Violence Against Women Reauthorization Act of 2011--Continued

Floor Speech

Date: April 26, 2012
Location: Washington, DC


Mr. COBURN. Mr. President, I write today to explain my vote in opposition to S. 1925, Violence Against Women Reauthorization Act, VAWA. I have several outstanding concerns with this legislation, some of which were reflected in the amendments I circulated during the Senate Judiciary Committee's February 2012 markup of this legislation. In particular, I believe this legislation violates the principles of federalism outlined in the Constitution, fails to completely address duplication and overlap both within VAWA programs and with non-VAWA programs administered by both the Department of Justice, DOJ, and the Department of Health and Human Services, HHS, ignores the continuing problem of grant management and waste, fraud and abuse at the Office of Violence Against Women, OVW, and disregards our country's fragile financial condition, which has worsened significantly since the last VAWA reauthorization in 2005.

First and foremost, I do not think anyone would disagree with the fact that violence of any type against women, domestic, dating or sexual violence, is reprehensible and should not be tolerated. However, regardless of the extent of this or any other problem, we must carefully weigh the proper role of the Federal Government so Congress does not violate its limited authority under the Constitution. Domestic violence laws, like most other criminal laws, are State laws, and nowhere in the Constitution is the Federal Government tasked with providing basic funding to States, localities, and private organizations to operate programs aimed at victims of State crimes such as domestic violence. Far too often, Congress infringes upon the rights of the people and the States by overreaching in its legislative efforts.

Although many VAWA programs are laudable, they are not the Federal Government's responsibility. In fact, the entire purpose of this legislation is to provide funding for State, local, non-profit, and victim services grantees to serve victims of State crimes, such as domestic violence, stalking, and sexual violence. These crimes and the treatment of its victims are appropriately in the jurisdiction of the States, not the Federal Government. In light of our current economic crisis, Congress must evaluate each and every program to determine if it is constitutional, whether it is a Federal responsibility, and whether it is a priority. Combating violence against women is certainly a priority, but it is not a Federal responsibility.

Second, this legislation fails to completely address the duplication and overlap within VAWA programs and with non-VAWA programs operated by both the DOJ and HHS. At the beginning of every Congress, I send to each Senator my letter outlining the criteria he will use to evaluate legislation. This Congress, it was also signed by seven other Members. The VAWA reauthorization violates several of those criteria, including elimination and consolidation of duplicative programs prior to reauthorization.

While I recognize the legislation does consolidate some programs, it has not eliminated all duplication. There are several VAWA grant programs that are so broad that they duplicate one another, providing multiple opportunities for grantees to double dip into Federal funds. In addition, the Family Violence Prevention and Services Act, FVPSA, which predates the original VAWA legislation, authorized several HHS programs aimed at reducing domestic violence and helping victims. Several of those programs fund the same types of
services as those authorized by the VAWA grants in this legislation.

Furthermore, in the Government Accountability Office, GAO Duplication Report released at the end of February 2012, GAO found the DOJ administers more than 250 grant programs to provide crime prevention, law enforcement, and victims' services, totaling approximately $30 billion since 2005. Specifically, GAO noted more than 20 percent of the 253 grants reviewed by GAO are for victims' assistance.

In addition, according to GAO, this June that office will be releasing yet another duplication report specifically on the OVW, Office of Justice Programs, OJP, and Community Oriented Policing Services, COPS Program. Before moving forward with a VAWA reauthorization, Congress should evaluate this report on OVW to determine how we can streamline the victims' services DOJ already provides. Reauthorizing VAWA programs now, without taking into account the recent and forthcoming work of GAO, is premature.

As a result, I am very disappointed the Democrats refused to allow a vote on the amendment No. 2085 I filed to eliminate unnecessary duplication within DOJ, especially since the savings would have been largely directed to helping bring justice to rape cases. This amendment would have provided at least $600 million in additional funds to support efforts to use DNA to solve crimes.

This amendment would have required the Department of Justice to identify every program its administers, consolidate unnecessary duplication, and apply savings towards resolving rape cases and reducing the deficit.

Specifically, the amendment directed the Attorney General to develop a plan that would result in financial cost savings of at least 20 percent of the nearly $3.9 billion in duplicative grant programs identified by the Government Accountability Office.

According to GAO, since 2005, Congress has spent $30 billion in overlapping Department of Justice grants for crime prevention police and victims services from more than 250 DOJ grant programs, and $3.9 billion in grants just in 2010.

As much as 75 percent of the savings, nearly $600 million, may be directed towards alleviating any backlogs of analysis and placement of DNA samples from rape, sexual assault, homicide, kidnapping and other criminal cases, including casework sample and convicted offender backlogs, into the Combined DNA Index System. The remainder of the savings will be returned to the Treasury for the purpose of deficit reduction.

By requiring the consolidation and elimination of duplication at DOJ, Congress will free Federal funding which can be more appropriately dedicated to bringing justice to rape victims, while also reducing the deficit.

DNA testing provides a powerful criminal justice tool to convicting rapists and exonerating the innocent--DNA, deoxyribonucleic acid, testing has become a powerful criminal justice tool in recent years. ``DNA can be used to identify criminals with incredible accuracy when biological evidence exists. By the same token, DNA can be used to clear suspects and exonerate persons mistakenly accused or convicted of crimes. In all, DNA technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system,'' according to the Department of Justice.

``Each person's DNA is unique (with the exception of identical twins). Therefore, DNA evidence collected from a crime scene can implicate or eliminate a suspect, similar to the use of fingerprints. It also can analyze unidentified remains through comparisons with DNA from relatives. Additionally, when evidence from one crime scene is compared with evidence from another using the Combined DNA Index System, those crime scenes can be linked to the same perpetrator locally, statewide, and nationally.''

``When biological evidence from crime scenes is collected and stored properly, forensically valuable DNA can be found on evidence that may be decades old. Therefore, old cases that were previously thought unsolvable may contain valuable DNA evidence capable of identifying the perpetrator.''

In New York authorities used DNA evidence to link a man to at least 22 sexual assaults and robberies. Authorities in Philadelphia, PA, and Fort Collins, CO, used DNA evidence to link and then solve a series of crimes--rapes and a murder--perpetrated by the same individual.

DNA is generally used to solve crimes in one of two ways. First, in cases where a suspect is identified, a sample of that person's DNA can be compared to evidence from the crime scene. The results of this comparison may help establish whether the suspect committed the crime. Second, in cases where a suspect has not yet been identified, biological evidence from the crime scene can be analyzed and compared to offender profiles in DNA databases to help identify the perpetrator. Crime scene evidence can also be linked to other crime scenes through the use of DNA databases.

DNA evidence is generally linked to DNA offender profiles through DNA databases. In the late 1980s, the Federal Government laid the groundwork for a system of national, State, and local DNA databases for the storage and exchange of DNA profiles. This system, called the Combined DNA Index System, CODIS, maintains DNA profiles obtained under the Federal, State, and local systems in a set of databases that are available to law enforcement agencies across the country for law enforcement purposes. CODIS can compare crime scene evidence to a database of DNA profiles obtained from convicted offenders. CODIS can also link DNA evidence obtained from different crime scenes, thereby identifying serial criminals.

In order to take advantage of the investigative potential of CODIS, in the late 1980s and early 1990s, States began passing laws requiring offenders convicted of certain offenses to provide DNA samples. Currently all 50 states and the Federal Government have laws requiring that DNA samples be collected from some categories of offenders.

When used to its full potential, DNA evidence will help solve and may even prevent some of the Nation's most serious violent crimes. However, the current Federal and State DNA collection and analysis system needs improvement, according to the Department of Justice: In many instances, public crime labs are overwhelmed by backlogs of unanalyzed DNA samples. In addition, these labs may be ill-equipped to handle the increasing influx of DNA samples and evidence. The problems of backlogs and lack of up-to-date technology result in significant delays in the administration of justice. More research is needed to develop faster methods for analyzing DNA evidence. Professionals working in the criminal justice system need additional training and assistance in order to ensure the optimal use of DNA evidence to solve crimes and assist victims.

Thousands of sexual assault DNA kits are still not tested--``The demand for DNA testing continues to outstrip the capacity of crime laboratories to process these cases,'' according to a National Institute of Justice report. ``The bottom line: crime laboratories are processing more cases than ever before, but their expanded capacity has not been able to meet the increased demand.''

The DNA casework backlog, consisting of forensic evidence collected--from crime scenes, victims and suspects in criminal cases--has more than doubled from less than 50,000 in 2005 to more than 100,000 in 2009.

There are thousands of rape kits ``sitting waiting to be tested'' in Houston, TX alone. The Houston Police Department may have up to 7,000 sexual assault kits that have not been tested. Houston recently accepted an $821,000 Federal grant to study the backlog of untested kits, but ``the bulk of the money has to be spent on figuring out the reasons rape kits have gone untested'' and less than half of the money ``will go towards dealing with the actual backlog.''

This amendment provides roughly $600 million to help resolve more than 340,000 rape and other criminal cases with DNA testing--This amendment would have provided at least $600 million in additional funds to support efforts to use DNA to solve crimes.

The amendment would have directed the Attorney General to develop a plan that would result in financial cost savings of at least 20 percent of the nearly $3.9 billion in duplicative grant programs identified by the Government
Accountability Office. As much as 75 percent of the savings, nearly $600 million, may be directed towards alleviating any backlogs of analysis and placement of DNA samples from rape, sexual assault, homicide, kidnapping, and other criminal cases, including casework sample and convicted offender backlogs, into the Combined DNA Index System. The remainder of the savings will be returned to the Treasury for the purpose of deficit reduction.

In 2010, National Institute of Justice's DNA Backlog Reduction Program provided more than $64.8 million which allowed more than 37,000 cases to be tested. The $600 million provided by this amendment could therefore be enough to provide testing for over 342,000 cases.

No list of Justice Department programs exists, yet GAO found more than 250 overlapping DOJ grant programs--As with many other agencies, the Justice Department cannot fully account for each program in its purview. In fact, in its review of DOJ programs for their annual report on duplication, even the GAO could not fully account for every program at the agency.

The number of Justice programs detailed by GAO, 253, may actually be an understatement. The report explains Justice grant programs can continue for up to 5 years, and as such, ``the total number of active justice grant programs can be higher than what is presented,'' which is only a one year snapshot of the Department's programs.

This amendment would require the Department to provide a full listing of every single program administered under their jurisdiction, which will assist in Congress's work to address this extensive overlap when making funding decisions.

In their duplication report, GAO revealed that ``overlap and fragmentation among government programs or activities can be harbingers of unnecessary duplication. Reducing or eliminating duplication, overlap, or fragmentation could potentially save billions of taxpayer dollars annually and help agencies provide more efficient and effective services.''

This amendment would have addressed this overlap and unnecessary duplication at the Department of Justice by also requiring the following: a listing of other programs within the Federal Government with duplicative or overlapping missions and services; the latest performance reviews for the program, including the metrics used to review the program; the latest improper payment rate for the program, including fraudulent payments; and the total amount of unspent and unobligated program funds held by the agency and grant recipients.

This information would be updated annually and posted on-line, along with recommendations from the agency to consolidate duplicative and overlapping programs, eliminate waste and inefficiency, and terminate lower priority, outdated and unnecessary programs.

According to GAO, since 2005 Congress has spent $30 billion in overlapping Department of Justice grants for crime prevention, police, and victims services through more than 250 programs, and $3.9 billion in grants in 2010.--In February, the Government Accountability Office, GAO, released its second annual report addressing duplication and areas for cost savings throughout the Federal Government. The report, ``Opportunities to Reduce Duplication, Overlap and Fragmentation, Achieve Savings, and Enhance Revenue,'' exposed 51 specific examples of government duplication and areas of Federal spending with potential for significant cost savings.

Included in this year's report are some very troubling findings of extensive duplication in a large portion of Department of Justice, DOJ, programs. GAO found the Justice Department administers more than 250 duplicative programs to provide ``crime prevention, law enforcement, and crime victim services,'' costing taxpayers roughly $30 billion in the last 6 years.

Their report details the widespread duplication in the Department, enumerating at least 56 victims' assistance programs, 33 juvenile justice efforts, more than 40 technology and forensics grant solicitations, and 16 community crime prevention strategy programs, to name a handful of the many identified.

In 1 year alone, three primary offices--the Office of Justice Programs, the Office on Violence Against Women, and the Community Oriented Policing Services Office--awarded $3.9 billion through 11,000 grants, many of which the GAO found to be duplicative and in need of review and coordination.

GAO attributes much of the duplication among these 253 grant programs to the fact Justice officials do not conduct a full cross reference check to ensure applicants have not applied for or received overlapping grants from the Department.

In fact, Justice employees contend they simply do not have enough time before providing a grant to ensure recipients have not already received funding. GAO observed, ``Justice officials stated that the timeline for reviewing applications, making recommendations on their merit, and processing awards each year is compressed and that it would be difficult to build in the extra time and level of coordination required to complete an intradepartmental review for potentially unnecessary duplication of funding prior to making awards.''

This amendment would direct DOJ to use their own authority to eliminate and consolidate overlapping programs as identified by GAO and develop a plan that would result in financial cost savings of no less than 20 percent of the nearly $3.9 billion in duplicative grant programs identified by the Government Accountability Office.

Addressing duplication at GAO is one step in addressing our nearly $16 trillion debt--With the release of the GAO report, combined with last year's recommendations, Congress and the administration have been given extensive details in 132 areas of government duplication and opportunities for significant cost savings, with dozens of recommendations for how to address the duplication and find these savings.

The problem in Congress today is not an issue of ignorance--it is one of indifference and incompetence. We know we have a problem. We know we have cancer. Yet we refuse to stop making it worse, we refuse to apply the treatment, and we refuse to take the pain of the medication for the long-term benefit of a cure.

The report provides a clear listing of dozens of areas ripe for reform and in need of collaboration from members on both sides of the aisle, to find solutions to address these issues.

We are looking into a future of trillion dollar deficits and a national debt quickly headed toward $20 trillion. Our Nation is not on the verge of bankruptcy, it is already bankrupt. Over the last 2 years, there have been countless discussions and bipartisan talks about how to address our debt and deficit. Yet there has been little agreement, and at the end of this year we will be faced with another tax extenders package and another increase in the debt limit, all while sequestration will be poised to kick in and achieve the savings Congress has been unable to muster the courage to pass.

But, before us, we have part of the answer. GAO's work presents Washington with literally hundreds of options for areas in which we could make a decision now to start finding savings, potentially hundreds of billions of dollars. If we are unable to agree on eliminating even one small duplicative program or tax credit when clearly we know there are hundreds, we have little hope of ever coming to a comprehensive compromise for fixing our floundering budget.

Congress should require the Department of Justice to provide a full listing of every program in their jurisdiction. Further, the Department can find savings from consolidating the overlap outlined by the GAO, freeing up Federal funding to dedicate toward solving unresolved rape cases, while also reducing the deficit.

As a Nation, we simply cannot afford to reauthorize programs that waste taxpayer dollars by duplicating programs operated by other Federal agencies for the same purposes. To be clear, addressing duplication and overlap is not a matter of refusing to provide services to victims of domestic violence but, rather, it is to ensure they are properly served by programs that are efficient, effective and not bogged down in Federal Government bureaucracy.

Third, both the Government Accountability Office, GAO, and the DOJ
Office of the Inspector General, DOJ OIG, have repeatedly documented the failure of OVW to manage its grants and monitor its grantees effectively. Following this statement, I have included in the Record summaries of both GAO and DOJ OIG reports on OVW and VAWA grants. Overall, DOJ has long had problems with its grant management. The DOJ OIG has published for more than a decade a list of the Top 10 Management Challenges at the DOJ. Grant management, unfortunately, has appeared on that list ever since the inception of this evaluation, with OVW being called out as particularly problematic.

Since 2001, GAO has noted various problems at OVW and with particular VAWA grants. With regard to OVW grant management, GAO noted grants awarded by OVW ``often lacked the documentation necessary to ensure that the required monitoring activities occurred.'' As a result OVW ``was not positioned to systematically determine staff compliance with monitoring requirements and assess overall performance.''

Furthermore, since 1998, the DOJ IG has issued audit after audit noting unallowable expenditures, questioned grant costs, weak internal reporting, and poor oversight in numerous VAWA grants across the country. For example, a 2011 DOJ IG audit of a Boston grantee questioned over half $638,298 of its $1.3 million grant. The questioned costs were used for unsupportable conferences, bonus payments, and consultant fees.

Even my constituents have directly experienced OVW mismanagement. For example, the Oklahoma District Attorneys Council, OK DAC, which is the Oklahoma State administrative agency for many Federal grants, has had specific, documented problems with the poor job OVW has been doing in its grant management and oversight. OVW does not answer or return phone calls in a timely manner and has consistently been unavailable to answer grantees' questions in the middle of the work week. Moreover, according to the OK DAC, in the last 4 years that Oklahoma has received one particular VAWA grant, OVW has failed to perform even one site visit to check on the implementation of the grant and the grantee's use of Federal funds.

After more than a decade of significant challenges, it is my hope the DOJ OIG will be able to remove grant management from DOJ's top 10 management challenges. However, until that occurs, it is the job of Congress to ensure we are not turning a blind eye to DOJ's failure to properly administer taxpayer funds through Federal grant programs, including those authorized by VAWA.

Fourth, the fiscal condition of our country has worsened dramatically since the original passage of this bill in 1994 and the last reauthorization in 2005. In fact, at the end of 2005, our national debt was approximately $8.1 trillion. It is now over $15.6 trillion--a growth of over $7.5 trillion, or 92.6 percent, in just over 6 years. The Federal Government is in no position to spend more money on any grant programs without offsets. We simply cannot afford it.

Although Chairman Leahy recognized the inordinately high authorization levels in the last VAWA reauthorization by reducing some of those amounts, S. 1925 continues to inflate the actual funding we know Congress will provide to VAWA grantees. The bill authorizes approximately $660 million in grants each year for 5 years, totaling $3.3 billion. None of these funds are offset. The 2005 VAWA reauthorization provided approximately $779 million per year for 5 years, totaling $3.89 billion. Thus, while S. 1925 reauthorizes a total of $590 million less than the 2005 VAWA reauthorization, this total is still much higher than actual past appropriations.

In fact, from 2007 to 2011, Congress appropriated a total of $2.71 billion for VAWA grant programs, which is $590 million less than this bill's authorized funding. From 2007 to 2011, although Congress authorized a total of $3.89 billion, it actually appropriated $1.18 billion less than that figure, 2.71 billion. Thus, while S. 1925 may reduce authorizations, it still provides a total authorization that is significantly higher than total VAWA appropriations over the past 5 years. If we know, based on past funding history, it is highly unlikely Congress will ever provide to VAWA grantees the level of funding authorized in this legislation, why would we send a false message to grantees by retaining such inflated estimates in VAWA?

Fifth, I also have concerns about a section of this bill that allows a tribal court to have jurisdiction over non-Indians who commit a domestic violence crime in Indian country or against an Indian. The language explicitly provides that the self-governance of a tribe includes the right ``to exercise special domestic violence criminal jurisdiction over all persons.'' To my knowledge, this is the first time the Federal Government has given Indian courts jurisdiction over ``all persons.'' While I recognize domestic violence is a serious problem in Indian Country, this change could cause particular problems with tribes in Oklahoma. Oklahoma has no reservations, but it does have 39 separate Indian governments. The individual allotment lands and trust lands are small and dispersed within Oklahoma communities and counties. The tribes do not have large continuous land bases, and because of its unique history, many Oklahomans claim Indian enrollment but have no relationship to the tribe or a tribal community.

Further, the Bill of Rights does not apply in Indian courts. Instead, most of the protections are preserved because of the Indian Civil Rights Act, but it does not preserve all rights. For example, the Indian Civil Rights Act only guarantees right to counsel at an individual's own expense. If the ``all persons'' language is as absolute as it appears, it could allow a non-Indian to be tried in tribal court without the full protection of the Constitution. S. 1925 includes language that says: ``In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant ..... all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant.'' Still, I am not certain this is enough and am afraid it will be subject to future court challenges.

Proponents of this provision argue that such allowances to tribal courts are necessary because no one is prosecuting non-Indian offenders, and that may be true in some cases. But, instead of creating a conflict between Indian country and the Federal Government's jurisdiction over American citizens who commit crimes, we believe we should deal with the bigger problem by holding the Department of Justice and local U.S. attorneys accountable for not prosecuting these cases.

Finally, while I applaud and support Senator Grassley's effort to increase accountability at the DOJ and to address problematic definitions, immigration provisions, and criminal statutes in his substitute amendment, for many of the same reasons I outline above, I must also oppose his substitute. Although Senator Grassley's alternative is, in several areas, likely a better alternative than S. 1925, it fails to reduce authorizations or offset those amounts, does not fully address grant management problems at OVW or program duplication, and still runs counter to my basic constitutional concerns with VAWA programs.

As a result, I cannot support S. 1925 or Senator Grassley's substitute.