Laken Riley Act

Floor Speech

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Mr. MERKLEY. Mr. President, I have come to the floor to talk about the impact of the Laken Riley bill upon children here in the United States of America and to suggest that we have a debate over several amendments designed as to how to more appropriately treat our children who reside here in the United States so we do not end up doing significant injury to them, which I very much believe is going to be the result if we proceed without some changes.

But let me start just by noting that my thoughts are--as I think the thoughts of every Senator are--with Laken Riley's family.

Whenever there is a tragedy--no tragedy should happen, whether it is perpetuated by a citizen or it is perpetuated by an immigrant. Americans should be safe in their communities. It is absolutely clear that we need comprehensive, commonsense immigration reform.

Here in the Senate, Democrats and Republicans worked together back in 2013 to pass just such a bill--an enormous investment in border security 12 years ago, approved in this body by Democrats and Republicans together. That bill never got a hearing in the House of Representatives. So I hope we will, in fact, try to resurrect the spirit that inspired us 12 years ago in this coming year for comprehensive reform.

This particular bill is very troubling in how it impacts children. I am troubled that a bill of such consequence and, quite frankly, legal complexity was brought to the floor without going through a committee. Really, here in the Senate, the way to do responsible work on complicated, consequential bills is to have them go before a committee so the committee can bring in all the experts necessary to resolve disputes and misunderstandings about how the bill might work. From that common understanding, needed reforms can be implemented. But here on the floor of the Senate, where often only one or two of us are here at a time, there is no such consideration. We can't bring experts to the floor here to resolve these issues.

My colleague from Alabama is here today, and when I propose that we consider certain amendments, I anticipate that she is going to object, although I will try to persuade her otherwise with the logic of my presentation. But I would say that the core point stands that this bill is consequential, it is complicated, and the potential impact on children is dramatic. So let's work to prevent something really awful from happening here in our country because I know that is not the intent of my colleague.

This bill as written requires ICE officers to detain individuals who have neither been charged nor convicted of a crime--neither charged nor convicted. Children imprisoned without being charged or convicted of a crime--that is what this bill does.

In the current system, children can be, in fact, detained, but it is at discretion on the front end and discretion on the back end to understand the whole of the circumstances. Is the individual a flight risk? Does the individual pose a risk to the community? Are we talking about an assault with a deadly weapon or are we talking about grabbing and eating an apple while walking down the aisle of a grocery store? That discretion is obliterated in this bill.

If a 5-year-old girl in either of our States--I am from Oregon, and Senator Britt from Alabama--gets hungry and grabs that apple, the Laken Riley Act says that young girl, if arrested, must be put into an ICE prison--must be, without discretion--and there is no provision in the bill to get that girl out. There is no required review.

This is an obliteration of everything we understand about due process. A child arrested but never charged because there was, in fact, in the end, no evidence--no conviction because since there is no evidence, there is no trial--is still sitting in prison without recourse, in an ICE prison.

This is not the America I know, and I don't believe this is the America my colleagues across the aisle want. So I come here to say let's work together to fix this bill. That is what we are looking to do today.

I have three amendments.

The first amendment excludes children from this bill. If the idea is that mandatory detention should apply to adults, then let's exclude children. Children would still be subject to potential detention that exists under the current law at the discretion--in fact, under current law, they can be detained with discretion even just for an arrest, before they have been charged or convicted, but there is discretion involved.

I know of no case in which there has been permanent, mandatory imprisonment of a child who has only been arrested and never charged and never convicted in the entire history of the United States of America, and we are about to change that. That is wrong.

73; that there be up to 15 minutes for debate on the amendment; and that upon the use or yielding back of time, the Senate vote on the amendment without further intervening action or debate.

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Mr. MERKLEY. My colleague laid out quite a set of factors there, but let's not blur the picture. The picture is this: A child came here when they were 2 months old. They have been here for 12 years or 14. They walk out of a store with a group of children. A police officer thinks they saw them put something into their pocket and arrests them. It turns out they didn't put anything into their pocket. Nothing was in there, but they have been arrested. Now ICE is required to indefinitely imprison that child--that child in Alabama who was going to be a great, outstanding member of their school and of their community--sentencing that child, with no charge, no conviction, no crime, to prison. We know exactly what harm that type of imprisonment does.

That is what this amendment is about. I can't take on all of the other issues, but I will say that last year, we had a bipartisan group develop a comprehensive bill, and my colleagues across the aisle blocked it from coming to the floor. But that was last year's debate.

This is a bill that has a purpose, but I don't think the purpose is to wrongly, indefinitely, mandatorily imprison innocent children. So I would ask my colleague, while you are objecting now, let's continue this conversation because it is that important to fairness in America.

There is a legal difference of opinion currently, so I am just going to describe that. It was sold on the House side by saying that there is a settlement called the Flores settlement which will continue to protect children and prevent this from happening--an innocent child indefinitely detained in prison with no review process.

But let's turn to the counsel for Flores. The counsel for Flores has put out a detailed statement. I have a copy. I understand that other lawyers may have other opinions, but these are the experts.

They say: The Flores settlement does not apply to undocumented children in the community. It applies only to children detained in Federal immigration custody by DHS under Customs and Border Protection or Immigration and Customs Enforcement in certain circumstances and so on and so forth. ``Neither the Flores Settlement, nor any other existing legal protection, would prevent undocumented children from being mandatorily detained by ICE under the Laken Riley Act'' as it is currently written.

It goes on to note and explain that the Flores settlement is a consent decree, and law, Federal law, trumps consent decrees.

It goes on to say that ``children, including toddlers, are not exempted from the Laken Riley Act'' and that ``24 states have no minimum age for prosecuting children,'' meaning you can be arrested at any age, even a toddler.

So I will ask my colleague not, again, to consider granting consent for this amendment, but I would ask that you work with me to explore this topic and see if we can fix this problem to our mutual satisfaction so we don't do harm to children, if you would consider doing that.

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Mr. MERKLEY. Thank you.

We are in the same hallway over in the Hart Building.

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Mr. MERKLEY. I look forward to cooperating on many topics, but this is perhaps the most important one at the moment.

A second amendment that I have creates some of the flexibility that exists in current law that doesn't exist under this bill. It requires DHS to employ what is referred to as the best interest standard for the child. This is a standard that is used in virtually every single State in the foster care and child service industry.

And so the amendment reads--it is nice to have very short amendments. It requires DHS to only detain children in a manner consistent with the best interest of the child and that does not abrogate, modify, or replace protections for children in applicable Federal law, regulation, court orders, and decrees--in other words, preserving the flexibility that exists in current law, which means could be detained but that a judge can consider the totality of the circumstances, the level of the crime, whether or not there is a flight risk, whether or not there is a potential harm to the community.

The best interest standard seems like an appropriate thing to apply when we are, in fact, collectively striving for the best interest of the children.

72; that there be up to 15 minutes for debate on the amendment; and that upon the use or yielding back of time, the Senate vote on the amendment without further intervening action or debate.

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Mr. MERKLEY. Mr. President, I do disagree with my colleague because this bill eliminates the flexibility in the current system to consider the totality of the circumstances, and restoring the best interest standard that every State is intimately familiar with is remedying the lack of flexibility in the bill as it is written.

But again, we will continue this conversation. I view coming to the floor and having this dialogue as kind of a way for us to do something that is too rare--way too rare--here in the Senate. We rarely have these types of conversations in front of the American people, and I think it is important we have them, especially when there is some value--that maybe we share the same value but have different interpretations of how that value will be impacted. I am sure we share the same value on trying not to do kids wrong. That is why I value this dialogue with my colleague, and I hope it will lead to the opportunity to resolve these issues.

I have a third amendment, and the third amendment is related to another aspect of the way children are affected, including American citizen children.

Imagine the parent who goes to work who is accused--I don't know--of stealing a tool out of the factory, and so he is arrested or she is arrested. And now, under this bill, that adult has to be locked up--no flexibility on the front end--even though it turns out that they did not steal the tool; they had nothing in their bag that they had with them. The officer thought they did; they didn't. They never get charged. They never get convicted so there is no trial. They are charged. But that parent who has maybe one, two, three, four American citizen children at home waiting for them--they come home from school, and no parent comes home. They have to be locked up under this bill.

So we are not just talking about an impact in this bill on immigrant children. We are talking about an impact on citizen children. Now, I care about both, but I just want to note that there has been a conversation about this bill as if it only affects immigrants. No, it affects American citizens too. It affects spouses who might be American citizens. It certainly affects the children who are likely American citizens.

So this amendment says that if an adult with children under 17 is subject to the mandatory detention that currently has no end, no back end to it, has no ability to appeal--it is permanent detention, permanent imprisonment--that if they have children at home, after 30 days, there would be a court proceeding to consider whether or not the conditions should exist for release after the normal set of issues are considered, such as is this person a danger to the community; is this person a flight risk; can they be released with bail--the same things we have now--because back at that home are a bunch of children, maybe noncitizen children, maybe citizen children, but a bunch of children who are going: My parent never came home. I am not just a latchkey kid with a parent coming home at 10 p.m. because that is when their shift ends; I am a kid who doesn't know what the hell to do now, and my life has been shattered.

So this would create the opportunity for that flexibility that exists in current law after 30 days of mandatory detention. I think it is an appropriate way to address the potential for impact that I am sure no one intended in writing this bill, which was to leave a bunch of children back in a home with no parent and no support.

71; that there be up to 15 minutes for debate on the amendment; and that upon the use or yielding back of time, the Senate vote on the amendment without further intervening action or debate.

In fact, I do take factual dispute with a few of my colleague's points. She noted that no due process had been taken. When you eliminate the discretion on the front end, you change due process. A judge can no longer say this person is no flight risk, no risk to the community, has children at home, so we will put a high bond. They will absolutely show up. We know where all their relatives are. And that will be best because, if the person is subsequently charged, they will be there for trial.

That due process is stripped away on the front end. There is due process in existence now on the back end, where a person can challenge their detention and whether or not they should be there.

In fact, during the previous Trump administration, there were children who were released with such challenges, but that is taken away. So, yes, due process is dramatically changed, with a huge impact on children.

And my colleague mentioned that we don't want children to be targeted for gangs. Amen to that. Who is more of a target for gangs than children left alone in the home because their parent has been unjustly imprisoned? That does exactly the opposite of what my colleague wants to achieve.

So I know this conversation will continue; at least, I hope it will. We are now under a filed cloture motion, which means the majority intends to close debate probably on Monday, and yet one Democratic amendment has been heard--one. The majority leader has said he wants to do things differently; that he wants there to be an amendment process.

The amendment process I saw when I first came to this Senate consisted of standing up and saying: I have a relevant, germane amendment. I am asking for the existing amendment to be set aside so that mine can be brought up, which puts it in a queue for consideration. People can study it. And then you go to a whole series of votes on all those things that are in that queue.

We did this on Dodd-Frank. We did this on ObamaCare. I think we should do it here because the consequences are high. But if that can't be done, then I would ask my colleague who has worked so hard on this particular bill to take a look at whether the Republican side will agree to hear these amendments and vote on them. They may be voted down, but I think they are important.

I think it is extremely important that kids not be wrapped up in this. They can currently be detained, but it is with discretion of the circumstances. I think it is particularly important that we have a standard for children in terms of their best interest. I think it is particularly important that we have a way, after a few weeks, to have some look at whether children who have been left home alone--and if the circumstances are appropriate and there is no flight risk, the circumstances are appropriate and there is no community risk--to help address that situation or we are harming children this was never meant to harm.

So I ask for my Republican colleagues to consider providing an opportunity because they--it takes 100 percent. Every single Senator has to agree to hear an amendment.

We used to have the Senate code. The Senate code was: I won't object to your amendment. You don't object to mine. They are on the topic before us.

These are on the topic before us. These are not some crazy thing. These are addressing core due process issues that affect children. So I would ask that at least they get some discussion for the possibility of consideration.

I thank my colleague from Alabama for coming and hearing me out as well as--I am not really thanking you for objecting, but I am thanking you in the spirit in which I think you want to do the right thing.

And I will keep striving to convince you that the right thing here is we should debate these amendments.

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