Democratic Manager's Closing Statement Of Senator Patrick Leahy In Support Of S.254, The "Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act"

May 20, 1999

Summary of Hatch-Leahy Managers' Amendment

Since we began consideration of this important legislation last week, we have gotten both good news and bad news on the crime front. We got the good news at the beginning of this week when the FBI released the latest crime rate statistics showing a decline in serious crime for the seventh consecutive year. Preliminary reports indicate that the rate of serious violent and property crime in this country went down another 7 percent in 1998, with robbery down 11 percent, murders down 8 percent, car thefts down 10 percent, and declines in other crime categories as well.

But we are all acutely aware that we also got bad news today. Yet another school shooting by a juvenile this time in Georgia with children injured and being flown to hospitals. Every parent in this country is reminded again that our children are not safe, even when we send them off to a place where they should be. The only thing parents should have to worry about when they wave goodbye to their children in the morning is whether their child remembered his or her homework and lunch money. They should not have to worry about whether they will get shot.

The growing list of schoolyard shootings by children in Arkansas, Washington, Oregon, Tennessee, California, Pennsylvania, Kentucky, Mississippi, last month in Littleton, Colorado, and today in Georgia, is simply unacceptable and intolerable.

Each one of us wants to do something to stop this violence. We have before us a bill that reflects hard work and committed effort on both sides of the aisle to address the juvenile crime problem. Senator Hatch and Senator Sessions have worked tirelessly for several years now to make a difference. While we have strongly disagreed in the past on the right approach to juvenile crime, I have always respected their good intentions. I am glad that this year we have continued the progress we made in the last Congress to find common ground on this important legislation. In light of the significant improvements we have been able to make to the bill here on the Senate floor over the last eight days, the bill is a better, stronger and better balanced bill. It is more comprehensive and more respectful of the core protections in federal juvenile justice legislation that have served us so well over the last three decades. At the same time it is more respectful of the primary role of the states in prosecuting these matters. Accordingly, I would ask the Chairman of the Judiciary Committee to add me as a cosponsor of our bill.

I do this recognizing, as we all do, that no legislation is perfect and that legislation alone is not enough to stop youth violence. We can pass an assortment of new laws and still turn on the news to find out that some child somewhere in the country has turned violent and turned on other children and teachers, with a gun or other weapon, with terrible results.

All of us — whether we are parents, grandparents, teachers, psychologists, or policymakers are puzzling over the causes of kids turning violent in our country. The root causes are likely multifaceted. We can all point to inadequate parental involvement or supervision, overcrowded classrooms and oversized schools that add to students' alienation, the easy accessibility of guns, the violence depicted on television, in movies and video games, or inappropriate content available on the Internet. There is no single cause and no single legislative solution that will cure the ill of youth violence in our schools or in our streets.

Nevertheless, this legislation is a firm and significant step in the right direction.

I have said before that a good proposal that works should get the support of all of us. Our first question should be whether a program or proposal will help our children effectively, not whether it is a Democratic or Republican proposal. The Managers' amendment and package of amendments that the Chairman and I were able to put together for adoption yesterday reflects that philosophy. It shows that when this body rolls up its sleeves and gets to work, we can make significant progress. I commend the Chairman for his leadership in this effort and I am glad we were able to work together constructively to improve this bill.

S. 254 started out as a muchimproved bill from the one reported by the Judiciary Committee in the last Congress. In fact, as I looked through this bill I was pleasantly surprised to see that proposals that the Republicans on the Judiciary Committee specifically voted down in 1997 were incorporated at the outset into this bill. These are changes that I and other Democrats have been urging on our Republican colleagues for the past few years, and that they have resisted until they quietly incorporated them into this bill.

Federalism. For example, I tried in July 1997 to amend S.10 to protect the State's traditional prerogative in handling juvenile offenders and avoid the unnecessary federalization of juvenile crime that so concerns the Chief Justice and the Federal judiciary. Specifically, my 1997 amendment would have limited the federal trial as an adult of juveniles charged with nonviolent felonies to circumstances when the State is unwilling or unable to exercise jurisdiction. This amendment was defeated, with all the Republicans voting against it.

S.254 contained a new provision designed to address these federalism concerns that would direct federal prosecutors to "exercise a presumption in favor of referral" of juvenile cases to the appropriate State or tribal authorities, where there is "concurrent jurisdiction," unless the State declines jurisdiction and there is a substantial federal interest in the case. Yet, concerns remained that this bill would undermine a State's traditionally prerogative to handle juvenile offenders.

The changes we make to the underlying bill in the HatchLeahy Managers' amendment satisfy my concerns. For example, S. 254 as introduced would repeal the very first section of the Federal Criminal Code dealing with "Correction of Youthful Offenders." This is the section that establishes a clear presumption that the States not the federal government should handle most juvenile offenders [18 U.S.C. section 5001]. While the original S. 254 would repeal that provision, the Managers' amendment retains it in slightly modified form.

In addition, the original S. 254 would require Federal prosecutors to refer most juvenile cases to the State in cases of "concurrent jurisdiction ....over both the offense and the juvenile." This language created a recipe for sharp lawyering. Federal prosecutors could avoid referral by simply claiming there was no "concurrent" jurisdiction over the "offense" due to linguistic or other differences between the federal and state crimes. Even if the juvenile's conduct violated both Federal and State law, any difference in how those criminal laws were written could be used to argue they were different offenses altogether. This was a huge loophole that could have allowed federal prosecutors to endrun the presumption of referral to the State.

We fix this in the Managers' Amendment, and clarify that whenever the federal government or the State have criminal laws that punish the same conduct and both have jurisdiction over the juvenile, federal prosecutors should refer the juvenile to the State in most instances.

Finally, I was concerned that, contrary to current law, a federal prosecutor's decision to proceed against a juvenile in federal court would not be subject to any judicial review. The Managers' Amendment would permit such judicial review, except in cases involving serious violent or serious drug offenses.

Federal Trial of Juveniles as Adults. Another area of concern has been the ease with which S.254 would allow federal prosecutors to prosecute juveniles 14 years and older as adults for any felony. While I have long favored simplifying and streamlining current federal procedures for trying juveniles, I believe that judicial review is an important check in the system, particularly when you are dealing with children.

S. 254 included a "reverse waiver" proposal allowing for judicial review of most cases in which a juvenile is charged as an adult in federal court. I had suggested a similar proposal in July 1997, when I tried to amend S.10 before the Judiciary Committee to permit limited judicial review of a federal prosecutor's decision to try certain juveniles as adults. S.10 granted sole, nonreviewable authority to federal prosecutors to try juveniles as adults for any federal felony, removing federal judges from that decision altogether. My 1997 amendment would have granted federal judges authority in appropriate cases to review a prosecutor's decision and to handle the juvenile case in a delinquency proceeding rather than try the juvenile as an adult.

Only three States in the country granted prosecutors the extraordinary authority over juveniles cases that S. 10 proposed, including Florida. Earlier this year, we saw the consequences of that kind of authority, when a local prosecutor in that State charged as an adult a 15yearold mildly retarded boy with no prior record who stole $2 from an school classmate to buy lunch. The local prosecutor charged him as an adult and locked him up in an adult jail for weeks before national press coverage forced a review of the charging decision in the case.

This was not the kind of incident I wanted happening on the federal level. Unfortunately, my proposal for a "reverse waiver" procedure providing judicial review of a prosecutor's decision was voted down in Committee, with no Republican on the Committee voting for it.

I was pleased that S. 254 contained a "reverse waiver" provision, despite the Committee's rejection of this proposal two years ago. Though made belated, this was a welcome change in the bill. The Managers' amendment makes important improvements to that provision.

First, S. 254 gives a juvenile defendant only 20 days to file a reverse waiver motion after the date of the juvenile's first appearance. This time is too short, and could lapse before the juvenile is indicted and is aware of the actual charges. The Managers' amendment extends the time to make a reverse waiver motion to 30 days, which begins at the time the juvenile defendant appears to answer an indictment.

Second, S. 254 requires the juvenile defendant to show by "clear and convincing" evidence that he or she should be tried as a juvenile rather than an adult. This is a very difficult standard to meet, particularly under strict time limits. Thus, the Managers' amendment changes this standard to a "preponderance" of the evidence.

Juvenile Records. As initially introduced, S. 254 would require juvenile criminal records for any federal offense, no matter how petty, to be sent to the FBI. This criminal record would haunt the juvenile as he grew into an adult, with no possibility of expungement from the FBI's database.

The Managers' amendment makes important changes to this record requirement. The juvenile records sent to the FBI will be limited to acts that would be felonies if committed by an adult. In addition, under the Managers' amendment, a juvenile would be able after 5 years to petition the court to have the criminal record removed from the FBI database, if the juvenile can show by clear and convincing evidence that he or she is no longer a danger to the community. Expungement of records from the FBI's database does not apply to juveniles convicted of rape, murder or certain other serious felonies.

Increasing Witness Tampering Penalties. S. 254 also contains a provision to increase penalties for witness tampering that I first suggested and included in the "Youth Violence, Crime and Drug Abuse Control Act of 1997," S. 15, which was introduced in the first weeks of the 105th Congress, at the end of the last Congress in the "Safe Schools, Safe Streets and Secure Borders Act of 1998," S. 2484, and again in S. 9, the comprehensive package of crime proposals introduced with Senator Daschle at the beginning of this Congress. This provision would increase the penalty for using or threatening physical force against any person with intent to tamper with a witness, victim or informant from a maximum of ten to twenty years' imprisonment. In addition, the provision adds a conspiracy penalty for obstruction of justice offenses involving witnesses, victims and informants.

I have long been concerned about the undermining of our criminal justice system by criminal efforts to threaten or harm witnesses, victims and informants, to stop them from cooperating with and providing assistance to law enforcement. I tried to include this provision, along with several other law enforcement initiatives, by amendment to S.10 during Committee markup on July 11, 1997, but this amendment was voted down by all the Republicans on the Committee. At the end of the markup, however, this witness tampering provision was quietly accepted to S.10 and I am pleased that it is also included in S. 254.

Eligibility Requirements for Accountability Block Grant. S.254 substantially relaxes the eligibility requirements for the new juvenile accountability block grant.

By contrast, S. 10 in the last Congress would have required States to comply with a host of new federal mandates to qualify for the first cent of grant money, such as permitting juveniles 14 years and older to be prosecuted as adults for violent felonies, establishing graduated sanctions for juvenile offenders, implementing drug testing programs for juveniles upon arrest, and nine new juvenile recordkeeping requirements. These recordkeeping mandates would have required, for example, that States fingerprint and photograph juveniles arrested for any felony act and send those records to the FBI, plus make all juvenile delinquency records available to law enforcement agencies and to schools, including colleges and universities. We could find no State that would have qualified for this grant money without agreeing to change their laws in some fashion to satisfy the twelve new mandates.

In 1997, I tried to get the Judiciary Committee to relax the new juvenile recordkeeping mandates under the accountability grant program during the markup of S.10. My 1997 amendment would have limited the recordkeeping requirements to crimes of violence or felony acts committed by juveniles, rather than to all juvenile offenses no matter how petty. But my amendment was voted down on July 23, 1997, by the Republicans on the Committee. Finally, two years later, S. 254 reflects the criticism I and others Democrats on the Judiciary Committee leveled at the strict eligibility and recordkeeping requirements in S. 10.

Indeed, the Senate decisively rejected this approach when it defeated a Republican amendment that would have revived those straightjacket eligibility requirements. Specifically, his amendment would have required States to try as adults juveniles 14 years or older who committed certain crimes. As I pointed out during floor debate on this amendment, only two States would have qualified for grant funds unless they agreed to change their laws.

Moreover, the current bill removes the recordkeeping requirements altogether from the Juvenile Accountability Block Grant. Instead, S. 254 sets up an entirely new Juvenile Criminal History Block Grant, funded at $75 million per year. To qualify for a criminal history grant, States would have to promise within three years to keep fingerprint supported records of delinquency adjudications of juveniles who committed a felony act. No more photographs required. No more records of mere arrests required. No more dissemination of petty juvenile offense records to schools required. Instead, only juvenile delinquency adjudications for murder, armed robbery, rape or sexual molestation must be disseminated in the same manner as adult records; other juvenile delinquency adjudications records may only be used for criminal justice purposes. These limitations are welcome changes to the burdensome, overbroad recordkeeping requirements in the prior version of the Republican juvenile crime bill.

The eligibility requirements for the Juvenile Accountability Block Grant now number only three, including that the State have in place a policy of drug testing for appropriate categories of juveniles upon arrest.

Core Protections for Children. Much of the debate over reforming our juvenile justice system has focused on how we treat juvenile offenders who are held in State custody. Republican efforts to roll back protections for children in custody failed in the last Congress. These protections were originally put in place when Congress enacted the Juvenile Justice and Delinquency Prevention Act of 1974 to create a formula grant program for States to improve their juvenile justice systems. This Act addressed the horrific conditions in which children were being detained by State authorities in close proximity to adult inmates — conditions that too often resulted in tragic assaults, rapes and suicides of children.

As the JJDPA has evolved, four core protections have been adopted and are working — to protect children from adult inmates and to ensure development of alternative placements to adult jails. These four core protections for juvenile delinquents are:

• separation of juvenile offenders from adult inmates in custody (known as sight and sound separation);
• Removal of juveniles from adult jails or lockups, with a 24hour exception in rural areas and other exceptions for travel and weather related conditions;
• Deinstitutionalizaton of status offenders; and
• to study and direct prevention efforts toward reducing the disproportionate confinement of minority youth in the juvenile justice system.