality. The bill increases penalties for the worst drug offenders that use violence and employ women and children as couriers to traffic drugs. The bill decreases mandatory penalties on those who play only a minimal role in a drug trafficking offense, such as a girlfriend or child of a drug dealer who receives little compensation. In short, this bill will make measured and balanced improvements in the current sentencing system to ensure a more just outcome, tougher sentences on the worst and most violent drug offenders and lighter sentences on lower-level, nonviolent offenders. To understand the changes that I propose, it is necessary to review how we got to the present system. Prior to the promulgation of the Sentencing Guidelines in 1984, judges in the Federal court system had very broad discretion to sentence drug offenders. Because judges had different views on sentencing, one defendant who committed a crime could receive parole while another defendant guilty of the exact same criminal conduct could receive literally 20 years in prison. See, e.g., United States Sentencing Commission, Guidelines Manual 2 (Nov. 2000). Further, because of the existence of the parole system, convicts generally served only one-third of the sentence announced by the judge. Id. There was no truth in sentencing. Thus, the old sentencing system lacked uniformity, honesty, and certainty. In 1984, a bipartisan Congress enacted and President Reagan signed the Sentencing Reform Act as part of the Comprehensive Crime Control Act, Pub. L. No. 98-473, Title II, 98 Stat. 2019 (1984). The Sentencing Reform Act created the Sentencing Commission and instructed it to promulgate sentencing guidelines that would provide more effective, more uniform, and more fair sentences. See generally United States Sentencing Commission, Guidelines Manual 2 (Nov. 2000). As part of this reform, Congress abolished the parole system and substantially reduced good behavior adjustments. Id. at 1. The Sentencing Commission went to work in studying empirical data on average sentences imposed for various crimes prior to the Sentencing Reform Act. See United States Sentencing Commission, Guidelines Manual 9-10 (Nov. 2000). It then made adjustments for acceptance of responsibility and provision of substantial assistance to the government. Id. at 10. On April 13, 1987, the Sentencing Commission submitted its first set of Sentencing Guidelines to Congress. See United States Sentencing Commission, Guidelines Manual 1 (Nov. 2000). After the prescribed period, the Guidelines took effect on November 1, 1987, and applied to all offenses committed on or after that date. Id. at 1. In applying the Guidelines to a particular case, a judge must generally: 1. Determine the base offense level for the offense of conviction; 2. Apply applicable adjustments for the type of victim, the defendant's role in the offense, and whether the defendant obstructed justice; 3. Determine the defendant's criminal history category; and 4. Determine the guideline range based on the defendant's offense level and criminal history category. See U.S.S.G. Sec. 1B1.1 (2000). After all the factors are considered, the judge is required to sentence within a narrow range. Thus, the promulgation of the Sentencing Guidelines and the repeal of the parole system promoted uniformity, honesty, and certainty in sentencing. In 1989, in Mistretta v. United States, 488 U.S. 361 (1989), the Supreme Court upheld the constitutionality of the Sentencing Guidelines. Thus, Federal prosecutors, criminal defense attorneys, and Federal judges have been applying the Sentencing Guidelines for over a decade. In setting the guideline ranges for particular offenses, the Sentencing Commission has to take into account any minimum or maximum sentences established by Congress. In 1986, Senator Dole introduced on behalf of the Reagan administration the Drug-Free Federal Workplace Act of 1986. S. 2849, 99th Cong. 2d Sess. Sec. 502 (1986). See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 117 (1995). That bill proposed several mandatory minimum sentences for drug trafficking offenses based on the quantity of the drug involved in the offense. Under the bill, 500 grams of powder cocaine would have triggered a 5- year mandatory minimum, while it would have taken 25 grams of crack to trigger the same 5-year mandatory minimum. This was a 20-to-l ratio of powder to crack. Ultimately, Congress passed and President Reagan signed the Omnibus Anti-Drug Abuse Act of 1986 that set tough mandatory minimum sentences for various quantities of illegal drugs. Pub. L. No. 99-570, 100 Stat. 3207 (1986). With respect to cocaine, the law was amended to provide that a 5-year mandatory minimum sentence would be triggered by trafficking just 5 grams of crack cocaine or by trafficking 500 grams of powder--a 100-to-1 ratio. 21 U.S.C. Sec. 841(b)(1)(B)(ii) & (iii). A 10-year mandatory minimum sentence was imposed for trafficking 50 grams of crack or 5 kilograms of powder cocaine, again a 100-to-1 ratio. 18 U.S.C. Sec. 841(b)(a)(A)(ii) & (iii). Congress, and those of us in the law enforcement field at the time believed that there was substantial justification for a large differential between crack and powder cocaine. Because crack was cheap, addictive, and believed to serve as a catalyst for crime, Congress wanted to keep it off the streets and out of poor neighborhoods, which were largely minority neighborhoods. Congress sought to accomplish this with stiff penalties. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 115-21 (1995) (discussing legislative reasons for crack and powder cocaine sentences). Congressman Charles Rangel of New York, stated in 1986: We all know that crack is the newest and most insidious addition to the drug culture. It is cheaper than cocaine, and more addictive. Young people who experiment with crack often become habitual users because of its highly concentrated narcotic effect. They become addicts before they know what is happening.--132 Cong. Rec. H3515-02 (1986) statement of Rep. Rangel). Congressman Rangel, who chaired the Select Committee on Narcotics Abuse and Control, called drug dealers the entrepreneurs of dealing with the sale of death on the installment plan. (They) have now, in a very sophisticated way, packaged crack which allows our younger people for smaller amounts of money to become addicted.--``Crack,'' Cocaine Derivative, Called Serious Health Threat, Houston Chronicle, July 16, 1986. Senator Lawton Chiles of Florida was one of the leaders in the Senate on the fight against crack. He stated: The whole Nation now knows about crack cocaine. They know it can be bought for the price of a cassette tape, and make people into slaves. It can turn promising young people into robbers and thieves, stealing anything they can to get the money to feed their habit.--132 Cong. Rec. S 26446, 26447 (1986) (statement of Sen. Chiles). Senator Chiles also stated with regard to the bill imposing the heavy penalties on crack, The Senate bill contained the Democratic three-tiered penalty system which will impose mandatory sentences and large fines against major drug traffickers and kingpins. . . . I am very pleased that the Senate bill recognizes crack as a distinct and separate drug from [powder] cocaine. . . .-- 132 Cong. Rec. S14270-01 (1986) (statement of Sen. Chiles). A principal reason for the 1986 crack law was to keep crack from spreading across America and to keep it out of our neighborhoods, especially minority neighborhoods. Congress continued to follow this line of reasoning in 1988, when it passed and President Reagan signed into law the Anti-Drug Abuse Act. Pub. L. No. 100-690, 102 Stat. 4181 (1988). In addition to the mandatory minimum penalties enacted in 1986 for the trafficking in crack cocaine and other drugs, this act added a mandatory minimum sentence of 5 years for the simple possession of crack cocaine. 21 U.S.C. Sec. 844. Mandatory minimum sentences at the Federal and State levels for various crimes have generally been successful. They have reflected the seriousness with which we as a society take certain crimes and they have reduced crime by keeping recidivist criminals off the streets for longer periods of time. A 1982 Rand study reported that some repeat offenders committed 232 burglaries per year and some committed 485 thefts per year. See Jan M. Chaiken & Marcia R. Chairken, Varieties of Criminal Behavior 44 (Rand 1982). By locking up these repeat offenders, we could prevent a crime a day in some cases. This effort to lock up the worst offenders has resulted in a substantial increase in Federal and State prison populations. In fact, since 1990 our State and Federal prison populations have increased by a total of 79 percent. See Bureau of Justice Statistics, Prisoners in 2000 1 (2001). And mandatory minimums did not operate alone. We also made progress in reducing drug use, a cause of crime, down to very low levels. With solid leadership and antidrug education programs we drove drug use by young people down. The University of Michigan's Monitoring the Future Study showed that drug use among 12th grade school children dropped by 76 percent from 1986 to 1992. Lloyd D. Johnston, et al. Monitoring the Future: National Results on Adolescent Drug Use 14 (Univ. of Mich. 2000). This dual approach of locking up recidivists and reducing drug use drove crime rates down. From 1990 to 1999, the crime index offenses reported by the FBI, including property crimes and violent crimes, fell to their lowest level since 1973. See Federal Bureau of Investigation, Crime in the United States--1999 6(2000) (stating that crime index offenses for 1999 were the lowest since 1973); Federal Bureau of Investigation, Uniform Crime Reports 2000 1(2001), stating that during 2000, crime index offenses remained stable. Thus, the War on Drugs and the War on Crime that began in the mid and late 1980s bore fruit in the 1990s. That the system put in place in the 1980s produced good results in general, does not mean that it is perfect. With respect to drug sentencing in particular, the primary focus of the mandatory minimums and the Sentencing Guidelines on quantity has resulted in a blunt instrument that data now shows is in need of refinement. Since the establishment of mandatory minimums for drug trafficking, the Bureau of Prisons published a study on the recidivism of federal prisoners convicted for various offenses. Federal Bureau of Prisons, Recidivism Among Federal Prison Releases in 1987: A Preliminary Report (1994). For those prisoners convicted of general drug crimes and released after serving their terms, 34.2 percent were rearrested within 3 years. Id. at 12. For those convicted of firearm and explosive crimes, 48.6 percent were rearrested. Id. For those who committed crimes against the person, such as robbery or violent assault, 65 percent were rearrested. Id. Thus, possession of dangerous weapons and violence appear to be better indicators of recidivism than the quantity of drugs possessed or distributed. The 1986 mandatory minimums based on the quantity of crack cocaine sold or possessed, while appropriately reflecting that drug's more serious effects, failed to keep crack off the streets. The use of crack had grown rapidly in the early and mid-1980s and by 1987 and 1988, crack was available across America, including my home town of Mobile, AL, and small towns all over Alabama. See, e.g., Lloyd D. Johnston, et al. Monitoring the Future: National Results on Adolescent Drug Use 16 (Univ. of Mich. 2000) (noting that crack use grew rapidly from 1983- 1986); James Coates & Robert Blau, Big-City Gangs Fuel Growing Crack Crisis, Chicago Tribune, Sept. 13, 1989, at C1, noting that crack use began in Fort Wayne, IN, in 1986 and spread rapidly through that city. Though the tough penalties did not stop the geographical spread of crack, they did, in my opinion, play a role in slowing the rate of increase in use that would have occurred without the tough penalties. The mandatory minimums for crack were intended to protect minority neighborhoods from the spreading influence of crack. Still, the tough penalties for crack created the appearance of racial bias because the distributors and users of crack are largely African-American. Parenthetically, let me note that criminal statutes, as they are written, are not biased, they simply required punishment for those who break them regardless of race, sex, nationality, or religion. Thus, just because more males commit Federal crimes than females, it is not unfair or sexist to punish males with all the severity society concludes is necessary to stop or reduce crimes that both sexes commit. See United States Sentencing Commission, 2000 Sourcebook of Federal Sentencing Statistics 15 (Table 5) (reporting that 85.7 percent of Federal offenders are male and 14.3 percent are female). Because everyone knows that crack carries heavy penalties, I cannot conclude that it is discriminatory to punish all who possess or distribute it with equal severity. My experience does lead me to conclude, however, that where an overwhelming majority of those convicted of crack offenses are African-American, and the penalties for crack offenses are the most severe, we should listen to fair-minded people who argue that these sentences fall too heavily on African- Americans. One of the facts used in the argument for changing crack sentences is the percentage of crack defendants that are African-American. In 1995, the Sentencing Commission issued report showing that of the defendants convicted for crack cocaine offenses, 88.2 percent were African- American. United States Sentencing Commission, Cocaine and Federal Sentencing Policy 152 (1995). Of the persons sentenced for powder cocaine offenses, 32 percent where white, 27.4 percent African- American, and 37 percent Hispanic, Id. This generated stories in newspapers, like one from the Birmingham Post-Herald that reported: At first, many of the nation's black leaders supported the hard line against drugs. Inner-city church ministers decried the crack epidemic that seemed to blaze through their neighborhoods. But as the disparities in jail sentences became increasingly obvious, support for the policy dried up among many blacks. . . .''--Thomas Hargrove, Drug's Form Influences Length of Sentence, Birmingham Post-Herald, Nov. 17, 1997, at A1, A9 (describing differences in punishments for crack and powder cocaine). As data from the Sentencing Commission became available during the mid-1990s, many federal and state officials, including myself, began to doubt whether the 100-to-1 ratio between powder and crack cocaine continued to be justifiable. We in the public service asked ourselves: ``If in light of our experience, we can conclude that crack sentences are disproportionately severe, why should we not act to improve them?'' In 1995 and 1997, the Sentencing Commission unanimously concluded that the crack-powder disparity was no longer justified. See United States Sentencing Commission, Cocaine and Federal Sentencing Policy 198-200 (1995); United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 2 (1997). Moreover, in 1995, the Sentencing Commission, most of the members of which are federal judges, passed two amendments to the Guidelines to reduce the disparity in sentences between crack and powder cocaine. Specifically, the amendments would have adopted a starting point for the guidelines of equal amounts of crack and powder cocaine--a 1-to-1 ratio at the 500-gram level, and would have provided a sentencing enhancement for violence and other harms associated with crack cocaine. See United States Sentencing Commission, Cocaine and Federal Sentencing Policy 1 (1997). Congress, however, passed and President Clinton signed a law that rejected the amendments and directed the Sentencing Commission to study the issue more thoroughly. Pub. L. No. 104-38, 109 Stat. 334 (1995). In 1997, the Sentencing Commission responded with a study entitled, ``Cocaine and Federal Sentencing Policy.'' The study recommended a reduction in the crack-powder differential from 100-1 to approximately 5-to-1. United States Sentencing Commission, Cocaine and Federal Sentencing Policy 9 (1997). Specifically, the Commission recommended to Congress that the trigger points for the 5-year mandatory minimum for powder be lowered from 500 grams to a range of 125 to 375 grams and for crack be raised from 5 grams to a range of 25 to 75 grams. Id. Moreover, some judges who did not sit on the Sentencing Commission began speaking out against the crack-powder differential. See, e.g., Pete Bowles, Judge Known for Unusual Sentences, Newsday, May 22, 1998, at A39 (quoting Judge Jack Weinstein as characterizing the Sentencing Guidelines as ``cruel, excessive and unnecessary,'' and saying, ``I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade''). And some have said that judges may have used downward departures more often than they should have to reduce drug sentences to a level that they view as more just. Indeed, Professors Frank Bowman and Michael Heise, citing a downward trend in drug sentences have stated, ``a pervasive disposition toward discretionary evasion of Guideline and statutory law has important implications for the ongoing struggle among the courts, the Justice Department, the Congress, and the Sentencing Commission for control of sentencing policy.'' See Frank O. Bowman III & Michael Heise, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa L. Rev. 1043, 1049-50 (2001). To date, however, Congress has declined to address the issue. Many say it is because of a fear of being called ``soft on crime.'' Regardless, we can wait no longer. Based on our experience, the strong position of the Sentencing Commission, which is not a ``soft on crime'' group, and plain fairness, we must act. Congress' refusal to act, in my view, has been unfortunate. And in light of our experience, we can conclude that crack sentences are disproportionately severe, why should we not act to improve them? To improve these guidelines, to fix them where they are broken, is to strengthen the system, to reduce judicial manipulation, and to restore confidence in the system's fairness. We must remember, however, that the goals of the drug sentencing are still valid today, to save babies from being addicted to the drugs their mothers take during pregnancy, to save teenagers from wasting their youth on drugs that lead to crime, to save young girls from being forced into prostitution to feed a habit, and to save adults from wasting their lives on nonproductive and damaging drugs. I challenge any of you to visit a drug court and look at the defendants before and after the drug court program. The transformation from a hopeless criminal on drugs to productive citizen off of drugs will convince anyone of the danger and destructiveness of illegal drugs. Does an easing of these tough sentences, but not gutting of them, carry risks. Some, but not much: 1. Some will say that it represents proof that the war against drugs is a failure, but as I just explained, the War on Drugs is just as worthy a cause today as it used to be; 2. Some will say that we are less serious, but a balanced reform will treat dangerous crimes more seriously; 3. Some will say that it may ease a bit the pressure a prosecutor can put on a drug dealer to cooperate, but a balanced approach will retain sufficient leverage for a prosecutor to do his job justly; 4. Some will say that heavy sentences have had some ability to reduce distribution, but of course, after a modest decrease the penalties will remain tough. After thoughtful review, and consideration in light of my own experience in prosecuting drug offense, I have concluded that we must reform the justness of our means to match the legitimacy of our goals. We must restore justness to sentencing for crack trafficking and other drug crimes which will maintain public confidence in the federal government's anti-drug efforts and make those efforts more rational and justifiable. Today, I propose a bill to make two modest changes to the current sentencing system: First, the bill will reduce the crack-powder sentencing disparity from the current 100-to-1 ratio to a 20-to-1 ratio--the same ratio proposed by the Reagan Administration in 1986. This bill would trigger the 5-year mandatory minimum sentence for trafficking at 20 grams of crack--not 5 grams--and at 400 grams of powder cocaine--not 500 grams. The 10-year mandatory minimum would be triggered by trafficking 200 grams of crack and by trafficking 4 kilograms of powder. The reduction in the amount of powder cocaine required to trigger the mandatory minimum from 500 grams to 400 grams reflects that 400 grams is almost a pound of cocaine--a large amount--worth well over $10,000. Also, this increase in the penalty for powder cocaine reflects that powder cocaine is imported and used as the raw material used to make crack. United States Sentencing Commission, Special Report: Cocaine and Federal Sentencing Policy vi (1995). Finally, the increased penalty responds to the powder cocaine use rates among high school students. According to the University of Michigan Study entitled Monitoring the Future, powder cocaine use among 12th grade students had risen by 61.3 percent from 1992 to 2000, although there was a slight decline from 1999 to 2000. Further, more than twice as many 12th grade students used powder cocaine than crack in 1992 and in 2000. 12TH GRADERS DRUG USE [In percent] ------------------------------------------------------------------------ Drug 1992 2000 Change ------------------------------------------------------------------------ Powder.................................... 3.1 5.0 61.3 Crack..................................... 1.5 2.2 46.7 Percent Greater........................... 106.7 127.2 ------------------------------------------------------------------------ See Lloyd D. Johnston, Monitoring the Future: National Results on Adolescent Drug Use 14 (Univ. of Mich. 2000) (Table 2). We need to discourage those who are dealing powder cocaine to our high school students and those who are providing a supply market of powder cocaine that enable the manufacture of crack. This bill does this by providing a small increase in the penalty for powder cocaine. The bill's decrease in the penalty for crack reflects that a principal reason for creating the much more severe sentence on crack, to prevent the spread of crack use, has failed. Crack is used throughout America. The bill's approach of narrowing, but not eliminating, the sentencing disparity between crack and powder cocaine by changing the penalties for both drugs parallels the 1997 Sentencing Commission recommendation of increasing penalties and decreasing penalties on crack. United States Sentencing Commission, Special Report to Congress: Federal Sentencing Policy 9 (1997). Further, it is consistent with the bipartisan Act of Congress that President Clinton signed in 1995 rejecting the Sentencing Commission's attempt to equalize the penalties for crack and powder cocaine. That act stated, ``the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking a like quantity of powder cocaine.'' Pub. L. No. 104-38, 104th Cong. 1st Sess. Sec. 2(a)(1)(A) (1995). The bill changes the penalties for crack and powder to reduce the 100-to-1 disparity, but retains a reasonable distinction, a 20-to-1 ratio, between crack and powder. The bill also reduces the 5-year mandatory minimum penalty for the simple possession of 5 grams of crack to just 1 year. This reflects that crack is a more serious drug than most other drugs, but that the sentence need not be unjustifiably harsh. Second, the bill increases emphasis on defendant's criminality, as opposed to a heavy emphasis on the quantity of drug involved. This bill requires a sentencing enhancement for violence or possession of a firearm, or other dangerous weapon, associated with a drug trafficking offense. This reflects that use of a dangerous weapon or violent action results in higher recidivism rates than drug use along. See Federal Bureau of Prisons, Recidivism Among Federal Prison Releases in 1987: A Preliminary Report 12 (1994). Further, the bill requires an additional enhancement if the defendant is an organizer, leader, manager, or supervisor in the drug trafficking offense and a ``superaggravating'' factor applies. Superaggravating factors include using a girlfriend or child to distribute drugs, maintaining a crack house, distributing a drugs to minor, an elderly person, or a pregnant woman, bribing a law enforcement official, importing drugs in the United States from a foreign country, or committing the drug offense as a part of a pattern of criminal conduct engaging in as a livelihood. These sentencing enhancements will apply to offenses involving cocaine, methamphetamines, marijuana, and all illegal drugs. Aside from the girlfriend factor, many of the superaggravating factors are already available in certain cases. The bill would employ these punishments in drug cases as sentencing enhancements, instead of statutory penalties, thus allowing a Federal prosecutor to obtain the tougher penalty by proving the superaggravating criminal conduct by a preponderance of the evidence rather than beyond a reasonable doubt. Further, the bill will make some enhancements easier to establish. For example instead of proving that a victim had a particular vulnerability to a crime, a prosecutor could simply show that the victim was 16 years old. The offenders to which these sentencing enhancements apply are the most culpable members of the drug trade that prey on young women, school children, and the elderly, and bring violence into our neighborhoods. Their sentences should reflect the criminality of their conduct, not simply the quantity of drugs with which they are caught. While providing sentencing increases for the worst offenders, the bill limits the impact of mandatory minimums on the least dangerous offenders. The bill caps the drug quantity portion of a sentence for a defendant who plays a minimal role at 10 years, base offense level 32 under the Sentencing Guidelines. This is very significant because couriers, who are often low-level participants in a drug organization, can have disproportionate sentences of 20 or 30 years simply because they are caught with a large amount of drugs in their possession. By capping the impact of drug quantity on the minimal role offenders, the bill allows a greater role for the criminality, or lack of criminality, of their conduct in determining their ultimate sentence. For example, the bill provides a decrease for the super-mitigating factor of the girlfriend or child who plays a minimal role in the offense. These are often the most abused victims of the drug trade, and we should not punish them as harshly as the drug dealer who used them. Existing adjustments could then be made for factors such as the role in the offense, acceptance of responsibility, and provision of substantial assistance to the government. The bill also establishes a 3-year pilot program for placing elderly, nonviolent prisoners in home detention in lieu of prison. It allows the Attorney General to designate 1 or more Federal prisons at which prisoners who meet the following criteria could be placed in home detention. The prisoner: 1. is at least 65 years old; 2. has served the greater of 10 years or one-half of his sentence; 3. has never committed a Federal or State crime of violence; 4. is not determined by the Bureau of Prisons to have a history of violence or to have committed a violent infraction while in prison; and 5. has not escaped or attempted to escape. My experience tells me, that elderly prisoners who are nonviolent and who have served a substantial amount of their sentence generally pose no threat to the community. Removing them from prison and placing them in home detention could save the federal government money and free up space to house the most dangerous criminals. The bill, however, would require an independent study on recidivism and cost savings. At the end of 3 years, Congress could decide whether to continue or expand the pilot program. There are those on the Left of the political spectrum who want to substantially restrict or even repeal mandatory minimums for some drug offenders and oppose all drug penalty increases. I firmly disagree with such an approach. The Sentencing Guidelines and mandatory minimum statutes have been a critical component of a criminal justice system that treats equal conduct equally. It increases deterrence because criminals know they will not be able to talk themselves out of jail. It is a great system. By following the balanced approach that I have proposed, we improve the guidelines and improve sentencing. My goal is to have our sentencing system consistently impose the right sentence to incapacitate, deter, punish, and rehabilitate the criminal. Because Congress has set the rules, we must act to improve them. The courts cannot do it for us. There are those on the Right side of the political spectrum, however, who do not want to decrease any drug penalty whatsoever. While I respect their view, I can not embrace it. The mandatory minimums have been in effect since 1986 and the Sentencing Guidelines have been in effect since 1987. We are not in a position to reflect on what the effects have been. As we have seen from experience, the 100-to-1 disparity in sentencing between crack cocaine and power cocaine, which falls the hardest on African-Americans, is not justifiable. See, e.g., 145 Cong. Rec. S. 14452-14453 (1999), (statement of Sen. Sessions,to-1 ratio is a movement in the right direction,'' but questioning whether solely increasing penalties on crack was justifiable). It is simply unjust. Further, the focus of the drug sentencing system on quantity of drugs, which has sent the girlfriends of drug dealers, who act as mere couriers, to prison for long terms, should be adjusted to increase the emphasis on the criminality of conduct. This will free up prison space for violent drug offenders. Trust me on this. The federal drug sentences are tough. In practice-- as they play out in actual time served, they are tougher than any State drug sentences that I know of. This legislation will in no way change the seriousness with which drugs are taken. Please know that I will resist with all the force I can muster any attempt to destroy or undermine the integrity or effectiveness of the Sentencing Guidelines. This bill simply targets the toughest sentences to those who deserve it most. The Drug Sentencing Reform Act of 2001 takes a measured and balanced approach to modifying the sentencing system that we have used for over a decade. By increasing penalties on the worst offenders and decreasing penalties on the least dangerous offenders, we will increase the focus of our law enforcement resources on the drug traffickers that endanger our families and decrease the focus on those defendants who pose less danger. I commend this bill to my colleagues to study and debate. I challenge them to cast aside the politics of the Left and the Right and to support this bill on the merits as a matter of plain, simple justice.

Mr. SESSIONS

Mr. SESSIONS. I thank the distinguished Senator from West Virginia. I thank him for his fidelity to his faith and for his fidelity to this Senate and the courtesies and rules that need to be followed to make sure we live up to the high ideals on which this institution was founded. He, more than anyone I know, has taught us the history, and the importance, of what we are about. His courtesy to me, a first-term Senator, is typical of his many courtesies. I simply say how deeply disappointed I have been that we will be leaving this body before Christmas without having passed a stimulus package. Experts have said a good stimulus package, $75 to $100 billion, would preserve 300,000 jobs in this country. That is a lot of jobs. Those people, if they are working, will be happier. Those families will be happier. The homes will be happier. They will pay taxes. They will pay State and local sales taxes and other taxes. They will pay Federal taxes. It will help us run our government. But if they lose their jobs, there will be a sadness and an unease in their homes, a difficulty that otherwise would not take place, and the government itself, State, local and Federal, will lose revenue. It is a big deal if we can affect the economy. I do not think there is any doubt. I have been convinced for a long time in the projections that we could achieve a 1-percent or a half-percent increase in the gross domestic product by passing the stimulus package. That is important. I believe we should pass a bill. No less than 2 weeks ago I became deeply concerned that we might actually leave this body without a bill being passed. At first I did not think that was possible. We brought up a bill and disagreed, the House had passed a bill, and some here didn't like it but negotiators were working together. The Finance Committee chairman and ranking member, the majority leader, the Democratic leader and the Republican leader, they were all working and talking and surely a bill would pass, I thought. They would work out their differences. Frankly, I never believed exactly what was in that bill, if it met a few simple principles, would make a lot of difference. Probably, another $100 billion, another $75 billion into the economy we would have made an impact. There was no doubt in my mind if a middle-income family would have gotten a 2-percent reduction in the amount of money withheld from their taxes they would have more money and they would spend it. Because of my concern, I offered my own bill. As a matter of fact, we were here one night until midnight. I sat around with some colleagues and refined my ideas and four of us introduced a stimulus package. It was simple. It did not have a lot of complexity to it. Frankly, I did not think anybody could find anything wrong with any of it or would object to a bit of it. I said: We offered this bill; let's just vote on that. It had a number of provisions in it that I thought were worthwhile. My favorite contribution, what I believe in and would like to see accomplished and really needs to be accomplished as part of this package, or it may be more difficult to pass, is the advanced payment of the earned-income tax credit. The Presiding Officer understands these finance issues a lot better than I, but I can understand a little bit about low-income working Americans. They are at a point with the earned-income tax credit where the Federal Government gives them a tax credit. It is $31 billion a year. It amounts to, for an average family with one child, a $2,000- per-year tax credit. They can get it when they work or on their tax refund a year after they work. Since the earned-income tax credit was designed to encourage work, there has been a strong feeling it ought to go on the wage that they earn. What has happened, however, is that we have never accomplished that. Only 5 percent of the workers take advantage of the opportunity to get their earned-income tax credit on their paycheck. If it were given to them 100 percent, that would be a $1-an-hour pay raise with no deductions from it. But we have never been able to figure out how to do it. They finally passed, a day or so ago, an amendment that would allow that to happen, but only 5 percent take advantage of it; 95 percent get their credit the next year. So it is good public policy, in my view, that they get their credit early. I believe in this time of stimulus, if we would make a conversion and pump in $15 billion or $20 billion extra on low-income people's paychecks, many of whom may be out of work for a while, get another job, lose work and find another job, they would have more money to take care of their families with and it would not cost the budget of the country, the Treasury of the country, any money in the long run. It would shift about $15 billion or more into this fiscal year but that money would be from the next fiscal year, and we would have $15 billion left to spend next year. It is good public policy and a superb stimulus that moves money forward and saves money next year. We would have put in another item. We proposed reducing the median income tax rate from 27 percent to 25 percent. It was planned to be done anyway. We extended the unemployment benefits, as most of the proposals have, for an additional 13 weeks. We provided insurance and health benefits. We provided a $5 billion fund for national emergency grants for States to help people who have been displaced or lost their job. And we advanced the plans for 1 year for the child tax credit. This child tax credit is a plan that would infuse about $6 billion or $8 billion into the economy for families with children. Those were some of the provisions we put in that plan. It could have passed. I don't believe anybody would have been upset about it. It had no business provisions in it that would upset anybody. It did have some depreciation advancement. I say we ought to have done something. That bill, other bills, the bill that almost reached conclusion, the bipartisan approach that passed the House last night, was sent over here, and we did not get a vote. So I am very disappointed. I believe the leadership of this Senate made a mistake. We were not even allowed to vote on it or debate it. Everybody said we needed a stimulus package, but we never even got to bring the bill up for a vote. We had a number of Democratic Senators and certainly a large number of Democratic House Members who supported this bipartisan bill, and we could have passed it, but we did not and it is a great disappointment to me. I was pleased the Senator from Alaska discussed the energy bill that did not pass this time, under the very same factors. I was in Mobile Monday of this week. On two different occasions a real estate person and a very fine doctor came to me and said: Jeff, I think you have to do something about the energy situation. We are too dependent on Middle Eastern oil. They have the ability to disrupt our economy and to affect our foreign policy and damage us in ways that we ought to defend against. You need to do something to reduce our dependence on middle eastern oil. That is something I believe in very strongly. The bill the Senator from Alaska, Mr. Murkowski, has so eloquently argued for has conservation, reduced use of energy, as well as increased production. Both of those steps together will help reduce our dependence on foreign oil. It will help reduce the amount of American wealth that goes out of our country to purchase this substance that it would be better if we could purchase at home and keep that wealth at home. I believe we have had a number of opportunities to do better. I wanted a farm bill passed desperately. The President has made clear that we do not have a fight over money on the farm bill. We are prepared to honor the $75 billion set-aside in our budget over 10 years for farm programs. But there are some problems and serious disagreements about some of the policy that was in that bill. We could not get debate on it. Every amendment was rejected virtually on a party line vote, so we ended up not passing an Agriculture bill. We will have to come back and work on that because we need an Agriculture bill. We do not need to go into the summer without an Agriculture bill. So I am sure we will be back on that early next year. But it could have been done this time. So I will just say there were some great things accomplished this year: the education bill, a bipartisan effort that passed. The tax reduction was a historic empowerment of individual working Americans, a victory for the individual against the State and the power the State has to extract what they earn from them and spend as the State wishes. But it would empower them to utilize the wealth they have earned in the way they choose. If we had not done that, I am confident our economy would be struggling even more today. I see the distinguished Senator from West Virginia is ready to speak, and I am interested in hearing his remarks. I thank the Chair. I thank the Senator from West Virginia for his time. I wanted to express these remarks before we recessed today. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. My request would be that there be one last attempt to make a bipartisan compromise here. We have people such as Senator Lugar, Senator Cochran, Senator Grassley, Senator Roberts, with deep histories in farm legislation, who are troubled by this bill. I believe we can work it out, as we have in several other last-minute circumstances. But to just shelve it with no willingness to give on the majority leader's side is not healthy. Will the majority leader try that?

Mr. SESSIONS. Will the majority leader yield for a question?

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today in opposition to an amendment which would repeal a provision in current law restricting the use of the term ``catfish.'' The FY 2002 Agriculture appropriations conference report, recently signed into law, restricts the use of the term catfish to the family of fish that is present in North America. Unfortunately, there has been a campaign of misinformation about what this provision does, and I want to take this opportunity to set the record straight. First, the provision in the agriculture appropriations bill does NOT stop the importation of Vietnamese fish into the U.S. That would be a violation of the recently approved Vietnam trade agreement. Rather, this provision only requires the fish to be called what they really are--they are ``basa'' fish and not catfish. We learned in biology class about the classification of living things. We classify living organisms from kingdom on down to species. Specifically, the subcategories are: Kingdom, Phylum, Class, Order, Family, Genus, Species. Vietnamese ``basa'' fish are not the same species as North American channel catfish. They are not of the same genus either. They aren't even in the same family of fish. These two fish are only in the same order. Well guess what. Humans are in the same order--primates--as gorillas and lemurs. We don't say that lemurs and humans are close enough to call them the same thing. What about other animals? Pigs and cows are in the same order. If an importer was shipping pork into the U.S. and passing it off to consumers as beef, we would rightly be outraged. Some in the Senate may say that the taxonomy of fish is different. So let's take a look at an example of my point using trout and salmon. Atlantic salmon and lake trout are closer to each other than basa fish and North American channel catfish. They are in the same family of fish, yet we do not say that salmon and trout should both be called salmon. It is a similar story here: the closest a Vietnamese basa fish is to a North American channel catfish is that they are in the same order. There are over 2,200 species in this order of fish. The opponents of this provision say that because both fish have whiskers, they both must be catfish. Do we call all animals with stripes zebras? Do we call all animals with spots leopards? Of course we don't. Similarly, because the fish has whiskers does not mean that it is a catfish. The whiskers on fish are called barbels, and a number of species have them, including the black drum, some sturgeon, the goat fish, the blind fish, and the nurse shark. By restricting the use of the word catfish to those species that actually ARE catfish, we can reduce widespread consumer confusion. Substituting species is extremely misleading to consumers. These ``basa'' fish are being shipped into the United States labeled as catfish. These labels claim that the frozen fish filets are cajun catfish or imply that they are from the Mississippi Delta. In fact, they are from the Mekong Delta in South Vietnam. As a result, American consumers believe that they are purchasing and eating U.S. farm-raised catfish when in fact they are eating Vietnamese ``basa.'' The Vietnamese fish sold as catfish continue to be found to be fraudulently marketed under names that the Food and Drug Administration has determined to be fictitious. These names are used to misrepresent imports as U.S. farm-raised fish. The provision that we have previously passed will reduce this consumer confusion. Since 1997, the import volume of frozen fish fillets from Vietnam that are imported and sold as ``catfish'' has increased at incredibly high rates. The volume has risen from less than 500,000 pounds to over 7 million pounds per year in the previous 3 years. The trend has continued this year--the Vietnamese penetration into the U.S. catfish filet market alone has tripled in the last year from about 7 percent of the market to 23 percent. The law of the United States and most countries seek to protect consumers by preventing one species of fish to be marketed under the preexisting established market name of another species. When the Vietnamese fish in question first started to be marketed significantly in the U.S., importers sought and received approval of the name ``basa'' from the FDA. However, some importers of the lower priced Vietnamese fish sold that fish as ``catfish'' to customers. The name ``catfish'' was already established in the U.S. market for the North American species. FDA has the legal responsibility to prevent ``economic adulteration'' of food products in the U.S. market. FDA has described ``species substitution'' in seafood as an example of ``economic adulteration.'' FDA in recent years, however, has not taken an active role in enforcing these laws, and efforts made by the American farm-raised catfish industry to obtain enforcement went largely ignored. To make matters worse, the FDA in August of 2000, at the request of import interests, authorized the Vietnamese fish to be marketed under the name ``basa catfish.'' My colleague from Arizona has mentioned on the Senate floor that this provision was done to protect the interests of ``rich'' agribusinesses in Alabama, Mississippi, Arkansas and Louisiana. I invite him to come visit the Alabama Black Belt, one of the poorest areas in the United States, and see these operations for himself. It is clear to me that this effort to go back and strike appropriations language is an effort being made on behalf of rich importers who are substituting this Vietnamese fish for channel catfish. In spite of full knowledge of the legality of substituting one fish species for another, importers are making more and more money passing off basa fish as channel catfish. U.S. catfish producers and processors have spent years creating a successful market for their fish. The Vietnamese and importers are taking advantage of this established market by substituting the basa fish for catfish. The provision in the agriculture appropriations bill makes it clear to importers that the practice of species substitution is unlawful. This is no change in substantive law. Nothing in the legislation imposes any restriction on the importation of Vietnamese fish of any kind. Nor does it prevent Vietnam or importers from establishing a market for Vietnamese fish. I encourage them to expand their market. Just don't substitute it for something that it is not. U.S. catfish farm production, which occurs mainly in Alabama, Mississippi, Arkansas, and Louisiana, accounts for 68 percent of the pounds of fish sold and 50 percent of the total value of all U.S. aquaculture, or fish farming, production. The areas where catfish production is greatest are in the Blackbelt of Alabama and the Mississippi Delta. These are some of the poorest areas of the United States, with double-digit unemployment rates. With depressed prices for almost all other agricultural commodities, catfish production is critical to the U.S. economy, and particularly to the economy of the South. U.S. catfish farming is one of the few successful industries in these areas of the South, and the farmers, processors, and the regions are suffering tremendously because of this dramatic surge in imports. If the Vietnamese were raising North American channel catfish of good quality and importing them into the U.S., I would have no problem. That is fair trade. Fair trade is not importing ``basa'' fish, labeling them as catfish, thereby taking advantage of an already established market, and passing them off to American consumers as American catfish. The Vietnamese and the importers need to play by the rules. The provision in the agriculture appropriations bill simply clarifies existing guidelines and sends a message that substituting these two species is fraud. A vote in favor of the McCain amendment is a vote in favor of fraud, consumer confusion and species substitution. Therefore, I urge my colleagues to vote against the McCain amendment.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I salute the leadership on this legislation. I note that the IDEA program amendments that were passed in the House and the Senate were not included in this, which was a disappointment to me. But we will have an opportunity next year to reform that, during the reauthorization of IDEA. I believe education is one of the most important issues that faces our Naiton today. We need to do all we can to free States and localities from Federal regulation, assure accountability by setting high standards, and empower parents with choices and information. As Governor of Texas, President Bush recognized the importance of education and made it the centerpiece of his campaign for President. When he took office, he delivered on his promise by releasing a comprehensive plan for reform during the first days he was in office. I believe that President Bush's leadership has been essential to the Congress producing the historic reform legislation that was passed by the conference committee on December 11. Since the tragedy on September 11 the Congress and the President have understandably been focused on the war on terrorism. I believe it is a credit to the leadership of President Bush that he was able to continue to make education reform a priority. He never lost sight of protecting our greatest resource, and children. His leadership never wavered and I believe we could not have reached the bipartisan compromise in the education conference without his influence. Secretary of Education Rod Paige was also essential to our efforts at reform. Secretary Paige's real-life experiences as Superintendent of the Houston school system were invaluable in helping us to formulate legislation that will truly foster reform for all our children. I would also like to recognize the leadership of Senators Gregg and Kennedy here in the Senate and Congressmen Boehner and Miller in the House. Even when our country was threatened and they could have abandoned this effort, they stayed focused and were able to hammer out their differences and come up with a good piece of legislation. While the legislation does not contain all the provisions that I would have liked to have seen in the bill, it does take some important steps toward improving the educational opportunities for all our children. The conference report includes testing in grades 3 through 8 in math and reading, which is the cornerstone of the President's plan. I am glad that we have recognized the need to measure the progress of our students. We must determine if our schools are actually teaching our children the skills they need to succeed. The only way to measure our students knowledge is through testing. While some have raised concerns about reliance on testing, I believe this legislation strikes an important balance to ensure that we bring accountability to the system without overburdening our State and local school systems. The bill significantly changes accountability standards with the goal of assuring that low income students are learning at a level that is equal to their peers. The States are charged with developing the tests based on their own curriculum. This is not a one-size-fits-all approach. The bill specifically prohibits federally sponsored national testing or Federal control over curriculum and sets up a series of controls to ensure that any national evaluating test such as NAEP must be fair and objective and does not test or evaluate a child's views, opinions, or beliefs. In addition, the bill includes a trigger mechanism so that State- based testing requirements are paid for by the Federal Government thus avoiding an unfunded mandate. In Alabama, we have already recognized the importance of testing, we already test our students in virtually every year of school. I believe this legislation will assist Alabama in these efforts and the new funds will help to improve the current system. The legislation also includes a number of major new initiatives which give parents options when their children are trapped in failing schools. For the first time, parents whose child is trapped in a failing school will be able to take a portion of the monies available under title I for their child--approximately $500 to $1,000--and use it to get the child outside tutorial support. These services can come from public institutions, private providers, or faith-based educators. For children who have fallen behind because of lack of good services at their school, groups such as Boys and Girls Clubs, Catholic schools, Sylvan Learning Centers, and a variety of other agencies would be able to give these children the support they need to catch up in the areas of math and English. Another new opportunity provided for parents under this legislation involves public school choice. A parent whose child is trapped in a failing school will have the opportunity to send their child to another public school which is not failing and have the transportation costs paid for. This bill does not allow parents to access private schools, but it does provide parents the option to move their child to a better public school where they can get an adequate education. We believe this option will put pressure on those public schools within a major school system that are failing and will give these children a viable chance to succeed. I believe one of our most important goals is to give States and local communities more flexibility. After all, they are best suited to make decisions regarding their own children. While the legislation does not provide the flexibility that many of us would have liked to have seen, it does make major improvements in freeing State and local education agencies from burdensome Federal regulations. Currently, Federal rules mandate that funds only be used for a designated purpose. Under this legislation, all 50 States will be permitted to make significant spending decisions of up to 50 percent of their non-title I funds by being allowed to move those funds from account to account without Federal approval. This means that States and local communities can spend these funds where they feel they will get the most benefit for the dollars. Seven States will also be permitted to consolidate 100 percent of their State activity, administrative funds, and innovative block grant funds and use them for any activity authorized under H.R. 1. This frees up hundreds of millions of dollars for these States to use at their discretion. This will dramatically expand a State's flexibility of they decided to participate in the program. Up to 150 school districts--at least three per State--could also apply to participate in even broader flexibility. They will be able to apply for waivers from virtually all Federal education rules and requirements associated with a variety of ESEA programs in exchange for agreeing to further improve academic achievement for their low-income students. The concept is simple, the Federal Government will give them even greater flexibility in exchange for significant results. The State of Alabama has instituted a major reading initiative that has begun to make a difference in the lives of students in our state. In fact, the Alabama Reading Initiative is becoming a model for reading programs in other States. Massachusetts has appropriated $10 million to begin a program based on Alabama's efforts and Florida is beginning a pilot program in 12 school districts patterned after the Alabama Initiative. President Bush also recognizes the importance of reading, he has described reading as ``the new civil right.'' Early on, he stated his goal that every child should be able to read by the third grade. One of the cornerstones of President Bush's education plan was his Reading First and Early Reading First initiatives. These initiatives are meant to encourage States and local schools to implement scientifically based reading programs and to augment programs such as the Alabama Reading Initiative. The Reading First Initiative would help to establish reading programs for children in kindergarten through grade 3. Under this legislation, Federal funding for reading programs will be tripled from $300 million in 2001 to $900 million for 2002. President Bush has demonstrated his commitment to this program by budgeting $5 billion over 5 years for the effort. The companion program, Early Reading First, is intended to enhance reading readiness for children in high poverty areas and where there are high numbers of students who are not reading at the appropriate level. The $75 million initiative is designed to provide the critical early identification and early reading interventions necessary to prevent reading failure among our children. This legislation also takes important steps to improve teacher quality in our schools. In order to provide increased flexibility, the agreement eliminates the class-size reduction program and now gives school districts the option to choose whether they want to use federal teacher dollars to recruit or retain teachers, reduce class-size or to provide additional training to teachers already in the classroom. States would also be able to spend Federal teacher dollars on merit pay, tenure reform, teacher testing and alternative certification. The point is to allow flexibility for school districts to address the needs most important to the local community, instead of simply dictating what should be done from Washington. The legislation also includes the teacher liability language that passed the Senate. These provisions help to ensure that teachers, principals, and other school professionals can undertake reasonable actions to maintain order and discipline in the classroom, without the fear of being dragged into court or subject to frivolous lawsuits simply for doing their jobs. One issue that I am disappointed that we did not address in this legislation are the problems with the discipline provisions in Individuals with Disabilities Education Act, IDEA. While both the House and the Senate passed provisions to address this problem, unfortunately, many of my colleagues on the conference committee opposed both versions and neither was included in the final conference report. Having traveled all over Alabama and visiting a number of schools over the past few years, I am firmly convinced that the Federal IDEA discipline regulations cause more distress for dedicated teachers than any other single Federal rule or mandate. Some of my colleagues on the conference committee feel very strongly about this issue and strongly opposed my amendment. But I want to make my proposal clear. My amendment was carefully tailored to allow schools to discipline IDEA students in the same manner as non-IDEA students, when the behavior that led to the disciplinary action is not related to the child's disability. No child could be denied educational services for behavior that is related to their disability. My amendment also retains many of the procedural safeguards in current law to ensure that IDEA children are treated fairly, but it allows state and local educators more flexibility in their discipline policies. My amendment also would provide a better option for parents of children with disabilities to move their child to a better educational environment. While this option is available under current law, my language would streamline this process. The parents of the child and the school would still have to agree on this decision. I believe this is a reasonable proposal that would allow more students with disabilities, with the agreement of the school, to seek special education programs that better meet their needs. During my meetings at schools, I encouraged teachers to write to me to share their experiences with IDEA. I received a large stack of mail. The frustration and compassion in the letters is powerful. Real stories from educators and students are the best evidence of the need for change. Two things are clear to me. First, current Federal IDEA discipline rules cause disruption in the classroom and even threaten the safety of students and teachers. Second, the Federal Government needs to increase IDEA funding and meet its commitment to providing 40 percent of the national average per pupil expenditure. President Bush's budget included a $1 billion increase for IDEA for next year, the largest increase ever proposed by a President in his budget. He is committed to increasing this funding in future years. This new funding will be an important step in assisting schools to meet the goals established under IDEA. The IDEA law is filled with complex issues and problems besides discipline. One area that Secretary Paige seeks to address is the possible over-identification and disproportionate placement of minority students in special education. Secretary Paige has spoken to me about this problem and I stand ready to work with him to address it. For example, we need to look at how to distribute Federal special education funds without creating inappropriate incentives regarding referral, placement or services to children. We shouldn't be creating an incentive for schools to place children in special education programs that can be helped under our existing system. The IDEA law provides many wonderful and special benefits for children with disabilities, but we can make it better. It is important that we return common sense and compassion to this problem. I am committed to working to improve the law when it comes up for reauthorization next year. If we work together by providing more money for IDEA and give more authority to our local school officials, we can take a big step toward improving learning. While I continue to believe that education is and must remain the primary function of State and local government, I believe this legislation will help to improve our public education system. This legislation is far from perfect and I am sure we will have to make adjustments in future years. But I believe that with President Bush's leadership this legislation presents the best opportunity in 35 years to return power and dollars to the state and local school districts and to make academic achievement a priority.

Mr. SESSIONS. Mr. President, It is a pleasure to see this bill come up now for what I believe will be its approval. We have worked hard on it. I know it was a thrill to see the bill come out of committee with a unanimous vote under the leadership of Senator Kennedy and ranking member, Senator Gregg. I thought that showed good bipartisan support. It languished a bit in conference with the House, and we struggled a bit. The President had to raise the level of heat a bit, but things have moved forward. It is exciting to see this bill move toward law. The President campaigned on education as one of his top themes. He talked about it constantly. He visited schools regularly. His wife was a teacher. He has honored that commitment by continuing to press a major education bill this year which will represent one of the largest increases in funding for education in recent years. It also represents a significant policy change that will allow more freedom for the school systems, that will put more money in local schools, that will help children who are being left behind and move them forward. I believe we should recognize and salute the leadership of the Secretary of Education, Rod Paige. He came here from Houston. He was chosen to be the superintendent of the Houston school system, comprised around 200,000 students. He believed that a 37-percent passing rate of the Texas test in Houston was unacceptable. In 5 years, with determination, sound policies and great leadership, he doubled the percentage of schoolchildren passing that test. I say that because there are some people who do not believe that progress is possible. I have seen school systems in every State in America. There are systems where teachers, parents, and leaders have come together to achieve significant increases in productivity and change. Certainly money is not the complete answer; it is also policy change, determination, and leadership. We have too many schools where children are locked into a failing system, and they have been falling behind. Nobody even knows or cares that they are falling behind. They can't go to any other school. They are required by law to attend this dysfunctional school. And that is just not good. The President understands this deeply. As Governor of Texas, he made education one of his highest priorities, and he has made it his number one domestic priority as President. He has helped us move forward to what I think is really historic legislation. It is an honor to be a part of it. Testing and accountability have been a matter of some debate. I do not believe tests are accurate reflections of a child's complete ability to learn and what they absolutely know. But it is true that you can determine through a test whether a child can do fundamental mathematics, whether a child knows fundamental science, and whether a child can read or not. It is a tragedy in America that we have been moving children through the school system, even to graduation, who can't read and write and they are making the lowest possible scores on tests. We have just accepted that. That is not a good way to do it. The President has said he is not going to leave any child behind, and we will make sure we achieve that goal. We are going to find out if children are falling behind. We will have a testing program in grades 3 through 8 in math and reading that will not be Federal Government- mandated tests, but state tests, and we will begin to learn. The newspaper editors, the business community, the teachers, the principals, the parents, and the students will know how the kids are doing in that school system. Some schools do better than others. We need to find out which ones are doing best and identify those that are not doing well. I think that is important. As Secretary Paige says, if you love the children and you care about them and you want them to learn so they can be successful throughout their lives, you will not allow them to fall behind. What we need to do is intervene early in the lives of children when they are falling behind--as soon as possible. Then we can make some progress. This bill says there can be supplemental services in a system that is not working and where kids are falling behind. They can get maybe $500 or $1,000 for outside tutoring for a child who is not keeping up because as you get further behind, a lot of bad things happen. Dr. Paige says that a child in the seventh, eighth, and ninth grades, if they are really behind, that is when they drop out. Normally, it is around the ninth grade. They can't keep up, they are behind and discouraged, and they drop out. We need to find out in the third grade, the fourth grade, and fifth grade how they are doing and make sure we then intervene, when the cost is not so great. We can increase their ability to be a functional and good student and help them go on to success. It is a lot like business management, frankly. It is just good supervision and having a system that does not allow the status quo to drift, but one where we care enough to make the tough decisions, apply tough love, to insist that children behave in the classroom, they do their homework, and teachers do their work. If teachers are not performing, they need to be held to account, and we need to create accountability in the system. If we do so, I believe we can make real progress. As a part of the compromise that went on in the legislation, some good language was put in to ensure that all this testing we require is paid for by the Federal Government, so it is not an unfunded mandate. We also have in the bill testing rules that guarantee States will not have their curriculum set by Washington. It will guarantee that the tests don't mandate a single type of learning in America. I think that process worked well as we went forward. The flexibility goal has been achieved in a number of ways. It is not as great as I would like to see it. I have visited, in the last 15 to 18 months, 20 schools in Alabama and spent a lot of time talking with teachers, principals, superintendents, school board members. They felt very strongly. These are people who have given their lives to children. They have chosen to teach and to be involved in education. They have told me consistently that the Federal Government has too many rules and regulations that make their lives more difficult and actually complicate their ability to teach in a classroom. There is money, but it is only available for what the Federal Government says, not for what they know they need at a given time in their communities. I think we need to continue to improve in the area of flexibility. We have made some real progress in that, and I am happy we have made progress in this bill. But it could have been greater. I think our teachers and principals will like what they see. It is a step in the right direction. Alabama has established an exceedingly fine reading program that is being replicated by many States. Senator Kennedy's excellent school system in Massachusetts is always on the cutting edge of things. They have appropriated $10 million to just study this program and implement some of it in their system.

Mr. SESSIONS

Mr. SESSIONS. Ten minutes.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I have the permission of the Senator from Arkansas to go first. I do take offense at the distinguished Senator from Iowa, Mr. Harkin, saying we do not want a farm bill. That is not true. I do want a farm bill. I do not think there is a Senator here who does not want one, and I would like to see one completed before we leave. I have been talking to farmers back home in my State, and they tell me frankly they like Cochran-Roberts. I am pleased to support the amendment that Senator Hutchinson has offered that has the House structure with some additional language in it that we think makes the bill even better. That was my farm bill that I offered, along with Senator Hutchinson and four Democrats. There were four Democrats and three Republicans on that bill. I believe the Presiding Officer was on that bill. It was a good bipartisan bill. As the bill went through the system, the committee dealt with it and the majority leader dealt with it, and pretty soon we had a bill that was not as balanced as we would like to see it. A lot of people in this Senate who care about agriculture--and there are some other than Senator Harkin--are really concerned about the legislation and want a good bill. Senator Cochran from Mississippi who chair the Agriculture Appropriations Subcommittee is one of the most knowledgeable people in this Senate on agricultural issues. Senator Pat Roberts chaired the House Committee on Agriculture and is one of the most knowledgeable people in this Senate on agriculture. Senator Lugar, the former chairman of the Agriculture Committee and one of the finest Members of this body, is not comfortable with this legislation, and he certainly, as a farmer, cares about agriculture. So does Senator Grassley who spoke earlier, a farmer himself, and a senior member of the Agriculture Committee. They just do not agree with Senator Harkin on everything that is in a bill that he admits is not perfect. What we ought to do, and what I would have expected to happen, is that these responsible, experienced Senators and farm experts would be able to get together and work out some of the problems and not end up with a problem with the House and a problem with the President. How are we going to get a bill passed if it cannot be conferenced? How are we going to get a bill passed if the President vetoes it? It is not going to happen. Let's get together now. That is the problem. My farmers are telling me they believe all three of these bills can help them. They like all three of these bills, but we have to look at it in terms of a national policy and work out something with which everybody can work. The problem has been, frankly, that the majority has not shown enough respect, in my view, to Senators Cochran, Roberts, Grassley and Lugar who have been trying to make some improvements in the bill. They have not talked to them on any significant issue, only minor issues, and we end up at loggerheads. The President is very unhappy with what he sees. Even if we pass something before we leave, if it is not legislation that is likely to move forward, we have not done anything. That is why I appreciate Senator Hutchinson's offering of our original bipartisan bill that we know can get through the House, and we believe the President will sign it. I believe we will have a farm bill in a matter of days--hours, really. That would be good for agriculture. The people with whom I have talked are concerned about delay. They would like this bill passed as soon as possible. They want to make their plans for next year. They want to talk with their banks and see about the financing they will need. We do need to move as fast as possible. It would be quite preferable for us to move and have a bill passed that the President would sign before we recess. There is no doubt about that. I would like to see that done. But Senator Harkin and the majority leader are basically saying: Take our bill just as we have written it, even though we have a vote or two over 50 for it, but we will not talk with you. I have seen Senator Daschle when he was the Democratic leader use the power of 40 votes and ask for compromise and get it time and again. That is what this body is about. I just have not seen enough progress in a bipartisan way here. I believe there has just been an effort to stampede this bill through to try to gin up people and say: The Harkin bill is the only one that can do the job, and it must be passed now; and if you do not pass the Harkin bill now, you do not care about farmers, you do not care about agriculture, you would just as soon leave them out there and let them go bankrupt. That is just not true. I resent that. I come from a farming family. My daddy had a farm equipment dealership. My grandparents were farmers. I grew up in the country. I know about farming. I have seen them come into my daddy's business with a tractor broken down, with hay in the field, a hay baler not working, needing help, knowing if the rain came and they did not get the crop in, they could lose most everything. And we did not have the programs then that we have today. I understand that. I grew up in that community. I want a farm bill, and I do not like it when somebody says I do not. And I do not like it when they say: If you do not agree with me and agree to vote on a bill I want on which we will accept no significant amendments, then we are going to accuse you of being against agriculture. I do not believe that is right. That is where we are, and everybody knows it. There is no mystery about where this deal is tonight. I want to make one more point. There are several problems with the Harkin bill. From what I am hearing, other people are also expressing those concerns. It seems to me that the Harkin bill will increase production at a time when our production is high. And if it goes higher it will be even harder to sustain legitimate crop prices. That is a real problem. We have pretty high production now. Cotton is up. None is down that I know of. We don't need to institutionalize or create an incentive to do that. We want to do this thing in a way that does not leave us subject to the charge of the Europeans who say we are protectionists and that we are violating WTO commitments. If we can avoid violating them and accomplish the same thing, we ought to do it. I hope and pray that the Europeans will see their extraordinary subsidies for agriculture are not justified. I hope they will begin to reduce some of that, and we will see increased exports around the world in other places besides Europe. If we can avoid it, we ought not violate our trade agreements. I am afraid in a few years the experts will say we are in violation of our international trade commitments, putting us at a disadvantage when we try to negotiate with our trading partners who I think have been violating the law consistently. We will not be as authoritative with the same moral basis to argue they need to get right with the law. We need a bill that can go to conference and be signed by the President promptly. That is why I believe the legislation Senator Hutchinson has offered tonight is a good vehicle for that. There are two ways we can get a farm bill as I see it, just like this. We can have a good-faith, compromise negotiation discussion between the slim majority and the leaders on this side who are fine people, fine Senators, who have a history, a record, and a career of supporting agriculture--Senators Grassley, Roberts, Cochran--and talk with them and see if they cannot work out something. If they do not, we have another vehicle, a vehicle Senator Hutchinson would offer, to solve the problem. Those are the two ways. Maybe there will be another and cloture will be achieved. I know one thing: If we did those two things, we would be out of here and we would have a bill the President would most likely sign and we would have fulfilled our duty. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, one thing we need to do a better job of in this Congress--and we do have oversight and appropriations authority for all moneys that are expended--is to make sure that those moneys have been spent wisely, efficiently, and that the taxpayers' interests are protected with the same degree of fidelity that homeowners and families protect theirs, as small business people protect theirs. We don't always do that. We spend such big sums of money that sometimes we think small matters are not that significant. I had the responsibility a few years ago as Attorney General of Alabama to take over an office that was financially out of control. We had a huge debt facing the office the year I took office. We had to reduce personnel, substantially cut back on all kinds of things, and to reorganize the office. When it was over, even though we had lost some good people--no career people, thank goodness, but almost a third of the office, those who were political appointees; that office has never gotten close to the same number of people that it had--what we found was that working together we actually improved productivity. We did a great job. The people worked hard. They reorganized. They had a new vision. We have a false impression that money is the only thing that answers a problem around here. Always the answer is, just give it more money. And we in Congress say: We did what we could; that is somebody else's problem. I have initiated a program I call ``Integrity Watch.'' It is a program in which I take time periodically to analyze bad fiscal management expenditure practices in our Government and to highlight those. The one today I take no real pleasure in. It was a sad, confusing story, but it is appropriate for the taxpayers to know the final outcome, to see what has happened, to be aware of how much it has cost us in expenditures. Many people remember the decision by General Shinseki, Chief of Staff of the Army, to change the berets to give everybody a black beret. He set a deadline of this year, only a few months away from that date, and he had to find a whole lot of berets in a hurry. Under the Berry amendment, the Federal law requires that all clothing items be manufactured within the United States except in times of armed conflict. What happened with the deadline that was given was, the Defense Logistics Agency, that had been delegated the authority way down the line to grant waivers of the Berry amendment, found itself in a position where they did not have sufficient American manufacturers to meet that deadline. And so based on this artificial goal by the Chief of Staff of the Army, General Shinseki, they set about to get the berets wherever they could. They issued waivers and started getting berets from all over. They got 925,000 of them made from China, by the Communist government. Other countries were called on and agreed to manufacture in this rushed process. When that all became public and there were complaints about the beret decision to begin with and all these factors came up, there was quite an uproar. The result was that the military admitted that they had not complied at least with the spirit of the Berry amendment, that they should not utilize the Chinese-made black berets, worth $6.5 million, and so they stored them. They paid for them. They stored them. So we now have 925,000 black berets valued at $6.5 million not being utilized. Hopefully, some other army in the world might buy them from us, but we are certainly going to take a big hit on that. Another thing that we learned: Some of this information came about as a result of my request to the General Accounting Office that does audits for the Congress and other agencies to determine how moneys are being spent. We just got this audit back earlier this week. The General Accounting Office report indicates a number of other things that happened. GAO declared that the military, in order to meet its deadline, chose to shortcut normal contracting procedures. They found, for example, that the defense logistics agency awarded the first set of contracts without competition. According to the contract documents, all the contract actions were not completed because of ``an unusual and compelling urgency.'' The real urgency was the self-imposed deadline they set. It also goes on to point out that these rushed up contracts hadn't worked very well. Not only were they being done substantially outside the United States by foreign suppliers in violation of congressional acts, but they weren't being performed well and had to be canceled. The Denmark military equipment supplier which manufactured black berets in Romania agreed to supply 480,000 berets. Only 90,000 have been supplied, and the military canceled the order for 350,000. Another one was a Bernard Cap Company, which is manufacturing the berets in South Africa but with Chinese content. They contracted to supply 750,000 berets. The cancellation has now taken place, and 442,000 were canceled. A third contract was with Northwest Woolen Mills to have the berets manufactured in India. The number purchased was 342,000; the number delivered was 56,000; the quantity canceled was 235,000. Every time the military has to go through a cancellation of a contract, it costs us money. We all know that. That was bad management. A lot of things happened that I think were not good. I am, however, quick to say that the Assistant Deputy Secretary of Defense, Paul Wolfowitz, early on had a study and review done of the compliance with the Berry amendment. And what they concluded was that he would direct an order, throughout the Defense Department, requiring compliance with the Berry amendment, directing that any waiver authority could not be delegated below the Under Secretary of Defense for Acquisition. That is what the problem was in this case. It required that no waivers be granted without a full analysis of the alternative because it is easy to say there is no supplier in the United States. But had the Defense Department really searched it out to make sure that is true? Had they considered other possibilities? He directed that it be done. He achieved revisions throughout the acquisition regulations which govern our military forces as they make acquisitions. There are complex regulations and he revised them to make sure there would be no further violations of the Berry amendment. In the course of all this, he uncovered at least three cases in which the Berry amendment had apparently been violated. No one had even raised it, and no analysis or waiver had been done. They just went on and purchased military apparel outside the U.S. without any kind of waiver authority. Now, the Chief of Staff of the Army came under a lot of criticism, and I think he told the truth. He was frank when he discussed why he did what he did and why he believed it was important. I think he made a mistake. He did not argue with people about it. He explained why he did what he did, and he believe he was justified. So I hope that is a learning experience there. It is not enough that we just complain about waste, fraud, and abuse. My little program, called Integrity Watch, is designed to ask in some detail how can we make it better. Do we need legislation to be passed? Do we need regulations to be changed? Do we need to cut off funding? What do we need to do to improve a situation? In this case, I would say the Berry amendment is adequate. It does the task. What the problem was a cavalier attitude about how it should be administered. I also think there was an unnecessary rush to produce the berets, and it cost us a considerable amount of money, a $26 million total contract price. So I believe the actions of the Defense Department in reinvigorating and highlighting the need to enforce the Berry amendment, to raise up the level of the personnel of the Defense Logistics Agency before anybody can grant a waiver, will probably solve that. So I don't think legislation is needed. I am certainly not of the view that we need to pass legislation to direct how the Chief of Staff of the Army decides emergency matters. I hope through this experience, however, that he will have learned a lesson, and those who work with him will have learned a lesson, that sometimes it is better to go slow, not to set deadlines and goals that are too fast because the costs can be paid by the taxpayer and you can end up with problems such as we had in this case. You can end up with a situation where a nation is supplying berets that we don't intend to use. You can end up with a situation where contracts, because they were rushed, got canceled and where it cost more money and ended up delaying distribution of the berets. I think this is worth highlighting. I appreciate the GAO for doing an objective and fair analysis of the situation. It was not a bright day for the Department of Defense. In fact, it was a clear error--a kind of problem that should not have occurred. But it did occur. I believe we have all learned from it and, hopefully, in the future, this will be avoided as we go forward with the additional procurement we will be facing to make sure the men and women in uniform have the equipment, clothing, and resources they need to do the important jobs with which they are challenged. I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. I thank the Chair and I thank Senator Warner for yielding time to me. It has been a tremendous experience for me to serve on the Armed Services Committee--over 3 years now, under the leadership of Senator Warner and now Senator Levin. It has been a pleasure to watch how the committee operates. On occasion, we have disagreements, but the committee works with such good grace and harmony and a generalized interest in what is best for America that I think it has been a good example for other committees. Senator Levin, I thank you for your consistent courtesy, your brilliant leadership; and Senator Warner, thank you for your leadership on this bill and in the past as chairman of the committee, now as ranking member. I am generally very pleased with this legislation. Essentially, as I see it, we had about a $30 billion increase in expenditures planned in our budget item as we came forward this year over last year in actual appropriations dollars. Then we had a supplemental. Then we had the $20 billion supplemental that we passed after September 11. We are looking at a pretty significant increase in defense spending. Some of that, of course, is going to homeland defense that we were not expecting to spend just a few months ago, but essentially we have a nice increase in defense. Our fundamental problem has been, as one of President Clinton's service secretaries said, we are in a death spiral in many aspects of our defense because we are carrying equipment--aircraft, ships, military vehicles--that are so old, it costs more to operate and maintain than is really justified. We really need to leap forward to a new generation of equipment, but we do not have the money to do that, and it is draining us in a lot of different ways. But we made some progress this year and last year, with great pay raises, or at least significantly above the inflation rate for our men and women in uniform, trying to make sure they know we affirm them and the service they are rendering. We did that prior to September 11, and I think there is an even stronger feeling in America today of appreciation for our men and women in uniform and a respect for the job they do. I feel pretty good about where we are going. We know the Army needs to transform itself. That is not an inexpensive process. We have not given it enough money to transform itself. For each year that I have been on the Armed Services Committee, we have been talking about the challenge, making sure the Army is capable of doing basically the very kind of things we are doing in Afghanistan today. We configured that Army to meet the Soviet Union and their vast capability and large standing Army and heavy equipment that they had, to confront them on the plains of Europe. But we do not have that threat in the same degree today that we did then. So everybody who has given serious thought to the situation knows we ought to be moving toward an Army that can respond to the various kinds of threats we are likely to be seeing in the world today. If we can do that, we would have served our country well. I do not think we have traveled far enough down that road, frankly. It has been impressive, however, to see that we continue to modernize, continue to exploit the technological advantage this country has in the world, and our ability to project power in a systematic way. I believe our modernization has caused the least possible damage to the defense related industrial sectors of this Nation in the process, and our ability to encourage innovation in these sectors while being smarter with our funding has increased dramatically. It has been an extraordinary effort that is being carried on in Afghanistan. It points out anew that we need to continue that transformation. We need to continue to bring on aircraft that is unmanned in larger numbers, to continue to improve our smart bombs, smart missile capability, and to do it in a way that is most effective in different types of conflicts into which we might be entering. I believe this bill has progressed in those areas, for which I am very delighted. One of the issues that we did have a dispute about and debate about in the committee was what to do about an anti-ballistic missile system in our country. I have been a real strong believer that this country needs a ballistic missile defense system, that we have dawdled too long, and it is time to move forward. This Congress voted 94-to-3 to deploy an anti-ballistic missile system as soon as technologically feasible several years ago. President Clinton signed that legislation. I thought that pretty much settled it. But we have had a good bit of debate since. President Clinton put in $5 billion for ballistic missile defense this year in his budget request before he left office. Under President Bush, that figure was raised $3 billion, to $8 billion. That is an increase he felt very strongly about. That was an increase that reflected an interest of his that was very important. He campaigned on it. He said he wanted to do it. He has suggested ever since he was elected, and even before he was elected, that we ought to either negotiate a new treaty with Russia, or we ought to take advantage of the provisions in the treaty that allows him to get out of the treaty. Today I am pleased to see that he made the decision to remove the United States from that treaty. Let me share a few things about this that I think are very important. We signed a treaty with the Soviet Union in 1972, with an ``evil empire'' that no longer exists. We now have a healthy, positive, growing, developing relationship with Russia--a country with which we want to continue to grow and develop our relationship. That old treaty in 1972 was no foundation for a relationship. The treaty only dealt with an ABM system. It only prohibited both countries from establishing an ABM system. It didn't develop a relationship of any significance between the countries. It was only a few pages. It only dealt exclusively with the details of prohibiting us from developing a ballistic missile defense and the Soviet Union from building one. It was a good idea at the time. Nobody had missiles but the United States and Russia, and perhaps our allies in Europe. We didn't feel threats from anyone but each other. We had mutual assured destruction. So we agreed that neither country would expend billions of dollars to develop a system that really wouldn't be effective against the massive amount of missiles that each country had. But now something has changed. Other nations have missiles. Lots of other nations have missiles. And they are buying more on the market today. We know the story of North Korea. We know about Iran's effort. We know other countries are expanding their ability to develop ballistic missile systems. Thus, I think that leaves us in a vulnerable position. We are in an ironic position, if you think about it, by prohibiting this Nation from building a missile defense system to protect us from other hostile nations on the basis of a treaty from 1972 with a nation that no longer exists. I don't believe Russia has any right--certainly no moral right and no legal right--to ask the United States to keep itself, as Henry Kissinger said, vulnerable to attack because of that old treaty. They have no right under the generally recognized rules of international relations to ask a nation to leave itself vulnerable to serious attack because of this old treaty. The President said he wants a new relationship with Russia. We are going to move forward, with a great new future between us. But I am not going to sit here and allow these United States to be vulnerable to attack from Korea, Iran, or any other nation that may acquire a nuclear missile and leave our people subject to attack. As Senator Warner said, it is a real problem, because a President may be eyeball to eyeball with some smaller nation and that nation may have a missile capable of hitting Los Angeles, New York, or Miami. They say: Mr. President, you move against us like you moved against Afghanistan and like you moved against Iraq--let us say that Iraq had one of these missiles, or half a dozen that could reach the United States and Mr. Saddam Hussein said, Mr. President, you move against us; I am launching my missiles immediately. Do not move against us. We don't want the President to be in that position, knowing he has no defense whatsoever against that kind of attack when we have the capability of building a defense to that attack. I think we have made some great progress. I salute President Bush. I salute his National Security Adviser, Condoleezza Rice, who from the beginning of this administration has understood quite clearly the importance of moving beyond the ABM Treaty to a new relationship with Russia, but at the same time protecting us from attack from who knows what may occur in the years to come. The bipartisan commission that was chaired by now-Secretary of Defense Rumsfeld concluded we would be vulnerable to that kind of attack by 2005. To have a national missile defense system in place by 2005, you have to get started on it. We may have ups and downs as we go forward. But this movement by the President is in the right direction. We are moving away from this old relationship with Russia to a new relationship. We are now going to be able to build a missile defense system that is the best effective defense of America without having to configure it, to manipulate it to fit within this treaty's limitations. They were trying to develop a system that would fit within the very strict confines of this treaty. I don't believe that was wise. It would be more costly. The system would be less effective than otherwise would be the case. We are doing the right thing by withdrawing from the ABM treaty. We are doing the right thing in following President Bush's suggestion that we increase spending for ballistic missile defense system. As I indicated, we have about $60 billion in increased defense spending this year. President Bush simply asked for $3 billion more than did President Clinton. That is not going to break the bank. Don't let anybody tell you that by building a national missile defense system we don't have money to transform the Army, or we don't have money to buy high-tech weaponry, or we don't have money to do other things. In the scheme of things, this extra $3 billion is not the back breaker to any one program when we have a $330-plus billion defense budget. Also, I am pleased to see one of the finest Senators on the floor, Senator Cochran. It was his legislation, I believe with Senator Lieberman, that we passed overwhelmingly in this body 97- to-3 to deploy a national missile defense system as soon as was technologically feasible. He led that effort. He was ahead of his time. I am sure he has every right to feel today that through that effort our Nation is moving on to a new day, geared more to the real threats that we face. I was pleased to support him in that effort, and Senator Lieberman. They were on the right track. I believe the President has shown consistent courage throughout this effort. There were a lot of people who said the Europeans are not going to go for this, the Senate is not going to go for this, and the Russians are not going to go for this. I know the Russians knew we wanted to get out of the treaty, but they know it does not threaten them for us to get out of this treaty. They would like to see us maybe make some concessions on some other arrangements in order to justify them giving up a little here. I will not call it extortion, but they are trying to deal with us on this issue. I am glad the President worked with them openly. He worked with this Congress openly. He worked with the American people openly. He campaigned on a national missile defense system. He has never waffled on it. President Clinton's was an unwise policy of claiming that he really wasn't building a national missile defense system, but just doing some research on it. We were testing it and doing things that were leading to the point where we were actually in violation of the treaty. A good lawyer could assert that. President Bush has been honest from day 1. He said we have to get out of this treaty. We can't keep on being clever and manipulative about the wording of it while intending to build a national missile defense system. The treaty prohibits the building of a national missile defense system. If it says anything at all, it says you cannot build a national missile defense system. The President's policy and the Congress' policy was to build a national missile defense system. So we couldn't play games forever with this treaty. It was time to put it out on the table. I salute him for biting the bullet on it. I believe it is the right step forward. I am hopeful that it will result in improving our ability to act in the world, giving the President some confidence that he does not have to be worried every minute that some missile might, by accident, be launched, or some small rogue nation might launch an attack on us. Again, I salute our leaders, Senator Levin and Senator Warner, and all the members of the committee for their hard work. We made some real progress this year. I hope that we can continue it next year. If we have a disciplined, longtime approach to our defense spending, we can recapitalize the military, we can transform the Army, we can continue the high-tech improvements in our Air Force, Navy and Marine forces and armaments, and make sure we are always ahead of the game. We never want our men and women in combat fighting on behalf of the United States of America put in the same position that those soldiers of Iraq were in when they were being attacked on the road as they were retreating out of Kuwait. That is the kind of thing that this Nation must never allow to happen. I believe we are doing the right things. We could use some more spending, but we are making progress. I am pleased to support this bill, and I thank our leadership for bringing it to pass. I yield the floor. Several Senators addressed the Chair.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I suggest the absence of a quorum.

Mr. SESSIONS. Madam President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. SESSIONS. Madam President, I ask unanimous consent to be allowed to proceed as in morning business for 15 minutes.