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Full text of "Comprehensive Crime Control Act of 1983 : hearings before the Subcommittee on Criminal Law of the Committee on the Judiciary, United States Senate, Ninety-eighth Congress, first session on S. 829 ... May 4, 11, 18, 19, and 23, 1983"

S. Hrg. 98-503 

COMPREHENSIVE CRIME CONTROL ACT OF 1983 



HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON CRIMINAL LAW 

OF THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-EIGHTH CONGRESS 
FIRST SESSION 

ON 

S. 829 

TO AMEND THE FEDERAL CRIMINAL CODE REGARDING: (1) BAIL- (2) 
SENTENCING; (3) THE EXCLUSIONARY RULE; (4) FORFEITURE- (5) THE 
INSANITY DEFENSE; (6) HABEAS CORPUS; (7) DRUG-RELATED OF- 
FENSES; (8) JUSTICE ASSISTANCE; (9) CAPITAL PUNISHMENT- (10) SUR- 
PLUS FEDERAL PROPERTY USED IN CORRECTIONS; (11) CURRENCY 
AND OTHER CRIMINAL OFFENSES 



MAY 4, 11, 18, 19, AND 23, 1983 



Serial No. J-98-37 



Printed for the use of the Committee on the Judiciary 




S. Hrc. 9H-503 

COMPREHENSIVE CRIME CONTROL ACT OF 1983 



HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON CRIMINAL LAW 

OF THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

NINETY-EIGHTH CONGRESS 

FIRST SESSION 
ON 

S. 829 

TO AMEND THE FEDERAL CRIMINAL CODE REGARDING: (1) BAIL; (2) 
SENTENCING; (3) THE EXCLUSIONARY RULE; (4) FORFEITURE; (5) THE 
INSANITY DEFENSE; (6) HABEAS CORPUS; (7) DRUG-RELATED OF- 
FENSES; (8) JUSTICE ASSISTANCE; (9) CAPITAL PUNISHMENT; (10) SUR- 
PLUS FEDERAL PROPERTY USED IN CORRECTIONS; (11) CURRENCY 
AND OTHER CRIMINAL OFFENSES 



MAY 4, 11, 18, 19, AND 23, 1983 



Serial No. J-98-37 



Printed for the use of the Committee on the Judiciary 




U.S. GOVERNMENT PRINTING OFFICE 
25-694 O WASHINGTON : 1984 



COMMITTEE ON THE JUDICIARY 

STROM THURMOND, South Carolina, Chairman 

CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware 
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts 

ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia 

ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio 

ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona 

JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont 

CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana 

JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama 

ARLEN SPECTER, Pennsylvania 

VI^fTON DeVane Lide, Chief Counsel and Staff Director 

Deborah K. Owen, General Counsel 

Shirley J. Fanning, Chief Clerk 

Mark H. Gitenstein, Minority Chief Counsel 



Subcommittee on Criminal Law 

PAUL LAXALT, Nevada, Chairman 
STROM THURMOND, South Carolina JOSEPH R. BIDEN, Jr., Delaware 

ARLEN SPECTER, Pennsylvania MAX BAUCUS, Montana 

ROBERT DOLE, Kansas 

John F. Nash, Jr. Chief Counsel and Staff Director 

WiLUAM Miller, General Counsel 

Beverly McKittrick, Majority Counsel 

Frederick Nelson, Counsel 

(II) 



CONTENTS 



STATEMENTS OF MEMBERS 

Page 
Laxalt. Hon. Paul, a U.S. Senator from the State of Nevada, chairman, 

Subcommittee on Criminal Law 1, 221 

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, 

chairman. Committee on the Judiciary 2, 971 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts,.... 3, 969 

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware 4, 222 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, chair- 
man. Subcommittee on Juvenile Justice 541 

CHRONOLOGICAL LIST OF WITNESSES 

Wednesday, May 4, 1983 

Smith, Hon. William French, Attorney General of the United States, U.S. 

Department of Justice 5 

Giuliani, Rudolph, Associate Attorney General, Lowell Jensen, Assistant At- 
torney General, Department of Justice; and John M. Walker, Jr., Assistant 
Secretary, Enforcement and Operations, Department of the Treasury 12 

Wednesday, May 11, 1983 

Robb, Hon. Charles S., Governor, Commonwealth of Virginia, on behalf of 
National Governors' Association, accompanied by Richard N. Harris, direc- 
tor, Department of Criminal Justice Services, Commonwealth of Virginia; 
and Nolan E. Jones, staff director. Committee on Criminal Justice and 
Public Protection, National Governors' Association 223 

Zimmerman, Hon LeRoy S., attorney general, on behalf of National Associ- 
ation of Attorneys General, accompanied by Mrs. Mclntyre, deputy attor- 
ney general Commonwealth of Pennsylvania 270 

Miller, Edwin L. Jr., San Diego County district attorney, president elect, 
National District Attorneys Association 290 

Wednesday, May 18, 1983 

Symms, Hon. Steven, a U.S. Senator from the State of Idaho, accompanied by 
Larry Pratt, executive director. Gun Owners of America and John M. 
Snyder, director of publications and public affairs. Citizens Committee for 
the Right to Keep and Bear Arms 321 

Shattuck, John, national legislative director; David E. Landau, legislative 
counsel, American Civil Liberties Union and Prof. Leon Friedman, Profes- 
sor of law, Hofstra Law School 335 

Marek, Edward F., public defender, Cleveland, Ohio, northern district of Ohio 
and Richard J. Wilson, director. Defender Division, National Legal Aid and 
Defenders Association 462 

Thursday, May 19, 1983 

joint hearing — subcommittees on juvenile justice and criminal law 

Knapp, James I., Deputy Assistant Attorney General, accompanied by Roger 
Pauley and Molly Warlow, Office of Legislation, Criminal Division, U.S. 
Department of Justice 542 

(III) 



IV 

Page 

Tjoflat, Hon. Gerald Bard, U.S. Circuit Judge, 11th Circuit Court of Appeals, 
and Chairman, Committee on the Administration of the Probation System, 
Judicial Conference of the United States 638 

Greenhalgh, Prof. William W., Georgetown University Law Center, chairman, 
Section on Criminal Justice, accompanied by Prof. B. James George, Jr., 
New York Law School, chairman, Standing Committee on Association 
Standards for Criminal Justice, and Timothy B. Atkeson, Esq., chairman, 
ad hoc Committee on Federal Criminal Code of Corporate Banking and 
Business Law Section, American Bar Association 667 

Reader, Hon. W. Donald, Senior Judge, Family Court, Stark County, Ohio, 
chairman, Legislative and Government Regulations Committee, National 
Council of Juvenile and Family Court Judges , 816 

Roth, Prof. Loren H., codirector, law and psychiatry program. Department of 
Psychiatry, University of Pittsburgh 828 

Monday, May 23, 1983 

Panel consisting of: Mark Moseley, Virginia; Roberta Roper, Upper Marlboro, 
Md.; Margaret Damast, Catonsville, Md.; Jill Reed, Tulsa, Okla.; Jennifer 
Short, Tulsa, Okla.; and Patricia Miller, Atlantic City, N.J 971 

Harshbarger, Scott, Esq. district attorney, Middlesex County, Mass.; Jan 
Smaby, first chairperson, Minnesota Sentencing Guidelines Commission, 
Minneapolis, Minn.; Dr. William Rhodes, senior economist. Institute for 
Law and Social Research, Washington, D.C.; and Brian Forst, research 
director. Institute for Law and Social Research, Washington, D.C 988 

ALPHABETICAL LISTING AND MATERIAL SUBMITTED 

American Bar Association: Prepared statement 736 

American Civil Liberties Union: Prepared statement 348 

Appendix: 

A. "Staff Reductions in Law Enforcement Agencies," Washington 

Post 372 

B. "Realistic Approaches to Crime Control," Civil Liberties, Febru- 

ary 1983 373 

C. ACLU testimony on H.R. 5679, Bail Provisions before House 

Subcommittee on Criminal Justice, April 29, 1982 *'* 

D. ACLU memorandum, analysis of S. 2572, "Bail Reform Act of 

1982," July 26, 1982 375 

E. ACLU Supreme Court amicus brief. The State of Illinois v. 

Lance and Susan Gates, No. 81-430: Exclusionary Rule 384 

F. ACLU statement on S. 2216, To Reform Habeas Corpus Proce- 

dures, before Senate Judiciary Committee, April 1, 1982 <^ 

G. ACLU statement on S. 1630, Federal Criminal Code Revision, 

before Senate Judiciary Committee, October 1, 1981 *'^ 

H. ACLU Evaluation of the Constitutionality of S. 114, as amend- 
ed. The Proposed Federal Death Penalty Statute, July 28, 1981. <^> 
I. ACLU statement concerning Insanity Defense before House Ju- 
diciary Committee, May 12, 1983 *^* 

J. ACLU testimony on Extradition before House Judiciary Com- 
mittee, May 5, 1983 <*> 

K. ACLU testimony on H.R. 595, the Federal Tort Claims Act 
Amendments of 1983 before the House Subcommittee on Ad- 
ministrative Law and Governmental Relations, April 27, 1983... "* 

Atkeson, Timothy B.: Testimony 673 

Damast, Margaret: Testimony 977 

Federal Public and Community Defenders: Prepared statement 466 

Forst, Brian: Testimony : 1000 

Friedman, Leon: 

Testimony 336 

Prepared statement ; 348 

George, Prof. James B., Jr.: Testimony 667 

Giuliani, Rudolph: Testimony 12 

Greenhalgh, Prof. William W.: 

Testimony 667 

Lectures by Justice Potter Stewart 676 



Greenhalgh, Prof. William W. — Continued Page 
Good Advice from a Justice, excerpt from the New York Times, May 4, 

1983 735 

Prepared statement on behalf of the American Bar Association 736 

Standards Relating to Transfer Between Courts 797 

Views presented on behalf of the Section on Criminal Justice 803 

Harshbarger, Scott, Esq.: 

Testimony 988 

Prepared statement 992 

Jensen, Lowell: Testimony 19 

Knapp, James I.: 

Testimony 542 

Prepared statement 550 

Responses to questions submitted by: 

Senator Arlen Specter 560 

Senator Charles McC. Mathias, Jr 594 

Needed: Serious Solutions for Serious Juvenile Crime 601 

News release, Department of Justice, December 5, 1982 634 

News articles: 

U.S. Studies Trials of Juveniles, from the New York Times, Decem- 
ber 6, 1982 635 

Debating New Jersey Youth Crime Law, from the New York Times, 

August 1, 1982 636 

Landau, David E.: 

Testimony 342 

Prepared statement 348 

Marek, Edward F.: 

Testimony 462 

Position paper and testimony of the Federal Public and Community 

Defenders 466 

Summary of testimony 492 

Miller, Edwin, L.. Jr.: 

Testimony 290 

Prepared statement 296 

Resolution adopted by the Board of Directors of the National District 

Attorneys Association 318 

Miller, Patricia: Testimony 985 

Moseley, Mark: Testimony 971 

National Council of Juvenile and Family Court Judges 821 

National Legal Aid and Defender Association: Prepared statement 507 

Pratt, Larry: Testimony 326 

Reader, Hon. W. Donald: 

Testimony 816 

Prepared statement of the National Council of Juvenile and Family 

Court Judges 821 

Reed, Jill: Testimony 979 

Rhodes, Dr. William: Testimony 1001 

Robb, Hon. Charles S.: 

Testimony 223 

Prepared statement 231 

Illegal Drug Trafficking in the United States, Special Governor's Work 

Session, February 27, 1983 240 

Appendix A. The Governors' Project 254 

B. Controlling Abuse and Illegal Traffic in Narcotics 256 

C. Strategies for Drug Control Efforts 259 

D. News release from the Department of Justice 265 

Responses to questions submitted by Senator Paul Laxalt 267 

Roper, Roberta: Testimony 9'74 

Roth, Prof. Loren H.: 

Testimony 828 

Letter subsequently sent to Senator Specter, June 3, 1983, summarizing 

major points in testimony 833 

Treating Violent Behaviors in Prisons, Jails, and Other Special Institu- 
tional Settings 838 

Lowering the Jurisdictional Age of the Juvenile Court: Problems and 

Prospects of Simple Solutions 872 

American Psychiatric Association Statement on the Insanity Defense 893 

Disposition of Insanity Defense Cases in Oregon 901 



VI 

Roth, Prof. Loren H.— Continued Page 

Oregon's Reform of the Insanity Defense System 908 

After Oregon's Insanity Defense: A Comparison of Conditional Release 

and Hospitalization 916 

Task Force Report 8: Clinical Aspects of the Violent Individual, American 

Psychiatric Association 934 

Shattuck, John: 

Testimony 335 

Prepared statement 348 

Short, Jennifer: Testimony 982 

Smaby, Jan: Testimony 996 

Smith, Hon. William French: 

Testimony 5 

Responses to Senator Biden's questions regarding: 

Habeas Corpus Reform 32 

Exclusionary Rule Reform 42 

Death Penalty 55 

Research and Statistics 63 

Justice Assistance 64 

Tort Claims Amendments 87 

Sentencing 92 

Organized Crime and Drug Enforcement Task Forces 104 

Formal statement of the Department of Justice 116 

Snyder, John M.: Testimony 328 

Symms, Hon. Steven: Testimony 321 

Tjoflat, Gerald Bard: 

Testimony 638 

Prepared statement 644 

Judicial Conference Sentencing Proposal, from the Congressional Record, 

May 26, 1983 664 

Walker, John M., Jr.: 

Testimony 68 

Prepared statement 76 

Wilson, Richard J.: 

Testimony 505 

Prepared statement 507 

Zimmerman, Hon. Leroy S.: 

Testimony : 270 

Prepared statement 285 

Impact of Exclusionary Rule on Criminal Cases 272 

APPENDIX 

Part 1. — Extradition 

Letter to Senator Laxalt from Powell A. Moore, Assistant Secretary for 

Legislative and Intergovernmental Affairs 1009 

Comments and Recommendations, S. 220, William S. Kenney, attorney at law. 1012 
Letter to Hon. Paul Laxalt from Arthur L. Burnett, president. National 
Council of U.S. Magistrates, September 8, 1983 1015 

Part 2. — Exclusionary Rule 

Letter to Senator Paul Laxalt from John E. Fennelly, Assistant State Attor- 
ney, Stuart, Florida, May 18, 1983 1019 

Warrant Searches and the Exclusionary Rule, A Rule in Search of a Reason, 
by John E. Fennelly, from The Prosecutor (Winter, 1983) 1020 

Excerpt from United States v. Leon, brief for the United States, Supreme 
Court of the United States, No. 82-1771, October Term, 1983 1025 

Part 3. — Capital Punishment 

Congress and Capital Punishment, An Exercise in Symbolic Politics, by Bar- 
bara Ann Stolz, American University 1087 



VII 
Part 4.— Habeas Corpus 

Page 

Letter to Hon. Paul Laxalt from Ralph J. Erickstad, chairman, Committee on 
Federal Review of State Court Convictions, Conference of Chief Justices, 
May 17, 1983, with attachments 1111 

Proposals for Habeas Corpus Reform, by William French Smith 1116 

Part 5.— S. 829 

Letter to Hon. Paul Laxalt from Norman Darwick, Executive Director, Inter- 
national Association of Chiefs of Police, Inc., May 25, 1983 1134 

Testimony of the lACP on the Comprehensive Crime Control Act of 1983 1135 

Letter to the Hon. Arthur L. Burnett, president. National Council of United 
States Magistrates from Jean F. Dwyer, chairman. Committee on Sentenc- 
ing, U.S. Magistrate, July 18, 1983 1151 

Part 6.— Additional Correspondence 

Letter to Hon. Edward M. Kennedy from Liza Cheuk May Chan, May 24. 1983 1157 

The Case for Vincent Chin, A Tragedy in American Justice 1158 

Letter to Senator Paul Laxalt from Randy Sue Pollock, chairperson. Federal 
Practice Committee, California Attorneys for Criminal Justice, June 30, 
1983 1162 



'See "Federal Law Revision." Hearings before the Subcommittee on Criminal Justice of the 
Committee on the Judiciary, House of Representatives, 97th Cong., 1st. and 2d sessions. Serial 
No. 132, Parts 1, 2, and 3. 

^See "The Habeas Corpus Reform Act of 1982." Hearings before the Committee on the 
Judiciary, U.S. Senate, 97th Cong., 2d sess. Serial No. J-97-108. 

^See "Reform of the Federal Criminal Laws." Hearings before the Committee on the Judici- 
ary, U.S. Senate, 97th Cong., 1st sess. Part XVI, Serial No. J-97-60. 

*See "Capital Punishment." Hearings before the Committee on the Judiciary, U.S. Senate, 
97th Cong., 1st sess. Serial No. J-97-13. 

*See "Reform of the Federal Insanity Defense." Hearings before the Subcommittee on Crimi- 
nal Justice of the Committee on the Judiciary, House of Representatives, 97th Cong., 1st. sess. 

^See Extradition Hearings before House Judiciary Committee, May 5, 1983. 

' See "Federal Tort Claims." Hearinjrs before the Subcommittee on Administrative Law and 
Governmental Relations of the Judiciary, House of Representatives, 98th Cong., 1st sess. Serial 
No. 11. 



COMPREHENSIVE CRIME CONTROL ACT OF 1983 



WEDNESDAY, MAY 4, 1983 

U.S. Senate, 
Subcommittee on Criminal Law, 

Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 10:10 a.m., in room 
226, Dirksen Senate Office Building, Hon. Strom Thurmond (chair- 
man of the full committee) presiding. 

Present: Senators Laxalt, Biden, Kennedy, and Specter. 

Staff present: John F. Nash, Jr., chief counsel and staff director; 
Beverly McKittrick, majority counsel; William Miller, general 
counsel; and Susan Fanning, chief clerk. 

OPENING STATEMENT OF HON. PAUL LAXALT, A U.S. SENATOR 
FROM THE STATE OF NEVADA, CHAIRMAN, SUBCOMMITTEE ON 
CRIMINAL LAW 

Senator Laxalt. The subcommittee will be in order. 

This is the first of a series of hearings which the Subcommittee 
on Criminal Law will hold on S. 829, the Comprehensive Crime 
Control Act of 1983. My good friend and chairman of the Commit- 
tee on the Judiciary will chair this first day. 

This bill, sent to Congress by President Reagan, is a package of 
well-reasoned proposals that do not simply add to the list of Feder- 
al statutes and Federal crimes but that make much needed im- 
provements in the Federal criminal justice system. 

Crime — violent crime, drug-related crime, and organized crime — 
is a major threat to American society. S. 829 is a comprehensive, 
well-considered response to this threat. Most of the parts of the 
package have been the subject of hearings and votes in the Senate 
in recent years. The purpose of these hearings is to bring the 
record on these measures up to date and to provide a record for the 
new proposals in the bill. The hearings will provide an opportunity 
for all of the major parties interested in Federal criminal justice 
reform to discuss the legislation and to point out its merits and its 
weaknesses. 

I want to thank the Attorney General and the other distin- 
guished witnesses from the Department of Justice and from the 
Treasury Department for leading off these hearings. The Depart- 
ment of Justice put this bill together in its present form, and the 
subcommittee looks forward to benefiting from the expertise of 
these various gentlemen in our deliberations. 

At this point, I would like to turn the gavel over to my distin- 
guished chairman, Senator Thurmond. 

(1) 



OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENA- 
TOR FROM THE STATE OF SOUTH CAROLINA, CHAIRMAN, COM- 
MITTEE ON THE JUDICIARY ^ 

The Chairman [presiding]. Thank you very much, Mr. Chairman. 

I am pleased to welcome the Attorney General of the United 
States to appear before the Subcommittee on Criminal Law, Senate 
Committee on the Judiciary to launch consideration of a massive 
package of criminal law amendments proposed by the administra- 
tion entitled "The Comprehensive Crime Control Act of 1983." 

I will be very pleased to cooperate with the able chairman of this 
subcommittee in this matter. Since he has to leave for a confer- 
ence, I believe, with the President, I will chair this session for him. 

Mr. Attorney General, we are very pleased to have you with us 
this morning. No one knows more than you the toll violent crime, 
illegal drugs, and organized crime takes on this society. Various 
polls and surveys over the past few years show that one-third of all 
households in the United States are touched by crime each year; 
one in five Americans is a victim of a crime each year. The latest 
available FBI crime clock figures show someone is killed every 23 
minutes, a woman is raped every 6 minutes, and a person robbed 
every 55 seconds. A burglary takes place every 8 seconds. One of 
the FBI major index crimes is committed every 2 seconds. While 
the FBI recently reported that serious crime dropped by 4 percent 
in 1982, such a drop hardly alters the crime clock rates and leaves 
us far behind in dealing with a 21 percent rise in serious crime 
since 1977 and a walloping 254 percent since 1962. 

I do wish to commend you, though, Mr. Attorney General, for the 
great work that you have done, and we are so pleased that this 
crime rate has been reduced, and I think probably you are more 
responsible than any one individual. 

Having reviewed the problem, we must recognize that in our 
Federal system the State and local authorities are primarily re- 
sponsible for protecting our communities from crime. As limited as 
the Federal role may be in this regard, however, the Congress and 
administration have the responsibility to make the Federal effort 
as effective as possible and to set an example of excellence for 
others. 

The Comprehensive Crime Control Act of 1983 constitutes a 
major legislative contribution toward meeting this responsibility. 
The proposal includes among other things: 

Reform of the bail laws to permit pretrial detention of dangerous 
defendants. 

A constitutional procedure for imposition of the death penalty in 
Federal cases involving treason, espionage, murder, and an attempt 
to kill the President. 

Improvements to the sentencing system by abolishing parole and 
most good time credit; standardizing sentences through guidelines; 
permitting Government appeal of lenient sentences below the 
guidelines; and allowing a life sentence without parole in the most 
serious offenses. 



• The opening remarks of Senator Thurmond and text of S. 829 given before the U.S. Senate 
can be found on p. S 3076 in the March 19, 1983 Congressional Record. 



Modification of the judicially created exclusionary rule that now 
keeps evidence out of the criminal trial on the ground that it was 
illegally seized. 

Providing more emphasis on protecting and meeting the needs of 
the victims and witnesses of crime. 

Improving the drug penalty structure of Federal law. 

Improving the operation of the criminal forfeiture laws applica- 
ble to organized crime and drug offenders. 

Modifying the current insanity defense and related procedures to 
more effectively enhance the safety of the community. 

Modifying Federal procedures for review of State criminal con- 
victions to afford greater finality and deference to State court deci- 
sions. 

I am looking forward to working with this administration and 
the Department of Justice to enact the best legislation possible. 

[The opening statements of Senators Kennedy and Biden follow:] 

Opening Statement of Hon. Edward M. Kennedy, a U.S. Senator From the 

State of Massachusetts 

Mr. Chairman, I welcome these hearings on comprehensive anticrime legislation. 
We face a serious problem of crime in America, and there is an urgent need for 
effective leadership by the Federal Government. 

There is widespread agreement on the need for basic reforms in the Federal laws 
on bail and sentencing. Sentencing is a scandal that permits the courts to play judi- 
cial roulette in determining whether defendants convicted of violent crimes go free 
or go to jail. Almost every day, the press reports the abuses caused by the unfet- 
tered discretion of judges in criminal sentencing. Excessively harsh sentences and 
incredible examples of leniency proliferate side by side, and undermine public confi- 
dence in our system of justice. 

Our outdated bail laws fail to protect the safety of the community and permit vio- 
lent offenders to return to the streets to commit new crimes while awaiting trial. 
We also suffer from outdated provisions on organized crime, narcotics crime, and 
violent juvenile crime. 

We have worked long and hard on these issues and we know what the needed 
reforms are. In the area of sentencing, we must provide certainty of sentencing, 
guidelines to limit judicial discretion, abolition of parole, and appellate review of 
sentences. In this Congress, I have introduced sentencing reform legislation which is 
virtually identical to the measure which passed the Senate last year by a vote of 95- 
1. 

With respect to bail, judges must be permitted by law to consider the dangerous- 
ness of a defendant in determining whether and under what conditions to permit 
release on bail. 

Other needed reforms are also clear. Criminal forfeiture statutes must be 
strengthened to enhance the ability of prosecutors to confiscate the assets of crimi- 
nal organizations and the proceeds of illegal drug trafficking. And violent juveniles 
must be held accountable for their crimes. They should be fingerprinted and photo- 
graphed, and tried and sentenced as adults, but incarcerated separately from adult 
criminals. These needed reforms are neither too complicated to legislate nor too dif- 
ficult to implement. 

And we can adopt and carry out all these measures without jeopardizing the basic 
constitutional rights of any citizen or the civil liberties of our people. 

Finally, we must make assistance to State and local governments a higher prior- 
ity. Local police, and prosecutors, and courts are our front line against crime and 
adequate Federal support for their efforts must be an essential component of any 
responsible effort we make. 

A few years ago. Congress was in the vanguard of proposals like these for wise 
reform. In fact, many of them originated in the bipartisan hearings on crime held in 
this committee in the 1970's. But in recent years, we have fallen behind the States 
in updating our criminal laws. Many of the reforms we sought in Congress have 
been introduced, evaluated, refined and adopted in the States, while we have failed 
to act. While criminals rush to invent new offenses such as computer fraud and 



move crime into the twenty-first century, Congress has yet to bring the Federal 
criminal laws into the twentieth century. 

There are no easy answers to this problem. There are no Kemp-Roth tax cuts, no 
budget cut quick fixes, no law and order panaceas that will help in fighting crime. 

But we have made some worthwhile bipartisan advances in this committee, and I 
look forward to even greater progress in the weeks to come. 



Opening Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator From the State 

OF Delaware 

Mr. Chairman, I am particularly pleased to welcome the Attorney General here 
today because this hearing is the first step toward enactment of a package of crime 
legislation in this Congress. 

The Senate Judiciary Committee has worked for over a decade to develop a com- 
prehensive crime bill which would make the reforms essential to a fair and effective 
Federal criminal justice system. Unfortunately, partisan concerns and the unwill- 
ingness of some Members of the Senate, the House and representatives of the ad- 
ministration, to compromise prevented enactment of substantial reform legislation. 

Last Congress a criminal law reform package met with a degree of success many 
thought impossible. Everyone in this room knows how far the crime package pro- 
gressed: The Senate passed the Violent Crime and Drug Enforcement Improvements 
Act of 1982, (S. 2572). Although we sent the bill to the House very late in the session 
the members of the House Judiciary Committee demonstrated a willingness to 
devote long hours to reach agreement on substantial portions of the bill. In addition 
to the final package, many compromises were reached in bail and sentencing 
reform. In fact, insufficient time at the end of the session may have been the major 
factor which prevented final agreement in bail and sentencing. Although the Presi- 
dent vetoed the final package he expressed strong support for a substantial portions 
of its contents. In fact, the administration-proposed bill before us today, the Compre- 
hensive Crime Control Act of 1983 (S. 829) clearly demonstrates the administration's 
support of the Senate-passed bill by incorporating many of its provisions, including 
bail reform, sentencing reform, forfeiture reform, and numerous amendments to 
current law directed at violent crime. 

I believe Chairman Thurmond will agree with me that successful Senate and 
House passage of comprehensive anti-crime legislation last Congress taught us some 
very important lessons. 

First, under Chairman Thurmond's leadership, the members of the Judiciary 
Committee and ultimately the Senate recognized the need to compromise and deve- 
lope comprehensive legislation with bipartisan support. To achieve that goal some 
Senators agreed to process important anti-crime bills as separate legislation because 
they recognize that one controversial provision could slow or halt progress on the 
entire package. 

Second, we found substantial agreements in our negotiations with Members of the 
House by deleting from the package those provisions which would be so controver- 
sial that they would jeopardize House passage. 

The lessons of last Congress clearly showed the way to enactment into law of com- 
prehensive anti-crime package this Congress: Members of both parties must work 
toward that goal by demonstrating a willingness to compromise and agreeing to 
process controversial legislation as separate bills rather than in a package. Also, 
Senate passage of a comprehensive bill must occur early in this session to provide 
sufficient time to reach agreement with our colleagues in the House. 

The administration crime bill makes a significant first step in this process by in- 
corporating many provisions of the bipartisan bill of last Congress. However, some 
provisions in the bill, which did not pass last Congress appear to be more of a legis- 
lation wish list than an assessment of what is likely to be passed by both the House 
and Senate this Congress. Regardless of our individual views we all know what 
those provisions are because both the Senate and House have been through seem- 
ingly endless debate, numerous amendments, threatened filibusters and other delay 
tactics, in some instances over more than one Congress. 

We are very close to finally enacting comprehensive anti-crime legislation into 
law. We must learn from our experience and begin with the bill which passed the 
Senate last Congress 95 to 1. Proponents of any additions to that bill bear the 
burden of proving that a new provision will not prove controversial and prevent en- 
actment of the entire package into law in this Congress. 



Chairman Thurmond, I am eager to once again work with you, the Criminal Law 
Subcommittee chairman. Senator Laxalt and with all of my colleagues on both sides 
of the aisle. 

The Chairman. Mr. Attorney General, we are very pleased to 
have you with us, and we will be honored now to have you proceed 
with your testimony. 

STATEMENT OF HON. WILLIAM FRENCH SMITH, ATTORNEY GEN- 
ERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE 

Mr. Smith. Thank you very much, Mr. Chairman. 

I am very happy to be here today to testify on behalf of the Com- 
prehensive Crime Control Act of 1983. 

Our bill is just that — comprehensive, in the sense that it con- 
cerns problems throughout the criminal justice system. The most 
serious of these problems, however, are those raised by the involve- 
ment of organized crime in drug trafficking. Before commenting on 
the legislation before you, I would like to take a few moments to 
review these problems and our response to them. 

Organized crime has expanded its operations to include drug 
trafficking. Indeed, most drug trafficking today is organized crime. 

Large-scale drug dealers must organize their operations. They 
obtain the illicit substances, or the rights to the substances, over- 
seas. Within our borders, the drug dealers have set up elaborate 
enterprises for cutting the pure imported drugs and distributing 
them over a wide geographical area. 

And the operation does not stop there. Drug money is laundered 
through businesses set up as "fronts" for drug dealers. The profits 
are then plowed back into the drug business, as with any major en- 
terprise. Increasingly, some of the profits are actually invested in 
legitimate businesses — including real estate in Florida, restaurants 
in California, and other businesses across the Nation. 

And the tremendous multibillion dollar profits from drug traf- 
ficking are used to finance the other illegal activities of organized 
crime — gambling, pornography, prostitution, extortion, loanshark- 
ing, fraud, weapons trafficking, and public corruption. 

Through its drug profits, organized crime spawns a great deal of 
the crime in this Nation. In addition, illicit drugs themselves 
spawn a great proportion of crime. One recent study demonstrated 
that over an 11-year period some 243 addicts committed about one- 
half million crimes — an average of 2,000 crimes each or a crime 
every other day — to support their habits. Half of all jail and prison 
inmates regularly used drugs before committing their offenses. Ac- 
cording to a recent Rand study, addicted offenders in California 
committed nearly nine times as many property crimes each year as 
nonaddicted offenders. 

Although much remains to be done, this administration has al- 
ready launched a new and promising assault upon organized crime 
and drug trafficking. A year ago last January, the FBI was brought 
into the drug fight for the first time — to complement the excellent 
work of the DEA. Thereby, we gained not only the FBI's resources, 
but also its years of experience in fighting organized crime. Prior 
to January 1982, the FBI had no specific drug investigations under- 
way. As of April 25 of this year, the FBI had more than 1,300 — and 
about 30 percent of these were joint investigations with the DEA. 



6 

We have in fact scored dramatic successes against organized 
crime. We have indicted and convicted numerous high-level mem- 
bers of syndicate families — in some cities, the top structure of orga- 
nized crime families regarded as untouchable a few years ago. In 
the last 2 years, we have convicted more than 1,200 persons in or- 
ganized crime cases — including more than 350 members and asso- 
ciates of La Cosa Nostra. In addition, more than 300 La Cosa 
Nostra members and associates are currently awaiting trial. 

To build on these successes, the President announced last fall 
perhaps the most significant assault on organized crime and drug 
trafficking ever planned. Critical in this effort are the 12 new re- 
gional task forces designed to mount a coordinated attack by all of 
the involved Federal agencies against organized drug trafficking. 
These task forces are operational — they have cases under investiga- 
tion. We expect each of the task forces will be fully staffed by the 
end of the summer. 

By creating these task forces — and bringing the FBI into the 
battle against drug trafficking last January — we will have approxi- 
mately doubled our drug enforcement resources in one year. 
Unlike prior Federal drug efforts that focused on the street level, 
our new task forces will concentrate on destroying the top levels of 
organized drug trafficking. 

In addition, just last month the White House announced the cre- 
ation of a new drug interdiction group headed by Vice President 
George Bush. This group will be looking outward from our borders 
in an effort to stop the movement of illicit drugs into this country. 
This new group will harness the power of the U.S. Customs, the 
Coast Guard and the military to deploy a first line of domestic de- 
fense against illicit substances shipped towards the United States. 
Meanwhile, within our borders, the Organized Crime Task Forces 
will fight drug trafficking. 

Although we have made a good beginning in this new effort 
against the most serious form of crime in America, it is essential to 
the fight against organized crime that the Congress enact the sig- 
nificant criminal law reforms that the President has proposed. Or- 
ganized crime is sophisticated and will take advantage of any 
weakness in the law — and weaknesses in each of these areas have 
been clearly identified through difficult and costly experience. 

Appearing before you shortly will be Associate Attorney General 
Rudolph Giuliani, Assistant Treasury Secretary John Walker, and 
Assistant Attorney General Lowell Jensen, who will cover the 
major aspects of the bill in more detail. Right now I would like 
briefly to note several areas where we believe reform is badly 
needed. 

We propose reform of the Federal bail system by authorizing the 
pretrial detention of defendants shown to be dangerous to the com- 
munity and by reversing the current presumption in favor of bail 
pending appeal. This has been the law in the District of Columbia, 
and it would restore the discretion vested in Federal judges prior to 
the Bail Reform Act of 1966. The courts should be specifically au- 
thorized to inquire into the source of bail, and they should refuse 
to accept money or property that will not reasonably ensure a de- 
fendant's appearance at trial. 



We propose sentencing reform in order to reduce the consider- 
able disparity in the sentencing process and also to restore truth in 
sentencing. Specifically, we propose abolishing the Parole Commis- 
sion and establishing a system of uniform, determinate sentencing; 
authorizing Government appeal of sentences; and restructuring the 
entire range of criminal fines and prison terms. 

Determinate sentencing improves the ability of the courts to 
impose a just, visible punishment that reflects a measured balance 
of society s interests. This bill includes provision for a new level of 
mandatory sentencing for violent crime, and it would serve to en- 
hance the deterrent effect of imprisonment where imposed in 
proper cases in the area of "white collar" crime such as fraud, anti- 
trust, and tax cases in particular. 

We propose making criminal forfeiture available in all major 
drug trafficking cases. We must strengthen procedures for "freez- 
ing' forfeitable assets pending judicial action, expand the classes of 
property subject to forfeiture, and facilitate the administrative for- 
feiture of conveyances and other property in uncontested cases. We 
must provide specific authority for the forfeiture of the proceeds of 
an "enterprise" acquired or maintained in violation of the RICO 
statute. 

We also propose modification of the exclusionary rule, which has 
substantially hampered our law enforcement efforts. The suppres- 
sion of evidence has freed the clearly guilty, diminished public re- 
spect for the law, distorted the truth finding process, chilled legiti- 
mate police conduct, and put a tremendous strain on the courts. A 
recent National Institute of Justice report found that when felony 
drug arrests were not prosecuted in California, 30 percent of the 
time it was for search and seizure reasons. It also found that "[t]o a 
substantial degree, individuals released because of search and seiz- 
ure problems were those with serious criminal records who ap- 
peared to continue to be involved in crime after their release." 

It is time to bar the use of the exclusionary rule when a law en- 
forcement officer has acted in good faith, reasonably believing his 
action to have been legal. This modification of the exclusionary 
rule — which is already the law in the fifth and eleventh circuits — 
would by itself do a great deal to restore public confidence in our 
criminal justice system. 

Another reform concerns the insanity defense. It is used in only 
a small percentage of criminal cases — and it is used successfully in 
an even smaller percentage. Nevertheless, the public attention re- 
ceived by those cases has fully exposed glaring flaws in that de- 
fense. It is for this reason that the administration proposed reform 
of the insanity defense to limit its use to those who are unable to 
appreciate the nature or wrongfulness of their acts. Under our 
original proposal, the burden would rest on the defendant to estab- 
lish insanity by clear and convincing evidence. 

Already, our original proposal — plus public concern about the 
abuse of the insanity defense — has moved many knowledgeable per- 
sons to rethink the issue. Committees of the American Bar Associ- 
ation are considering — and the American Psychiatric Association 
has adopted — worthy proposals for reform. Those proposals would 
eliminate the second — or "control" — prong of the two-part ALI- 
Model Penal Code test. In other words, they would limit the insan- 



8 

ity defense to those situations in which, as the result of mental dis- 
ease or defect, a defendant could not appreciate the wrongfulness 
of his conduct. Combined with requiring the defendant to prove by 
clear and convincing evidence that he did not appreciate the 
wrongfulness of his conduct, this approach would represent a sub- 
stantial improvement over present law. By supporting such an ap- 
proach, we hope to fashion a modification of the insanity defense 
that will enlist a broad base of support — and insure speedy reform 
in the Congress. 

As several members of the Supreme Court — and other concerned 
citizens — have pointed out, one of the greatest problems facing our 
legal system is the overload of cases in the courts. Too much busi- 
ness insures that the cases most in need of prompt judicial atten- 
tion may not receive it. As one observer noted, due process of law 
risks becoming overdue process of law. 

To ease at least some of the burdens on the courts, we also pro- 
pose a revision of the Federal habeas corpus laws. Our reform 
would impose a statute of limitations and provide that issues fully 
litigated in State courts would not be subject to relitigation in Fed- 
eral courts. The purpose of this reform is to restore a degree of fi- 
nality to criminal convictions, but an incidental effect would be the 
reduction of substantial burden on the Federal courts. State prison- 
ers filed more than 8,000 habeas cases in Federal court just last 
year. The only thing to commend the vast majority of those cases, 
to quote Judge Learned Hand, "is the hardihood in supposing they 
could possibly succeed." 

The legislation before you now includes all of these proposals 
plus more than 20 others. This comprehensive criminal law reform 
bill collects in one place all of the most necessary changes — includ- 
ing, for example, a constitutionally sound Federal death penalty. It 
also includes provisions concerning the Tort Claims Act, the Jus- 
tice Assistance Act, drug enforcement penalties, and surplus Feder- 
al property. 

In drafting this bill, we were ever mindful of the need to safe- 
guard individual liberty. But we also recognized that the most basic 
individual liberty is freedom from violence, and that liberty can be 
secured only by effective and vigorous enforcement of the criminal 
laws. As Judge Hand recognized 50 years ago: "Our dangers do not 
lie in too little tenderness to the accused. What we need to fear is 
the archaic formalism and the watery sentiment that obstructs, 
delays, and defeats the prosecution of crime." 

That concludes my opening statement. Rudy Giuliani, John 
Walker, and Lowell Jensen are here to discuss the legislation in 
more detail and to answer any questions you may have. 

Thank you very much. 

The Chairman. Thank you, Mr. Attorney General. 

I understand that you have another appointment and cannot 
remain longer. So we will just reserve questions for the other wit- 
nesses. 

We appreciate your appearance. 

Mr. Smith. Thank you very much. 

Senator Kennedy. Could I just have one question? 

Would the Senator yield? 

The Chairman. Senator Kennedy. 



Senator Kennedy. Mr. Attorney General, just one question on, 
really, it deals with the strategy. 

I think that we have worked out, over a long period of time, on 
this committee, a bipartisan effort which has coalesced around the 
areas in which there can be substantial agreement. I must say that 
the proposal made by the administration includes a variety of dif- 
ferent elements which are extremely controversial both, I think, 
within this committee, and certainly on the floor of the Senate. 

I am just wondering, without getting into the details of the par- 
ticular provisions — I know you have to run — what is your own 
strategy? The Democrats have put in their program, the Republi- 
cans have put in their program, and there is substantial agreement 
on a number of areas that can have a real impact. Why are we not 
trying to take the elements of both programs on which we agree 
and move that rapidly through the Senate, and see what can be 
done in the House. 

I must say as somebody who has been here over 20 years, I have 
seen the enormous diversity on law enforcement in the early years, 
and then the coming together during the period of the late seven- 
ties. I think we are right back in the situation where we have 
added too much in terms of this legislation. 

Maybe you just believe as a matter of principle that the contro- 
versial issues have to be so included. But as a practical matter, I 
think that there is a very little likelihood that they are going to be 
enacted into law. There is a real chance of jeopardizing the whole 
crime package, which I believe the President is committed to, I 
know you are, and many members are. 

I would just be interested if you did have 2 minutes to comment 
on what your own view and strategy is, because there are strong 
views not only in this House, but as you understand, in the House 
of Representatives, on a variety of these amendments. Yet there is 
very substantial agreement on the vast majority of the package, 
whether it is sentencing, whether it is the bail reform, whether it 
is violent juvenile offenders, provisions dealing with drug traffick- 
ers, and a variety of other provisions which both the Republicans 
and Democrats have worked on. 

Would we not be wiser to take those areas where we have sub- 
stantial agreement, and move those as a package, and deal with 
the controversial issues, such as the death penalty on a separate 
tract. 

Are we at a point where we want to isolate those individuals who 
oppose the controversial items and, make them appear like they 
are against doing something on crime, or are we just trying to get 
this passed? 

Mr. Smith. Well, Senator, we feel, as you know, that all of the 
proposals in that package are very badly needed. It is true, and cer- 
tainly true in the Senate here, that a bill was passed last year by a 
vote of 95 to 1. It never got out of the House. 

Senator Kennedy. We have other assurances from the chairman 
of the House Committee on that issue. 

Mr. Smith. The Senate certainly has done a good deal with re- 
spect to making some of the changes that we think are needed. The 
Congress as a whole has done very little, and we think that it is 



25-694 0-84-2 



10 

important that all of these proposals be seriously considered and 
acted on. 

Now, it may very well be, as you say, that there are differences 
of opinion. I am sure there are, with respect to a certain number of 
these proposals. But it does seem to me that at least the floor of 
each House ought to have the opportunity to vote on each of those 
proposals as a package, or otherwise. 

Now, the strategy of how it is put together, of course, is really 
the responsibility of this committee and the Senate. 

Senator Kennedy. Well, it is also yours, hopefully, as well. You 
are influenced and guided by the committee here, and by the ad- 
ministration. 

Mr. Smith. It is ours. Senator Kennedy, and we think we have 
done that by putting together this package, and submitting it to 
both the Senate and the House. We would like to see all of those 
proposals considered, because we think every one of them is impor- 
tant. 

Senator Kennedy. Do you think adding a death penalty to this 
particular package assists in moving this whole package through, 
in terms of the Senate of the United States, given what a number 
of the Members of the Senate have said? 

Clearly, you know, there is always the possibility of cloture, fili- 
busters, and all the rest of it. But as someone who has been in- 
volved in the process, and who is opposed to the death penalty, I 
certainly have indicated I would never filibuster, but I think there 
are others who would. There has been a serious effort on a number 
of the consensus areas which I have just mentioned here. 

If we could have a chance to vote on those, and move those 
through, and get the House of Representatives to do likewise, we 
will have accomplished something, but it is inconceivable to me 
that you expect that with your package, you are really doing a 
great deal more than posturing, quite frankly. 

I have a lot of respect for you and the Department, but it just 
seems to me that the better part of wisdom is to try to find the 
areas where there is agreement, and there are many, and they are 
extremely important, and they can make some important differ- 
ence in trying to deal with crime, and get those passed, and I 
would dare say that you could take 8 of 10 or the principal items in 
there and pass them through the Senate this afternoon. 

But I just raise this as a question of strategy, because I am very 
interested in the issue, as are the people in my State, and all across 
the country, and I am not too sure that we are not doing their in- 
terests a disservice by not moving the controversial issues separate- 
ly from the consensus package. 

But perhaps later down the road, when push comes to shove, we 
can come back to you and talk to you about a strategy, because I 
think we are going to be there. 

I thank the Chair. 

Mr. Smith. We certainly hope that all of these proposals do get 
to the floor and are voted on by both Houses. We think they are all 
important. 

Now, how they get there, of course, is another matter. 

Senator Biden. Mr. Attorney General, could I ask one question? 

The Chairman. Senator Biden. 



11 

Senator Biden. I apologize for being late, General. 

I want to echo the statements that Senator Kennedy just made, 
and clarify one thing. 

The Senate and the House did pass a very significant bill last 
year, the most significant anticrime legislation that has come 
through Congress in the last 15 years. Now I understand the ad- 
ministration did not like it. The President vetoed it, not Congress. 
We passed the bill and it did not have sentencing or bail reform in 
it. 

We did get a commitment, with Herculean efforts, and with your 
Department aiding us, from the chairman of the House Judiciary 
Committee, to report a sentencing bill and a bail bill this Congress. 

The number three man on this committee, Senator Laxalt, has 
agreed to report out a sentencing bill by June 1, so that we can 
quickly send a bill to the House. 

I want to emphasize that we did pass a significant piece of legis- 
lation through both Houses last year and put it on the President's 
desk. I do not think anyone who has been here even 3 days can 
believe that we are going to be able to pass in its entirety either 
the crime package that Senator Kennedy and I introduced on the 
Democratic side (S. 830), or this package (S. 829). 

And I really think that if we are going to play politics, and say 
that we are going to get every element of the package and vote 
each up or down, and make it an election issue, I can assure you 
that — not because I will do anything about it but because of the 
nature of the beast — we will get nothing done here. 

We have a golden opportunity to keep the House to its word on 
sentencing, and a golden opportunity on bail, two of the four most 
important aspects of any legislation that has been proposed here, 
and 85 percent of everything else that is in here, I think it can 
pass. 

I hope we can work with you, General, on trying to come up with 
a bipartisan package that was engineered, like the one engineered 
by the chairman of this committee last year. 

Mr. Smith. Well, we certainly agree with most of thie provisions 
of the bill that you are referring to. We do not think that it was 
anywhere nearly as extensive as it should have been, or as this 
package is, or as what I hope the Congress will do this session. 

As you know, that veto was for completely independent reason, 
not having to do with the merits of any of the proposed, crime 
changes. 

Senator Biden. Thank you. 

The Chairman. I might say. General, that it is my intention, if 
we can, to get this package before the full committee, and pass as 
much of it as we can. If the committee votes out certain sections, 
well that will be the privilege of the committee. I certainly appreci- 
ate the spirit of cooperation of Senator Kennedy and Senator Biden 
with respect to many of these provisions. 

Senator Kennedy. I must say that the Chair has been, since we 
started, extraordinarily cooperative and responsive. There have 
been a number of different areas that I know that he and I and 
other members have differed on, but he has been persistent in 
trying to see that we are able to get passed what can make a differ- 
ence on this issue. 



12 

I would just hope that we could could continue in that spirit. 

Senator Biden. There is no way that we can pass anything with- 
out expending political capital. Senator Kennedy has expended po- 
litical capital from the folks to the left who are unhappy with the 
idea that he would not filibuster the death penalty and many other 
provisions. 

Senator Thurmond expended a great deal of political capital by 
agreeing to the fact that he would not allow certain provisions to 
come up in the package we had last time. The only way that we 
can legislate around here is to have people who are willing to legis- 
late and expend political capital. Both of these men have demon- 
strated that, although they come from opposite perspectives, and I 
hope that the administration can demonstrate that same kind of 
willingness to expend some political capital, and get something 
passed. 

Mr. Smith. Well, we very much appreciate the actions taken by 
the Senate in the last Congress. We certainly want to do every- 
thing that we can do to cooperate and work with this committee 
and all of those involved in connection with the current package, 
because what we are talking about is a very important public inter- 
est issue. I think we all have responsibility, and we certainly all 
want to cooperate to the fullest extent. I can certainly say on 
behalf of the administration that we intend to do just that. 

Senator Biden. We are happy to cooperate. 

The Chairman. I might say, Mr. Attorney General, that I favor 
the package. I think it is an excellent package. 

I would be very pleased to see it passed just as it was submitted 
to us, and I think we can take it up in the committee, but I cannot 
assure you that every provision in the package will be approved. 
That will be up to the committee. We will just have to vote on each 
provision in the committee, but we will do the best we can. 

Thank you very much for your appearance. 

Mr. Smith. Thank you. 

The Chairman. Our next witnesses are the Associate Attorney 
General, Rudolph Giuliani, the Department of Justice; Assistant 
Attorney General Lowell Jensen, the Department of Justice; and 
John Walker, the Department of the Treasury. 

You know we approved your nomination in the District of New 
York? 

STATEMENT OF RUDOLPH GIULIANI, ASSOCIATE ATTORNEY 
GENERAL, DEPARTMENT OF JUSTICE, ACCOMPANIED BY 
LOWELL JENSEN, ASSISTANT ATTORNEY GENERAL, DEPART- 
MENT OF JUSTICE; AND JOHN M. WALKER, JR., ASSISTANT SEC- 
RETARY (ENFORCEMENT AND OPERATIONS) DEPARTMENT OF 
THE TREASURY 

Mr. Giuliani. Yes, I did, Mr. Chairman. Thank you very much. 

Mr. Chairman, members of the subcommittee 

The Chairman. The Department of Justice, I believe, has a very 
full statement on this matter. I think we might place that in the 
record and have the witnesses summarize significant joints as they 
see fit. 



13 

Senator Kennedy. Mr. Chairman, could I include an opening 
statement, at an appropriate place? 

The Chairman. Without objection, the opening statement 

Senator Kennedy. And I have just one or two questions, both on 
the bail and sentencing. Some differences in where we were last 
year, but I would like to just submit those, if I could, for the record. 

The Chairman. Without objection, the opening statement of Sen- 
ator Kennedy, and the opening statement of Senator Biden will 
follow my opening statement, if that is agreeable. 

You gentlemen may proceed. 

Mr. Giuliani. Mr. Chairman, members of the subcommittee, I 
appreciate this opportunity to testify regarding the President's 
Comprehensive Crime Control Act of 1983. 

We have submitted for the record a lengthy written statement, 
so what I would do, Mr. Chairman, is briefly summarize some of 
the provisions of the bill. 

Assistant Attorney General Jensen will summarize others, and 
Assistant Secretary of the Treasury, John Walker, several sections. 
I will cover bail reform, insanity defense reform, Federal interven- 
tion in State proceedings, surplus property amendments, and sen- 
tencing reform. 

Mr. Jensen will cover — we both will cover sentencing reform — 
the exclusionary rule, justice assistance, drug enforcement amend- 
ments, and capital punishment; and Mr. Walker will cover forfeit- 
ure and the Federal Tort Claims Act. 

Mr. Chairman, in our view, the first title of the administration's 
crime bill is certainly one of the most significant, that is, bail 
reform. 

Unfortunately, the shortcomings of current law are most evident 
when we are dealing with the most serious criminal offenders, ha- 
bitual or violent offenders, and the leaders of the drug trafficking 
syndicates. 

In Miami, for example, although the average money bond for 
drug defendants is $75,000, 17 percent of these defendants never 
appear for trial. For them, money bonds are nothing more than a 
cost of doing business, and a means of escaping prosecution. For 
many nondrug defendants, bail is a means of securing release from 
custody so that they can continue preying upon the public. 

In a Michigan case, late last year, a particularly violent bank 
robber, George Gibbs, was released from Federal custody on $25,000 
bail, and 4 days later was arrested for holding up a second bank 
and shooting a local police officer in the process of attempting his 
getaway. 

In short, Federal bail laws do not adequately protect the public 
from violent criminals and dope traffickers. We recommend that 
the courts be required to consider danger to the community, as 
well as risk of flight in making bail decisions. 

It is difficult for many laymen to believe that Federal bail laws 
now look only to the flight issue. Presently, Federal judges making 
release decisions as to demonstrably dangerous defendants face a 
dilemma. They may release the defendants despite the danger that 
he poses to public safety, or they can attempt to find some reason, 
such as risk of flight, to justify a high money bail which the de- 
fendant cannot meet. 



14 

In short, judges too often find it necessary to choose between pro- 
tecting public safety, which may require intellectually dishonest 
findings, or applying the law as presently written, and releasing 
such defendants, recognizing the danger that they pose to the com- 
munity. 

Although the provision in our bail reform proposal authorizing 
consideration of a defendant's dangerousness in setting release con- 
ditions, and a limited category of cases as the basis of denying re- 
lease altogether, is probably the most important concept in the bail 
reform title, there are other provisions that are equally significant. 
The bail title, for example, clearly authorizes courts to inquire into 
the source of property that will be used to post bond, and to reject 
property derived from criminal activity. The bail title would also 
make penalties for bail jumping commensurate with those applica- 
ble to the underlying criminal offense with which the defendant is 
charged, in requiring that such bail-jumping penalty run consecu- 
tively with other prison terms imposed. 

The bill also shifts the current presumption favoring release on 
bail following conviction and pending appeal, so that the defendant 
is required to show, in order to secure postconviction release, that 
he will not flee, or pose a danger to the community, and that his 
appeal raises a substantial question of fact or law likely to result in 
reversal of his conviction. 

To me, this is one of the most absurd provisions in the Federal 
law. After a person now, under current Federal law, is convicted of 
a crime, the presumption operates in favor of that person being re- 
leased. That, in essence, is having exhausted the rights, not of the 
accused, or those who might possibly be presumed innocent, but 
rather elevating the rights of the convicted over the rights of the 
public and society. 

It was an absolutely absurd extension of the bail laws, and prac- 
tically it results in most Federal defendants, after conviction, being 
released on bail, and not being incarcerated for a year, a year and 
a half, and many of our defendants, many of our fugitive defend- 
ants, are in that category, those who have already been convicted 
of crimes. 

The second aspect of this that is very important is that, with all 
the changes that have been made in drug enforcement as outlined 
by the Attorney General, the increase in the number of FBI agents 
now doing drug investigations, that were not doing drug investiga- 
tions a year ago, and 18 months ago, an increase of about 600 or 
700 agents, the task force increases, which will be an additional 
1,000 agents, doing drug cases, there is no reason to believe that, 
without a change in our bail laws, the result of their efforts will 
not be just a commensurate increase in the number of fugitives — 
drug fugitives. 

At last count we had a little under 2,000 drug agents and over 
3,000 drug fugitives. There is no reason to believe that when we 
have 4,000 or 5,000 drug agents, we would not have 7,000 or 8,000 
drug fugitives, unless the bail laws are changed in the way in 
which this committee has already considered it and we are propos- 
ing. 

Another important part of the President's crime bill is title V, to 
reform the insanity defense now applicable in the Federal criminal 



15 

justice system. Although the insanity defense is used in compara- 
tively few Federal cases, the defense raises fundamental issues of 
criminal responsibility which the Congress should address, and, 
also, in assessing how often the defense is used, one must also look 
to any number of cases where a plea results or a disposition results 
in which the defendant, instead of being convicted, is placed in a 
mental institution or is civilly committed. 

And, in fact, under State systems that happens quite frequently. 
As a result of the Hinckley case, there has been a careful review of 
the insanity defense, and a consensus has emerged for narrowing of 
the defense, particularly the volitional arm of the defense, as it is 
now used in Federal courts, which focuses upon the ability of the 
defendant to control his conduct. 

As the American Psychiatric Association noted in December of 
last year, the line between an irresistible impulse and an impulse 
not resisted is probably no shorter than that between twilight and 
dusk. 

Since the experts themselves recognized a virtual impossibility of 
determining whether the defendant can or cannot control his con- 
duct, we propose to limit the insanity defense to the so-called cogni- 
tive arm, that is, a defendant would be deemed not guilty by 
reason of insanity only if, as a result of mental disease or defect, he 
was unable to appreciate the nature and quality of the wrongful- 
ness of his acts. 

Otherwise, mental disease or defect would not constitute a de- 
fense. Furthermore, opinion evidence by psychiatrists on the ulti- 
mate question of whether the defendant had the mental state or 
condition constituting either an element of the crime or a defense 
would be prohibited, and the defendant would have the burden of 
proving his insanity by clear and convincing evidence. 

We believe this reform would bring insanity issues back into the 
realm where psychiatric witnesses can provide reliable evidence. 
The question for the jury would be whether the defendant knew 
what he was doing or that what he was doing was wrong. 

Although we frankly believe that even further narrowing of the 
insanity defense would be desirable, to look only to the issue of 
mens rea, the approach set out in the President's crime bill would 
represent a major improvement over existing law, and it is an ap- 
proach that we believe can command overwhelming support in the 
Congress. 

I note that, on this issue, the administration last year had pro- 
posed returning just to the mens rea approach. In other words, re- 
stricting the insanity defense, just to situations where a person 
could establish, or the Government could not establish, that the 
person knew what he was doing or intended the consequences of 
his act. 

As a result, really, of consultations with the chairman, with 
other members of this committee, and our assessment of what is 
realistic, as opposed to what we would absolutely prefer, we have 
modified our position to one which we think is a more realistic one, 
and one that was supported by this — by a number of members of 
this committee last year, and is now essentially supported by the 
American Bar Association and the American Psychiatric Associ- 
ation. 



16 

I offer that as an example of how we are more than wilHng to 
compromise, if we can achieve improvements over current law, 
even if we cannot get exactly or precisely what it is that we would 
prefer in the first instance. 

One of the provisions of the President's crime bill that would be 
of greatest benefit to State and local law enforcement authorities is 
title VI, which would limit Federal judicial interference in State 
court adjudications pursuant to the Federal habeas corpus statutes. 

The abuse of Federal collateral remedies has been a a growing 
concern in recent years among State and Federal officials responsi- 
ble for the prosecution of crime. The concern has been equally 
great among State and Federal judges. 

Indeed, a majority of the Justices of the Supreme Court have 
strongly criticized the current operation of Federal habeas corpus, 
and have called for basic reforms. 

Under the present system, there can never be an end to the liti- 
gation of a criminal case, since habeas corpus is available without 
limitation of time, and with no limit on repetitive filings by the 
same prisoner. 

Criminal justice resources of the State and Federal governments 
are squandered in litigating the redundant and frivolous petitions 
of State and Federal prisoners. The possibility of structuring State 
processes through delay and repetitive applications for Federal 
habeas corpus has virtually nullified State capital punishment 
laws. 

Title VI incorporates a variety of reforms responding to these 
abuses. It would establish a 1-year time limit on habeas corpus ap- 
plications, normally running from the end of the State criminal 
process. This would provide a means for controlling the abuses of 
repetitive filing, and the filing of petitions years, or even decades, 
after the normal conclusion of a criminal case. 

Title VI would also establish a general rule barring claims which 
were not raised before the State court where the State has pro- 
vided an opportunity to raise such claims that would satisfy the re- 
quirements of Federal laws. Under this rule, a claim could be 
raised on a habeas corpus if an attorney's failure to raise it, in 
State proceedings, amounted to constitutionally ineffective assist- 
ance of counsel. But minor oversights and errors by counsel, which 
even the ablest attorneys will sometimes make, would not be 
grounds for reopening a criminal case in Federal court after the 
State process is completed. 

A further reform of title VI is according deference in habeas 
corpus proceedings to the result of full and fair State adjudications. 
The requirement of a full and fair adjudication would generally be 
satisfied if the State determination of a petitioner's claim was rea- 
sonable, and was arrived at by procedures consistent with due proc- 
ess. 

The current rules, by contrast, mandate redetermination of all 
claims, regardless of how often, and how adequately they have 
been considered by the State courts. The effect of the reform 
should be a relatively quick and easy decision in habeas petitions 
of most claims that have previously been decided by the State 
courts. 



17 

Finally, title VI would make comparable reforms in the collater- 
al remedies for Federal prisoners, and affect various technical im- 
provements in habeas corpus procedures. 

The Federal surplus property amendments in title IX of the bill 
would be of great assistance in turning over Federal property to 
State and local jurisdictions for use as correctional facilities, some- 
thing that we have done, to the extent that we can, laboring under 
the burdens of the present law, and have actually been very effec- 
tive in assisting many of the States, or at least some of the States, 
the ones that have participated so far, and quickly, at least dealing 
with the overcrowding in State prison facilities. 

In the past decade, the State prison population has almost dou- 
bled, from 204,000 in 1973 to over 400,000 today. Because prison 
construction is so expensive, ranging from $30,000 to $90,000 per 
bed, State governments are severely strained. More than half of 
our State correctional systems are under Federal court orders 
stemming from overcrowding. 

In an effort to assist the States in dealing with this problem, the 
Attorney General has established a clearinghouse to facilitate the 
identification and transfer to States of surplus Federal properties 
suitable for prison use. Four States have acquired property under 
this program. 

Under current law, however, States must either lease or pur- 
chase the property at its fair market value. This is a financial 
burden which many States cannot bear. 

Under title IX of the President's crime bill, surplus Federal prop- 
erty could be donated to the States at no cost. 

As there are surplus properties available which could, at mini- 
mal cost, be converted to prison use, enactment of this proposal 
would provide urgently needed relief to States, and reduce the 
problem of prison overcrowding. 

The final provision that I would like to touch on, and then turn 
it over to Assistant Attorney General Lowell Jensen to offer fur- 
ther comments on, is the sentencing reform proposals in the bill. 

Criminal sentences are imposed at the end of a process that is 
designed to assure fairness to defendants and to the public. Ideally, 
sentences represent society's statement of the relative seriousness 
of the defendant's criminal conduct, and will deter criminal con- 
duct by others. 

Unfortunately, despite everyone's best efforts, sentences ulti- 
mately fail to achieve these goals. This is true in large measure be- 
cause the system fails not only to provide appropriate sentences in 
many individual cases, but even fails to provide a mechanism capa- 
ble of consistently achieving such results. 

Current Federal law provides a Federal judge who is sentencing 
someone, who has no special competence in knowing what sentence 
will reflect society's values, discretion to impose a sentence pursu- 
ant to numerous sentencing options, with almost no guidance as to 
how to choose among those options. 

Federal penal statutes specify only the maximum sentence that 
may be imposed for a particular offense, and this only indicates the 
congressional view of the appropriate sentence for the most serious 
case under that statute. Federal law also provides various sentenc- 
ing alternatives, such as probation and restitution, and various spe- 



18 

cialized sentencing statutes, such as those available for youthful of- 
fenders, or drug addicts. 

But Federal law gives absolutely no guidance as to when or how 
these statutes should be used. As a result, judges are left to impose 
sentences according to their own notions of the purposes for sen- 
tencing. They are not required to state their reasons for choosing a 
particular sentence, and many, in fact most, do not. Sentences are 
reviewable only for illegality, or for constitutional violation. 

A sentence that is substantially out of proportion to those in sim- 
ilar cases is not otherwise subject to challenge. It is unreviewable. 

Current imprisonment statutes were enacted at a time when the 
criminal justice system utilized a medical model. A defendant sen- 
tenced to prison was sentenced to a term substantially longer than 
the judge thought would be needed to rehabilitate or cure the de- 
fendant. 

Parole authorities would periodically review the defendant's 
case, to determine whether he had been rehabilitated, and could be 
released. This theory ignores the fact that there are other purposes 
of prison sentences, such as just punishment and deterrence for 
which definite sentences must be imposed. 

In addition, the theory has proved to be unsound because behav- 
ioral scientists have concluded, in recent years, that there is no re- 
liable means of inducing rehabilitation, and no way to tell from a 
prisoner's behavior in prison, or before a parole board, whether or 
when he has become rehabilitated. Decisions as to rehabilitation 
have resulted in numerous tragedies all throughout this country. 

Consequently, the basic reasons for an indeterminate sentence, 
and thus, for the existence of parole boards has disappeared. The 
Federal Parole Commission today acknowledges that it cannot tell 
when a prisoner has become rehabilitated. It now sets release dates 
for most prisoners under its own guidelines soon after they begin 
their prison term, and based entirely on information known at the 
time of sentencing. The release date may be substantially different 
from the prison term, and may be set to achieve entirely different 
goals from those of the sentencing judge. It does not, however, re- 
flect in any way an assessment of the person's behavior in prison, 
or of the quality or level of the person's rehabilitation. 

It is, in essence, a resentencing of the person who has been sen- 
tenced by the judge already, and often in a way that conflicts with 
what the judge did in the first place. 

The almost inevitable result of the problems of current law is 
considerable sentencing disparity. This disparity has been docu- 
mented in numerous studies, including a recent study for the De- 
partment of Justice, in which 208 Federal judges agreed, in only 3 
of 16 hypothetical cases, on whether to sentence a defendant to 
prison at all. The study found that 21 percent of the variation in 
sentences was due to the tendencies of some judges to sentence 
more harshly, or more leniently than others, and that even more 
variation was due to differences in the weight in which individual 
judges gave particular offenses or offender characteristics. 

In the last decade a concensus has developed among those of dif- 
ferent political views that the current Federal sentencing system is 
riddled with serious shortcomings. More recently, substantial sup- 
port has developed for an approach along the lines of title II in this 



19 

proposed bill, a system that couples sentencing guidelines, and pro- 
vides for determinate sentences. This title is substantially identical 
to the legislation approved several times by the Senate Judiciary 
Committee, and passed by the Senate most recently in S. 2572, in 
the last Congress. 

The provisions are also similar to the Minnesota system, the only 
operating State system that is substantially similar to the proposal 
contained in title II, which the National Academy of Sciences has 
recently reported to be the most successful sentencing reform 
system. 

If I may, Mr. Chairman, I would turn it over now to Assistant 
Attorney General Jensen, who will discuss the sentencing proposal, 
or continue the discussion of the sentencing proposal, and move on 
to some of the other provisions. 

The Chairman. Mr. Jensen, we would be glad to hear from you. 

STATEMENT OF LOWELL JENSEN 

Mr. Jensen. Thank you, Mr. Chairman and members of the sub- 
committee. 

I would like to follow up on the discussion of the sentencing in 
title II, to describe a little bit just exactly what title II would sug- 
gest in terms of revision of Federal sentencing laws. 

It would, for the first time, give legislative recognition to the pur- 
poses of sentencing, including just punishment, deterrence, protec- 
tion of the public, and rehabilitation. A judge would impose sen- 
tence after considering these purposes, and sentencing guidelines, 
promulgated by a commission in the judicial branch that would 
recommend an appropriate kind of range of sentence for each com- 
bination of offense and offender characteristics. The judge would 
impose sentence in accordance with the guidelines, unless he found 
that a factor that should affect the sentence was not adequately 
considered in the guidelines. 

If the judge imposed sentence outside the guidelines, he would 
have to state specific reasons for doing so, A sentence above the 
guidelines would be subject to appellate review at the request of 
the defendant, and a sentence below the guidelines would be sub- 
ject to review at the request of the Government, acting on behalf of 
the public. 

A prison term imposed by the judge would represent the actual 
time to be served, less a small amount of credit for compliance 
with prison rules. The Parole Commission would be abolished, and 
prison sentences imposed by judges would no longer be artificially 
inflated, because of the parole system. 

If the sentencing judge thought that a defendant would need 
street supervision following his prison term, he could impose a 
term of supervised release to follow the prison term. 

Title II provides numerous advantages over current law. The 
most important is that it provides a sentencing mechanism that 
will assure fair sentences, and the appearance of fairness. Sentenc- 
ing guidelines will assure that defendants will receive sentences 
that are fair, as compared to sentences for all other offenders. De- 
terminate sentencing will assure that everyone will know at the 



20 

time of sentencing exactly what the sentence is, and why it was im- 
posed. 

Finally, appellate review of sentences will assure the develop- 
ment of a balanced body of case law concerning the appropriate- 
ness of both unusually high and unusually low sentences. 

Let me turn to one of the other titles, a major portion of the leg- 
islation we are discussing, and that has to do with the exclusionary 
rule. 

In title III of the bill we set out a proposed modification of the 
fourth amendment exclusionary rule, to restrain it to its proper 
rule, which is precisely that of deterring unlawful police conduct. 

Our proposal is identical to that submitted by the administration 
and introduced by Chairman Thurmond as S. 2231 in the 97th Con- 
gress. Our proposal is, simply, that the exclusionary rule would not 
be applied in cases in which the law enforcement officers who con- 
ducted the search acted in a reasonable good faith belief that their 
actions were lawful. 

When first imposed by the Supreme Court in 1914, the exclusion- 
ary rule was justified both as a means of deterring unlawful police 
conduct and on a judicial integrity ground, which sought to prevent 
courts from being accomplices in willful constitutional violations. 
Over time, it has become clear that the deterrence rationale is the 
foremost reason behind the rule. 

There are any number of cases that set this out. They start with 
the cases that dealt with the retroactivity of the rule itself. And all 
those cases have now clearly established that the rule will be in- 
voked to protect fourth amendment rights, only when to do so 
would effectively deter unlawful conduct by police or by law en- 
forcement authorities. 

Although the Court recognizes deterrence as the rule's para- 
mount purpose, it has not limited the rule only to those situations 
in which the law enforcement officer's conduct is susceptible to 
being deterred. For example, courts continue to suppress evidence 
seized by law enforcement officers during searches conducted pur- 
suant to duly authorized warrants which have been obtained in 
completely good faith but later found defective by an appellate 
court. 

When a warrant is obtained in good faith from one court but is 
subsequently ruled defective by another court, there is a disagree- 
ment between judges — there is no police misconduct involved. The 
police have simply carried out their duties. They have gone to the 
court and presented their evidence, completely with full disclosure. 
The court has made a decision that probable cause exists for a war- 
rant. 

In those circumstances, there is no police misconduct, whatso- 
ever, and the exclusionary rule, when it is applied in those cases, 
simply fails to comport with its rationale. 

Moreover, when the officers carry out the orders of the court, 
once a warrant is issued, suppression of evidence in such an in- 
stance does not serve the purpose of the exclusionary rule. 

In fact, it only serves to damage both a community's perception 
of justice and the morale of law enforcement officers who have fol- 
lowed the rules only to have the evidence suppressed on the prem- 



21 

ise that they have violated the Constitution. Proper police conduct 
is thereby falsely labeled as illegal. 

The deterrent purpose of the exclusionary rule also is not served 
when courts apply the rule to situations where the appellate court 
cases are not at all clear, where the law is thoroughly confused, or 
even in -situations where the cases are in flat contradiction. Police 
often are confronted with the question of whether to conduct a 
warrantless search in the field when the circumstances they are 
facing are not covered by existing case law. 

For example, we could consider the facts in two recent cases de- 
cided by the Supreme Court, Robbins' v. California, and New York 
V. Belton. Both of these cases were decided by the Court on the 
same day in the 1981 term. In both cases, police officers lawfully 
stopped a car, smelled burnt marihuana, discovered marihuana in 
the passenger compartment of the car, and lawfully arrested the 
occupants. Thereafter, in Robbins the officer found two packages 
wrapped in green opaque paper in the recessed rear compartment 
of the car, opened them without a warrant, and found 30 pounds of 
marihuana. In Belton, the officer found a jacket in the passenger 
compartment, unzipped the packet without a warrant, and found a 
quantity of cocaine. 

In decisions based largely on cases that had not even been decid- 
ed at the time of the two searches were actually conducted, the 
Court split as follows in now considering the cases that have come 
from New York and California: three Justices of the Supreme 
Court decided that both searches were legal; three Justices decided 
that both were illegal; and three Justices decided the ultimate deci- 
sion that Robbins was illegal and Belton was legal. 

The interesting result of that is that both New York and Califor- 
nia were found to be wrong. They were both reversed. So the Su- 
preme Court, on the basis of the decision, simply decided that the 
cases as they come up through the State courts have been decided 
once again by the judicial disagreement to be a different state of 
law. 

Moreover, the Court did not give the police any real guidance to 
understand the law of warrantless searches of automobiles, and 
less than a year later the issue was again before the Court in the 
United States v. Ross. 

In that case, the Court reconsidered the holding of Robbins, and 
it was repudiated. So what we have was, after we had gone through 
this, we now have a state of law that was known but we had gone 
through a process where Robbins' and Belton's cases had been af- 
fected by a state of law which was unknown. 

It was probably small consolation for the police involved in the 
search in Robbins to know that their view of the law in this area 
was ultimately upheld by the Supreme Court in another case since 
the defendant in Robbins went free because the evidence was ex- 
cluded. To say the suppression of reliable, trustworthy evidence in 
this type of case helps to deter police misconduct is absurd, and the 
acquittal of the defendant is a totally unjustified windfall. 

Our proposal in title III setting forth a reasonable, good faith ex- 
ception to the exclusionary rule recognizes that conduct undertak- 
en in reasonable good faith is not succeptible of being deterred. It 
is based on the en banc opinion of the Fifth Circuit in United 



22 

States V. Williams, which adopted a reasonable good faith excep- 
tion in that circuit after an exhaustive opinion which considered 
all relevant Supreme Court cases. Such legislation was recommend- 
ed by the Attorney General's Task Force on Violent Crime after 
hearing the recommendations of legal scholars on many different 
points of view. We are confident it is constitutional. 

Moreover, a legislative modification of the rule is long overdue, 
having first been suggested 12 years ago by the Chief Justice in his 
dissent in the famous Bivens case. 

Let me turn to another portion of the legislation, that which 
deals with the reinstitution of capital punishment. 

The establishment of constitutional procedures for the imposition 
of capital punishment is the purpose of title X of the administra- 
tion's crime bill. For more than a decade, Federal statutes author- 
izing the death penalty for offenses of homicide, espionage, and 
treason have been unenforceable because they fail to provide, as re- 
quired under the Supreme Court's landmark decision in Furman v. 
Georgia, a set of legislated guidelines to narrow the sentencer's dis- 
cretion in determining whether the death penalty is justified in a 
particular case. In a series of decisions after Furman, the Court has 
further refined the constitutional requisites of a statute author- 
izing imposition of the death sentence. At the same time, however, 
the Court has stressed that if procedural requirements designed to 
protect against arbitrainess and disproportionality are met, capital 
punishment is a legitimate, constitutional sanction for the most 
grave offenses. 

In the 10 years since the Furman decision, two-thirds of the 
States have enacted laws to restore the death penalty as an availa- 
ble sanction for the most serious crimes committed under particu- 
larly reprehensible circumstances, but the Congress has failed to 
enact similar legislation to reinstitute capital punishment at the 
Federal level. Of course, legislation to provide constitutional proce- 
dures for imposition of the death penalty has been considered by 
the Congress on several occasions. 

In the last Congress, the Judiciary Committee held exhaustive 
hearings on capital punishment and devoted considerable effort to 
the development of a death penalty statute that would comport 
with the decisions of the Supreme Court. The product of this effort, 
S. 114, is the basis for the death penalty provisions of our bill. 

Appearing before the Judiciary Committee during its hearings on 
S. 114 was one of my first tasks as an Assistant Attorney General. 
As I stated in my testimony at that time, the death penalty is not a 
pleasant subject for either a legislator or an official charged with 
enforcement of our criminal laws to contemplate. But the fact that 
the death penalty is an unpleasant and controversial issue is no 
justification for continuing to avoid enactment of procedures to 
permit its restoration, for, under certain circumstances, it is a war- 
ranted sanction for a limited number of Federal offenses — offenses 
which involve the brutal taking of innocent lives or which threaten 
the very security of our Nation. 

In our view, the death penalty is warranted for two principal 
reasons. First, while studies attempting to assess the deterrent 
effect of capital punishment have reached conflicting results, we 
believe common sense supports the conclusion that the death pen- 



23 

alty can operate as a deterrent for certain crimes involving preme- 
ditation and calculation, and thus it will save the lives of persons 
who would otherwise become the permanent and irretrievable vic- 
tims of crime. 

Second, society does have a right — and the Supreme Court has 
confirmed that right — to exact a just and proportionate punish- 
ment on those who deliberately flout the most basic requirements 
of its laws; and there are some offenses which are so harmful and 
so reprehensible that no other penalty, not even life imprisonment 
without the possibility of parole, would represent an adequate re- 
sponse to the defendant's conduct. 

As the Supreme Court has stressed in its death penalty decisions, 
the severity of the sanction requires that it be imposed only in very 
limited circumstances and pursuant to stringent procedural safe- 
guards. The death penalty provisions of our bill meet these require- 
ments: the death penalty may be imposed only pursuant to a sepa- 
rate sentencing hearing and the Government must give advance 
notice to the defendant of its intent to seek the death penalty; ag- 
gravating and mitigating factors bearing on the justifiability of the 
death penalty in a particular case are specifically enumerated, but 
the defendant may raise any additional issue in mitigation; the 
Government's burden of proof with respect to aggravating factors 
is more stringent than that which is placed on the defendant in his 
proof of mitigating circumstances; special findings and jury una- 
nimity are required at all stages, special jury instructions are man- 
dated to guard against the influence of prejudice; and the stand- 
ards and procedures for appeal of a death sentence are specified. 

In our view, these procedures for determining whether the sen- 
tence of death is justified in a particular case fully comport with 
the constitutional teachings of the Supreme Court over the last 
decade. We believe that in the carefully delineated circumstances 
to which the death penalty provisions of our bill would apply, the 
opportunity for imposition of capital punishment should be re- 
stored. A criminal justice system limited to lesser sanctions is lack- 
ing in adequate deterrence and fails to meet society's need to exact 
a just and proportionate punishment for the most grave and repre- 
hensible of crimes. 

Turning to another portion of the legislation, title VII. This deals 
with an area of amendments to drug laws. There has been a great 
deal of discussion, activity, the Attorney General alluded to the im- 
portance of this area, and there are a number of issues that are 
appropriate here. They deal across the whole range of sentencing. 
Assistant Secretary Walker will deal with forfeiture, another very 
important area. 

This particular area in title VII deals with providing a more ra- 
tionale penalty structure for the major drug trafficking offenses. 
Trafficking in illicit drugs is one of the most serious crime prob- 
lems facing the country, yet the present penalties for major drug 
offenses are often inconsistent or inadequate. This title primarily 
focuses on three major problems with current drug penalties. 

First, with the exception of offenses, except for marihuana, and 
with that as an exception, the severity of current drug penalties is 
determined exclusively by the nature of the controlled substance 
involved. While it is appropriate that the relative dangerousness of 



24 

a particular drug should have a bearing on the penalty for its im- 
portation or distribution, another important factor is the amount of 
the drug involved. This bill takes that factor into account by pro- 
viding more severe penalties for offenses involving larger quanti- 
ties of certain drugs than for offenses involving lesser quantities. 

The second problem addressed by this title is the current fine 
levels for major drug offenses. Drug trafficking is incredibly, enor- 
mously absurdly profitable. Yet current fine levels are, in relation 
to the illicit profits generated, woefully inadequate. It is not un- 
common for a major drug transaction to produce profits in the hun- 
dreds of thousands of dollars. However, with the exception of the 
most recently enacted penalty for distribution of large amounts of 
marihuana, the maximum fine that may be imposed is $25,000. 
This title provides more realistic fine levels that can serve as ap- 
propriate punishments for, and deterrents to, these tremendously 
lucrative crimes. 

A third problem addressed by this title is the disparate sentenc- 
ing for offenses involving schedule I and II substances; schedule I 
deals with narcotic drugs, opiates, and cocaine, and they are sub- 
ject to greater penalties than offenses involving schedule II nonnar- 
cotic substances. This penalty structure is at odds with the fact 
that title II controlled substances include such extremely danger- 
ous drugs as PCP, LSD, methamphetamines, methaqualone, and 
Federal prosecutions involving these drugs typically involve huge 
amounts of illicit income and sophisticated organizations. 

Title VII would correct these penalty problems in the areas of 
both drug trafficking and importation /exportation offenses. 

Title VII also contains numerous amendments in the area of di- 
version control aimed at enhancing our diversion control capabili- 
ties but, where appropriate, relaxing certain restrictions. For exam- 
ple, the bill amends the Controlled Substance Act to establish a 
new emergency authority to place an uncontrolled substance under 
temporary controls which provide for registration, recordkeeping, 
and criminal penalties of up to five years. This would permit DEA 
to deal with rapidly developing situations in which a new or uncon- 
trolled drug suddenly becomes a public danger. 

Title VII also amends the registration procedures of current law. 
For example, the bill would greatly alter the standards required for 
the registration of practitioners by enabling DEA to consider rec- 
ommendations of the State licensing board, special limitations, and 
applicants, prior conviction record and other related matters. 

The diversion control amendments also provide special grant au- 
thority and authorize resources for the expansion of DEA's State 
assistance program to help State and local governments suppress 
the diversion of controlled substances. DEA's program to assist 
States in establishing diversion investigation units has proven suc- 
cessful; however, because of lack of explicit authority and neces- 
sary resources. States have been hindered in establishing such pro- 
grams. The new authority will respond to this problem. 

We turn finally to a portion of the legislation, title VIII, which 
deals with the Justice Assistance Act. This is an integral part of 
our comprehensive crime program, and it is a proposal to provide 
assistance to State and local law enforcement. 



25 

Although there is much to be done to strengthen Federal law en- 
forcement, and this is the major focus of the administration's bill, 
the primary responsibility for enforcement of the criminal laws 
and for crime prevention in this country and the financial burden 
that goes with that responsibility, falls on State and local govern- 
ments. Providing local law enforcement with additional resources, 
particularly with respect to the areas of violent crime, repeat of- 
fenders, victim and witness assistance, and crime prevention, is the 
purpose of the Justice Assistance Act. This title of our bill is the 
product of discussions with members of the House and Senate Judi- 
ciary Committees, and closely parallels similar provisions approved 
by the House and Senate in the last Congress. 

The current law's program for providing financial assistance to 
State and local law enforcement — LEAA — has been phased out. 
The history of LEAA, however, provides some important lessons. It 
shows, for example, that expenditures of money — $8 billion over 12 
years — is not the answer to the crime problem and that a program 
whose priorities are unclear and constantly shifting results in a 
minimal payoff. On the other hand, we have also learned that Fed- 
eral seed money for carefully selected programs does work and that 
certain of these projects can have a significant impact on our crimi- 
nal justice system. 

Our proposed Justice Assistance Act reflects an appreciation of 
these issues. It focuses Federal financial assistance on a selected 
group of particularly important criminal justice issues where the 
application of additional funds will be most productive. It strips 
away layers of bureaucratic redtape required under the earlier pro- 
gram and consolidates the management of the program in a single 
unit of the Department of Justice. Moreover, it continues the pres- 
ently authorized justice research and statistical programs and in- 
sures coordination between the products of research and the proj- 
ects implemented under the financial assistance provisions. 

The proposal would establish within the Department of Justice 
an Office of Justice Assistance, headed by an Assistant Attorney 
General. Advising the Assistant Attorney General would be a 
single advisory board, replacing two current advisory groups. 
Within the Office of Justice Assistance would be three separate 
units — the existing Bureau of Justice Statistics and the National 
Institute of Justice, and a new Bureau of Justice Programs, which 
would administer the proposed technical and financial assistance 
programs. 

Financial assistance to local law enforcement would be provided 
through a combination of block and discretionary grant funds. The 
block grant funding will provide each State with an allocation 
based on its relative population, and a share of the funds are to be 
passed on to local governments. There is a matching requirement 
for the Federal funds, and Federal assistance for individual proj- 
ects would be limited to no more than 3 years. 

Moreover, the use of the funds is limited to specific types of proj- 
ects which have a demonstrated track record of success. The other 
component of the financial assistance package, discretionary funds, 
would focus on training and technical assistance, multijurisdic- 
tional and national programs, and demonstration projects to test 
new anticrime ideas. 



25-694 0-84-3 



26 

Also included in title VII is a provision which would permit 
emergency law enforcement assistance. Under this provision, the 
Attorney General could, pursuant to a request from a State Gover- 
nor, designate a "law enforcement emergency jurisdiction," when 
an uncommon situation, such as the massive child murder investi- 
gations in Atlanta, develops and local resources are not adequate to 
meet the emergency. In these cases, emergency assistance in the 
form of equipment, training, intelligence information, and techni- 
cal expertise, as well as emergency funds, can be provided by Fed- 
eral authorities. 

Finally, this portion of the administration's crime bill sets forth 
certain amendments to improve the current public safety officers' 
benefit program and the prison industries certification authority. 

As Mr. Giuliani indicated previously, I would now like to, Mr. 
Chairman, turn this over to Assistant Secretary Walker for a de- 
scription and discussion of some of the other areas of the title. 

Senator Biden. Mr. Chairman, may I ask a question? 

The Chairman. Senator Biden. 

Senator Biden. Our plate is being filled with so much informa- 
tion here. There are a number of questions I have, and I am sure 
others have. Would it be possible for us to take 15 minutes here to 
ask questions of those who have already spoken, before we go on to 
the next witness? 

Is that a good idea? 

The Chairman. Would you like to do that? 

Senator Specter. I would, too. Senator. 

The Chairman. All right, we will take 10 minutes apiece and ask 
questions, and then we will go on to Mr. Walker. 

Mr. Giuliani, the bail provisions in last year's bill contained a re- 
buttal presumption that no condition of release would insure ap- 
pearance at trial, or safety of the community with respect to a de- 
fendant charged with a serious narcotic offense, or the use of a fire- 
arm to commit a felony. This presumption is not included in S. 829 
bail procedures. 

Would you elaborate on the reasons for not including this provi- 
sion in the administration's proposal? 

Mr. Giuliani. I am told that the reasons were that it is probably 
not necessary, since a prosecutor would be able to make those argu- 
ments to a judge, and so long as the judge has discretion and the 
ability to deny bail in situations involving drug dealers, that is suf- 
ficient, and also there was some concern that there might be an 
issue of unequal treatment raised if it were done in certain catego- 
ries of cases or in another. 

Personally, that is certainly something that I think this commit- 
tee should consider restoring in an amendment. 

Senator Biden. It is obvious that you are leaving the Justice De- 
partment. 

Mr. Giuliani. That is right. [Laughter.] 

The Chairman. Mr. Giuliani, with respect to the sentencing pro- 
visions, you note that Minnesota has adopted a sentencing system 
similar to the one proposed in this bill. 

Could you tell us how well it is working? 

Mr. Giuliani. Well, Mr. Chairman, I am told, and the only study 
done is a very quick and preliminary study done by the National 



27 

Academy of Sciences, that they believe that it is working very, very 
well, and that it has not led to — one of the criticisms is that when 
you go to determinative sentencing, all of a sudden the sentences 
become astronomically much higher than they were before, and in 
fact, that has not been the case in Minnesota. The sentences have 
become more uniform, but not outrageously higher or lower, and 
what we are seeking, as you know, in the sentencing reform, is not 
some major change in sentences given for a particular crime, but 
more uniformity in the way Federal judges sentence throughout. 

So I do not say that this is a definitive study. I believe they only 
studied it for a period of 7 or 8 months. But to the extent that 
there are any conclusions that can be drawn, they are all very posi- 
tive. 

The Chairman. Mr. Giuliani, S. 829, as well as previous sentenc- 
ing bills, provides for a system of guidelines to be used by the court 
in setting a sentence, with appellate review of a lenient sentence 
below the appropriate guideline by the Government. Everyone 
seems to agree that the defendant should be able to appeal his sen- 
tence above the appropriate guidelines, while at least some oppose 
Government appeal. 

How important is it to the operation of this system that the Gov- 
ernment be permitted to appeal the sentence? 

Mr. GiuuANi. Mr. Chairman, I believe it is probably the single 
most important provision in the sentencing reform, Government 
appeal and defendant appeal of sentences, because it is the only 
way that over a period of time we are going to develop a body of 
law and a group of opinions that instruct a judge on how to exer- 
cise discretion. 

Sentencing commissions can set guidelines, and as you know, Mr. 
Chairman, it will fit some cases, and they are not going to be able 
to anticipate every case. 

The real value to the judicial system would be if a Federal judge, 
at the time of sentence, when he had a question about how much 
he should weigh one factor or another, had a body of law that he 
could go to and read and apply, as he does in deciding every other 
question. And therefore, I think that appellate review of sentences, 
both the Government appeal and the defendant appeal, is really 
crucial to obtaining the kind of rough uniformity that we all want. 

The Chairman. Mr. Giuliani, if the sentencing system proposed 
by this bill is adopted, do you expect a drastic increase in prison 
population, and if so, why? 

By the way, I note the presence here of Mr. Norman Carlson, the 
Director of the Bureau of Prisons. I imagine he would be interested 
in that, too. 

Mr. Giuliani. Well, I will tell Norm that I predict that there will 
be an increase, not so much in the number of people going to 
prison, but possibly to some extent on the length of time they 
spend in prison. I would not categorize it as a drastic increase. 
There has been an increase over the last 2 years in the number of 
people going to prison, and in our budget we have been predicting 
an increase, based upon increased enforcement, and also the possi- 
bility that this bill will become law. 

But I do not think it will be a drastic increase, and it would be 
more in the nature of people would be spending more time in 



28 

prison, as opposed to necessarily more people would be going to 
prison. 

The Chairman. There probably would be some deterrent effect if 
this package is passed, would there not? 

In other words, people would see that they have to serve their 
sentence, and they may be more careful about committing crime, 
but if they do commit it, then they will have a longer time to serve. 

In short, is that it? 

Mr. Giuliani. That is absolutely correct, Mr. Chairman. 

The Chairman. Now, Mr. Jensen, could I ask you a question on 
the exclusionary rule? 

The administration proposal would eliminate the application of 
the exclusionary rule to evidence seized by a police officer acting 
with an erroneous but reasonable good faith belief that his conduct 
was not in violation of the fourth amendment. 

Why does the administration believe this approach is superior to 
simply abolishing the exclusionary rule, and providing appropriate 
civil and disciplinary sanctions to deter unlawful police conduct? 

Mr. Jensen. Senator Thurmond, as I indicated before, the pro- 
posal that we have in the bill comes directly from the recommenda- 
tion of the Attorney General's Task Force on Violent Crime. They 
considered all those issues as to the most appropriate response. It 
was their recommendation that this is the way in which we should 
seek legislation. 

Let me add that there is some perception that this is the realistic 
way to approach the possibility of a legislative modification of the 
exclusionary rule. In addition to that, it is premised on the notion 
that there is already a case. United States v. Williams, which I 
cited, which supports, in very direct fashion, the constitutionality 
of that kind of a legislative notion, and therefore gives it very 
direct constitutional support. 

In its final analysis we were also satisfied that the basis that I 
spoke to in terms of the application of the exclusionary rule would 
in fact be eliminated by a reasonable good faith statement of the 
rule. 

The Chairman. Mr. Jensen, S. 829, as well as my bill on capital 
punishment, provides a death penalty for an attempt to kill the 
President. So we will have it in this record, would you comment 
briefly on the constitutionality of such a provision? 

Mr. Jensen. Yes, sir. The constitutionality issue deals with the 
question of whether or not a death penalty would be constitutional- 
ly permissible in a situation where there was no actual death of a 
victim. That has been raised in several U.S. Supreme Court cases. 
It has never been completely resolved, or specifically resolved. 

If you look at the whole history of the death penalty, there has 
always been a death penalty in the Federal law, for any number of 
cases where there have been no underlying homicide. Espionage 
and treason come to mind. That is also in the bill, and we are satis- 
fied that that is a constitutional application. 

We specifically looked at the issue of any attempted assassina- 
tion, as to whether or not it would be, in the opinion of the Depart- 
ment of Justice, that would meet constitutional muster, and we are 
satisfied that it would meet constitutional muster, Mr. Chairman. 

The Chairman. I think my 10 minutes is about up now. 



29 

Senator Biden. 

Senator Biden. Thank you very much. 

Mr. Giuliani, you have not been releasing any reports to the 
GAO lately, have you? [Laughter.] 

Mr. Giuliani. No, Senator. 

Senator Biden. Good. There is one coming out. I wish you were 
going to be here when it is released. 

Mr. Giuliani, I wish you luck in your new position as U.S. attor- 
ney for the Southern District of New York. Actually, you have 
been there before, have you not? 

Mr. Giuliani. Yes, sir. 

Senator Biden. Going back home. You have got your hands full. 

I might say, I think you are going to be missed — your outbursts 
against me will not be missed, but you will be missed. 

I am a little concerned about the questions relating to the task 
forces, because I viewed you as one of the linchpins in seeing that 
it worked. I realize that any good program can overcome the loss of 
good people, but I do want to discuss for the record what will 
happen in your going, and I understand your assistant is also going 
to be going, but I will get to that in a minute. 

If I may, with regard to the exclusionary rule. Am I to under- 
stand that under the proposed exception, evidence would not be ex- 
cluded if a law enforcement official was unaware of the current 
fourth amendment law that applied to a particular situation? 

Mr. Jensen. Excuse me, Senator, that is really not correct. I 
think that is an important point, is that it has been asserted, on 
some occasions, that this would place a premium on police igno- 
rance, and that is a very difficult problem, and one which we 
would not want to see in the legislative structure, or legal struc- 
ture at all. It does not do that. 

The good faith test is both a subjective and an objective test. It 
requires a subjective belief on the part of the officer that it is un- 
lawful, but if the officer is operating the situation where he is 
simply unaware of the rules that apply to the search, then it does 
not meet the objective standards of the good faith exception. So it 
has to be a reasonable good faith belief. 

It is not reasonable if it does not meet an objective test. Then it 
would not fall within the exception. 

Senator Biden. It is not reasonable if he does not understand the 
fourth amendment. 

Mr. Jensen. No, no. The test of whether or not it is reasonable is 
an objective test. It does not depend on his objective feeling, what- 
soever. It is a test the court imposes on the search itself. The offi- 
cer explains the search, what he did, what his subjective belief was, 
and it is tested then by the law. 

If the law is clear that his conduct was in violation of the exist- 
ing standards, then that is a bad search, regardless of his state of 
awareness. 

If on the other hand you are in a situation where there is no law 
for him to follow, then it is objectively valid that his subjective 
belief could be acted upon, then reasonable good faith would permit 
the search to be all right. 

Senator Biden. Well, as a practical matter, the subjective belief 
really is not going to impact at all upon the court's judgment, be- 



30 

cause the court applies what they beUeve to be an objective stand- 
ard as to what is necessary to constitute protection, does it not? 

Mr. Jensen. That is what we do in any number of situations, 
where courts look to what is the objective state of the law. We do 
that in all kinds of areas of the law. This simply says that there is 
no reason why we should not do it in the fourth amendment also, 
and if we find a situation where the officer has in fact acted in 
such a way that it comports with the fourth amendment in an ob- 
jective fashion, there is no reason to suppress the evidence. 

Senator Biden. Without pursuing that in the little time that I 
have, let me ask you about the Gates case now. It is before the Su- 
preme Court, and involves a good faith exception to the exclusion- 
ary rule. 

In view of the potential constitutional issues raised by statutorily 
modifying that rule, would it not be wise to postpone legislative 
action until the Court judgment? 

After all, the Court may in fact rule in a way that solves the 
problem. 

Mr. Jensen. It is potentially possible in the Gates decision that 
the Court would so rule. However, it is not necessary — it is not a 
necessary decision that will either have a decision by the Court 
that there will be a good faith exception, or that there will not be. 

The Gates case involves a search by search warrant. It involves a 
case that in effect I alluded to as to the kind of problem situation 
where the officers went to a magistrate, they presented all the evi- 
dence they had, they made a complete disclosure to the Court, and 
a search warrant was issued. Pursuant to that search warrant they 
then went and completed a successful search. 

A later Court decision said, well, we do not agree with the first 
judge. We think that there was not any probable cause. So if you 
look at the case, it is on appeal, on a number of levels. One is 
whether or not the decision of probable cause is correct. You could 
have a decision by the Court that only deals with probable cause. 

Senator Biden. I agree with that. I acknowledge that there is a 
prospect that the Court will not solve the issue in its ruling in 
Gates, but there is also a possibility that it will. It seems to me that 
when we can avoid raising constitutional questions that the courts 
themselves may resolve, it might be wiser to wait. We are not talk- 
ing about an indefinite wait here, we are talking about knowing 
the result this year. 

Would you object to that? 

Mr. Jensen. No, I would not have any objection if the Court were 
to rule in Illinois v. Gates, in a fashion that would comport with 
what we are suggesting, certainly. 

Senator Biden. No, I mean would you object to us waiting. 

Mr. Jensen. No, I think the time factor actually comes about in 
such a fashion that we are asking consideration of this bill, we 
have done that all the way through, as a part of the crime package. 
We think that it is appropriate for a statement by the legislature, 
and in due course it may very well be that the Gates decision is 
rendered while that consideration is on. 

I think that in the normal course one would expect the Gates de- 
cision will be within another month or so, so that I think we will 
have a time factor that overlaps. 



31 

Senator Biden. In the habeas corpus provisions, the phrase, "full 
and fair adjudication" is not defined in the bill. Proponents of the 
bill have indicated the phrase is meant to be interpretted in terms 
of reasonableness. 

How do you think the phrase should be defined, and do you 
think it should be defined in the statute itself? 

Mr. Giuliani. Well, cases have defined it already to the extent 
that courts deal with determining whether there has been a com- 
plete hearing in the State proceeding. It is intended, the purpose of 
it is intended to not relitigate in the Federal court something that 
has been fully and effectively dealt with in the State courts. 

I would have no objection to a definition. I do not really believe 
one is necessary, and it is something that is going to have to be 
worked out by courts in interpreting the statute afterward. But I 
certainly would have no objection to either our trying to develop a 
proposed further definition of that, or if the committee 

Senator Biden. What about the situation where a Federal judge 
found the State adjudication to be reasonable in a technical legal 
sense, yet believed that the State decision was substantively incor- 
rect? What happens in a case like that? 

Mr. Giuliani. Where he believes that there has been a full and 
fair? 

Senator Biden. Where he believes there has been a full adjudica- 
tion, and that the adjudication was reasonable in a technical legal 
sense, but he believes that the State decision was in fact incorrect. 

Mr. Giuliani. I see. Senator, I think that would really depend on 
the kind of question that was involved. In one case, if it was a full 
hearing, but it was not in the view of this particular judge com- 
plete enough, or a perfect hearing, that should not be grounds for 
reopening a criminal proceeding, because this particular Federal 
judge would have preferred to have seen more witnesses or more 
evidence, although it was a fair and reasonable proceeding. 

However, if he disagrees as to the conclusion that a constitution- 
al right was violated, then that is something that he would have to 
consider, and he would grant, not so much another hearing, but 
whatever additional fact finding was necessary to come to a conclu- 
sion about it. It would really depend on the nature of the question 
that was involved. 

In some cases I can see it leading to not reopening the State pro- 
ceedings, and in others, it might be necessary to reopen it. 

Senator Biden. In the interest of time, Mr. Chairman, I have sev- 
eral more questions on habeas corpus and the exclusionary rule, 
which I would like to submit in writing, if I could. 

The Chairman. Without objection. 

[The following was received for the record:] 



32 



Response of the Department of Justice to 
Questions Proposed by Senator Biden 
Concerry.ng Title VI of S. 829 
(Habeas Corpus Reform) 



The questions proposed by Senator Biden on Title VI of 
S. 829 are in four parts. The first three parts are concerned 
respectively with the proposed standard of review in habeas 
corpus proceedings, the standard governing excuse of procedural 
defaults, and the proposed time limitation rules. The fourth 
part has no title, but appears to be concerned primarily with the 
work involved in handling habeas corpus cases. 

I. REVIEW OF LEGAL CLAIMS OF STATE PRISONERS 

Part I poses three questions relating to the proposed 
standard of review (the "full and fair" standard) in Title VI of 
S. 829. The first question is as follows: 

Won't federal courts still have to look into 
state court proceedings to determine if the 
claim was "fully and fairly adjudicated"? In 
other words, would not this bill merely change 
the standard of review without actually af- 
fecting the level of federal intervention? 

Response ; Assuming satisfaction of the other requirements for 
seeking habeas corpus set out in Title VI, examination of the 
state proceeding would be required to the extent necessary to 
determine compliance with the standard of "full and fair" adjud- 
ication of the petitioner's claims. In comparison with the cur- 
rent review standards, however, the inquiry would be easier, less 
intrusive and disparaging, and less likely to result in protracted 
proceedings or the invalidation of a state conviction. 

In practical terms, the present rules produce results 
that border on the absurd, requiring reversal of judgments many 
years after the normal conclusion of state proceedings on grounds 
that the habeas court may regard as no more than reasonable diffe- 
rences of opinion concerning close or unsettled questions in the 
interpretation or application of federal law on which the federal 
courts themselves may well disagree. In addition to enhancing 
the finality of state criminal judgments and avoiding the burden 
on the state of re-trying the petitioner which may result when a 
writ is presently granted in such a case, the proposed reform is 
likely to make it possible to decide cases more easily and with 
less extensive litigation, whether or not the petitioner would 
ultimately obtain relief under the current rules. A good 
illustration was provided by the Chief Justice of Iowa in his 
testimony on the proposals: 

Explore with me for a moment the anatomy 
of a 1975 Iowa murder trial. State v. Moore. 
Moore, who assaulted and injured a jailer at 
a recess, in the course of trial badgered a 
witness, used vulgar language, and persisted 
in profane and disrespectful statements to 
the court. After calling another recess and 
subsequently warning him, trial court ulti- 
mately had Moore removed from the courtroom 
during twenty-five minutes of an expert's 
testimony. In a 1979 decision, the Iowa 
Supreme Court ruled Moore had waived his 
sixth amendment right to confront the adverse 



33 



witness and upheld his conviction. Our 
opinion quoted the relevant portion of the 
transcript and applied as controlling the 
Supreme Court's standards laid down in 
Illinois V. Allen . In 1980 a federal trial 
judge, ruling on Moore's application for writ 
of habeas corpus, set out the same portion of 
the transcript, found Illinois v. Allen to be 
controlling, but issued the writ. In 1981, 
following the State's appeal, the Eighth Cir- 
cuit, again quoting the then-familiar portion 
of the transcript and for the third time 
applying Illinois v. Allen standards, agreed 
with the Iowa Supreme Court and reversed the 
federal district court. 

Thus Moore was permitted to collaterally 
attack his conviction in two federal courts 
even though the identical issue was fairly 
and fully considered and decided in his state 
court direct appeal. This process injected 
over two years of uncertainty into his case 
after his state appeal was concluded, cost 
Iowa substantial resources to defend the 
judgment it had secured in one state court 
and retained in another, and risked tensions 
between state and federal courts in Iowa. 

No one suggests federal oversight of 
state decisions involving federal constitu- 
tional rights should be eliminated. Adoption 
of [the reform proposals], however, would 
avoid many unfortunate and wasteful proceedings. 
For example, proposed new subsection (d) to 
section 2254 of title 28 provides ... [for 
deference to full and fair state adjudi- 
cations] .... Such a provision, promptly 
applied by the federal district judge in the 
Iowa case just discussed, would have termi- 
nated the Moore litigation in the federal 
courts. \_/ 

Further economies would result from the creation of a 
uniform standard applicable to both factual and non-factual 
issues. The current rules can require difficult, if not arbi- 
trary, decisions as to whether a particular state court deter- 
mination is purely one of fact or reflects an application of law 
to fact. This occurs because the rule governing re-adjudication 
of factual questions (deference allowed if a number of poorly 
defined conditions are met) differs from that governing "re-adju- 
dication of mixed questions of law and fact (re-adjudication 
uniformly mandated) . Since the "full and fair" standard would 
apply the same criterion of "reasonableness" to review of both 
factual and non-factual determinations, such hairsplitting dis- 
tinctions would no longer be required. 2_/ 



- The Habeas Corpus Reform Act of 1982: Hearing on S. 

2216 Before the Senate Comm. on the Judiciary, 97th Cong., 
2d Sess. 232-34 (1982) [hereafter cited as "Hearing"]. 

-^ See 128 Cong. Rec. S11856 (daily ed. Sept. 21, 1982) 
(statement of Senator Thurmond concerning S. 2838) 
[hereafter cited as "Sponsor's Statement"]. 



34 



Finally, it should be noted that the reform offers other 
types of benefits, in addition to the improvements that can be 
expected in litigational economy and finality of judgments. These 
include fostering state responsibility in the enforcement of 
federal rights and according more appropriate recognition to the 
dignity and independent stature of the state courts. Justice 
O'Connor has stated: 

If our nation's bifurcated judicial sys- 
tem is to be retained, as I am sure it will 
be, it is clear that we should strive to make 
both the federal and the state systems strong, 
independent, and viable. State courts will 
undoubtedly continue in the future to litigate 
federal constitutional questions. State 
judges in assuming office take an oath to 
support the federal as well as the state con- 
stitution. State judges do in fact rise to 
the occasion when given the responsibility 
and opportunity to do so. It is a step in 
the right direction to defer to the state 
courts and give finality to their judgments 
on federal constitutional questions when a 

full and fair adjudication has been given in 
the state court. 3^/ 

The second question in Part I is as follows: 

Is it not likely that there will have to be 
extensive litigation in individual cases as 
to what exactly is meant by a "full and fair" 
interpretation of Constitutional law? For 
example, would it be "fair" for a state court 
to base its decision on an unappealed district 
court case if several districts have decided 
a case differently? 

Response ; Experience with existing standards of review of a 
comparable nature indicates that no unusual amount of litigation 
will result. A state adjudication would normally be "full and 
fair" in the intended sense if the resulting factual and non- 
factual determinations were reasonable and were arrived at by a 
process consistent with due process. Examples of limited stan- 
dards of review applicable to legal as well as factual determi- 
nations appear in other contexts in federal law. For example, 
a federal appellate court will not consider a claim of trial 
error to which no objection was made at trial unless it consti- 
tutes "plain error." This limiting standard of review extends to 
pure questions of law, such as the formulation of jury instruc- 
tions. 4/ 



^' O'Connor, Trends in the Relati onship Between the 

Federal and State Courts from the P^^ ^P^^^ ^^^ "^..f _^^ ^j ^ l) 
Court Judge , 22 Willia m & Mary L. Rev. BUi, m't-oiS (1981) 

-' See Sponsor's Statement, supra note 2, at S11856. 



35 



A second analogy is provided by the standard for judi- 
cial review of the constitutionality of state executive action in 
suits for damages under 42 U.S.C. § 1983. In such suits state 
executive officials are generally given a "good faith" defense or 
iminunity, under which the official incurs no liability if he rea- 
sonably believed that his actions were lawful. Hence, the dispo- 
sition depends not on whether the official was correct in his 
view of federal law in the reviewing court's estimation, but on 
whether the official's view of federal law and its implications 
under the circumstances was reasonable. 5^/ While all standards 
of review occasionally give rise to interpretive litigation, ex- 
perience does not show that limited standards of this sort are 
more troublesome than other types of standards. 

The question also contains a more specific inquiry which 
asks, in substance, whether a state court interpretation of federal 
law would automatically be reasonable in the sense of the "full 
and fair" standard if it was consistent with the view of a single 
district judge. This question could seldom arise as a practical 
matter since (i) non-factual issues which arise in habeas corpus 
litigation are usually questions of application of law to fact 
rather than pure questions of law, and (ii) the positions of the 
state courts on unsettled questions of federal law usually fall 
within the range of options presented in the decisions of the 
federal courts of appeals. For the few cases in which this 
question might arise, the answer is obviously no. District judges 
vary greatly in ability and propensities, and will occasionally 
take positions that are simply unreasonable in light of Supreme 
Court precedent or constitutional history. Since there is nothing 
in the statement of the standard or in its underlying policies or 
legislative history to support a conclusive presumption of rea- 
sonableness for the views of district judges, unsupported by 
endorsement at the level of the federal courts of appeals, it is 
difficult to see hov7 that question could become a subject of 
litigation. 

The third question in Part I is: 

Proponents of the bill have stated the "full and 
fair" adjudication is to be measured by a standard 
of "reasonableness." Do you agree? Do you think 
a definition should be set forth in the statute 
itself? 

Response ; The intended interpretation of the "full and fair" 
standard has been maintained consistently in the legislative his- 
tory of the proposals. The essential requirements are that the 
state determination be reasonable and that it be arrived at in a 
manner consistent with applicable' federal procedural requirements, 
including due process. Appropriate allowances would also be made 
for re-adjudication in cases of subsequent discovery of new evi- 
dence and subsequent changes of law. 6/ 

We have stated that we would have no objection to 
codification of the intended interpretation in the bill. Sui- 
table language for that purpose appears in the hearing record on 
S. 2216 of the 97th Congress. 7/ 



-^ See id. 



1/ 
7/ 



See Sponsor's Statement, supra note 2, at S11855-57; 
Hearing, supra note 1, at 33-34; id. at 93-98. 

See Hearing, supra note 1, at 33-34. 



36 



II. PROCEDURAL DEFAULTS 

The questions in Part II relate to the proposed codi- 
fication of the "cause and prejudice" standard. The first 
question is as follows: 

Is it necessary to codify the cause and preju- 
dice rules established by the Supreme Court? 

Response ; "Necessity" is a matter of degree, but it is certainly 
desirable to do so. The Supreme Court has not provided answers 
to the most important questions concerning the meaning of "cause" 
in the five years since the standard was initially adopted. In 
particular, the circumstances in which attorney error constitutes 
"cause" to excuse a procedural default remain uncertain. This 
has resulted in a large volume of litigation in the lower courts, 
an abundance of obscure and conflicting interpretations, and 
inconsistent treatment of similar cases. If a clear, general 
standard can be achieved through legislation the benefits of doing 
so are apparent. 

The second question in Part II is as follows: 

Last year the Supreme Court emphasized the 
need for flexibility in determining "cause" 
and "prejudice". In the case of Engle v. 
Isaac the Court stated: "The terms 'cause' 
and 'actual prejudice' are not rigid concepts. 
They take their meaning from principles of 
comity and finality discussed above. In 
appropriate circumstances they must yield to 
the imperative of a fundamentally unjust incar- 
ceration [citation]." Won't codification of 
the Supreme Court's rules remove the judicial 
flexibility necessary to consider individual 
cases?' 

Response ; The rules proposed in Title VI are in no way rigid or 
inflexible. They have been carefully designed so as to strike an 
appropriate balance between the need for flexibility and the need 
for consistency and reasonably definite standards. 

The question may reflect a misunderstanding of the 
Supreme Court's views on this issue which has been earnestly 
promoted in the testimony of the American Civil Liberties Union 
on the reform proposals. £/ The tenor of this misunderstanding 

is that the Court believes that no definite rules governing the 
"cause and prejudice" inquiry can be stated and that the ultimate 
decision concerning the excuse of a default must be left to in- 
dividual judges' subjective sense as to what is just in parti- 
cular cases. 



8/ 



See Statement of the American Civil Liberties Union on 
S. 829 Before the Senate Comm. on the Judiciary, at 24-25 
(May 18, 1983) . 



37 



This is clearly not the view of the Supreme Court. In 
Engle v. Isaac , 9^/ for example, the Court laid down two catego- 
rical rules partially defining the "cause" inquiry: (i) the per- 
ceived futility of raising a claim in state proceedings, because 
the state has consistently followed a contrary rule, is not "cause" 
to excuse a procedural default, and (ii) the fact that the support 
for a claim rests in part on decisions rendered after a default 
is not "cause" unless at the time of the default the defendants 
"lacked the tools to construct their constitutional claim." 10 / 
There is, in fact, nothing in the passage quoted in the question 
which conflicts with the establishment of such rules. The quoted 
passage only states that the "cause and prejudice" standard does 
not bar raising in habeas corpus proceedings every claim defaulted 
on in state proceedings, but allows claims to be raised in appro- 
priate circumstances, notwithstanding a default, in order to avoid 
injustice. The codification proposed in Title VI is fully con- 
sistent with this point. 

The third and final question concerning the "cause and 
prejudice" standard is as follows: 

Should the "cause" and "prejudice" provision 
be amended to include a "safety valve" pro- 
vision such as an exception for cases in which 
strict application of the statute would result 
in manifest injustice? 

Response ; This has already been partially answered in the response 
to the precediag question. Qualifying the cause and prejudice 
standard with such an exception would produce an authorization 
for excusing procedural defaults broader than that of current 
law. It would, for example, enable district judges to override 
the rule established by the Supreme Court in Engle v. Isaac that 
the alleged futility of raising a claim is not "cause' in cases 
in which they believed that complying with the rule would result 
in manifest injustice. 11 / 

It is also dubious that a standard so qualified would 
have much meaning or effect. This point is discussed below in 
connection with the corresponding question on the time limitation 
proposal. 

III. STATUTE OF LIMITATIONS 

The opening statement of Part III notes that the reform 
proposals would create a general one year limitation period for 
habeas corpus and a corresponding two-year period for federal 
prisoners' collateral attacks. It goes on to state that claims 
are now dismissed "only when the prosecution can show it has been 
prejudiced by delay." 



9/ 



456 U.S. 107 (1982) 



— '' See id. at 130-34 



11/ 



The rule stated in Engle v. Isaac would, of course, 

apply under the formulation of Title VI, which does not 

include the supposed futility of raising a claim among the 
grounds for a finding of "cause." 



38 



These statements are misleading. Rule 9(a) of the 
habeas corpus procedural rules j^/ states that a petition may be 
dismissed if the state has been prejudiced in its ability to 
respond, unless the petition is based on grounds which could not 
reasonably have been discovered prior to the prejudicial occur- 
rences. As the language of the Rule suggests, dismissal under 
the Rule is a matter of discretion, and a judge may entertain a 
petition notwithstanding the existence of prejudice to the state 
when he feels it is "in the interest of justice" to do so. 13 / 
For this reason and others. Rule 9(a) has not been a meaningful 
check on belated petitions. 14 / 

It may also be noted that no other limitation on the 
review or re-opening of criminal judgments in the federal courts 
depends on a showing that the state has been prejudiced by a de- 
fendant's delay. The rules proposed in Title VI are, in fact, 
quite generous in comparison with other federal limitation rules. 
The proposed habeas corpus limitation would be a one year period, 
normally running from exhaustion of state remedies. The starting 
point of the limitation period would be deferred in appropriate 
cases, including cases in which the right asserted was initially 
recognized at a later point by the Supreme Court and cases in 
which the factual basis of the claim could not reasonably be dis- 
covered till a later point. The corresponding two year time limit 
for federal prisoners, normally running from finality of judgment, 
would be subject to the same exceptions. 

By contrast, under existing rules state prisoners seekini 
direct review in the Supreme Court must apply within 90 days, 
subject to a possible 60 day extension, with no extensions or 
exceptions allowed beyond that. 15^/ As a second illustration, 
federal prisoners alleging discovery of proof of their innocence 
after trial must move for a new trial within two years of finality 
of judgment. No extensions or exceptions are recognized to that 
period. 16/ 



— ^ See 28 U.S.C. foil. § 2254. 

A substantially identical rule 9(a) appears in the 
procedural rules governing collateral attacks by federal 
prisoners. See 28 U.S.C. foil. § 2255. 

— '' See Advisory Committee Note to Rule 9(a), 28 U.S.C. 



14/ 



15/ 



foil. § 2254. 



See , e.g . , Spalding v. Aiken , No. 82-665 (Supreme Court 
April 18, 1983) (district judge attempting to dismiss 
petition under Rule 9(a) twice reversed on appeal, where 
triple-murderer filed petition fourteen years after 
conviction asserting claims previously raised and rejected 
in state appeal) . 



See Sup. Ct. R. 11, 22, 



— ^ See Fed. R. Crim. P. 33, 



39 



Following the introductory remarks. Part II poses four 
specific questions. The first is as follows: 

In your opinion how much abuse occurs in cur- 
rent law? How many prisoners purposely delay 
the presentation of their claims in the hope 
that the passage of time will undermine the 
prosecution's ability to dispute their claims 
in court? 

Response ; In capital cases, deliberate delay in filing is the 
normal practice. This practice, together with repetitive filing, 
has effectively nullified the capital punishment legislation of 
the states. 17 / 

With respect to non-capital cases, the question appears 
to confuse the question of abuse with the question of deliberate 
delay. If, for example, a single prisoner files dozens of 
petitions, that constitutes abuse on any reasonable understanding 
of the term, whether or not the prisoner was consciously aware of 
potential claims at an earlier point but for some reason withheld 
them until later filings. 18^/ Needless to say, the imposition of 
other time limits in criminal procedure 1_9/ does not depend on 
the assumption that defendants deliberately delay the assertion 
of potential claims. The propriety and desirability of a time 
limit for collateral remedies is dependent to no greater degree 
on such an assumption. 

The second question in Part III is as follows: 

What percentage of petitions filed by prisoners 
in your state occur within that time period 
(and therefore would not be affected by the 
bill?) 

Response : This question is apparently addressed to state officials 
and is not apposite to the Department of Justice. 

The third question in Part III is: 

Will the time limitations give prisoners an 
adequate opportunity to research and present 
their habeas petitions? 



— ' See Statement of Justice Lewis F. Powell Before the 

Eleventh Circuit Conference in Savannah, Georgia, May 8-10, 
1983, at 9-14; Attorney General William French Smith, 
"Proposals for Habeas Corpus Reform" in P. McGuigan & R. 
Rader, eds.. Criminal Justice Reform , at 145-46 (Free 
Congress Research and Education Foundation 1983) . 

ii/ See Statement of Justice Lewis F. Powell Before the 

A~B A Division of Judicial Administration, San Francisco, 
c;?lf;rnil' Aug. 9, 1982, at 9 n.lO (footnote) (30 petitions 
by single prisoner) . 

—^ See text accompanying notes 15-16 supra. 



40 



Response : The proposed time limitation rules allow ample time for 
the preparation and presentation of claims. The usual starting 
point for the limitation period for habeas corpus petitions would 
be exhaustion of state remedies. Exhaustion is normally accom- 
plished by presenting a claim initially to a state trial court, 
and from there taking it up on review to the highest court of the 
state. When a prisoner has already presented his claims in state 
proceedings at the trial and appellate level, it is very reason- 
able to require that he re-present the same claims to a federal 
habeas court within a year thereafter. 

The proposed period of two years from finality for fe- 
deral prisoners is also fully adequate. As noted earlier, the 
basic period is the same as that for new-trial motions based on 
newly discovered evidence under Criminal Procedure Rule 33. The 
proposed limitation rule for federal prisoners' collateral attacks 
is, moreover, subject to a number of exceptions favorable to tne 
prisoner which do not appear in the Rule 33 remedy. 20 / 

The final question in Part III is: 

Should the statute of limitations include a 
"safety valve" provision, such as an exception 
for cases in which strict application of the 
statute would result in "manifest injustice"? 

Response : An amendment of this sort is inconsistent with the pur- 
pose of the reform and would undermine its effect. It bears 
emphasizing once again that the proposed limitation rules are 
already more forgiving of delay than comparable time limits in 
other areas of criminal procedure; other, stricter time limits 
are subject to no "manifest injustice" exception. 21 / 

The basic problem of the current system is the absence 
of any rule that provides meaningful assurance of an end to liti- 
gation. A standardless "manifest injustice" exception, leaving 
the applicability of the time limitation to the subjective sense 
of individual judges, would suffer from the same shortcoming as 
the essentially standardless "laches" doctrine of Habeas Corpus 
Rule 9(a) . 22/ 

Specific problems that would arise can readily be 
imagined. One may ask, for example, whether conviction of a 
defendant whose counsel is incompetent constitutes a "manifest 
injustice." If a petitioner's contention that his counsel was 
incompetent were sufficient to put the habeas court to inquiry 
and to require response by the state, then a limitation rule 
would have little meaning. Claims of incompetent counsel are 
already the most common type of allegation in habeas corpus peti- 
tions, 23^/ and other kinds of claims can be effectively recast as 
counsel incompetence claims by alleging that counsel's failure to 
raise them made his assistance constitutionally ineffective. 

The example of incompetence-of-counsel claims is merely 
illustrative; similar questions would arise with respect to many 
other types of claims. For example, it would presumably be argued 
that the "manifest injustice" exception is brought into play by 



20/ 

— See text accompanying note 16 supra . 

21/ 

— See text accompanying notes 15-16 supra . 

22/ 

— See text accompanying notes 12-14 supra . 

23 / 

— See P. Robinson, An Empirical Study of Federal Habeas 

Corpus Review of State Court Judgments 4(a), 12 (Federal 
Justice Research Program 1979) . 



41 



such allegations in a petition as denial of counsel, coerced con- 
fession, knowing prosecutorial use of false evidence, prosecu- 
torial withholding of exculpatory evidence, judge and jury bias, 
violation of plea bargains, and insufficiency of the evidence to 
support a conviction. To an unpredictable extent individual 
judges would agree and entertain petitions notwithstanding the 
expiration of the time limitation period. 

IV. THE WORKLOAD PROBLEM 

Part IV poses the following question: 

According to the Administrative Office of the 
U.S. Courts, nearly 97% of all state habeas 
petitions are dismissed pretrial. Doesn't 
this suggest that the courts are successfully 
selecting and processing meritorious cases? 
Is it responsible or fair to limit all 
prisoners' access to the courts at the risk 
of the 3% or so who may be wrongly imprisoned? 

Response ; As the question notes, the proportion of habeas corpus 
cases in which evidentiary hearings ("trials") are held is small. 
This is because the habeas corpus jurisdiction of the district 
courts is quasi-appellate in character, usually involving a deci- 
sion on the state record together with written submissions by the 
state attorney general's office. Hence, concluding that no undue 
burden results from habeas corpus cases because evidentiary 
hearings are uncommon is much like concluding that the federal 
courts of appeals do no work because the number of trials they 
conduct is zero. The low incidence of evidentiary hearings says 
nothing about whether the courts are "successfully selecting and 
processing meritorious cases." Rather, it reflects the fact that 
the state record is adequate for purposes of the review in most 
instances. 24 / 

The inference suggested in the question that 3% of 
prisoners are "wrongly imprisoned" because evidentiary hearings 
are held in about 3% of habeas corpus cases is a complete non 
sequitur. The occurrence of an evidentiary hearing has no parti- 
cular relationship to the validity or invalidity of the peti- 
tioner's claims or to the likelihood that he has been wrongly 
imprisoned. 

The work involved in processing habeas corpus cases is, 
for the most part, the type of work characteristic of appellate 
proceedings. In connection with a typical petition, the state is 
required to transmit records and to respond to the legal and 
factual contentions raised by the petitioner. The district judge 
must review the record to the extent necessary and re-determine 
every claim that is properly presented, working from the eviden- 
tiary basis set out in the record together with the submissions 
and arguments of the parties. Frequently the district court's 
decision is appealed, resulting in additional work for judges, 
state officials and defense counsel at the level of the federal 
courts of appeals. Since a prisoner is required to exhaust state 
remedies before seeking federal habeas corpus, the lure of an 
additional level of review in the federal courts results in 
increased recourse to state remedies. 2^/ The easy availability 
of federal habeas corpus accordingly increases the workload of 
the state courts as well as the federal courts. 



24/ 
25/ 



For criteria affecting the holding of evidentiary hearings 
under current law, see 28 U.S.C. $ 2254(d); Townsend v. Sain , 
372 U.S. 293, 312-ll~Tl963) . 

The workload question is discussed in greater detail in 
Hearing, supra note 1, at 42-44. 



25-694 0-84-4 



42 



Responses to Senator Biden's Questions regarding Exclusionary Rule Reform ; 
Question No. 1 . "What is your view if proposals to 
allow a civil damage action against the United States if the 
Exclusionary Rule is limited? 

- Are not juries unlikely to rule against a 
guilty defendant even if his Fourth Amendment rights 
were clearly violated? 

- If this Committee were to authorize civil 
damage suits against the government for violations 
of Fourth Amendment rights, shouldn't we also allow 
the award of attorneys fees? Should punitive 
damages be authorized in addition to actual damages 
to deter future constitutional violations?" 
Answers ; The administration opposes jury trials in 

civil actions against the United States. Juries may indeed 
be tempted to find against a criminal defendant because of 
the type of person he is rather than follow the law as provided 
by the Court through instructions. In a similar vein, juries 
may be expected to be inclined to emotionally skew a decision 
in favor of a single party plaintiff against a deep pocket 
defendant such as the United States. In the thirty-five 
years since the United States waived its sovereign immunity 
with enactment of the Federal Tort Claims Act, jury trials 
have not been authorized against the United States. There 
has been no showing that bench trials work to the detriment 
of either party under the Federal Tort Claims Act. The 
primary reason for providing bench or non-jury trials is the 
belief that the government will be unfairly exposed to dis- 
proportionately high damage awards and may unfairly be the 
subject of bias in liability findings. To put it another 
way, it is not difficult to imagine a juror thinking to 
himself, "What is a million dollars to the United States?" 
On the other side of the coin, it is not difficult to imagine 
a juror finding against the claim of a political activist 



43 



plaintiff or a convicted criminal plaintiff despite the 
fact that that person was the victim of a constitutional 
infraction. In either case, the consequences would be unjust 
and unfortunate. In addition, there would be increased 
delays as a result of jury proceedings and increased expense 
for all parties including plaintiffs. For all of these 
reasons we think it would be unwise to single out constitutional 
torts for jury trials under the Federal Tort Claims Act. 

We oppose any provision which would award additional 
attorneys fees to prevailing plaintiffs against the government 
in a tort case. First, it is not necessary given the current 
scheme of the Federal Tort Claims Act which provides that up 
to 25% of any judgment may be paid to the plaintiff's attorney. 
This is the manner in which reimbursement of attorneys has 
been handled under the law of tort in the United States for 
over 200 years. We fail to see why a plaintiff who happens 
to be suing the government should be treated any differently 
from any other tort plaintiff. It is certain that the 
availability of attorneys fees would invite artful pleading 
by plaintiff's counsel and increased litigation over the 
propriety of the pleadings as well as the amount of any fees. 
Providing fees in constitutional tort cases would also serve 
as a strong incentive for the courts to find constitutional 
implications in what would otherwise be properly classified 
as common law torts. Finally, awarding attorneys fees to 
plaintiffs would suffer from a lack of even-handedness. 
Experience has shown that a large proportion of constitutional 
tort cases are frivolous and malicious. The possibility of 
an award of attorneys fees will encourage such actions parti- 
cularly if the United States cannot seek such an award when 
it prevails. Accordingly, we would oppose any new attorneys 
fees provision under the Federal Tort Claims Act. 



44 



Punitive damages should not be authorized against the 
United States. The primary object of tort law is to attempt 
to compensate victims for losses they have suffered. By 
permitting punitive damages to be awarded against the United 
States plaintiffs who have suffered little or no compensable 
injury could receive a windfall out of all proportion to 
their injury. This would seem to be illogical and unfair to 
the taxpayers. In addition, we note that the concept of 
punitive damages is one of punishment as opposed to compen- 
sation. Legal authorities are overwhelmingly of the view 
that such punishment is inappropriate against a governmental 
entity or institution because the punishment is borne by the 
innocent citizens who comprise the body politic. Moreover, 
in order to adequately punish the federal government, the 
damage award would have to be huge and grossly disproportionate 
to any injuries suffered. In a fairly recent case the Supreme 
Court rejected the concept of punitive damages against a 
municiple government. Fact Concerts Inc. v. The City of 
Newport , 453 U.S. 247 (1981). We think this decision to be 
correct and that an opposite policy would be extremely unwise 
and unprecedented. 



45 



THE EXCLUSIONARY RULE 

2. It has been argued that deterrence of police misconduct 
is an important function of the exclusionary rule. 

Q. Doesn't a "reasonable good faith" exception as proposed 
by the administration reward ignorance of the Constitution? 

A. A reasonable good faith rule requires more than an 
assessment of the subjective state of mind of the officer who 
conducted the search. Such a rule would also require a showing 
that the officer's good faith belief in the lawfulness of the 
search is grounded in objective reasonableness. The reasonable 
good faith exception to the exclusionary rule was adopted by the 
Fifth Circuit en banc in United States v. Williams, 622 F.2d 830 
(5th Cir. 1980). The Williams opinion was based as an exhaustive 
analysis of all relevant Supreme Court cases and noted explicitly 
that "the belief [in the lawfulness of the search] in addition to 
being held in subjective good faith, must be grounded in an 
objective reasonableness. It must therefore be based upon 
articulable premises sufficient to cause a reasonable, and 
reasonably trained, officer to believe that he was acting 
lawfully." 622 F. 2d 830, 8U1 fn. 4a. This objective standard by 
which the reasonableness of the officer's belief would be tested 
would ensure that ignorance of the constitution and the relevant 
cases construing the Fourth Amendment would in no way be rewarded 
under the exception to the exclusionary rule which the Department 
supports. As stated by Justice White in his concuring opinion in 

Illinois V. Gates , U.S. , No. 8I-M30, June 8, 1983, slip 

op. p. 16, fn. 15: "Grounding the modification [of the exclu- 
sionary rule on reasonable good faith] ... retains the value of 
the exclusionary rule as an incentive for the law enforcement 
profession as a whole to conduct themselves in accord with the 
Fourth Amendment." 

Q. What disciplinary procedures if any, exist to respond 
to official misconduct in violation of the Fourth Amendment. 
How often have they been employed? 



46 



A. DOJ order 1752. 1A, dated April 27, 1981 and presently 
in effect lists several "offenses" by Departmfent of Justice 
employees that could result in disciplinary action. We would be 
happy to make the entire order which describes the disciplinary 
process available to the Committee at its request. Three 
"offenses" listed in the order are concerned with improper 
searches and seizures. A page from DOJ order 1752.1 A 
summarizing these "offenses" and setting forth possible 
punishments is attached for your information. Since the DOJ 
order went into effect, no employees have been punished for an 
improper search or seizure. 

DOJ order 1752. 1A applies to all components of the Depart- 
ment of Justice except the FBI because traditionally the FBI has 
been permitted to promulgate and employ its own disciplinary 
rules and regulations. However, the FBI considers that negli- 
gent, reckless, or intentional violations of constitutional 
rights are actionable offenses under its own Schedule of 
Disciplinary Offenses and Penalties. An illegal search would be 
covered by a category in the schedule proscribing criminal, 
dishonest, immoral, infamous, or notoriously disgraceful conduct. 
The punishment may extend to removal in an appropriate case, even 
for a first offense. 

Q. What civil tort remedies now exist for victims of 
illegal searches? How often are they used and what is the 
result? 

A. From the adoption of the Fourth Amendment in 1791 until 
the Supreme Court's decision in Bivens v. Six Unknown Named 
Agents of the Federal Bureau of Narcotics , M03 U.S. 388 (1971), 
a person whose rights had been violated by a federal officer 
conducting a search without a warrant, without probable cause, or 
in an otherwise improper manner could not recover compensation in 
federal court from either the government or the officer. The 
government was shielded by sovereign immunity and the absence of 
an act of Congress providing a cause of action was thought to 



47 



shield the officer from personal liability. However, in Bivens 
the Supreme court held that federal courts could award the victim 
of an illegal search damages recoverable from the officer 
notwithstanding the absence of a Congressional act creating such 
a cause of action. 

Since 1971, there have been an estimated 10,000 Bivens 
suits, which are also known as constitutional tort actions since 
their primary characteristic is an allegation of a personal 
cause of action for a tort arising directly out of a provision of 
the Constitution such as the Fourth Amendment. The lower federal 
courts have extended the Bivens tort action to claims arising out 
of virtually the entire bill of rights and records are not 
maintained by the Department on the number of Bivens suits that 
allege Fourth Amendment violations. Fewer than 20 Bivens cases 
have resulted in judgements against the federal officer defend- 
ants and in over half of these the officers have successfully 
appealed or prevailed on post-trial motions, so in only a very 
few cases has an officer had to pay damages. Approximately 2M00 
Bivens cases are presently pending. 

Q. In your opinion, how much is "reasonable good faith" 
likely to differ between individual police officers and between 
different areas of the country? 

A. Initially, it should be noted that the reasonable good 
faith exception to the exclusionary rule would apply only in 
federal courts under the Department's proposed legislation. 
Normally, federal officers such as FBI or DEA agents conduct 
searches for evidence presented in federal court. We would 
expect the "reasonable" portion of the reasonable good faith 
exception — the portion which is concerned with the officer's 
knowledge of the law of search and seizure — to be uniform for 
all full time federal officers throughout the United States. 

To the extent that state and local officers conduct 
searches, the fruits of which occasionally are offered as 
evidence in federal courts, we would expect only very minor 
differences in what constitutes reasonable knowledge of Fourth 



48 



Amendment law. Vie would expect all such officers to be 
knowledgeab? a of the so-called "bright line" rules laid down in 
this area fn... ^-.imp. *:.j time by the Supreme Court. 

3. Critics of the current exclusionary rule argue that it 
allows many criminals to escape conviction. While I know of no 
one who wants to see the guilty go unpunished, the impact of the 
exclusionary rule has been examined in two studies: 

In 1978 the GAO surveyed 3,000 cases in 38 U.S. Attorneys 
offices and found only four-tenths of one percent of declined 
cases were due to Fourth Amendment search and seizure problems. 
The report concluded "resources expended were modest when 
compared with total resources used in the criminal justice 
system." 

The National Institute of Justice recently found 4.8 percent 
of the cases it studied in California to be rejected on search 
and seizure grounds from 1976 through 1979. 

Q. Have there been any other studies of the impact of the 
exclusionary rule in obtaining convictions? 

Q. Have there been any studies of the impact of the 
exclusionary rule on police conduct? 

Q. Has there been any analysis of the quality of police 
training since the Supreme Court implemented the exclusionary 
rule? 

Q. Utah, Colorado, and Arizona recently enacted good faith 
statutes. Has there been a study of the effect of those laws? 

Q. Can't these studies be interpreted as evidence that the 
exclusionary rule works? 

Q. Shouldn't Congress have answers to such questions before 
we Act? 

Q. Should we change a protection of a valuable Constitu- 
tional right without further information? 

A. Since all of the above questions deal with whether 
studies have been done that would support or refute the wisdom of 
a reasonable good faith exception to the . exclusionary rule, we 



49 



will attempt to answer them en bloc . Initially, we do not make 
any claim that modification of the exclusionary rule will, by 
itself, reduce the rate of crime. On the other hand, as we have 
pointed out in testimony before the Committee over the past two 
years, the rule operates to free known murderers, robbers and 
drug traffickers and such a rule of evidence that leads to those 
results without a reasonable purpose to support it is intoler- 
able. As the Committee is aware, the ostensible purpose of the 
rule is almost always stated by the courts to be deterrence of 
unlawful police conduct. 

The literature on the exclusionary rule has been voluminous. 
(Indeed, a member of the Committee, Senator Mathias, has been 
among those contributing to this body of articles. See "The 
Exclusionary Rule Revisited," 28 Loyola Law Review 1 (1982) in 
which the author questions the constitutionality of a reasonable 
good faith exception to the rule. As the Committee is aware, we 
are confident our proposal would pass constitutional muster.) In 
our view, this extensive collection of material has failed to 
support an argument that the rule accomplishes its alleged 
rationale of deterrence. As the Supreme Court has stated 
following a review of the literature that existed at the time: 
"No empirical researcher, proponent or opponent of the rule, has 
yet been able to establish with any assurance whether the rule 
has any deterrent effect even in the situations in which it is 
now applied. United States v. Janis , 428 U.S. 433, 450 f n . 22 
(1976). 

As for studies of the exclusionary rule to assess its impact 
on the conviction rate and on police conduct and training, the 
summary preface to the NIJ study describes the 1978 GAO study as 
"the only systematic look at the effects of the exclusionary rule 
which has been conducted in the past ten years." We would also 
take issue with the implicit conclusions of the GAO report that 
since less than half of one percent of the cases declined were 
due to the exclusionary rule it is not a significant criminal 



50 



justice issue. First, the GAO report is analytically flawed 
because it only considered cases formally entered into the 
records of the participating U.S. Attorney's Office and did not 
take into account the cases informally discussed by Assistant 
U.S. Attorneys and law enforcement officers and declined without 
a written entry into the system of records. Second, as the 
Committee is aware, the rule is a necessary consideration of 
every police arrest and of every seizure of physical evidence, 
and is the overwhelming component of drug case litigation. 
Moreover, litigation of exclusionary rule issues contributes to 
the appellate court overload. Thus, the argument of supporters 
of the rule that it is of no real moment is, in our view, totally 
disingenuous. Furthermore, any studies that would indicate that 
the rule has resulted in an improvement in police conduct and 
training would hardly be unexpected. We would emphasize, 
however, that the same high standards of police conduct would be 
requirea under our proposal as are presently mandated. As 
explained in answer to the previous question, police conduct must 
be informed to be reasonable. Finally, we are unaware of the 
existence of studies focusing on the recent experiences in Utah, 
Colorado and Arizona, but would be pleased to consider any 
brought to our attention. 

M. The Administration's proposal does not elaborate on the 
test to be employed in determining whether a warrantless search 
was conducted in good faith. 

How will the court determine a good faith exception in 
warrantless searches? Isn't there a risk of chaos in the Courts as 
the various district and circuit courts try to reach their own 
interpretations? 

A. We doubt that there will be significant differences in 
the federal courts in determining what constitutes a reasonable 
good faith violation of the Fourth Amendment. There has already 
developed a body of law covering what constitutes such a 



51 



violation in connection with Bivens , or constitutional tort, 
suits discussed in connection with question two. After the 
Supreme Court found that the plaintiff in Bivens had a direct 
cause of action under the Constitution against the federal officers 
who had arrested him and searched his apartment, it remanded the 
case to the court of appeals for a determination of whether the 
officers were entitled to any sort of immunity due to their 
status. The court of appeals held that they were entitled to 
qualified immunity. Specifically, the court held that it was a 
valid defense to an alleged constitutional tort for the federal 
officers to prove that they "acted in the matter complained of in 
good faith and with a reasonable belief in the validity of the 
arrest and search and in the necessity for carrying out the 
arrest and search in the way the arrest was made and the search 
was conducted." Bivens v. Six Unknown , Named Agents of the 
Federal Bureau of Narcotics , 456 F. 2d 1339, 13^1. Establish- 
ing such reasonable good faith is the way in which most Bivens 
suits which reach trial are defended. Thus, the development of a 
reasonable good faith exception to the exclusionary rule would 
parallel and draw upon this existing body of law. 



52 



DOJ 1752. lA 
Apr. 27. 1981 



APPENDIX 1. STANDARD SCHEDULE OF DISCIPLINARY OFFENSES AND 
PENALTIES FOR EMPLOYEES OF THE U. S. DEPARTMENT 
OF JUSTICE. 



REMARKS 






- 


if 
1 ^ 


• 

c 

CM 


• 




a 
a 

51 

1i 


• 

-a 

> 

e 

s. 


•i-4 

B 

% 

E 
a 

K 


Official 
reprimand 
to removal. 


DISCI PL 
Second 
Offense 


15-day 
suapension 
to removal. 


15-d8y 
suspension 
to removal. 


Official 
reprimand 
to 5-day 
suspension. 


a 
u. o 


Official 
reprimand 
- to removal. 


Official 
reprimand 
to removal. 


Official 
reprimand 
to 1-day 
suspension. 


EXPLANATION 


Examplet False 

atatements In 

obtaining 

warrants, 

dlsregsrd 

of warrant 

requirements. 


Example: Groas 
errora in 
obtaining 
warrants when 
standard pro- 
cedure is to 
check further 
and there is 
time to check 
further. 


Example: 
ExeciA ing 
warrant at 
wrong address, 
fsiling to 
check names of 
suspects. 




26. Intentional 

vlolstions of rules 
governing searches 
and ssizures. 


27. Reckless disregard 
of rules gavernlnq 
sesrches and 
seizures. 


28. Negligent 

violations of 
rules governing 
searches and 
seizures. 



/ 



Appendix 1 
Page 11 



53 

Senator Biden. I assume Senator Specter will pursue the ques- 
tion on speedy trial, and whether or not the administration would 
object to shortening pretrial detention from 90 to 60 days. The bail 
provision in S. 829 is substantially what this committee reported 
last Congress. I will let Senator Specter address the speedy trial 
issue. 

Let me talk about the drug strategy for just a minute. It is con- 
spicuous by its absence in this bill. And let me just say, straight 
out, that maybe as a consequence of your leaving, things seem not 
to be moving as smoothly as the administration has predicted they 
would. 

I read yesterday a newspaper article in the Times which reported 
that the president of the antidrug task force is falling behind in 
organization. Officials said delays are also caused by difference of 
opinion about the allocation of resources in the chain of command 
among participating agencies. 

Also, Customs is still apparently complaining about DEA, to the 
point where the highest levels of these agencies are having some 
real clashes. I understand there is even a disagreement within the 
Justice Department as to who should be running the task force in 
the field. 

You start out with a task force proposal to coordinate research 
and policy. You say you have complete control over the budgets of 
the participating agencies, to really make the task force successful. 
Yet then 3 years later, in the fiscal year 1984 budget proposal, the 
administration gives back to Treasury budget authority over their 
participation in the task force. Now the administration has intro- 
duced task forces under the Vice President's Organized Crime Task 
Force. 

My question is 

The Chairman. Your time is up. 

Senator Biden. My time is up. 

Well, let me ask one that is not for the record. 

Who is in charge? 

Mr. Giuliani. Well, Senator, first of all, the report in the New 
York Times, at least the lead that you read, is entirely inaccurate. 
The task forces are completely on schedule, and it is somewhat 
frustrating, because from the very beginning, from the first 
moment that this program was announced, back in October, it was 
made very, very clear, by everyone, that it would take almost a full 
year to get the task forces fully operational, and for a very good 
reason. We were moving 1,000 to 1,500 agents into new work, and if 
you did that precipitously, if you just moved those 1,000 or 1,500 
agents into that new work immediately, they would have to drop 
the other important things that they were doing, and law enforce- 
ment would suffer tremendously, so rather than immediately 
moving them over into the task forces as we announced in October, 
we were going to ramp up the task forces. 

They began in January, and they are now about one-third to 
about one-half staffed, and they are entirely and completely on 
schedule. 

The Chairman. Senator Specter. 

Senator Biden. I would like to submit the rest for the record, if I 
may. 



54 

The Chairman. Without objection, that will be done. 
Senator Biden. Good luck in your new job coordinating the task 
force. 
Mr. Giuliani. Thank you. 
[The following was received for the record:] 



55 



Responses to Senator Biden's questions 
regarding the death penalty 



with respect to crimes under the federal criminal 
code that would be punishable by death under the 
Administration's Bill, has there been an increase 
in such crimes other than the general rise in the 
crime rate that specifically demonstrates the need 
for a death penalty statute since the Supreme 
Court's 1972 decision in Fut man ? 



As the question suggests, there has been a striking 

increase in the crime rate in the United States over the past two 

decades. This trend extends to homicide, the primary offense to 

which a death penalty statute would, under certain circumstances, 

be applicable. For example, the estimated rate of murder and 

non-negligent manslaughter has nearly doubled since I960: 

Estimated number and rate of murder and non-negligent 
manslaughter in the United States known to police, 1960- 
1979:1/ 

Number of Fate per 

Year Offenses 10.000 Inhabitants 

1960 9,110 5.1 

1961 8,740 4.8 

1962 8,530 4.6 

1963 8,640 4.6 

1964 9,360 4.9 

1965 9,960 5.1 

1966 11,040 5.6 

1967 12,240 6.2 

1968 13,800 6.9 

1969 14,760 7.3 

1970 16,000 7.9 

1971 17,780 8.6 

1972 18,670 9.0 

1973 19,640 9.4 

1974 20,710 9.8 

1975 20,510 9.6 

1976 18,780 8.8 

1977 19,120 8.8 

1978 19,560 9.0 

1979 21,460 9.7 



V U.S. Department of Justice, Sourceb ook of Criminal Justice 
Statistics 1981 293 (1982). ~ 



56 



The number of defendants charged with homicide in federal 

court over roughly the same period indicates a similar trend: 

Number of defendants charged with homicide in United States 
District Court, 1961-1981:2/ unitea estates 



Number of 
^^^^ Defendants Charged 

1961 51 

1962 fp 

1963 ^i| 



1964 
1965 



t3 
53 



1966 54 



1967 



53 



1968 65 

1969 57 

1970 6^ 



1971 



93 



1972 85 

1973 loS 

1974 138 

1975 138 

1976 ill 



1977 
1978 
1979 
1980 



153 
159 
150 
170 



1981 168 



While a cursory comparison of these two sets of statistics 
suggests that the increase in the number of federally punishable 
homicides is greater than the increase in the rate of homicide 
nationwide, absent a comprehensive analysis of truly comparable 
data, we would refrain from concluding that the increase in 



£/ Administrative Office of United States Courts, Federal Offenders 
in the United States District Court, 1981 , Table H-7 
(Washington, D.C. 1982). It is our understanding that these 
statistics represent defendants charged with a homicide 
offense, per se, and thus would not include certain cases of 
felony-murder, e.£. , a murder committed in the course of a 
federal bank robbery, where the offense charged is the 
underlying felony. 



57 



federally punishable homicides is significantly greater than the 
already alarming national increase. However, we do not believe 
that the propriety of a federal death penalty statute turns on 
proof of a disparate increase in the rate of homicides over which 
there is federal jurisdiction. Indeed, certain types of federal 
homicides, for example assassination of the President or a 
federal judge, would, we expect, occur with such infrequency that 
the incidence of their commission would bear little relationship 
to the national murder rate. The relative infrequency of the 
commission of such murders in which there is a unusually strong 
federal interest in prosecution, however, is no reason for 
barring application of an appropriately severe sanction when 
merited in a particular case. 



What is the evidence that a federal death penalty 
statute would diminish the incidence of crimes? 
And what is your opinion of the conclusion that the 
availability of the death penalty actually illicit 
more violent crime by providing a public, dramatic 
spectical of official violent homicide on the part 
of the government? 



Attempts to use methods of statistical analysis to 
measure the deterrent effect of capital punishment have reached 
differing conclusions and have been subject to attack with 
respect to methodology. The published debate generated by 
Professor Ehrlich's research on the deterrence question is 
illustrative: 

Ehrlich, "The Deterrent Effect of Capital Punishment," 65 
American Economic Review 397 (1975). 

Passell, "The Deterrent Effect of the Death Penalty: A 
Statistical Test," 28 Stanford Law Review 61 (175). 

Bowers and Pierce, "The Illusion of Deterrence in Issac 
Ehrlich's Research on Capital Punishment," 85 Yale Law Journal 
187 (1975). 



25-694 0-84 



58 

Ehrlich, "Deterrence: Evidence and Inference," 85 Yale Law 
Journal 209 (1975) . 

Peck, "The Deterrent Effect of Capital Punishment: Ehrlich 
and his Critics," 85 Yale Law Journal 359 (1976). 

Ehrlich, "Capital Punishment and Deterrence: Some Further 
Thoughts and Additional Evidence," 85 Journal of Political 
Economy 711 (1977). 

Some attempts to show a "brutalization" effect of capital 
punishment (i^.e. , an increase in violent crime occasioned by an 
execution) are summarized in Bowers and Pierce, "Deterrence or 
Brutalization: What is the Effect of Executions?" 26 Crime and 
Delinquency 453 (1980). The work cited in this article, however, 
is less than persuasive. For example, failure to show an 
increase in homicide immediately following an execution in one 
study is reconciled with contrary results in other studies by 
suggesting "delayed brutalization," and the authors themselves 
cite serious methodological flaws in certain of the studies, even 
though it is clear that they are strong proponents of the 
"brutalization" theory. 



3. Granting that the likelihood of executing someone 
who IS actually innocent of the crime is small 
given the elaborate, process of trial, appeals and 
post-conviction remedies, doesn't it remain true 
that none of our institutions are infalable and 
that the occasional execution of an innocent pers6n 
is a logical certainty? There have been numerous 
news reports in recent years about convicted 
murders who turned out to be innocent and were then 
released. What has happened to the principle that 

It is better that 10 guilty people go free than 
that one innocent person be punished"? 

In one example Freddie Pitts and Wilbert Lee 
were sentenced to death in Florida in 1963 
their execution was delayed because the 
question of capital punishment was being heard 
m the U.S. Supreme Court. 

Meanwhile, another man confessed The 
evidence pointed to his guilt. It still took 
years of legal battle, until 1975, before the 
governor s pardon came for Pitts and Lee. 



59 



Twelve yeais and 48 days alter the court had 
ordered them executed, Freddie Pitts and 
Wilbert Lee walked out of prison. Had the 
question of the death penalty not been bef oi e 
the courts--had their sentences been carried 
out on schedule--Pitts and Lee would have died 
innocent men. 




They made an easy target for local 
authorities. Despite a weak case, th 



proseuctor had no trouble getting a 

conviction. 

The execution was delayed as the Supreme Court 
once again heard a death penalty case. While 
the four waited on death row, another man 
confessed. He even drew a map of the murder 
site. 

Death is a punishment ^absolute. Final. There 
are no more appeals. No reversals. It is an 
irrevocable punishment carried out by a 
criminal justice sytem that is far from 
perfect. And can never be perfect, as long as 
it is run by human beings. Because human 
beings make mistakes. 

What if these men had been executed? Would 
anyone have come forth with new evidence? 
Would anyone have spent years to prove their 
innocence? What difference would a confession 
have made? For how many innocent people has 
the truth come too late? 

Our criminal justice system is supposed to 
insure against such injustice. 



Certainly, it is impossible to construct a criminal 
Justice system which would absolutely assure no possibility of 
error. Nonetheless, even if some risk of error is inherent in 
our system, where the death penalty is at issue, we must reduce 
that risk of error as much as possible. This is the very reason 
that additional safeguards, not applicable in ordinary criminal 
cases, are included in our death penalty legislation to protect 
against arbitrariness and the influence of prejudice. 



60 



4. Every last country in western Europe as well as 

Canada and Mexico have abolished the death penalty, 
despite their problems of crime and their greater 
problems in some of those countries of terrorism 
and political assassination. United Natins bodies. 
Amnesty International, the Pope and other voices 
worthy of respect, have called for the abolition of 
capital punishment. We have' about 1,200 people on 
death row now and are sentencing additionally some 
250 people to death a year under state laws. Why 
do you think the federal government should add to 
that prospective blood bath, especially when the 
death penalty has never been proven to deter crime? 

We are aware that there are men of ability, goodwill, 
and conscience who believe that it is never justified for society 
to deprive an individual of life, however grave and despicable 
may have been his crimes and however much a threat his actions 
may pose to others in the community or to the survival of the 
community itself. But while recognizing these views, this 
Administration does not subscribe to them. Moreover, the 
Administration's position is in accord with the views of the 
majority of the American public. Since the Furman decision, more 
than two-thirds of the State legislatures have enacted death 
penalty laws designed to meet the constitutional requirements 
articulated by the Supreme Court over the last decade, and 
national public opinion polls consistently show that a large 
majority of our citizens support death penalty laws. 

5. Won't life in prison without the possibility of 

parole be just as effective as in accomplishing the 
goals of capital punishment — without risking the 
death of an innocent human being? 

We believe life imprisonment without the possibility of 
parole would not, in certain cases, be as effective a punishment 
as the death penalty. First, there are some offenses which are 
so harmful and so reprehensible that not even life imprisonment 
would represent an adequately just and proportionate response to 
the defendant's crime. Second, with respect to certain crimes 
involving calculation and premeditation, the death penalty, as a 
more severe sanction, can be a more effective deterrent. Third, 
capital punishment assures that a brutal murderer cannot again 



61 



take the life of an innocent victim. Proponents of the life 
imprisonment alternative have asserted that it serves this 
"incapacitation" purpose of sentencing equally as well as 
imposition of the death penalty. While this may be true with 
respect to protecting members of the public at large, it affords 
no such protection to potential victims at the facility in which 
the prisoner is incarcerated, victims who would include both 
correctional officers and other inmates. Moreover, in the case 
of a prisoner already under a life sentence, were the death 
penalty unavailable, there would be no available sanction to 
punish or deter his commission of another murder while in prison. 

In the 50 years between 1930-1980, according to 
justice department figures, there were 33 persons 
executed by federal authorities, fewer than 1 a 
year. Some of those offenders could no doubt have 
been tried as well as under state laws, others were 
executed under extremely controversial 
circumstantes (for example, the Rosenburgs in the 
1950's), at least 10 of the 33 were executed under 
provisions that the U.S. Supreme Court has by now 
defined as constitutionally impermissible (for 
rape, armed robbery or kidnapping) . If the Federal 
death penalty is going to be used so rarely, 
doesn't this suggest that it is not needed at all? 
And if it is going to be used at such a rate isn't 

it ti ue that what ever detei rent effect some people 
think capital punishment might have would not come 
into play under federal statute? 

6. Clearly, a federal death penalty statute would be 
applicable in far fewer cases than would State death penalty 
provisions. This is because the vast majority of first-degree 
murders, the offenses for which the death penalty would be most 
frequently applicable, occur in circumstances giving rise to 
State, rather than federal, jurisdiction. The infrequency with 
which a federal death penalty provision might be invoked (rela- 
tive to the rate at which State death penalty provisions might be 
applied) is, however, no justification for precluding application 
of the sanction in appropriate federal cases. For example, cases 
involving paid assassination of a federal judge or wartime 
espionage are likely to be rare. Yet, under certain circum- 



62 



stances, these are the very sorts of offenses for which the death 
penalty might be appropriate. The fact that such cases arise 
infrequently is no more a justification for failing to provide 
the opportunity for imposition of a proportionate punishment than 
it would be for Congress to decline to provide federal jurisdic- 
tion over these offenses. Congress has provided for federal 
jurisdiction over these sorts of offenses because of the substan- 
tial federal interests implicated, and vindication of these 
interests requires tnat appropriate sanctions be available. The 
suggestion that a federal death penalty is not necessary because 
in particularly heinous cases we could decline prosecution in 
favor of a State prosecution where the death penalty would be 
available under the State's law, makes a mockery of the appro- 
priate exercise of federal criminal jurisdiction and would 
require us to abdicate the law enforcement responsibilities 
conferred upon us by the Congress in the very sorts of cases 
where the reasons for federal prosecution might be most com- 
pelling. Moreover, the assumption that concurrent State 
jurisdiction will always exist is unfounded. There are numerous 
areas of exclusive federal jurisdiction in which the option of 
State prosecution will not be present. 



63 

Sc'iiatof Bidoii's Questions on 
Research and Statistics 

Mi. Jensen, as I understand this proposal you would 
consolidate the Bureau of Justice Statistics, National 
Institute of Justice and the grant agency together 
under an Assistance Attorney General. This Assistant 
Attorney General would have final authority over 
grants, staff and policy for all these agencies. 

I have a real concern that the independence and 
ability for the research and statistics programs to 
provide objective information on crime is threatened 
under this proposal. What is your opinion on that? 

Can you assure this Committee that useful and 
reliable information will continue and will not be 
threatened by the transfer of funds from these 
important programs to increase the pool of funds in the 
grant program, should this new structure be 
implemented? 

Let me clarify my position on the independence 
necessary for research and statistics. It is essential 
that we have a strong research and statistic component 
that is adequately funded and works in unison with the 
funding and grant making agency so we can begin to find 
out what works in fighting crime. Research and 
evaluation must maintain a degree of automony so as to 
be in a position to objectively tell us what our course 
of action should be. We must avoid spenting limited 
federal dollars on programs that don't work. The only 
way we will know this is if there is good objective 
data on the success or failure of these programs. 

How much direct control over the operations of each 
of these programs will the Assistant Attorney General 
have? 

Will he or she be experienced in the application of 
crime statistics and research to make decisions about 
the types of projects and studies to be funded by the 
Bureau, of Justice Statistics and National Institute of 
Just ice? 

Responses to Senator Biden's questions regarding Research and Statistics: 

Vfhile It is true that the Administration's proposal would 
consolidate the National Institute of Justice and the Bureau of 
Justice Statistics along with a new Bureau of Justice Programs 
under the general authority of the Assistant Attorney General, 
the day-to-day operations of these three Bureaus will be the sole 
responsibility of the individual Bureau directors. As you know, 
funds may not be transferred from research or statistics to 
another function without prior Congressional approval for the 
reprogrammlng. I do not envision the necessity for such a 
request inasmuch as it has never arisen during the history of 
agencies responsible for support of state and local criminal 
Justice. The Administration has consistently supported the 
research and statistics functions. 



64 



JUSTICE ASSISTANCE QUESTIONS 

1. Mr. Attorney General, the bipartisan crime bill that the 
President vetoed last January included a number of provisions 
one of which was a Justice Assistance program. I assume that 
was one provision you did not object to? 

The justice assistance portion of H.R.3963 was the product of 
last-minute efforts at compromise between the views of the 
Senate, House and the Administration during the final hours 
of the 97th Congress. Although well intentioned, the result 
was a seriously deficient product which only marginally 
reflected the streamlined program desired by all parties. 

2. I understand that the Justice Assistance proposal in S.829 is 
different from the provision agreed to in the bipartisan 
crime package. Why is that? 

As noted above, H.R.3963 fell far short of the objectives 
Identified during the Senate and House committee hearings on 
the Justice assistance proposals. It failed to focus Federal 
financial assistance on violent and repeat offenders; it 
would have permitted Federal funds to be used to pay for 
state and local administrative costs; it would have continued 
the fragmented and uncoordinated organizational arrangement; 
and, it failed to Include the requested improvements in the 
Public Safety Officers' Benefits program. S.829 is designed 
to rectify those shortcomings while, at the same time, 
incorporating the major characteristics of H.R.3963. 

3. I understand Congressman Hughes' Justice Assistance bill is 
pending floor action this week in the House. That bill is 
very different from the bill you are proposing here. Can you 
explain to me the difference in bills? 

H.R.2175, as passed by the House, is very similar in most 
respects to S.829. Both provide for block and discretionary 
grant funding. Both seek to limit Federal funding to 
programs or projects with a demonstrated track record of 
success. Both seek to establish a program of emergency 
Federal assistance. The Administration proposal sharpens the 
focus of the Federal program on violent crime, repeat 
offenders, victim/witness assistance and crime prevention, 
and it also streamlines the organizational structure of the 
research, statistical and financial assistance programs. 

4. When we went to conference with the House in December, I was 
concerned about protecting the independence of research and 
statistics and believe we drafted a bipartisan bill that was 
acceptable to both the House and Senate. Realizing that if 
and when this bill is passed in the Senate it will go to 
conference with Congressman Hughes' bill, I am curious why 
you Just didn't go with the bipartisan language we all agreed 
to in December? 

Does the Justice Department have an objection to a substitute 
amendment that contains the bipartisan language? 

Because of the concerns noted in 1 and 2 above, the 
Administration redrafted the troublesome portions of 
H.R.3963 and submitted as Title VIII what we consider to be a 
significantly improved proposal. The Department would 
therefore strongly object to the substitution of language 
from H.R.3963 of the 97th Congress. 



65 

The Chairman. Senator Specter. 

Senator Specter. I would like to commend the Department of 
Justice, and you gentlemen, for this package which you have put 
together. It is a very large effort, and I am hopeful that we can 
move it forward. I appreciate the fact that representatives from the 
Department came to visit with me about it. There are quite a 
number of parts of it, and I have a number of questions. 

I am concerned that we move as much as we can as promptly as 
we can. If we can move the entire package, and come to a resolu- 
tion of the entire package, it is not obviously going to be something 
that everybody in Congress will necessarily agree with, but I do 
commend the Department for pushing ahead with it, and trying to 
bring it to a rapid conclusion. 

With respect to the bail provision, I think I know your position, 
but I would like to broach that subject, since I have gotten that as- 
signment from Senator Biden. I have concerns about the provisions 
governing pretrial detention. It is a very complex matter, with 
strong arguments on both sides, involving the need for the protec- 
tion of the community, as opposed to the issue of constitutional 
rights and the presumption of innocence. 

I am concerned about a rule which permits pretrial detention for 
as long as 90 days. I am frankly concerned about a rule that per- 
mits detention as long as 60 days. It would be my hope that this 
procedure could be utilized within a timeframe of 60 days. 

We had hearings in the Appropriations Subcommittee of the Dis- 
trict of Columbia last week, and noted the very small number of 
applications made under that pretrial or preventative detention 
procedure — something like 50 in the course of the year. 

My question is why could it not be structured so that in those 
few cases where defendants are held in custody, a severe change in 
our procedure, they could not be brought to trial in a more prompt 
period of time than 90 days? 

Mr. Giuliani. Senator, the difference between 60 and 90 days is, 
I think 

Senator Specter. Is 30 days. 

Mr. Giuliani. Is an important one, given the kinds of cases that 
generally would be the ones in which you would have pretrial de- 
tention in the Federal system. 

Basically these are going to be drug cases. There will be some 
violent crime cases on a sporadic basis, but in large measure, situa- 
tions in which pretrial detention is going to be used in the Federal 
system will be for the major defendants, in the largest drug cases, 
and it could be difficult to bring those cases to trial within 60 days, 
it is going to be difficult to do it within 90 days, although it will be 
done. 

You are not talking about a one-defendant, two-defendant case. 
You are very often talking about a 13, 14 defendant case, in which 
the 2 or 3 leaders of the drug operation would be the ones who 
would be incarcerated pretrial if this bill becomes law, and very 
often the people do not speak English, therefore, you need inter- 
preters. 

The trial is a very major undertaking, it is not just a one or two 
defendant trial that could be tried quickly. So I could see some real 
dangers in having a hard and fast 60-day rule. Although, on the 



66 

other side of it, The Speedy Trial Act that we now have a number 
of years of experience with in the Federal system has not been a 
tremendous burden for the Federal prosecutors to comply with. It 
has been a much greater burden for defense lawyers, who more 
often than not are the reasons why, in fact, in 80 percent, and 90 
percent of the situations where there is delay, it is at the request of 
the defense, not at the request of the Government. 

So it is something that I would like to look into more carefully, 
and normally I would agree with you. I think a case where we are 
dealing with the kinds of crimes, for example, that you would basi- 
cally be dealing with in the District of Columbia, or in a local juris- 
diction, I would agree completely with you, that a 60-day limitation 
would be the more appropriate one. 

But the fear that I have is that what we would basically be deal- 
ing with here are complex cases, and that difference of 30 days 
could be a significant one, but I think it is something we should 
look into more carefully, and I certainly agree with your concerns. 

Senator Specter. Well, we will see what will happen with the 
legislative result, and it may be that the 90-day rule prevails. If 
that is so, I would hope that the Justice Department would take a 
close look at the timing of those cases and, to the extent possible, 
bring all those defendants to trial at the earliest possible date, per- 
haps even in advance of 60 days. 

But let us judge from the experience, if we can get it through to 
see where we are heading, and in addressing this concern, to the 
perspective U.S. attorney for the very important southern district 
of Manhattan, it is a sounding which could be of some utility in a 
very critical area. 

I have expressed this view to the U.S. attorneys in Pennsylvania 
and, wherever I have a chance, I will continue to do so. 

When we talked about the package a few days ago, Mr. Giuliani, 
we discussed the issue of juvenile coverage, and I have raised a 
number of points with you and Mr. McConnell, that we wanted to 
explore. 

The chairman has asked me to preside over the hearings on May 
19, and I have sent a letter to Attorney General Smith, asking that 
the specifics be prepared. I will utilize that time, rather than take 
time now, from this full committee hearing. 

But I wanted to call that to your attention so that you might 
make a special effort to see that we are in a position to explore 
those issues on May 19. 

Mr. Giuliani. I will. Senator. 

Senator Specter. Mr. Jensen, first, I compliment you on your 
designation for the Associate Attorney General's position. 

One of the subjects we talked about the other day concerns the 
seizure issue, and I have since gotten hold of the opinion of the 
fifth circuit and noted that it was a 1980 decision, I would be inter- 
ested to know if the Department of Justice has made an effort in 
any other judicial forum, to have the good-faith rule carried for- 
ward as a matter of judge-made case law? 

Mr. Jensen. Yes, as a matter of fact, in the Illinois v. Gates case, 
that Senator Biden alluded to, the Justice Department filed an 
amicus curiae brief which fully supported the statement of the rea- 



67 

sonable good-faith test. So that argument was specifically made, it 
was presented to the Court by the Solicitor General. 

Senator Specter. In which Court was that? 

Mr. Jensen. That was Illinois v. Gates. 

Senator Specter. That was the Supreme Court? 

Mr. Jensen. Yes. 

Senator Specter. I am familiar with that, and we talked about it. 
They may rule on this issue, or they may decide on other grounds. 

Mr. Jensen. Yes, it is pending now. 

Senator Specter. But has the issue been raised in any other cir- 
cuit? Where does Illinois v. Gates come from, the Illinois appellate 
courts? 

Mr. Jensen. Yes, but it was a specific case, it was a case that was 
filed in the Illinois courts, and came up to the Court through cer- 
tiorari. 

Senator Specter. But has the Justice Department endeavored to 
have the good-faith rule adopted by any other circuit court, or U.S. 
district court? 

Mr. Jensen. We have raised that issue on several occasions, in 
other circuits. It has not had another definitive ruling as was made 
in U.S. V. Williams. 

In many of these instances, there could be different kinds of 
bases for the rulings, but there has been no other definitive ruling 
by a circuit court on good faith. 

Senator Specter. There is one other subject that I want to touch 
upon very briefly. 

Yesterday, I proposed an amendment to the budget resolution 
that yesterday would direct some Federal funding toward construc- 
tion of prisons, to be used for convicts sentenced under the State 
habitual offender laws, or other State-enhanced statutes. 

This is a bill that I introduced in the 97th Congress, S. 1989, and 
a bill which has been reintroduced in the 98th Congress, as Senate 
bill 58. 

In the current budget resolution there is an allocation of some 
$400 million, 750 classification funds, in excess of what the Justice 
Department has asked for. 

In the event that the Senate does not deem it wise to add $100 
million, which I am asking for in this resolution, to be supplement- 
ed in 2 outyears, would you consider it an appropriate use of funds 
to direct some of the funding toward that objective? Before you 
answer, I would like to say just a word or two about the proposi- 
tion. 

The Attorney General's Task Force has recommended $500 mil- 
lion a year in assistance for overcrowding in State prisons. There 
were, as I think you know, appalling statistics disclosed last year 
about the overcrowded condition of the prison system in this 
Nation, with some 42,000 additional inmates in custody, just during 
the course of the past year. 

I frankly have a sense that the national decrease in the crime 
rate may be attributed to the increased incarceration. I would be 
interested in your views on that. 

Mr. Giuliani. Senator, I certainly would need more time to dis- 
cuss it, and look at it, but there is no doubt that the first priority 
in readjusting the criminal justice system has to be corrections. 



68 

I think it is something that we would be very interested in look- 
ing at. I cannot give you a definitive answer, but if there is this 
additional money, and there is a way in which we can use it to 
assist in dealing with the overcrowding situation of prisons, as we 
are trying to do with the Federal surplus property amendment that 
IS in this package 

Senator Specter. This committee has held extensive hearings on 
the issue of career criminals. The feeling is that there may be 
around 200,000 career criminals in this country— men, women who 
have committed two, three or more burglaries or robberies, or 
rapes. If we were to provide prison space for them, at about $5o',000 
a cell, that would cost $10 billion. 

I could not attend those hearings, because I was attending the 
MX hearings, where they were talking about the $20 billion missile 
system for which we cannot find housing, and the thought is on my 
mind now, and I do not propose to house them in Federal pris- 
ons 

Senator Biden. Maybe if we put them together— the MX and the 
career criminals. 

Senator Specter. Get 200,000 birds 

Senator Biden. Career criminals, that is right. 

Senator Specter. Kill two birds with one stone, house 200,000 
career criminals for the cost of one missile. 

But my thought is that if we ever intend to get serious about the 
problem of habitual offenders, and if we were to incarcerate those 
200,000 in this country, based on the Commission on Criminal Jus- 
tice Standards and Goals for 1973, to reduce violent crime by in 
excess of 50 percent, that is a $10 billion expenditure which might 
be well worth directing our attention to, and what I am trying to 
do IS put a foot in the door, with a start of that program this year. 

Thank you very much, Mr. Giuliani. 

Thank you, Mr. Chairman. 

The Chairman. Mr. Jensen, I have just one question here, and 
then I am going to turn this hearing over to Senator Specter. 

Is it not true that a reasonable good faith belief in the lawfulness 
of the conduct is a well established defense for a police officer who 
sues in a civil case for violation of constitutional rights? 

Mr. Jensen. In constitutional tort cases, that is correct. Senator. 

The Chairman. Now, our next witness is Mr. John Walker, from 
the Department of Treasury. 

Mr. Walker, we are very pleased to have you here, and I have 
another engagement. I am going to ask Senator Specter to continue 
the hearing. 

You have a long statement. I believe you can summarize it. 

STATEMENT OF JOHN M. WALKER, JR. 

Mr. Walker. Thank you very much, Mr. Chairman. 

Yes, I would like to ask that my complete statement be made a 
part of the record, and then I would like to summarize from it. 

The Chairman. Without objection, that will be done. 

Mr. Walker. Mr. Chairman and members of the subcommittee, 
thank you for affording me the opportunity to present the views of 
the Treasury Department on the proposed Comprehensive Crime 



69 

Control Act of 1983. From Treasury's perspective, this proposed leg- 
islation would provide urgently needed reforms that are critical to 
our law enforcement efforts. We strongly support enactment of this 
legislation as a package because of the importance of addressing 
deficiencies in our criminal justice system in a systematic and com- 
prehensive manner. I believe that this bill achieves this goal and 
will, on the whole, make a significant contribution to our Nation's 
struggle against crime. 

In my testimony today, I will concentrate on those provisions 
that are of particular importance to the enforcement efforts of the 
Treasury Department, including those in which Justice and Treas- 
ury currently share joint law enforcement responsibilities. 

This bill would strengthen Treasury law enforcement by stream- 
lining criminal and civil forfeiture procedures, improving enforce- 
ment against currency violations under the Bank Secrecy Act, miti- 
gating liability of law enforcement officers under the Federal Tort 
Claims Act and improving enforcement against forged endorse- 
ments of Federal securities, bank fraud, bribery of bank officers, 
and receipt of stolen bank property. I will address each of these 
topics separately. 

Turning to the criminal and civil forfeiture provisions under title 
IV. By revising the laws governing criminal and civil forfeiture, 
this bill would increase the effectiveness of an essential Federal 
weapon against drug trafficking and organized crime. This expand- 
ed forfeiture authority will greatly assist the operations of the 
Drug and Organized Crime Task Forces announced by the Presi- 
dent last October. Seizure of the ill-gotten proceeds of drug traffick- 
ing deprives the trafficker of the fruits of his crimes and the finan- 
cial base for further drug dealing. 

Today, criminal forfeitures can occur only when the enterprise 
requirements under the Racketeer-Influenced and Corrupt Corrupt 
Organizations and the Continuing Criminal Enterprise statutes are 
met. Title IV of the bill would strengthen the criminal forfeiture 
power by causing it to be triggered by a simple felony drug offense. 
It would then provide for the forfeiture of all proceeds from drug 
offenses and property used to commit them. The bill would thus 
provide a valuable complement to the other statutory enforcement 
measures, including the Bank Secrecy Act and relevant provisions 
of the Internal Revenue Code, that are designed to deprive drug 
traffickers of the assets they need to continue their illicit oper- 
ations. 

Additionally, several new provisions will bring greater effective- 
ness to the Federal criminal forfeiture process in general. These in- 
clude new authority for courts to enter restraining orders against 
the transfers of forfeitable assets during the preindictment stages 
of a case. In instances where a restraining order may be insuffi- 
cient, such as where property is easily moved or concealed, the 
Government would be empowered to obtain a warrant authorizing 
seizure of the property. Courts would also be able to void transfers 
that have already occurred and, in some circumstances, order the 
forfeiture of substitute assets. 

The bill would also improve the method of payment for expenses 
incurred by the Government in conducting forfeiture actions by es- 



70 

tablishing forfeiture funds in the Departments of Justice and 
Treasury. 

The establishment of these funds would allow the Government to 
conduct forfeiture actions with much greater dispatch while pro- 
moting overall cost savings. Better storage and maintenance of 
seized property would result, because Justice and Treasury would 
be able to balance forfeiture expenses with forfeiture proceeds. 

Senator Specter [presiding]. How much do you think it likely 
that the Government would take in on forfeiture proceeds, Mr. 
Walker? 

Mr. Walker. Well, I think that we can estimate that with for- 
feiture proceeds, the ability to seize and to forfeit and seize and sell 
administratively, we are talking in the many tens of millions of 
dollars, perhaps hundreds of millions of dollars. 

Senator Specter. To what extent are there any proceeds for for- 
feiture available at the present time? 

Mr. Walker. Well, there are not. The forfeiture proceeds today 
go into the general fund. So they are not available now for the use 
in defraying expenses of forfeiture, or for paying for the budgets of 
the law enforcement agencies involved. 

Senator Specter. How much money was seized as a result of for- 
feitures, say, in the last year? 

Mr. Walker. Well, I can supply that figure in some detail for 
you, for the record. But in terms of the currency forfeitures, we are 
talking in terms of many tens of millions of dollars, perhaps, $50 
million, perhaps more. We will supply that. 

Senator Specter. We would be interested to know that. 

Mr. Walker. Yes. 

[The following was subsequently received for the record:] 

The total amount of currency and property seized and forfeited in fiscal year 1982 
is not precisely known. However, a joint study team of the U.S. Department of Jus- 
tice estimate that property appraised at approximately $245 million was subject to 
judicial forfeiture in fiscal 1982. The study did not include an estimate of the total 
amount of currency subject to forfeiture. 

In addition, the magnitude of combined civil and judicial forfeiture can be seen in 
the following statistics from Customs and DEA. For fiscal year 1982, U.S. Customs 
reported a total of $239,912,507 in currency and property seized and subject to for- 
feiture as a result of its use in violation of the laws enforced by Customs. These 
assets were in the following categories: 

Monetary instruments $32,757,121 

Vehicles 35,935,720 

Aircraft 34,742,505 

Vessels 44,461,893 

General merchandise 92,015,268 

Total 239,912,507 

DEA reported a total figure of $106,656,948 in currency and property seized and 
subject to forfeiture. A breakdown according to the type of asset was not available 
but is currently in preparation by DEA. 

Senator Specter. Mr. Walker, how, if at all, does this forfeiture 
bill differ from the bill which was enacted, was passed, rather, by 
the Congress last year, part of the seven point package which the 
President vetoed? 

Mr. Walker. I think, in substance, it contains most of the same 
provisions. But substantively, we do not have a major difference 
there. 



71 

Senator Specter. No major differences? 

Mr. Walker. Right. 

Senator Specter. Last year, when we were negotiating this, at 
the very end, there had been a representation that the Justice De- 
partment wanted something substantially stronger than what had 
been passed, and there was some discussion with Congressman 
Hughes, in the House, on this. 

Mr. Walker. Senator Specter, I would like to clarify my state- 
ment. 

I was speaking largely from the Customs forfeiture provisions, in 
terms of Treasury's interests, but I would like Mr. Jensen or Mr. 
Giuliani to address the Justice Department's views with regard to 
your last question. 

Mr. Jensen. Senator, if I may, there were some significant areas 
that the Justice Department wanted to see in the forfeiture realm 
that were not part of the legislation that was passed. 

For example, it did not deal with the issues of profits and pro- 
ceeds in RICO cases, for example. That was not part of the bill that 
was passed, and that was a thing that we sought. 

Senator Specter. The House version did not have RICO forfeit- 
ure? 

Mr. Jensen. No. And it did not deal with another major issue, 
and that is when the assets are dissipated, and you do have an abil- 
ity to seek forfeiture, and you can trace proceeds and profits, and 
get an order about that, but they have now been dissipated. Under 
•the bill that we suggested, you could go after substitute assets, and 
that is not a part of the bill that was passed. Those are very major 
portions of the Department's position that were not within the bill. 

Mr. Giuliani. Mr. Chairman, it was part of the bill that was 
passed by the Senate, or favored by this committee, essentially Sen- 
ator Biden's version of it that we supported, and the provisions 
that Mr. Jensen mentioned were not part of the bill that eventual- 
ly passed in the Congress. 

Senator Specter. You may proceed. 

Mr. Walker. In addition to the direct expenses of forfeiture, the 
forfeiture funds would also provide for payment of compensation to 
informants. For example, under the existing section 619 of the 
Tariff Act, a Treasury informant whose information leads to a seiz- 
ure and forfeiture may receive 25 percent of the net amount recov- 
ered, not to exceed $50,000. The $50,000 maximum amount, estab- 
lished by law in 1935, long before the era of multimillion-dollar 
drug deals accompanied by gangland slayings of suspected inform- 
ants, is no longer adequate for this purpose. This bill would in- 
crease the maximum amount threefold. 

Part D of title IV is of particular interest to Treasury and the 
U.S. Customs Service. This part would amend the Tariff Act of 
1930 to appreciably streamline the procedures for seizure and civil 
forfeiture of property under the customs laws. One change would 
make administrative forfeiture proceedings available in any forfeit- 
ure involving conveyances used to transport illicit drugs, without 
limitation as to the value of the conveyance. 

It is clear, on the other hand, that administrative forfeiture is 
far less costly and time-consuming, both for the Government and 
for interested parties. This bill would accordingly extend its appli- 



72 

cability in two additional ways. First, administrative forfeiture 
could be used for any seized merchandise for which importation is 
prohibited, without regard to value. 

Second, for all other property, it could be used if the value of the 
seized property did not exceed $100,000. I want to stress that the 
rights of legitimate claimants, including lienholders, would in no 
way be infringed by these legislative changes. Interested parties 
would retain the right to have the ownership of the property judici- 
ally determined, which they could exercise by merely posting a 
bond and thus requiring the Government to initiate a judicial for- 
feiture proceeding. 

Taken together, these legislative changes in the criminal and 
civil forfeiture laws would increase the efficiency of the forfeiture 
process, conserve judicial resources, promote overall Federal law 
enforcement, and contribute to better law enforcement at the State 
and local level. Most significantly, they would provide strong new 
sanctions to counter the menace of drug trafficking and the crimes 
related to it. 

Mr. Chairman, turning to the currency violations under the 
Bank Secrecy Act, which Treasury is vitally interested in, I would 
like to address the legislative changes proposed by title XII of the 
bill. 

As you know, Mr. Chairman, the enforcement of currency report- 
ing requirements under the Bank Secrecy Act is critical to this Na- 
tion's battle against drug trafficking and organized crime. 

As I testified last March 15, before the Subcommittee on Investi- 
gations of the Senate Governmental Affairs Committee, the track- 
ing of unusual cash flows that is made possible by the act's report- 
ing requirements frequently leads to the identification and prosecu- 
tion of large criminal organizations. However, as I also indicated at 
that time. Treasury's experience in the enforcement of the act has 
pointed to the need to strengthen some of its provisions. This bill 
responds to that need and I believe that the revisions it proposes 
will overcome many of the statutory weaknesses that currently are 
allowing some transactions, particularly international transactions, 
to go unreported. 

First, the revisions contained in title XII of this bill will raise the 
criminal penalty for willful violation of domestic currency report- 
ing requirements from the present misdemeanor level to the felony 
level, with an authorized 5-year imprisonment and $50,000 fine. We 
believe that this level of punishment is appropriate given the seri- 
ousness of these offenses and their established relationship to drug 
trafficking. 

The second change would amend the Act to provide that an at- 
tempt to transport, as well as the actual transportation of unre- 
ported currency or monetary instruments into or out of the United 
States, would be a violation punishable under title 31. This amend- 
ment would clarify an uncertainty in existing law that has caused 
a few courts to conclude that the currency or monetary instru- 
ments must physically be outside of the United States before the 
law is violated. By that time, the offender is beyond our jurisdic- 
tion and hence not subject to Federal arrest authority. Another 
amendment would raise the amount covered by the reporting re- 
quirement for importation and exportation of currency and mone- 



73 

tary instruments from $5,000 to $10,000. This amendment will ease 
the reporting requirement on legitimate international travelers 
without adversely affecting the detection of criminal activity. 

Title XII of this bill revises the search provisions of the Bank Se- 
crecy Act to authorize customs officers to conduct a warrantless 
search of any person, vehicle, or container entering or leaving the 
United States, if the officer has reasonable cause to believe cash or 
monetary instruments are being transported without the filing of 
required reports. While this authority is available for inbound 
border searches and for outbound border searches involving mer- 
chandise, most courts have not extended it to cover outbound 
searches incident to suspected currency violations. 

There are several other important amendments proposed in title 
XII. One of them would authorize the payment of awards for per- 
sons who provide information that leads to a fine, civil penalty, or 
forfeiture under the currency reporting laws. The amount is limit- 
ed to one-fourth of any recovery and may not exceed $150,000. 
While this may seem to be a high maximum amount, it has to be 
viewed in light of the huge amounts of currency typically involved 
in these cases. 

Mr. Chairman, I might just report that as I was coming up here 
today we were informed that as a part of Operation Greenback 
down in south Florida, our agents had seized $4 million. This gives 
you some idea of the magnitude of the currency involved in these 
cases. 

Senator Specter. Mr. Walker, I would like to interrupt you for a 
minute, if I may, before you proceed. I am going to have to depart 
here in just a minute. But one question that I would like to broach 
with you this morning is the subject of the drug coordinator— part 
of the legislative package passed by the Congress last year— the 
principal reason for the President's veto of the seven part package. 

I start by expressing my appreciation to you for your cooperation 
in analyzing that with me, and others last year, on behalf of the 
Treasury Department. 

My question is. How are things going now with respect to overall 
coordination of the attack on the drug problem, as seen from the 
perspective of the Treasury Department? 

Mr. Walker. Mr. Chairman, I feel that the coordination today is 
better than it has ever been. I might report that 

Senator Specter. How is the coordination implemented? 

Mr. Walker. Since we talked, the President announced the es- 
tablishment of the National Narcotics Border Interdiction System, 
headed by the Vice President, and under the leadership, on an 
operational basis, of Admiral Murphy, who is the Vice President's 
Chief of Staff That office is now providing senior executive super- 
vision and coordination of the interdiction effort that Treasury is 
so vitally interested in. This includes the coordination of the re- 
sources of the Defense Department, the Coast Guard and the Cus- 
toms Service, as well as Justice agencies. The Department of State 
is also respected in this effort. 

Senator Specter. Does the situation ever arise where one depart- 
ment, as a practical matter, has to tell another department what to 
do, or issue an order, or have some controversy between two major 
departments working on the drug problem? 



25-694 0-84 



74 

Mr. Walker. Well, there are circumstances, obviously, where de- 
partments may differ, but the mechanism that is in place right 
now is to use the President himself, as his authority has been dele- 
gated down to the Vice President, and through him to Admiral 
Murphy, to resolve disputes of this kind. So far we have not had 
any problems with this. 

Senator Specter. Thank you very much. 

Senator Biden [presiding]. Thank you. 

I have questions. If you want to complete your testimony at this 
point, please continue. 

Mr. Walker. I think I can summarize it pretty quickly. 

Other changes in the Bank Secrecy Act would add currency vio- 
lations to the list of racketeering activities under the Racketeer-In- 
fluenced and Corrupt Organizations Act, or RICO. This result 
would allow these offenses to serve as the predicate for a RICO 
prosecution. The final change would add currency offenses to the 
list of crimes for which a court order authorizing electronic surveil- 
lance may be obtained. This amendment recognizes that currency 
laws are frequently violated by persons involved in major crimes, 
but also that the substantive nature of these crimes is frequently 
unknown when the investigation commences. 

Mr. Chairman, each of these amendments to the laws governing 
currency and foreign transactions will, we believe, improve the 
tools of our enforcement effort against drug trafficking and orga- 
nized crime and complement the increased resources we are devot- 
ing to this effort 

Mr. Chairman, on another issue, and one that is critical to all 
Federal law enforcement, the Treasury Department strongly sup- 
ports the amendments that title XIII of this bill would make in the 
Federal Tort Claims Act. Under present law as articulated in the 
Bivens case, a Federal law enforcement official can be held person- 
ally liable for conduct occurring within the scope of his office or 
employment that later turns out to be a violation, even though the 
official believed his conduct to be permissible. 

Basically, these amendments would substitute the U.S. Govern- 
ment as the defendant in a lawsuit against a law enforcement 
agent or officer for a constitutional tort alleged to have been com- 
mitted by the agent or officer acting within the scope of his office 
or employment. 

'-■ The threat of personal liability today hangs like a Damocles 
sword over the heads of law enforcement officials and has inhibited 
them from taking an aggressive approach in enforcing the law. The 
fact that these suits often turn out to lack merit does not affect the 
need for this legislation; as much as the threat of liability, it is the 
threat of the lawsuit itself, with all of its attendant time, expense 
and uncertainty, that inhibits proper enforcement conduct. 

Title XIII would make the United States liable for all constitu- 
tional torts committed by its employees. Successful litigants would 
be compensated with minimum liquidated damages of $1,000 or, in 
the case of continuing torts, $100 per day, up to $15,000. Litigants 
would also be entitled to any actual damages that they could estab- 
lish. In the litigation, the United States would have available to it 
all of the defenses that would have been available to the employee. 



75 

Even with governmental liability for these torts, deterrence 
against the commission of constitutional torts of the type subject 
today to Bivens suits would remain. Not only would there be the 
exposure of the public proceedings, but disciplinary action would 
also be triggered under the provisions of this bill. 

In all, the mechanism that title XIII would put into place would 
uphold the rights of litigants and deter unconstitutional conduct. 
At the same time, it would insure that law enforcement officers are 
not unfairly and unduly inhibited in performing their official 
duties. 

Mr. Chairman, Treasury is also vitally interested in the provi- 
sions of the bill set forth in title XV. I will not go into them in 
great detail now, but these deal with the question of forged en- 
dorsements of Federal securities, bank fraud, bank bribery, and re- 
ceipt of stolen bank property. 

Mr. Chairman, again, I appreciate the opportunity to appear 
before you and members of this committee to express Treasury's 
strong support for passage of the Comprehensive Crime Control 
Act of 1983. It is, we believe, a legislative package that will 
strengthen Treasury law enforcement as it provides long-needed 
remedies for Federal law enforcement in general. 

Senator Biden. Thank you very much. 

[The prepared statement of John Walker follows:] 



76 



Prepared Statement of John M, Walker, Jr. 

Mr- Chairman and Members of the Subcommittee: 

Thank you for affording me the opportunity to present the 
VIEWS of the Treasury Department on the proposed Comprehensive 
Crime Control Act of 1985. From Treasury's perspective, this 
proposed legislation would provide urgently needed reforms that 

ARE CRITICAL TO OUR LAW ENFORCEMENT EFFORTS- We STRONGLY SUPPORT 
ENACTMENT OF THIS LEGISLATION AS A PACKAGE BECAUSE OF THE 
IMPORTANCE QP ADDRESSING DEFICIENCIES IN OUR CRIMINAL JUSTICE 
SYSTEM IN A SYSTEMATIC AND COMPREHENSIVE MANNER- I BELIEVE THAT 
THIS BILL ACHIEVES THIS ROAL AND WILL, ON THE WHOLE, MAKE A SIGNI- 
FICANT CONTRIBUTION TO OUR NATION'S STRUGGLE AGAINST CRIME- !n MY 

testimony today, i will concentrate on those provisions that are 
of particular importance to the enforcement ffforts of the treasury 
riepartment, including those in which justice and treasury currently 
share joint law enforcement responsibilities- 

This bill would strengthen Treasury law enforcement by stream- 
lining CRIMINAL AND CIVIL FORFEITURE PROCEDURES, IMPROVING ENFORCE- 
MENT against currency violations UNDER THE BANK SECRECY ACT, 

mitigating liability of law enforcement officers under the federal 
Tort Claims Act and improving enforcement against forged endorse- 
ments OF Federal securities, bank fraud, bribery of bank officers, 

and receipt of stolen bank property- I WILL ADDRESS EACH OF THESE 

topics separately- 

Criminal and Civil Forfeiture 
By revising the laws governing criminal and civil forfeiture, 

THIS BILL would INCREASE THE EFFECTIVENESS OF AN ESSENTIAL FEDERAL 
WEAPON AGAINST DRUG TRAFFICKING AND ORGANIZED CRIME- ThIS EXPANDED 

forfeiture authority will greatly assist the operations of the 
'Irug and Organized Crime Task Forces announced by the president 
LAST October- Seizure of the ill-gotten proceeds of drug traffick- 
ing DEPRIVES THE TRAFFICKER OF THE FRUITS OF HIS CRIMES AND THE 

financial base for further drug dealing- 

Today, criminal forfeitures can occur only when the enterprise 
requirements under the racketeer- influenced and corrupt organiza- 
TIONS AND THE Continuing Criminal Enterprise statutes are met- 



77 



Title IV of the rill would strengthen the criminal forfeiture 

power ry causing it to rf triggered ry a single felony drug offensf. 

It WOULD THEN PROVIDE FOR THE FORFEITURE OF ALL PROCFFDS FROM 
DRUG OFFENSES AND PROPERTY USED TO COMMIT THEM- ThE RILL WOULD 
THUS PROVIDE A VALUABLE COMPLEMENT TO THE OTHER STATUTORY ENFORCE- 
MENT MEASURES, INCLUDING THE "ANK SeCRECY AcT AND RELEVANT 

provisions of the internal revenue co^f , that arf designed to 
deprive drug traffickers of the assets they need to continue their 
illicit operations- 

Additionally, several new provisions will rring greater 
effectiveness to the federal criminal forfeiture process in 
general- these include new authority for courts to enter restrain- 
ing orders against the transfers of forfeitable assets during the 

PRE- INDICTMENT STAGES OF A CASE. In INSTANCES WHERE A RESTRAINING 

order may be insufficient, such as where property is easily moved 
or concealed, the government would re empowered to obtain a warrant 
authorizing seizure of the property- courts would also be able to 
void transfers that have already occurred and, in some circum- 
stances, order the forfeiture of substitute assets - 

The bill would also improve the method of payment for expenses 

INCURRED by THE GOVERNMENT IN CONDUCTING FORFEITURE ACTIONS BY 
establishing FORFEITURE FUNDS IN THE 'DEPARTMENTS OF JUSTICE AND 

Treasury- In the Justice Department, the Drug Assets Forfeiture 
Fund would contain the proceeds from forfeitures of drug-related 
assets- In Treasury, the Customs Forfeiture Fund would contain the 

PROCEEDS from the DISPOSITION OF AMY PROPERTY FORFEITED UNDER THE 
LAWS ENFORCED BY THE CUSTOMS 'SERVICE, INCLUDING CURRENCY AND MONETARY 
INSTRUMENTS FORFEITED UNDER THE "ANK !^ECPECY AcT - FACH OF TH^SE 
FUNDS WOULD RE ESTABLISHED ON A FOUR-YEAR TRIAL BASIS, WITH MAXIMUM 
PAYMENTS AUTHORIZED FOR EACH FISCAL YEAR- At THE END OF FACH 

Fiscal Year, any amount in the funds that exceeds the appropriated 
amounts for that year would be deposited in the i^enepal f^und of the 
U-S- Treasury- 

The establishment of these funds would allow the f^OVERNMENT TO 
conduct FORFEITURE ACTIONS WITH MUCH GREATER DISPATCH WHILE PROMOTING 
OVERALL COST SAVINGS- PeTTER STORAGE AND MAINTENANCE OF SEIZED 
PROPERTY WOULD RESULT, BECAUSE JUSTICE AND TREASURY WOULD RE ABLE 



78 



ro BALANCE FORFEITURE EXPENSES WITH FORFEITURE PROCEEDS • In THE 

Customs Service, the present procedure is harmful to its law 
enforcement mission since forfeiture expenses tend to rfduce funds 

AVAILABLE FOR DIRECT LAW ENFORCEMENT PURPOSES- In ADDITION, THE 

present procedure, since it entails separate accounting for each 
individual forfeiture, is inefficient and unnecessarily burdensome- 
Under the new funds. Justice and Treasury would avoid these needless 
complications; yet overall accountability to the congress would be 
retained, through the annual reporting reouirfments provided by the 

BILL- The PROVISIONS ESTABLISHING THESE FUNDS AND RETAINING 

accountability to the congress reflect the recommendations made in 
the recent draft rao study on the disposition of property seized by 
Federal law enforcement agencies- 

In addition to the direct expenses of forfeiture, the forfeiture 

FUNDS would also PROVIDE FOR PAYMENT OF COMPENSATION TO INFORMANTS- 
For EXAMPLE, UNDER THE EXISTING §619 OF THE TARIFF ACT, A TREASURY 

informant whose information leads to a seizure and forfeiture may 
receive 25% of the net amount recovered, not to exceed $50,000- 
The $50,000 maximum amount, established by law in 1935, long before 

THE era of multi-million DOLLAR DRUG DEALS ACCOMPANIED BY GANGLAND 
SLAYINGS OF SUSPECTED INFORMANTS, IS NO LONGER ADEQUATE FOR THIS 

PURPOSE- This bill would increase the maximum amount threffold- 

Other forfeiture provisions in the bill will promote assistance 
by, and cooperation with, other Federal, state, and local law 
enforcement agencies- Both Justice and Treasury would be authorized 
TO transfer forfeited property to another Federal agency or to any 
state or local law enforcement agency that participated in the 

CASE that resulted IN THE SEIZURE OR FORFEITURE- MndER PRESENT 

LAW AND GSA REGULATIONS, IT IS VERY DIFFICULT FOR AN AGENCY PROVIDING 

ASSISTANCE IN LAW ENFORCEMENT TO OBTAIN USE OF THE PROPERTY SEIZED- 

ThIS IS UNFORTUNATE, BECAUSE A LARGE NUMBER OF FEDERAL SEIZURES 

AND FORFEITURES ALSO INVOLVE STATE AND LOCAL CRIMINAL INVESTIGATIONS 

AND PROSECUTIONS, AND THEREBY IMPOSE A SUBSTANTIAL BURDEN ON STATE 

AND LOCAL RESOURCES- In ADDITION, OTHER FEDERAL AGENCIES MAY, IN 

MANY INSTANCES, BE ABLE TO BENEFIT FROM PARTICULAR PROPERTY OBTAINED 

THROUGH A FORFEITURE PROCEEDING- 



1 



79 



SfCTION ^(18 WOULD FURTHER AMFND THE TARIFF ACT TO AUTHORIZE 

THE Secretary of the Treasury to discontinue any forfeiture 

PROCEEniNG IN FAVOR OF THE INSTITUTION OF STATE OR LOCAL FORFFITlfE 
PROCEEDINGS, UNDER APPLICABLE STATE AND LOCAL FORFEITURE LAWS • 

Part D of Title IV is of particular interest to Trfasury and 
THE United States Customs Service- This part would amend thf Tariff 
Act of 1<i?0 to appreciably streamline the procedures for seizure 
and civil forfeiture of property under the Customs laws- One 
change would make administrative forfeiture proceedings available 
IN any forfeiture involving conveyances used to transport illicit 
drugs, without limitation as to the value of the conveyancf- 

Under present law, any property seized, including conveyances 
used in drug trafficking, must be disposed of through judicial 
forfeiture if the value of the property is greater than $in,nr)0- 
Because the number of seizures of conveyances by Customs has 
increased exponentially in recent years, this limitation has led to 

AN enormous backlog OF JUDICIAL FORFEITURE CASES- It HAS ALSO 
CREATED A MAJOR PROBLEM OF STORAGE FOR SEIZED CONVEYANCES, WHICH 
IN TURN HAS LED TO UNNECESSARY COSTS FOR PROLONGED STORAGE, AND 
FREQUENTLY TO PHYSICAL DETERIORATION OF THE PROPERTY INVOLVED- In 

Fiscal Year 1982, Customs seized approximately 6,70n conveyances, 

WITH A TOTAL VALUE OF $114 MILLION- ThE CONVEYANCES SEIZED WERE 
WORTH, ON THE AVERAGE, APPROXIMATELY $17,00(1. ThE AVERAGE VESSEL 
WAS WORTH $89,0n0, AND THE AVERAGE AIRCRAFT WAS WORTH $168,000- 
It is APPARENT FROM THESE FIGURES THAT THE EXISTING DOLLAR LIMITATION 
ON ADMINISTRATIVE FORFEITURE, GIVEN THE EFFECTS OF INFLATION AND THE 
ENORMOUS RESOURCES OF THE DRUG SMUGGLER, IS NOW OF LITTLE USEFUL- 
NESS IN THE PROMPT AND EFFICIENT DISPOSITION OF THE VAST MAJORITY 
OF FORFEITURE CASES- 

IT is clear, on the OTHER HAND, THAT ADMINISTRATIVE FORFEITURE 
IS FAR LESS COSTLY AND TIME-CONSUMING, BOTH FOR THE POVERNMENT AND 
FOR INTERESTED PARTIES- THIS BILL WOULD ACCORDINGLY EXTEND ITS 
APPLICABILITY IN TWO ADDITIONAL WAYS- FiRST, ADMINISTRATIVE 
FORFEITURE COULD BE USED FOR ANY SEIZED MERCHANDISE FOR WHICH 
IMPORTATION IS PROHIBITED, WITHOUT REGARD TO VALUE- SECOND, FOR 
ALL OTHER PROPERTY, IT COULD BE USED IF THE VALUE OF THE SEIZED 



\ 



80 



property did not exceed $100,000. 1 want to stress that the rights 
of legitimate claimants, including lienholders, would in no way be 
infringed by these legislative changes- interested parties would 
retain the right to have the ownership of the property judicially 
determined, which they could exercise by merely posting a rond and 
thus requiring the government to initiate a judicial forfeiture 
proceeding- 

This bill would also change the bond requirement, to discourage 

FRIVOLOUS suits AND TO MORE ACCURATELY REFLECT THE COSTS TO THE 

Government of pursuing a judicial forfeiture- The present bond 

AMOUNT, $250, dates BACK TO 18'»'4, WHEN IT REPRESENTED TWO-AND-A-HALF 
TIMES THE $100 LIMIT ON ADMINISTRATIVE FORFEITURE- ThE BILL WOULD 

establish a bond amount of the lesser of $5000 or 10?! of the value 
of the property, but in no event less than $250- however, it should 
be noted that under existing customs procedures, persons upon whom 
the bond requirement would pose an economic hardship may request 
waiver of the bond by completing an affidavit on financial inability- 
customs would, of course, retain this procedure under the new bond 
requirements- 
Taken TOGETHER, THESE LEGISLATIVE CHANGES IN THE CRIMINAL AND 
CIVIL FORFEITURE LAWS WOULD INCREASE THE EFFICIENCY OF THE FORFEITURE 
PROCESS, CONSERVE JUDICIAL RESOURCES, PROMOTE OVERALL FEDERAL LAW 
ENFORCEMENT, AND CONTRIBUTE TO BETTER LAW ENFORCEMENT AT THE STATE 
AND LOCAL LEVEL- MoST SIGNIFICANTLY, THEY WOULD PROVIDE STRONG 
NEW SANCTIONS TO COUNTER THE MENACE OF DRUG TRAFFICKING AND THE 
CRIMES RELATED TO IT- 

CuRRENCY Violations Under the Bank 
Secrecy ^ 

i would now like to address the legislative changes proposed 
BY Title XII of this bill- Mr- Chairman, as you know, the enforce- 
ment OF currency reporting requirements under the Bank Secrecy Act 
IS critical to this nation's battle against drug trafficking and 
organized crime- As I testified last March 15, before the Subcom- 
mittee ON Investigations of the Senate Governmental Affairs Committee, 
the tracking of unusual cash flows that is made possible by the 
Act's reporting requirements frequently leads to the identification 

AND prosecution OF LARGE CRIMINAL ORGANIZATIONS- HOWEVER, AS I 



81 



ALSO INDICATED AT THAT TIME, TrfaSURY'S EXPERIENCE IN THE ENFORCE- 
MENT OF THE Act has POINTED TO THE NEED TO STRENGTHEN SOME OF ITS 

PROVISIONS- This bill responds to that need and I belifve that 

THE REVISIONS IT PROPOSES WILL OVERCOME MANY OF THE STATUTORY 
WEAKNESSES THAT CURRENTLY ARE ALLOWING SOME TRANSACTIONS, PARTICULARLY 
INTERNATIONAL TRANSACTIONS, TO GO UNREPORTED- 

First, the revisions contained in Title Xll of this bill will 

RAISE THE CRIMINAL PENALTY FOR WILLFUL VIOLATION OF DOMESTIC 
CURRENCY REPORTING REQUIREMENTS FROM THE PRESENT MISDEMEANOR LEVEL 
TO THE FELONY LEVEL, WITH AN AUTHORIZED FIVE-YEAR IMPRISONMENT AND 
^50,000 FINE- We BELIEVE THAT THIS LEVEL OF PUNISHMENT IS APPRO- 
PRIATE GIVEN THE SERIOUSNESS OF THESE OFFENSES AND THEIP ESTABLISHED 
RELATIONSHIP TO DRUG TRAFFICKING- 

The SECOND CHANGE WOULD AMEND THE ACT TO PROVIDE THAT AN ATTEMPT 
TO TRANSPORT, AS WELL AS THE ACTUAL TRANSPORTATION OF UNREPORTED 
CURRENCY OP MONETARY INSTRUMENTS INTO OR OUT OF THE UNITED STATES, 
WOULD BF A VIOLATION PUNISHABLE UNDER TiTLE "^1- THIS AMENDMENT 
WOULD CLARIFY AN UNCERTAINTY IN EXISTING LAW THAT HAS CAUSED A FEW 
COURTS TO CONCLUDE THAT THE CURRENCY OR MONETARY INSTRUMENTS MUST 
PHYSICALLY BF OUTSIDE OF THE UNITED STATES BEFORE THE LAW IS 
VIOLATED- By THAT TIME, THE OFFENDER IS BEYOND OUR JURISDICTION 
AND HENCE NOT SUBJECT TO FEDERAL ARREST AUTHORITY- ANOTHER AMEND- 
MENT WOULD RAISE THE AMOUNT COVERED BY THE REPORTING REQUIREMENT 
FOR IMPORTATION AND EXPORTATION OF CURRENCY AND MONETARY INSTRUMENTS 

FROM $5,000 TO $10,000- This amendment will ease the reporting 
requirement on legitimate international travelers without adversely 
affecting the detection of criminal activity- 

tltle xii of this bill revises the search provisions of the 
Bank Secrecy Act to authorize Customs officers to conduct a warrant- 
less SEARCH of any PERSON, VEHICLE OR CONTAINER ENTERING OR LEAVING 

THE United States, if the officer has reasonable cause to believe 

CASH OR MONETARY INSTRUMENTS ARE BEING TRANSPORTED WITHOUT THE 
FILING OF REQUIRED REPORTS- WHILE THIS AUTHORITY IS AVAILABLE FOR 
INBOUND BORDER SEARCHES AND FOR OUTBOUND BORDER SEARCHES INVOLVING 
MERCHANDISE, MOST COURTS HAVE NOT EXTENDED IT TO COVER OUTBOUND 
SEARCHES INCIDENT TO SUSPECTED CURRENCY VIOLATIONS- 



82 



There are several other important amendments proposed in 
Title Xll. One of them would authorize the payment of awards for 
persons who provide information that leads to a fine, civil penalty, 
or forfeiture under the currency reporting laws. The amount is 

LIMITED TO one-fourth OF ANY RECOVERY AND MAY NOT EXCEED *150,000. 

While this may seem to pe a high maximum amount, it must be viewed 
in light of the huge amounts of currency typically involved- 
Furthermore, it must be remembered that informants on money 
laundering operations take a great personal risk in providing 

information, AND THAT THIS TYPE OF INFORMATION IS ESSENTIAL IF WE 
ARE TO MAKE FURTHER INROADS ON THESE ILLICIT ACTIVITIES, ANOTHER 
CHANGE WOULD ADD CURRENCY VIOLATIONS TO THE LIST OF RACKETEERING 
ACTIVITIES UNDER THE PaCKETEER-InFLUENCED AND CORRUPT ORGANIZATIONS 

Act, OR RICO, The result would allow these offenses to serve as 

THE predicate FOR A PICO PROSECUTION, ThE FINAL CHANGE WOULD ADD 
CURRENCY OFFENSES TO THE LIST OF CRIMES FOR WHICH A COURT ORDER 
AUTHORIZING ELECTRONIC SURVEILLANCE MAY BE OBTAINED. ThIS AMENDMENT 
RECOGNIZES THAT CURRENCY LAWS ARE FREQUENTLY VIOLATED BY PERSONS 
INVOLVED IN MAJOR CRIMES, BUT ALSO THAT THE SUBSTANTIVE NATURE OF 
THE UNDERLYING CRIMINAL ACTIVITY IS FREQUENTLY UNKNOWN WHEN THE 
INVESTIGATION COMMENCES. 

f^R, Chairman, each of these amendments to the laws governing 

CURRENCY AND FOREIGN TRANSACTIONS WILL IMPROVE THE TOOLS OF OUR 
enforcement EFFORT AGAINST DRUG TRAFFICKING AND ORGANIZED CRIME AND 

complement the increased resources we are devoting to this effort, 
Liability under the Federal Tort Claims Act 
Hr. Chairman, on another issue, one that is critical to 
all Federal law enforcement, the Treasury Department strongly 

SUPPORTS the amendments THAT TiTLE XIII OF THIS BILL WOULD MAKE 

IN THE Federal Tort Claims Act, I'nder present law as articulated 

IN THE BiVENS case, A FEDERAL LAW ENFORCEMENT OFFICIAL CAN BE HELD 
personally LIABLE FOR CONDUCT OCCURRING WITHIN THE SCOPE OF HIS 

office or employment that later turns out to be a constitutional 
violation, even though the official believed his conduct to be 
permissible, 

Basically, these amendments would substitute the United States 



83 



Government as the defendant in a lawsuit against a law enforcement 
agent or officer for a constitutional tort alleged to have been 

committed by the AGENT OR OFFICER ACTING WITHIN THE SCOPE OF HIS 
OFFICE OR EMPLOYMENT- 

The THREAT OF PERSONAL LIABILITY TODAY HANGS LIKE A DAMOCLES 
SWORD OVER THE HEADS OF LAW ENFORCEMENT OFFICIALS AND HAS INHIBITED 
THEM FROM TAKING AN AGGRESSIVE APPROACH IN ENFORCING THE LAW- ThE 
FACT THAT THESE SUITS OFTEN TURN OUT TO LACK MERIT DOES NOT AFFECT 
THE NEED FOR THIS LEGISLATION; AS MUCH AS THE THREAT OF LIABILITY, 
IT IS THE THREAT OF THE LAWSUIT ITSELF. WITH ALL OF ITS ATTENDANT 
TIME, EXPENSE AND UNCERTAINTY, THAT INHIBITS PROPER ENFORCEMENT 
CONDUCT • 

Title XIII would make the United States liable for all con- 
stitutional TORTS committed BY ITS EMPLOYEES- SUCCESSFUL LITIGANTS 

would be compensated with minimum liquidated damages of $1,000 or, 
in the case of continuing torts, $100 per day, up to $15,000- 
Litigants would also rf entitled to any actual damages that they 

COULD establish. In THE LITIGATION, THE UNITED STATES WOULD HAVE 

available to it all of the defenses that would have been available 
to the employee- thus, the liability of the united states would 
not be a strict liability such as would, for example, make the 
United States liable in every case in which evidence is suppressed 
on constitutional grounds- rather, the government would be liable 
only if the conduct in question were unreasonable under the 
circumstances, including applicable constitutional mandates - 

Even with governmental liability for these torts, deterrence 
against the commission of constitutional torts of the type subject 
today to pivens suits would remain- not only would there be the 
exposure of the public proceedings, but disciplinary action would 
also be triggered under the provisions of this bill- 

IN ALL, THE MECHANISM THAT TiTLF XIII WOULD PUT INTO PLACE 
WOULD UPHOLD THE RIGHTS OF LITIGANTS AND DETER UNCONSTITUTIONAL 
CONDUCT- At the SAME TIME, IT WOULD ENSURE THAT LAW ENFORCEMENT 
OFFICERS ARE NOT UNFAIRLY AND UNDULY INHIBITED IN PERFORMING THEIR 
OFFICIAL DUTIES- 



84 



Enforcement Against Forged Fndopsements 
OF Federal Securities 

Another problem of concern to Treasury that this bill would 

REMEDY involves ENFORCEMENT AGAINST FORGED ENDORSEMENTS OF TREASURY 

checks, bonds, and other Federal securities- Title XIV would 

INTRODUCE into THE CRIMINAL CODE A NEW SECTION MAKING IT A FELONY 
TO FORGE AN ENDORSEMENT OR SIGNATURE ON ANY UNITED STATES SECURITY 
OR SECURITIES HAVING A VALUE IN EXCESS OF $500- It WOULD ALSO 
PROHIBIT THE PASSING OF, AND THE ATTEMPTING TO PASS, SUCH SECURI- 
TIES WITH THE INTENT TO DEFRAUD, AS WELL AS THE RECEIPT OF SUCH 
SECURITIES WITH KNOWLEDGE OF THEIR FALSE CHARACTER- OFFENSES 
INVOLVING SECURITIES OF *500 OR LESS IN VALUE WOULD BE TREATED AS 
MISDEMEANORS UNDER THE NEW SECTION- 

To SUMMARIZE BRIEFLY, THE PROBLEM UNDER PRESENT LAW IS THAT 

these crimes must be prosecuted under section 4^5 of the code , a 
general provision that does not specifically cover government 
securities and does not apply to endorsements- there are gaps in 
the coverage of this section; for example, it is possible for a 
thief to steal a treasury check endorsed by a payee, endorse his 
own name, and obtain the proceeds, without violating section i^f- 
This new legislation, by allowing for prosecution of forged 
endorsements and signatures under one section, would correct 

these deficiencies AND GREATLY ASSIST THE SECRET SERVICE, WHICH 

under present law has the responsibility for enforcement against 

these offenses - 

Enforcement Against Rank Bribery, 
Bank Fraud, and Receipt of Stolen Rank Property 

Finally, this bill would remedy certain deficiencies in the 

criminal code that pertain to crimes involving banks- Treasury 

HAS particular INTEREST IN CORRECTING THESE DEFICIENCIES BECAUSE 
OF ITS RESPONSIBILITIES FOR THE REGULATION OF BANKING, EXERCISED 

BY THE Comptroller of the Currency- One problem is that it is 

OFTEN DIFFICULT TO PROSECUTE BANK FRAUD BECAUSE CURRENT STATUTORY 
provisions DO NOT DIRECTLY APPLY TO THIS OFFENSE- IN MOST CASES, 

THE Government must resort to the prohibitions against embezzlement 

AND misapplication OF FUNDS, OR THOSE APPLYING TO FALSE STATEMENTS 
AND FALSE LOAN APPLICATIONS- 



85 



A RECURRING SITUATION THAT HAS POSED PROBLEMS IS THE LOANING 
OF MONEY BY BANK OFFICIALS TO A THIRD PARTY, WITH THE INTENT THAT 
THE PROCEEDS OF THE LOAN WILL BE TURNED OVER TO THE BANKING 
OFFICIAL FOR HIS OWN USE- SOME COURTS HAVE HELD THAT HIS CONDUCT 
DOES NOT CONSTITUTE MISAPPLICATION UNLESS THE DEBTOR WAS FICTITIOUS, 
FINANCIALLY IRRESPONSIBLE, OR WAS ASSURED BY THE BANK OFFICIAL THAT 
HE WOULD NOT BE LOOKED TO FOR REPAYMENT- WiTH RESPECT TO USE OF 
THE FALSE STATEMENT STATUTES, COURTS HAVE OCCASIONALLY HFLD THAT 
OFFICERS MAKING SUCH LOANS FOR THEIR OWN BENEFIT AND CONCEALING 
THEIR EXISTENCE FROM BANK DIRECTORS, DOES NOT CONSTITUTE A FALSE 
STATEMENT ON THE BOOKS AND RECORDS OF THE BANK- 

In addition TO DEFINING A SPECIFIC OFFENSE FOR DEFRAUDING ANY 
FINANCIAL INSTITUTION THAT IS FEDERALLY CHARTERED OR INSURED, THIS 
BILL ALSO UPDATES AND REVISES THE CODE PROVISIONS ON BANK BRIBERY- 
ThE present statute is UNDULY COMPLEX AND FAILS TO COVER CERTAIN 
FINANCIAL INSTITUTIONS, SUCH AS FEDERALLY- INSURED CREDIT UNIONS 
AND MEMBER BANKS OF THE FEDERAL HOME LOAN RANK SYSTEM- ThE NEW 
PROVISION WOULD PROHIBIT ANY BANK OFFICER, EMPLOYEE, OR AGENT 
FROM RECEIVING ANYTHING OF VALUE FROM ANY PERSON, OTHER THAN HIS 
FINANCIAL INSTITUTION, IN CONNECTION WITH ANY TRANSACTION OF THAT 
INSTITUTION. The PENALTY IS INCREASED FROM ONF YEAR TO FIVE YEARS' 
IMPRISONMENT, AND THE MAXIMUM FINE IS INCREASED FROM $F,00n TO 
THREE TIMES THE AMOUNT OF THE BRIBE- 

WlTH REGARD TO RECEIPT OF STOLEN BANK PROPERTY, THIS BILL 
CORRECTS A PROBLEM THAT HAS MADE PROSECUTIONS OF THIS TYPE 
UNNECESSARILY DIFFICULT- UNDER THE NEW PROVISION, THE ROVERNMENT 
MUST PROVE THAT THE DEFENDANT KNEW THE PROPERTY RECEIVED WAS STOLEN, 
BUT NEED NOT SHOW KNOWLEDGE THAT THE PROPERTY WAS STOLEN FROM A 
BANK- 

In general, these sections of the bill provide a STATUTORY 

basis to strengthen the prosecution of illegal activities involving 
Federally-supervised financial institutions- We believe these 
reforms are necessary to ensure the continued integrity of thf 
Federal banking system- 

Mr. Chairman, again, I appreciate the opportunity to appear 
before you and members of this Committee to express Treasury's 
strong support for passage of the Comprehensive Crime Control Act 
of 1983- It is a legislative package that will strengthen Treasury 
law enforcement as it provides long-nefded remedies for federal 
law enforcement in general- 



86 



Senator Biden. I do not want to keep you fellows too far beyond 
your lunch. I have many questions, but I will not take advantage of 
the fact that I am presiding. I will ask for unanimous consent, and 
then grant it, so that the series of questions, about 20 or so that I 
have on the Torts Claims Act, forfeiture and other provisions, may 
be submitted for the record. I would then ask that you respond. 

[The following was received for the record:] 



87 



Responses to Senator Biden's Questions regarding Tort Claijms Amendments ; 
Question No. 1 . "Tort Claims actions act against federal 
employees for violations of constitutional rights have clearly 
served as a deterrent to such activities. However, neither 
federal employees or victims are served by the present system. 
If financial liability is removed, how will individual federal 
employees be deterred from such activities?" 

Answer. The record developed during consideration of 
this legislation demonstrates that incidents of willful rights 
violations are extremely rare. Therefore it has been generally 
accepted that the deterrence being experienced is primarily 
deterrence of proper and needed governmental action. Section 
1305(c) of the bill provides that the Attorney General shall 
forward correspondence to the head of an employee's department 
or agency for investigation or disciplinary action when the 
actions of the employee result in a judgment against the 
United States or- a settlement paid by the United States. 
Through this measure serious agency disciplinary action may 
be initiated against a transgressing federal employee. This 
sanction should not be minimized. It can result in penalties 
ranging from reprimand to demotion to permanent loss of 
one's chosen livelihood. The multitude of other sanctions 
available are as follows: The proposal contains no immunity 
from prosecution for a violation of federal criminal laws, 
particularly those concerning civil rights. In addition 
to formal agency disciplinary action, performance appraisals 
and scrutiny by agency Inspectors General serve as deterrents. 
Congressional oversight and the public media also act as 
restraints. Court challenges seeking injunctive relief are 
an additional check.. Finally, the fact that an employee is 
relieved of personal financial liability does not mean that 
his conduct is not brought into serious question by trial 
proceedings brought in a case against the United States as a 
result of his alleged wrongdoing. He will still be the 



88 



subject of a lawsuit and, particularly if qualified immunity 
remains an issue, his conduct will be the subject of serious 
public and governmental scrutiny in the objective forum of 
a federal district court. While some observers have ignored 
or discounted this factor, an employee's interest in his 
professional reputation and personal pride is a major motivat- 
ing factor with respect to official conduct. Thus, sanctions 
remaining and supplemented by chapter XIII of S. 829 amply 
deter official misconduct in the place of what is now a 
futile damages remedy. 

Question No. 2 . "The House bill proposed a jury trial 
against the government with additional damages of up to 
$100,000 'if the conduct giving rise to the tort claim was 
undertaken with the malicious intention to cause a deprivation 
o£ constitutional rights or with reckless disregard for the 
plaintiff's constitutional rights.' Doesn't this meet the 
goals of the legislation by compensating victims and encourage 
the government to supervise employees and discipline employees 
who violate constitutional rights?" 

Answer. It should first be noted that the phrase "reckless 
disregard" has been stricken from the House bill by amendment. 
Legislation of this nature seeks to achieve a balance between 
the compensatory interests of claimants and public resources. 
Moreover, the object of tort law is to attempt to compensate 
victims for losses they have suffered. With those concepts 
in mind, an additional award such as that contained in the 
House bill, which bears no relationship to compensation for 
injury, seems illogical and unfair to the citizenry as a 
whole. The possibility of an unfair windfall for the plaintiff 
exists that has no reasonable relationship to any damage 
suffered. Such a provision will encourage many plaintiffs 
who have suffered virtually no injury to take the chance in 
lottery fashion on winning the bonus award by alleging malice. 



89 



Thus, it is submitted that such a provision is neither appropri- 
ate nor in the public interest. 

Question No. 3 . "In the past, enactment of Tort Claims 
Act Amendments has been prevented by opposition to the proposal 
that the government be allowed to invoke the 'good faith' defense 
available to its employees when sued as individuals. 
"What purpose will be served by the government 
invoking the defense dther than reducing compensa- 
tion to victims whose rights have been violated? 
Won't the immunity reduce the level of super- 
vision of employees? 

Isn't it likely that extending the immunity to 
the government will complice litigation, contrary to 
the purpose of the admendment by requiring employees 
to prove their good faith?" 

Answer . It is extremely important to understand at the 
outset that the issue of qualified immunity no longer is one 
of good faith. On June 24, 1982, the Supreme Court in the 

case of Harlow v. Butterfield , U.S. ; 50 U.S.L.W. 4815 

eliminated good faith from the test of qualified immunity. 
What remains is an inquiry into whether the conduct of the 
employee was objectively reasonable. Thus, the issue in the 
debate over the qualified immunity defense is whether the 
government should be entitled to show that what its employee 
did was reasonable under all of the circumstances. This of 
course, is the same concept through which any employer is 
entitled to defend the actions of an employee under the 
doctrine of respondeat superior . Were the defense to be 
waived, the government would face strict liability in an 
era of frequently vague and constantly shifting law, "whara 
monumental decisions applied retroactively could subject the 
government to massive liability to tens of thousands of 
persons for actions thought to be perfectly appropriate when 
taken, and where complex legal doctrines can be tranalat«4 

25-694 0-84-7 



90 



into day-to-day operating instructions only with the greatest 
dif f iculty--an absolute liability standard requiring omniscient 
decisionmaking would prove unworkable." See, statement of 
Loren A. Smith before the Subcommittee on Administrative 
Practice, May 26, 1983. 

The often glib response to this argument is that there 
should always be compensation when a right is violated. The 
problem is that both the law and facts of a given circumstance 
are often terribly unclear and whether some right has been 
violated cannot be determined until a particular issue sifts 
its way through the courts years after the fact. To quote 
from recent testimony presented in the Senate, "The biggest 
misstatement that I've heard here today is that a public 
official who is reasonably well-versed on his job knows what 
the law is. There is no way anybody can know what the law is 
until you finally count it up in the court of last resort — 
where it is a split decision, typically." Id. Judge Jerre 
Williams, Fifth Circuit, United States Court of Appeals. 



To put it another way, were the defense waived, the 
United States would pay damages in cases where courts determined 
with 20-20 hindsight that violations had occurred in a difficult 
factual or procedural setting even though the conduct or the 
process at the time was properly motivated and eminently 
reasonable . 

In addition, it is waiver of the defense rather than 
preservation of it that. will reduce the level of proper 
supervision of employees. Agencies and agents would hesitate 
to act for fear of damages claims which would reflect adversely 
upon them because they would be prevented from defending 
their conduct as reasonable in court. A witness before the 
Senate testified that the interest of deterrence of official 
misconduct requires preservation of the qualified immunity 
defense. This is so because, in a strict liability situation, 
the actions of the reasonable employee will be found just as 



91 



culpable as the actions of the employee who acted unreasonably. 
Thus, there will be no standard toward which an employee can 
strive to avoid a successful attack on his or her reputation 
as a public servant. 

Finally, elimination of the defense would seriously 
detract from the ability of the courts to fully consider 
allegations of official misconduct. It is very much in the 
public interest to have a full ventilation in an objective 
public forum of such allegations. If the issue of the reason- 
ableness of the conduct of the federal employee is declared 
irrelevant by eliminating the defense, all pertinent facts 
which impact on this basic tort concept of reasonableness 
may be declared irrelevajit. The effect would be that the 
public and the Congress would never learn the true merits of 
the case and that the people of the United States would be 
subjected to judgment without a full hearing. While pre- 
servation of the defense may be viewed as a complicating 
factor in litigation, that consideration is outweighed by 
the interest of ventilating the merits of the contoversies 
that will surface. Moreover, it is clearly not in the interest 
of the United States to streamline cases to the point where the 
United States cannot defend itself and is reduced to the 
position of simply paying claims. Finally, it must not be 
overlooked that passage of the current proposal intact will 
enable the United States to settle cases for the first time 
which are premised upon a theory of constitutional rights. 
As a result, a case turning on the issue of qualified immunity 
can be settled when there is litigative risk to both sides. 
Thus, the difficult cases will be disposed of much more quickly. 



92 



RESPONSES TO SENTENCING QUESTIONS OF SENATOR BIDEN 

Question 1 

Both the bipartisan Crime bill, as it passed the Senate on 
September 30, 1982, and S. 829, the Administration's bill, 
provide for the creation of a Sentencing Commission as an 
independent body in the judicial Branch. Both bills provide that 
the President, after consultation with representatives consisting 
of judges, prosecuting and defense attorneys, law enforcement 
officials, senior citizens, victims of crime, and others 
interested in the criminal justice system, appoint this 
seven-member commission. Do you believe that judges should have 
representation on this commission? Should any sentencing bill 
specify that a certain number of judges should be chosen to sit 
on the Sentencing Commission? 

Answer to Question 1 

It is important that judges with federal sentencing 
experience participate in the development of the sentencing 
guidelines. This participation should include both membership of 
current or past federal judges on the commission and active 
participation by members of the federal judiciary, acting alone 
or through the Judicial Conference, in the development of the 
guidslines. Participation of judges is especially important in 
•■■arln9 that the sentencing guidelines provide enough detail to 
tak* into account commonly occurring factors that should affect 
the sentencing decision, while they avoid such complexity that 
judges will have difficulty in applying them. In addition, a 
number of past and current federal judges have been very active 
in the sentencing reform movement, and their participation in the 
guidelines development process should be encouraged. Finally, it 
is important that the Federal judiciary feel a commitment to 
making the guidelines process work well. This goal can, we 
believe, be far more readily achieved with membership of Federal 
Oommission than without it. Whether ths 



93 



legislation should specify that federal judges should be on th« 
Commission, and, if so, whether the legislation should state a 
specific number of federal judges, are questions on which the 
Department of Justice defers to the judgment of the Committee on 
the Judiciary. 

Question 2 

Instead of establishing a Sentencing Commission to develop 
guidelines for sentencing, would it be preferable to authorize 
the Judicial Conference of the United States to perform this 
task? 

Answer to Question 2 

The Department of Justice strongly recommends that the 
sentencing guidelines be promulgated by a Sentencing Ccamission 
in the Judicial Branch, rather than by the Judicial Conference of 
the United States, for a number of reasons. First, a Sentencing 
Commission, with members appointed by the President with advice 
and consent of the Senate, will be far more visible than a 
committee of the Judicial Conference might be. This visibility 
is important to assure public awareness and understanding of the 
sentencing guidelines process. Second, promulgation of the 
sentencing guidelines by the Judicial Conference would probably 
be more time-consuming than promulgation of the guidelines by a 
Sentencing Commission. The Judicial Conference meets only twice 
a year, so that if it had any difficulties with guidelines 
suggested by its committee, there would be substantial delay in 
resolving them. In addition, the fact that the sentencing 
guidelines would be suggested by a committee of the Judicial 
Conference and then promulgated by the Judicial Conference would, 
in and of itself, add an additional layer to the sentencing 
guidelines development process. This is not to say that, as 
noted in the response to question 1 , it is not important that the 
Judicial Conference play a very active role in the guidelines 
proanilgation process. Third, the Judicial ConferwMl 



94 



anticipates that the members of the guidelines drafting agency 
would be part-time, while the Sentencing Commission proposal 
recommends that the members be full-time. The Department thinks 
that, at least during the drafting of the initial set of 
guidelines and the first few years of experience under the new 
guidelines system, it is very important that the drafting agency 
have members who are able to devote all their professional 
energies to issues of federal sentencing policy. Fourth, the 
Sentencing Commission legislation contemplates a special staff 
assigned to the Sentencing Commission while the Judicial 
Conference proposal appears to contemplate that the staff for the 
guidelines effort be drawn from the staffs of the Administrative 
Office of the United States and the Federal Judicial Center. Any 
guidelines drafting agency would be expected, of course, to draw 
upon the expertise and background of these staffs, particularly 
in the data collection, research, and training areas. We do 
think, however, that there should be provision for a staff that 
can work full-time on sentencing matters without the necessity of 
juggling other responsibilities. 

Question 3 

Parole has been referred to as a "safety valve" of the 
criminal justice system, yet it would be eliminated in the 
sentencing title of the Administration bill. The bipartisan bill 
of last Congress authorized a defendant or the Bureau of Prisons 
to motion for reduction of a long sentence after six years and at 
the end of the guideline years. Do you agree this safety net is 
necessary if parole is abolished? What would replace such a 
"safety valve" if parole were abolished? 



95 



Answer to Question 3 

It is not necessary to retain the "safety valve" described 
in the question if parole is abolished. Under current law, 
parole serves as a rudimentary, one-way safety valve in a system 
that provides no standards whatsoever for sentencing judges in 
determining the appropriate sentences. Parole serves the 
necessary function of evening out widely disparate sentences that 
vary according to factors other than offense and offender 
characteristics that should affect the sentence. This function 
of the Parole Coiranission is totally unnecessary in the sentencing 
guidelines system. If there is a long sentence under the 
proposed system, it would result from the fact that the offense 
and offender characteristics in the particular case warranted a 
high sentence and not because a high sentence had been imposed 
that is not justified by the facts of the case — and such a 
sentence above the guidelines range would be subject to appellate 
review in any event. 

The bill provides several protections against unjustifiably 
long sentences. First, a defendant who is sentenced above the 
guidelines range that applies to his case may appeal th^t 
sentence on the ground that it is unreasonable. Second, while S. 
829 does not contain a provision for extra review of sentences 
that exceed six years, it does provide for modification of a 
prison term in two specific instances. The court may reduce any 
term of imprisonment — not just an unusually long one — if, 
upon motion of the Director of the Bureau of Prisons, it finds 
that there are extraordinary and compelling reasons to do so. 
This provision was included to cover situations, such as terminal 
illness of a prisoner, that may justify the reduction of a 
sentence because of a change in the circumstances that originally 
justified imposition of a particular sentence. In addition, if 
the Sentencing Commission amends the sentencing guidelines 
applicable to a particular offense and in the course of doing so 
lowers the terms of imprisonment that apply for the offense, it 
may recommend that prisoners already sentenced under the old 



96 



guidelines be given the benefit of the sentence reduction. Thus, 
for example, if there were a substantial change in the community 
view of the seriousness of an offense, such that the Sentencing 
Commission found that a substantial reduction was appropriate, it 
could also recommend making that reduction applicable even to 
persons already incarcerated. 

Because the bill already provides one level of appeal of a 
sentence, and the two instances described in which sentences may 
be reduced, it is difficult to see what other circumstances might 
necessitate the inclusion of a "safety valve". The original 
sentence would have been imposed for the purpose of incapacita- 
tion, deterrence, or punishment, or a combination of these, 
purposes — purposes of sentencing that logically require a 
determinate sentence. Since the bill makes ample provision for 
changing the term of imprisonment for humanitarian reasons, it is 
not apparent that such a "safety valve" would be of any real 
value. It would, moreover, detract from the certainty and 
determinacy that the new system is designed to achieve. 

Question 4 

Some have argued that the Parole Commission should be 
retained along with a Sentencing Commission. V7hat are your views 
regarding retention of the Parole Commission? What is your 
opinion of the proposal to sunset the Parole Commission 5 years 
after the bill? 

Answer to Question 4 

The Department of Justice strongly opposes the retention of 
the Parole Commission except temporarily for purposes of setting 
release dates for persons sentenced before the guidelines system 
is in place. This opposition extends not only to the suggestions 
that the Parole Commission be retained, at least temporarily, to 
carry on purposes similar to those under current law, but also to 
the suggestion of the Judicial Conference that the Parol* 



97 



Conunission be retained to set prison release conditions and 
determine what sanctions should be applied to a releasee who 
violates them. 

The Justice Department is especially opposed to the 
suggestion that the Parole Commission be retained, whether 
temporarily or not, for purposes of evaluating whether terms of 
imprisonment imposed under a sentencing guidelines system are 
appropriate. The sentencing guidelines will have been issued 
after public comment and hearings, and after careful 
congressional scrutiny. Once the guidelines are in place, a 
sentencing judge will have to impose sentence in accordance with 
the guidelines unless he finds that a factor not adequately 
considered in the promulgation of the guidelines should affect 
the sentence. If he finds such a factor, he must state specific 
reasons for imposing sentence outside the guidelines, and that 
sentence will be subject to appellate review on the grounds that 
it was unreasonable. Under such a system, it is difficult to see 
what purpose would be served by retaining the Parole Commission 
to review terms of imprisonment. We see no justification for 
review of a sentence by an executive branch agency, acting 
outside public scrutiny, second-guessing the guidelines issued by 
the Judicial Branch after congressional scrutiny or a sentence 
outside the guidelines that was already subject to appellate 
review. We believe that retention of the Parole Commission in 
such a system could be extremely detrimental to the success of 
the guidelines system. The Sentencing Commission would not know 
whether to attempt to set terms of imprisonment according to the 
length of time it found a prisoner should actually serve or 
whether it should recommend terms of imprisonment that assumed 
that most prisoners would be released on their parole eligibility 
dates. In addition, there is a substantial danger that the 
Sentencing Commission would create one set of guidelines 
following its views of the purposes of sentencing while the 



98 



Parole Conunission developed a different set of guidelines based 
on different views. Once the guidelines were in place, much of 
the current confusion as to the role of the judiciary versus the 
role of the Parole Conunission in setting terms of imprisonment 
would continue under such an approach. Moreover, there would be 
some danger that sentencing judges would be reluctant to change 
their sentencing practices in order to impose terms of 
imprisonment that reflected the actual terms to be served rather 
than artificially inflating the sentences, as occurs today, in 
order to anticipate the actions of the Parole Commission. Thus, 
keeping the sentencing guidelines and the parole system side by 
side could result in substantially undermining the ability of the 
sentencing guidelines system to accomplish its purposes. 

The Department of Justice also opposes the suggestion of the 
Judicial Conference that the Parole Commission determine whether 
a prisoner has earned good time credit in prison, setting the 
conditions of parole release, and determining the sanctions for 
violations of release conditions. The Bureau of Prisons today 
determines whether prisoners have earned good time. We see no 
reason to change this, especially since the Parole Commission is 
a multi-million dollar agency that is far more cumbersome than is 
necessary to serve that purpose. Under S. 668 and S. 829, in 
addition, the sentencing judge determines the term of supervised 
release that will follow a term of imprisonment, if any, and sets 
tlM conditions on that release. The factors that go into the 
determination that a term of supervised release will be needed, 
and what conditions should be imposed on that term, are known at 
the time of sentencing. There is no reason to retain a special 
agency to set the conditions of release, nor should the length of 
that term depend upon how much good time the defendant happens to 
earn. If the term of supervised release is entirely dependent on 
the amount of good time a prisoner earns, the result would often 
be that the person with the worst behavior in prison would 
receive the least street supervision after his release and the 
person with the best behavior would receive u substantial period 
•f ■Iwt aopacvision even though he probably would MOt ummA it. 



99 



S. 668 and S. 829 contemplate, instead, that the term and 
conditions of supervised release following a term of imprisonment 
will be based on the offense and offender characteristics known • 
at the time of sentencing and that no special agency will be 
required to set good time or the conditions of release. If a 
releasee violates the conditions of supervised release, the 
conditions of that release can be modified to provide a higher 
level of supervision, including, if appropriate, a requirement 
-that the defendant undergo available medical, psychiatric, or 
psychological treatment, including treatment for drug or alcohol 
dependency, and, if necessary, remain in a specified institution. 
Another possible condition of supervised release that might be 
added if a defendant's violations warrant it would be a 
requirement that the defendant reside at a community correctional 
facility for all or part of the remaining term. In a serious 
case, the contempt powers of the court could be used to achieve 
further incarceration of the defendant. Of course, if the 
release violation is the commission of a new offense, the fact 
that the defendant was on release at the time the offense was 
charged would be taken into account into the setting of bail 
conditions, and the defendant could be prosecuted for the new 
offense. Incidentally, the Department would not object to an 
amendment specifically recognizing that the courts may use their 
contempt powers in the case of a violation of an order setting 
forth the conditions of the term of supervised release. 

Question 5 

Would the movement toward determinate sentencing be likely 
to increase the already burgeoning prison population? 

Answer to Question 5 

The creation of a determinate sentencing system in place of 
an indeterminate one will not, in itself, cause an increase in 
the prison population. A determinate sentencing system simply 
results in the imposition of terms of imprisonment that r«fl«et 



100 



the actual time to be served rather than being artificially 
inflated in order to take into account the functioning of the 
parole system. Only if sentencing guidelines promulgated under a 
determinate sentencing system included higher terms of 
Impalsonment than are served today or if there was an increase in 
the number of persons prosecuted for offenses for which prison 
terms are recommended, would there be an increase in the prison 
population. Sentencing guidelines could as well recommend lower 
terms of imprisonment for some offenses than are served today. 
One of the advantages of a sentencing guidelines system with 
determinate sentencing is that it is possible for the criminal 
justice system to determine precisely what impact, if any, a 
change in current sentencing practices or in the mix of cases 
prosecuted will have on the prison population and on other 
aspects of the criminal justice system. . Under today's system, 
even if we know how many people will be prosecuted for a 
particular offense, we have no way of knowing with any reasonable 
degree of certainty what impact sentencing a particular 
percentage of those persons to prison will have on the prison 
population since we do not know how long those prisoners will 
actually serve. 

Question 6 

Some critics contend that permitting appellate review of 
sentences by the Government in cases in which a sentence is more 
lenient than that established by the Guidelines would constitute 
double jeopardy. Could you respond to this allegation? 



Answer to Question 6 

Government appeal of sentences, on behalf of the public, is 
clearly constitutional. The Supreme Court in United States v. 
DiFrancesco , 449 U.S. 117 (1980) upheld the constitutionality of 
a provision in current law that permits a sentence imposed under 
the dangerous special offender provisions to be increased upon 
appeal by the United States. In doing so, the Court said: 



101 



The double jeopardy considerations that 
bar reprosecution after an acquittal do not 
prohibit review of a sentence. We have 
noted... the basic design of the double 
jeopardy provision, that is, as a bar against 
repeated attempts to convict with consequent 
subjection of the defendant to embarrassment, 
expense, anxiety, and insecurity, and the 
possibility that he may be found guilty even 
though innocent. These considerations, 
however, have no significant application to 
the prosecution's statutorily granted right 
to review a sentence. This limited appeal 
does not involve a retrial or approximate the 
ordeal of a trial on the basic issue of guilt 
or innocence. Under S 3576, the appeal is to 
be taken promptly and is essentially on the 
record of the sentencing court. The 
defendant, of course, is charged with 
knowledge of the statute and its appeal 
provisions, and has no expectation of 
finality in his sentence until the appeal is 
concluded or the time to appeal has expired. 
To be sure, the appeal may prolong the period 
of any anxiety that may exist, but it does so 
only for the finite period provided by the 
statute. The appeal is no more of an ordeal 
than any government appeal under 18 U.S.C. § 
3731 from the dismissal of an indictment or 
information. The defendant's primary concern 
and anxiety obviously relate to the determi- 
nation of innocence or guilt, and that 
already is behind him. The defendant is 
subject to no risk of being harrassed and 
then convicted, although innocent. Further- 
m ore, a sen tence is characte ri stically 
determined in large part on the basis of 
information, such as the presentence report, 
developed outside the courtroom. It is 
purely a judicial determination, and much 
that goes into it is the result of inquiry 
that is non-adversary in nature. 

The appeal provisions in S. 668 and S. 829 are similar to 

the appeal provision discussed by the Supreme Court in this long 

quotation. Under both statutes, it is clear that the defendant 

has no expectation of finality in the sentence, since in both 

instances the appeal rights of the government are set forth 

plainly in the statute. The appeal in both instances is limited, 

and, in fact, under S. 668 and S. 829, since the only sentence 

that would be appealable would be one outside sentencing 

guidelines or one that involved an incorrect application of the 

guidelines, the appeal is even more limited than it is under the 

dangerous special offender provisions. In neither case does the 

limited appeal involve a re-trial or approximate the ordeal of a 

trial on the basic issue of guilt or innocence, and the appeal 

would be essentially on the record of the sentencing court. 



102 



Those who question whether there is a double jeopardy 
problem with the appellate review of sentence at the instigation 
of the government base their argument on the Supreme Court 
decision in Bullington v. Missouri , 451 U.S. 430 (1981) , a case 
that involves the sentencing proceeding under a death penalty 
statute in Missouri. In that case, the jury, in a proceeding 
separate from the trial of the defendant, found that the 
prosecution did not prove beyond a reasonable doubt, as required 
by the statute, that there were aggravating factors in the case 
that had to exist before the death penalty could be imposed. The 
Supreme Court found that, because of the special bifurcated 
procedure, the fact that the government was charged with proving 
aggravating factors beyond a reasonable doubt, and the special 
nature of a death sentence, that the jury had in effect acquitted 
the defendant of the aggravating factors that were necessary for 
imposition of a death sentence. The court was very careful to 
distinguish the proceedings from the normal sentencing hearing 
situation, and we are satisfied that the case does not cast any 
doubt at all on the constitutionality of government appeal of 
sentences in ordinary cases. 

Question 7 

S. 829 requires the Sentencing Commission to impose a 
substantial term of imprisonment for so called "career 
criminals," those who have two or more prior convictions for 
felonies committed on different occasions. Will such a practice 
exacerbate the problem of overcrowding in prisons and jails? Are 
two convictions too few for this purpose? Would it alleviate the 
problem if the number of convictions were revised to three? 

Answer to Question 7 

This provision, in itself, should not have an appreciable 
impact on the problem of overcrowding in prisons and jails. In a 
recent study conducted for the Department of Justice using almost 



103 



6,000 federal cases, the prior record of the defendant, using a 
single period of incarceration of a year or more as the 
criterion, was a strong predictor, for almost every felony 
studied, of both the judge's decision to incarcerate an offender 
and the length of the period of incarceration. It was not a 
strong predictor that a judge would incarcerate a person 
convicted of homicide because the offense is so serious that most 
offenders are incarcerated whether they have a record or not, 
although it was still a strong predictor of the length of a 
prison term. For the offenses of bank robbery, drug trafficking, 
forgery, bank embezzlement, false claims, mail fraud, and a 
random selection of other offenses, the existence of a criminal 
history was a strong predictor of a decision to incarcerate, and 
for those offenses plus homicide and tax fraud, it was a strong 
predictor of the length of the term of imprisonment. See INSLAW, 
Inc., and Yankelovich, Skelly, and White, Inc., Federal 
Sentencing; Toward a More Explicit Policy of Criminal Sanctions , 
pp. 11-34 to 11-35 (1981) . Since the rate of incarceration of a 
person convicted of a felony who has previously been incarcerated 
for only one felony is already quite high, it does not appear 
that the provision in the bill will have much impact on that 
rate. Instead, the sentencing guidelines system should result in 
a more rational pattern than exists today in determining the 
amount of time that a defendant is to be imprisoned in light of 
his criminal record. 



104 



Responses to Organized Crime and Task Force Questions 

1. Direct funding in FY 84 for the Treasury Drug Task Force 
agencies. 

Funding requested for FY 1984 by the Administration for the Task 
Force initiative provides for full-year funding for the program. In 
FY 1984, the Administration is requesting funds in the OCDE appro- 
priation totalling 1,130 staff and $105,949,000 to reimburse 
components of the Department of Justice for participation in Drug 
Task Force activities. Funds totalling 500 positions and 
$32,867,000 to provide for Department of the Treasury participation 
in the Drug Task Forces are requested as direct appropriations to 
the agencies involved — the Internal Revenue Service, the U. S. 
Customs Service, and the Bureau of Alcohol, Tobacco and .Firearms. 

Further, the Task Force management structure for each of the 12 
Task Force regions and the districts within each region is in place 
and functioning. By September 1, 1983, the Task Forces will be 
totally staffed by the prosecutors, agents and support personnel 
proposed in the FY 83 budget. 

With the management and operational structures in place, the 
Attorney General will continue to have full responsibility for the 
Organized Crime Drug Enforcement effort and determine the level of 
participation required from the Department of the Treasury. The 
Drug Task Force effort to date has been marked by the utmost degree 
of cooperation among the participating agencies. Because of this 
shared commitment to the success of the program, the participation 
levels established by the Attorney General for Treasury enforcement 
operations could be funded from the Treasury appropriation (once the 
Task Forces have been established). 

2. How many cabinet councils, legal policy committees, working 
groups, etc., are you on that have been set up by this 
Administration to "direct" the federal effort against drug abuse 
and organized crime? 

The purpose -of these councils, committees, groups, etc., is to 
provide mechanisms for senior officials of the Administration to 
improve the coordination and efficiency of federal law enforcement 
efforts, with particular emphasis on drug-related crime. For 
example, this has been accomplished through the establishment of the 
Cabinet Council on Legal Policy, which is chaired by the Attorney 
General and whose membership includes all Cabinet officers with 
responsibility for narcotics law enforcement. Working through the 
Cabinet Council, the White House Office on Drug Policy is an inte- 
gral part of the process by which a comprehensive and coordinated 
narcotics enforcement policy is carried out. 

3. Which of these groups has the ultimate authority to direct 
federal drug control efforts? 

There is no single group or agency that has the ultimate 
authority to direct federal drug control efforts. The drug 
problem facing America today cannot be address by a single agency 
or prograa ranging from education to prosecution. Therefore, this 
Administration's drug control efforts covers a broad range of 
Initiatives and involves a number of diverse agencies and 
department, requiring coordination at the cabinet and senior 
official levels. 

4. To what extent are the Organized Crime and Drug Enforcement Task 
Forces modeled after the South Florida Task Force, and how are the 
two different? 

The 12 Organized Crime Drug Enforcement Task Forces evolved from 
tha South Florida experience. As in the South Florida effort, the 
12 Crug Taak Forces are designed to have specifically dedicated 



105 



attorneys, agents and support staff available to invettigate and 
prosecute maior drug traffickers and drug trafficking organizations. 
The 12 Drug Task Forces are different in two principal ways: first, 
the 12 Drug Task Forces add new resources to the federal drug 
enforcement effort; and second, the primary enforcement techniques 
will be long term, complex investigations rather than interdiction. 



NNBIS is designed 
agencies with existing 
interdiction of sea-bo 
narcotics. As a resul 
duties of the regional 
Department of Justice, 
activity originating o 
United States, and wil 
and arrests of persons 



to coordinate the work of those federal 

responsibilities and capabilities for 
rne, air-borne and cross-border importation of 
t, NNBIS will complement but not replicate the 
Drug Enforcement Task Forces operated by the 
NNBIS will monitor suspected smuggling 
utside national borders and destine for the 
1 coordinate agencies' seizure of contraband 
involved in illegal drug importation. 



5. Is there an Organized Crime and Drug Enforcement-type Task Force 
planned for Florida? Will additional funding be required? 

The Department of Justice is seeking operatinq funds and 
additional positions of a Florida Task Force in FY 1985. In the 
interim, 9 attorneys have been allocated to Florida to support the 
already increased enforcement and prosecution demands being 
generated in the state. Further, the three Florida U. 8. Attorneys 
are included in the planning and coordination efforts of the 12 Drug 
Task Force. 

6. How do these two types of Task Forces relate to the new National 
Narcotics Border Interdiction System (NNBIS) Task Force that have 
been recently announced? 

The South Florida Task Force, on June 17, 1983, became one of 
the six regional centers of the National Narcotics Border 
Interdiction System. As stated, NNBIS is designed to coordinate the 
work of those federal agencies with existing responsibilities and 
capabilities for interdiction of sea-borne, air-borne and 
cross-border importation of narcotics; and will complement but not 
raplicat* th« duties of the regional Drug Enforceitent Task Forces 
operated by the Department of Justice. 



7. What are the numbers of staff from each agency? 





Support 


Professiona 


1 


Professional 


Professional 




Positions 


Positions 


As 


Positions 


Positions 




Allocated 
. 77 


Allocated 


Of: 
6/17 


Filled 


Backfilled 


FBI 


334 


326 


228 


DEA 


63« 


274 


6/17 


274 


167 


IRS 


35** 


185 


6/3 


84 


86 


Customs 


58t 


142 


6/3 


70 


42 


ATF 


8 


72tt 


6/3 


22 


5 


OSNS 





12 


6/3 


12 


12 


Agency 












Subtotals: 


241 


1,019 




788 


540 


AUSAs 


146 


200 




67 


60 


Totals: 

T- 


387 


1,219 




855 


600 



• DEA has allocated only 34 of its 63 support positions across the 
country, leaving 29 remaining positions yets to distribute. 

** L-^L.^^^^ ^^ support positions have been assigned to tha 
**■" ry Financial Law Enforcement Center, WashlMtm. 0. C. 



25-694 0-84-8 



106 



t Customs has distributed only 25 of its 58 support positions 
across the country, and has assigned 33 of those 58 positions 
to the Treasury Financial Law Enforcement Center in Washington. 

tt ATF has distributed only 54 of its 72 aqent positions across the 
country, and has retained a pool of 18 agents for use in any 
district on a work-year basis as need arise. 

8. Are all positions authorized in Fiscal Year 1983 actually to be 
filled this fiscal year? If not, why not? 

Yes, all positions will be filled and the 12 Drug Task Forces 
fully operational by September 1. 

9. What is the current or most up-to-date total of staff on-board 
at each of the twelve Task Forces? How many of these are located in 
the core-city, and how many secondary cities have Organized Crime 
and Drug Enforcement Task Force staffing? 

There are over 855 attorneys and agents on-board the 12 Drug 
Task Forces (refer to the response to question 7), with the program 
scheduled to be at full strength on September 1 . The assignment and 
hiring of Task Froce personnel are now processing at a pace to meet 
this deadline. Therefore, the attorney, agent and support personnel 
allocations for the individual Task Forces are provided as a better 
representation of the program staffing efforts. 

10. The 1984 Budget includes separate apppropriations for Justice 
and Treasury components of the Task Forces. How will the Attorney 
General be able to control the allocation of resources under these 
separate budget appropriations? 

This issue was addressed in response to question one. 

11. What is the status of hiring and training agents to replace 
those assigned to the Task Forces? 

As stated in response to question 7, 600 new agents and 
attorneys have been hired. The training of all new agents should be 
completed or underway by the end of FY 1983. The hiring and 
training process used by the agencies for new agents is not, and 
ought not be an instantaneous one. The agencies are choosing these 
new agents with customary care since they recognize that these new 
agents join as full-time permanent agents. 

12. Has a baseline number of agents working on drug enforcement in 
each participating agency been established, in order to show that 
the Task Forces represent an increase over previous levels? 

This issue is being address in the development of the Drug Task 
Force information system. 

13. How will Justice decide whether the Task Force program is an 
effective use of drug enforcement resources? 

The Department is in the process of developing a complete 
information system and evaluation design specifically for the Drug 
Task Force program. The information system and evaluation design is 
intended to collect and analyze the usual measurements (arrests, 
seizures, etc.) as well as attempt to assess the effectiveness of 
the Task Force approach. 

14. When would such an evaluation be conducted? 

The Department of Justice will conduct an evaluation to fulfill 
the reporting requirements of the Annual Report to the President and 
Congress requested in the December 20, 1982, confer«nc« raport. 



107 



15. Are mechanisms in place to collect the data needed to conduct 
this type of evaluation? 

An information system is being developed specifically for the 
Drug Task Force program for several reasons: first, case- 
management; second, resources allocation; third, coordination and 
control of statistical information; fourth, evaluation; and finally, 
reporting. The information system should be designed by mid-summer 
and field tested by early fall. 

16. Has any evaluation of the results of the South Florida Task 
Force been conducted? What is the reason for the discrepancies in 
the figures ouoepri hv various off icials (ife., for arrests, 
seizures, etc.)? If no reliable data and evaluation exists for 
South Florida, how can Justice support its statements relating to 
the Task Forces? 

There has been no formal evaluation conducted on the South 
Florida Task Force operation. There has been much Congressional 
oversight and currently GAO is conducting an on-site review. 

There has been releasable data provided on the South Florida 
effort. Most recently, the Vice President, when announcing the 
NNBIS operation, stated: 

"The records shows that in South Florida, we have made progress 
not only in terms of combating crime and thwarting the efforts of 
drug smugglers, but also in terms of improving the morale of the 
people of the area. We have brought them hope for the future 
especially as it relates to the quality of life in Miami and the 
surrounding areas. 

"In February 1981, a public opinion survey taken by Miami 
business leaders asked this question: 'Are you seriously 
considering moving out of the area because of the crime and drug 
problems?' Thirty-nine percent of the respondees said they were. 
The same poll was taken in February of this year and only nine 
percent said they were considering leaving... 

"While the war on narcotics continues in South Florida, there 
is impressive evidence that we are making solid progress. Drug 
arrests are up 27 percent. Marijuana seizures are up 23 percent. 
Cocaine seizures are up 54 percent. In the past fifteen months we 
have seized nearly three million pounds of marijuana and more than 
17 thousands pounds of cocaine in and around the South Florida area. 
The street value of those druqs is about $5 billion." 

17. Are agency reporting systems coordinated to prevent duplication 
of results claimed by each agency? 

Yes, the Druq Task Force information system being developed 
will prevent reporting duplications. 

18. How many of the cases now being pursued by the Task Forces are 
primarily of the financial-investigation type and how many are 
primarily the more traditional informant- or how many are primarly 
the more traditional informant- or undercover-type? Which agencies 
initiated these cases? 

As a result of the preliminary district-by-district assessment 
of the drug trafficking and the initial case review process, 260 
active cases were selected as having met Task Force case standards 
and available Task Force resources were committed. These initial 
Task Force cases, being predominately complex multi-agency 
investigations of the organizers and financiers of high-level drug 



108 



trafficking enterprises, usually have more than one focus and 
numbers presented below will total more than the approved 260 Task 
Force cases. 

Type of Activity Number of Cases 

Importation 128 

Manufacture 21 

Distribution 188 

Financial Underwriting 34 

Money Laundering 79 - 

Public Corruption 22 

Ninety-nine percent of all Task Force cases involve more than 
one investigative agency. The following chart provides an overview 
of the number of cases worked by Treasury agencies, by Justice 
agencies and by both Treasury and Justice agencies. 

Department Cases 

Treasury (IRS, 17 

Customs, ATF) 

Justice (FBI 53 

and DEA) 

Joint Treasury 190 

and Justice 



260 



In addition, state and local law enforcement agencies are 
actively participating in a majority of the cases. 

19. How are targets for Task Force investigations being selected? 
Are the targets the best available cases that have some opening for 
investigation, or are they the highest known traffickers regardless 
of how easy or difficult an investigation would be? 

All the investigative and prosecutive resources assigned to 
date are working on the 260 Task Force cases. These 260 cases have 
been approved by the United States Attorneys for the judicial 
districts involved, the Task Force Coordinators, and by officials of 
the Department here in Washington to ensure that they meet the 
strict standards established for Task Force cases. Responsibility 
for future Task Force targeting and case selection will' rest with 
the agents and attorneys in the fields. These professionals are 
best prepared to deal with the nuances of a case and institute a 
successful prosecution. In the future, all Task Force cases will be 
approved in the field and not in Washington as was the case with the 
initial 260 cases selected. 

Future investigations and case selection will develop from the 
best available opportunities as well as targeting major drug 
traffickers and trafficking organizations, including the financiers 
and money launders. Targeting and case selection will focus on 
causing the roost long-term damage to major drug trafficking and 
financial enterprises, not on easy arrests and convictions. 

20. What criteria are being used to assure that the highest-level 
trafficking organizations and individuals are being targeted? 

The Guidelines for the Drug Enforcement Task Forces provide the 
standards upon which the U. sT Attorneys, the Assistant U. S. 
Attorney Task Force Coordinator, and the investigative agency Task 
Force Coordinators will make the operational investigation and 
prosecution selections. 

Further, the program's organization ensures careful monitoring 
of the Task Force effort, including case selection, by the 
Department of Justice and the participating federal investigative 
agencies. The program is directed by a Working Group, which is 
chaired by the Associate Attorney General and managed through the 
Associate's office. 



109 

Senator Biden. Let me ask a few questions. 

Mr. Walker, do you think Customs should have continuing inves- 
tigative authority like they had in the Florida task force, and they 
do not have now? Customs builds a case, and they think they 
should follow up. As I understand it now, they have to turn it over 
to DEA, or some other agency, and they cannot followup. 

Do you think you should maintain that authority? 

Mr. Walker. Well, we start off with the fact that prior to the 
Florida task force. Customs on a seizure would turn the case over 
to DEA, and it was our concern that these cases were not being 
fully followed up, not because DEA was not doing its job in the best 
way it could, but simply because it did not fit in with DEA's prior- 
ities. 

Consequently, as the Florida task force was established, we also 
established, through Justice-Treasury cooperation, a working joint 
task group, consisting of DEA and Customs, and this group is still 
in effect. The Florida task force has not been disbanded; it is con- 
tinuing with full vitality, and this joint task group is still in effect, 
following up on investigations of interdictions by Customs. 

We are currently in the discussion stage with DEA to establish 
other joint task groups, as the needs arise, to handle interdictions 
around the country. So right now I do not feel that the situation 
needs any legislative action. I think it can be handled between the 
departments, in terms of their working it out between themselves. 

Senator Biden. I can sympathize with the different departments. 
You remind me of the Democratic Party — I apologize if I offend 
you — the Democratic Party 2 weeks before the general election. We 
all get together and say "Oh, we all love one another, we are all 
doing well," I realize that is part of the political process so I do not 
know even why I asked the question, to tell you the truth. 

I am glad to hear all is well, all is unified, and things are moving 
smoothly, and it is really clicking along, and I hope you continue to 
have these consultative commissions and groups, and it all works 
out. I just want you to know, a whisper in your ear — if you need 
help: holler. You can do it quietly. You can send up a message, and 
I can release an unauthorized report, and Mr. Giuliani can be ac- 
cused of violating the law. [Laughter.] 

Senator Biden. Now, I would like to pursue, if I may, the forfeit- 
ure provisions. I think we are all pretty much in agreement, at 
least on the Senate side, but changing the law is only half the 
problem. Maybe it is only about a third of the solution. One of the 
things we found with extensive hearings, and with great coopera- 
tion, I might add, from Justice and the last two administrations, is 
that part of the problem is exercising the authority once you have 
it. 

Mr. Walker, I would like to ask you whether or not you believe 
that Treasury employees receive adequate training regarding en- 
forcement of forfeiture laws? 

Mr. Walker. Well, I think that they do right now. I think there 
is adequate training, but the problem is that, as we see it, our 
hands are tied because the administrative forfeiture provisions are 
so low in terms of the threshold amounts that we are faced with 
having to maintain custody of huge quantities of forfeited or seized 
vehicles that have yet to be forfeited judicially. These include air- 



110 

planes, boats, and cars that are tying up the efforts of people who 
would otherwise be out enforcing the law. 

I think the training aspect of it is being handled, but that still is 
a long way from solving the problem. 

Senator Biden. I was going to ask you whether you see any co- 
ordination problems in the joint jurisdictions of Treasury, Justice, 
DEA, and others in enforcement of the forfeiture laws. I will not 
ask you that, because obviously you do not see any. 

But I would like to ask you, how does that coordination work 
now? 

Mr. Walker. In the forfeiture aspects? 

Senator Biden. Forfeiture aspects. Obviously it has been going 
smoothly. 

Mr. Walker. Well, my experience is that with forfeiture, at 
least, problems of coordination have not surfaced to my level. If 
there are problems, they do not seem to be paramount, or major. 
Most of the forfeitures, however, are conducted independently. 

In other words, DEA will seize, or Customs will seize, and then 
each one will conduct its own proceedings. 

Senator Biden. Is that not part of the problem? 

Mr. Walker. What part? I mean 

Senator Biden. Well, it seems as though it results in double 
counting and other coordination problems, in terms of who builds 
the case. It is one thing to seize the Lear Jet, or the single engine 
Piper Cub that landed with the cocaine, or whatever substance it 
was smuggling in. It is another thing to use the forfeiture statutes 
to trace the assets with which Justice is most concerned so that it 
is able to go after the entire empire. That is what the drug rings 
are in many cases, where the dollars have already been laundered 
into legitimate businesses. Many times the handling of a forfeiture, 
or the seizure of the plane, impacts upon the building of the case 
and in following additional assets all the way through the chain of 
that particular organization. What I worry about is that narcotics 
law enforcement officers, like police officers are .understandably in- 
terested in collars~in arrests. That is the measure by which we 
judge their effectiveness. Prosecutors, as Mr. Giuliani knows better 
than I, sometimes consider the notch on the gun in terms of convic- 
tions; that is, the number of convictions, rather than the scope and 
the depth of the effort. It works the same way with forfeiture pro- 
ceedings. 

It seems to me that we, at least in the past, have not built cases 
well, and I think that creates a great deal of confusion. When DEA 
and Justice are trying to build a major forfeiture case, are you all 
called in, in the sense that you are told: Now such and such organi- 
zation, which we understand is going to have a major drop over 
here, is involved in a major effort we have going to build forfeiture 
cases, and we would like you to do such and such. 

Do you understand what I am trying to say? 

Mr. Walker. Yes, I think there is complete coordination on that 
score. You are talking about an ongoing investigation, where a for- 
feiture case is being built, and DEA uncovers information that 
there is going to be some sort of an importation. 



Ill 

In those cases, Customs is notified, participates, and contributes 
to the coordination of ^e case, and very often, there is virtually no 
problem in that kind of a case. 

With coordination between the Bureaus, we have two different 
kinds of forfeiture. One is the seizure at the time of interdiction, 
the other is a kind of forfeiture that is built after a judicial pro- 
ceeding. They really are separate, and they can be viewed separate- 
ly- 

Justice clearly runs the latter, and DEA generally puts those 

cases together, but to the extent that there is coordination with the 
Treasury Department in, say, the financial aspects of the case, that 
does not seem to be posing any problem. 

Mr. Giuliani. Senator, may I just add something to what you are 
saying? 

Senator Biden. Sure. 

Mr. Giuliani. I do not think seriously we are really here saying 
that there are no problems in the coordination as among all of the 
agencies that are involved in drug enforcement. There are prob- 
lems, and there always will be. 

John and I were assistant U.S. attorneys together in the South- 
ern District of New York, 8 or 10 years ago, and there were really 
problems then, and basically you had agencies almost shooting 
with each other over who gets credit for, as you point out, who gets 
credit for the arrest, or who gets credit for the informant, and who 
gets to use the informant, and I think we have come a long way. 

The prior administration, this administration, with the help of 
the Congress, and a lot of other people are interested in this, and I 
think we have come a long way in doing a much better job of co- 
ordinating it. Usually the best way to coordinate an activity like 
this, that ends up solving all of the problems, and that is pretty 
much the philosophy that John has used at Treasury, and that we 
have used at Justice, is to get the agents to work together. If you 
can put them together in the field, working together on an investi- 
gation, all of a sudden they find that they can share information, 
that it is to their mutual benefit to share information, and a lot of 
the stereotypes that one agency has about another breakdown. 

When we first got involved in the coordination of the FBI and 
DEA, there were an awful lot of stereotypes that the FBI had 
about DEA, and that DEA had about the FBI. Judge Webster se- 
lected one particular FBI agent to negotiate with another DEA 
agent as to the guidelines that they would come out with, and the 
agent, after about 3 or 4 days of negotiating, came to my office and 
said, hey, you know something, those guys actually are pretty qood. 
And that is exactly what has happened now with the FBI and DEA 
working together. 

There will still be problems, there will still be situations where 
you want information faster than you get it, or you believe your 
investigation is very important, and therefore it should be followed 
up, and somebody disagrees. It is very important that we have 
mechanisms for bringing those problems up to a high enough level 
so that if it is necessary, John can sit down, as it has happened on 
three or four occasions, I guess, with Judge Webster, and Bud 
Mullen, and work out those problems, and any other ways in which 



112 

we can do that better, we are appreciative of considering, and 
working on. 

I think — and I do not mean this to sound like we are boasting, 
but I think cooperation has worked between, at least Justice and 
Treasury, Customs, DEA, and FBI, a lot better in the last 2 years, 
just by virtue of getting together both at a high level and at the 
agent level, than it ever has before, and there is no reason why 
that would not continue. It is very important to build institutions 
that accomplish that as well. 

But I believe that cooperation is working better than it ever has 
before, albeit that there are problems. 

Mr. Walker. If I could just elaborate on that just a little bit. 

There is naturally a built-in tendency on the part of every law 
enforcement agency to build an esprit-de-corps a sense of eliteness 
about itself, and this tends to inhibit coordination or cooperation, 
because each agency likes to think of itself as something special. 

Without attempting to break down that spirit, there are certain- 
ly ways in which mutual respect could be generated between the 
agencies. One is the use of the joint task force, and we have used 
joint task forces more, I think, than they have been used in the 
past, both in south Florida, in the joint task group that between 
DEA, Customs, I mentioned earlier, and also in the interdiction 
effort; but also largely through the efforts of Mr. Giuliani in estab- 
lishing the 12 new joint task groups that were announced by the 
President last October. 

These will, we feel, contribute greatly to reduced tensions and 
conflicts between agencies, increase cooperation, and maximize the 
effort. 

Also, on a more localized level, the prominent role that is being 
played by U.S. attorneys, in running joint task groups, is a mecha- 
nism that seems to be working. At Treasury, we like to work under 
U.S. attorneys. We feel that this is a good mechanism for promot- 
ing cooperation and coordination among agencies. 

Senator Biden. If, at Treasury, you like this coordination, why is 
it that there is the need for Treasury to have separate control of 
their budget and their personnel in the Organized Crime Task 
Force, I thought the Attorney General said to us last year that 
there was not a need for the approach I was suggesting because the 
task forces would allow him to have the authority they needed in 
order to make the task forces work. 

I am a little confused as to why budgetary control of your por- 
tion of the task forces is back in Treasury. 

Mr. Walker. I think, and I would like Rudy to comment on this, 
I think one of the core principles of the new task force is that we 
were not setting up a new law enforcement agency. We were 
taking existing agencies, and providing a framework, a mechanism 
for coordinating their activities in a meaningful way. We were not 
setting up a new bureaucracy or authority to which the Congress 
would appropriate funds. 

So one of the principles that was established here was that each 
agency would retain autonomy over its own people, in terms of ad- 
ministrative controls, and also budget authority, with the exception 
of the first year. 



113 

For the first year, we agreed that Justice would go forward and 
ask for the funds, in order to expedite the starting up of these task 
forces. But that was done to speed up the process in the first year 
only, and was not intended to be any kind of precedent for the 
future. 

Obviously there are considerations, including congressional con- 
siderations, that have a bearing on this. We have our own funding 
levels before our Appropriations Committee. 

Senator Biden. We misunderstood that, or at least I did. The 
fiscal year 1983 budget message, which was sent up with the re- 
quest said, and I quote, 

Single appropriation will provide the Attorney General with the necessary man- 
agement tool — meaning him — to reallocate resources among the organizational com- 
ponents of the task force, as well as between the regions, with undue delay. 

I guess that is your point. 

As Cabinet officer with responsibility for task forces, the Attorney General must 
have the authority over the resources to approve for the effort. Failure to provide 
this authority would weaken the Attorney General's ability to coordinate the activi- 
ties of many of the organizations of the three Cabinet agencies comprising this 
effort. 

Finally, it is believed that the single appropriation will reduce competition among 
the participating agencies. Previously such efforts have evidenced competition for 
resources among individual agencies at the expense of the overall effort. From the 
perspective of Congress, a single appropriation will facilitate the legislative over- 
sight and review of the process. 

I do not think it was unreasonable for us to believe that was the 
way in which this approach would continue. I would be very sur- 
prised if the majority thought that it was not going to go that 
route. It seems as though the reason that it is changing is that the 
faction fighting is back. 

Mr. Giuliani. It is unfortunate, Senator, that it was written that 
way. You are absolutely right. It is certainly justifiable to conclude 
from the way it was originally presented, and what you read, that 
that was the permanent arrangement, the way in which the task 
forces will be budgeted. But in fact, from the time that it was first 
presented, it was supposed to be a budget that the Attorney Gener- 
al would control the first year, for two purposes. 

The one that John mentioned, which is because it had to be done 
quickly, and second, so that it could be formed up with some coher- 
ent overview of all of the agents that were going into it, and how 
they would be deployed throughout the country, and then as soon 
as possible, and I believe right from the very beginning, that that 
was the second year. 

As soon as possible, budget authority would be returned to the 
agencies that were involved. Unfortunately, whoever wrote that, 
concentrated on the first half, and not the second half 

Senator Biden. Well, I have trespassed on your time. I will 
submit a number of questions for the record. 

I will conclude with one last question, and one more comment. 

The question relates to the death penalty. 

Without arguing the merits, or lack thereof, of the death penalty 
as a deterrent, or whether or not it is constitutionally permissible, 
or whether or not it is cruel and unusual punishment, I would 
think this to be a very practical question. 



114 

There have been a number of cases, not in the hundreds, but 
tens of cases, in the last decade and a half that you have document- 
ed, where a person who in fact was convicted of a capital offense, 
was later determined, as a consequence of the appearance of an ad- 
ditional witness, or material in the file, or whatever, to be innocent 
of the crime. This situation has surfaced in several Pennsylvania 
cases in the last year and a half. 

That is the reason I am against the death penalty. I do not have 
any constitutional objection, quite frankly. I do not have an objec- 
tion that relates to the morality of the issue. I do not believe that it 
is beyond the power of the Government to enforce such a statute. 

Consequently, what I have been attempting to promote as an al- 
ternative to the death penalty, has been a provision that would re- 
quire for capital offenses a minimum mandatory sentence with no 
probation and no parole unless proof that the person did not 
commit the crime came to light. 

Now, my question to you is, as a practical matter, assuming for 
the moment that the Biden alternative were to prevail, what would 
be the Department's argument against such a provision? 

Is it that this provision would clog the death row, or it would cost 
too much money? What would be the rationale to oppose such a 
provision in the law, if the administration would oppose it? 

Mr. Jensen. Perhaps I did not get the full comport of your pro- 
posal. 

Senator Biden. It would be an alternative to the death penalty. 

Mr. Jensen. The alternative would be life in prison? 

Senator Biden. Without possibility of probation, or parole. 

Mr. Jensen. Then that is simply the issue, on a policy level, or in 
terms of the criminal justice, or a social level, is whether or not 
you have the death penalty at all. It gets back to precisely the kind 
of social decision that you are talking about before. It gets into the 
whole issue of, in terms of morality, and the social value, and the 
reason why a criminal justice system ought to have a death penal- 
ty. 

There are arguments about this, and I think what you are simply 
taking is the argument that because of your feeling about the in- 
ability of the system to arrive at a permanent verdict, that means 
that you would not have a death penalty. That is an issue of 
debate. 

I would debate it on the other side. But I think that what your 
argument would be, would simply create a system where you had 
life imprisonment without parole as being the top level punishment 
available. 

I simply say that our argument, as we put it forward, is that the 
punishment that ought to be available is the death penalty. 

Senator Biden. Because it is a stronger deterrent? 

Mr. Jensen. That is correct. It is almost an argument in terms 
of, that it is, what society wants by way of a criminal justice 
system sanction for the most egregious and outrageous offenses 
committed in that society, and that I had some experience in Cali- 
fornia, trying a lot of cases in this area, and they introduced the 
concept you talk about, in terms of an alternative, that is, you 
could have a death penalty or life in prison, without parole. That 
was a new concept, it was not a part of California law before. 



115 

The experience we had was that jurors faced with that decision, 
when they could decide either death penalty, or life imprisonment 
without parole, did in fact choose the death penalty. 

Senator Biden. One last comment. I think that the message that 
Senator Kennedy and I will try to communicate to the Attorney 
General, is in very little disagreement with the essential issues. 

If I set out a list, and said you could only have four or five 
things, I would be surprised if the four or five pieces of legislation 
you picked were not the four or five that the majority of the 
Senate would pick. I would hope that we could get to the point 
where we are able to pick out what we can agree upon between the 
Democratic package that was introduced and the administration's 
package since they are similar in size and scope, because we have 
to get something through the House. 

I want to publicly thank your Department. I am probably harm- 
ing your reputation by saying you are a terrific guy. Your congres- 
sional liaison has been very, very good, and I hope that will contin- 
ue. We hope that you do not pigeonhole the bill as a Democratic 
bill, or a Republican bill, because that will serve only to defeat our 
common goals. 

You saw that happen with the criminal code omnibus bill. Well, 
this is a minicriminal code, with additional provisions. 

Let us work together to see what we can accomplish. 

Thank you very much for your time. Good luck, gentlemen, in 
Manhattan. I hope things work out well for you. 

Thank you very much. 

[Whereupon, at 12:48 p.m., the subcommittee adjourned, subject 
to the call of the Chair.] 

[The following was received for the record:] 



116 



FORMAL STATEMENT 
OF 

THE DEPARTMENT OF JUSTICE 

BEFORE THE 

SUBCOMMITTEE ON CRIMINAL LAW 

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

REGARDING 
S. 829. THE COMPREHENSIVE CRIME CONTROL ACT OF 1983 



TITLE I — Bail Reform 

The first title of the "Comprehensive Crime Control Act" 
addresses a matter of the highest priority: the urgent need for 
substantial improvements in federal bail law. In recent years, 
there has been a growing consensus among members of the Congress, 
the judiciary, the law enforcement community and the public at 
large, that legislation to cure the striking deficiencies of our 
bail laws must be enacted. 

Certainly, it cannot be said that our current bail system is 
in all respects a failure. Present law, the Bail Reform Act of 
1966, provides a workable and responsive framework for releasing 
non-violent offenders who pose little risk of flight, and this 
beneficial aspect of current law is retained in our bail 
amendments. However, it is with respect to the most serious 
offenders, the habitual violent or dangerous defendant or the 
well-heeled drug trafficker, that the system fails. These 
failures are a source of growing frustration to effective law 
enforcement and have fostered the public's increasing 
disillusionment with a criminal justice system that too often 
appears unable to protect the public safety or to assure that 
criminals are brought to trial. 

To address these problems, the bail reform title of our bill 
would strengthen the ability of the courts to ensure that 
defendants appear for trial and would, for the first time, 
recognize defendant, dangerousness as a legitimate consideration 



117 



in all ball decisions. The ball reform provisions of our bill 
are no doubt familiar to many of you. They are virtually 
identical to comprehensive bail reform legislation passed by the 
Senate last year by an overwhelming 95 to 1 vote and which, as 
S. 215, Is now pending approval by the Judiciary Committee. As 
was evidenced in this fully bipartisan vote for strong bail 
legislation, the current bail reform movement is not a matter of 
politics or Ideology. Rather, it is derived from more than 
fifteen years of experience with our present ball laws — an 
experience that has clearly illustrated the need for change. 

For example, in South Florida, despite the fact that the 
average bond for drug defendants is $75,000, seventeen percent of 
these defendants never appear for trial. Bonds in the hundreds 
of thousands of dollars are forfeited as major drug defendants 
flee the country to avoid prosecution. For persons in the 
enormously lucrative drug trade — a trade that has been estima- 
ted to run in the tens of billions of dollars annually — 
forfeiture of huge bonds has become a simple cost of doing 
business and ultimately an easily met cost of escaping convic- 
tion. 

Although this alarming incidence of bail jumping points out 
the need to improve current law, at least current law provides a 
framework for addressing the problem of defendants who are very 
serious flight risks. The problem of the release of extremely 
dangerous defendants, however, is one that current law virtually 
ignores. Two cases from the Eastern District of Michigan amply 
illustrate the need to put considerations of defendant dangerous- 
ness on an equal footing with considerations of risk of flight in 
the courts' bail determinations. 

In November of last year, George Gibbs was charged with the 
armed robbery of a credit union. Despite the violent nature of 
the offense, very strong evidence of his guilt, and the fact that 
Gibbs was a suspect in four other armed robberies, the magis- 
trate, over the protests of the government, set a $25,000 bond 
with only a 10% deposit required, citing his inability under 
current law to consider evidence of the defendant's dangerousness 
in ■•ttlng bmil. Although a dlatrict judge changed th« bond to a 



118 



cash surety bond after an appeal by the government, the amount of 
the bond was not increased, and Gibbs was able to meet it almost 
immediately. Four days later, Gibbs and a partner held up a 
bank, striking a teller, threatening to kill the assistant 
manager, and shooting the police officer who pursued them as they 
attempted to escape. 

The second Michigan case also involved a defendant charged 
with bank robbery. In 1979, Michael Dorris was convicted of the 
armed robbery of a Michigan bank. Last year, within a few months 
after Dorris had been released on parole, the same bank was 
robbed at gunpoint again. Within hours, the FBI arrested Michael 
Dorris for this second robbery. He was not far from the scene of 
the crime and weapons and a large amount of cash were also 
seized at the time of his arrest. Like George Gibbs, Michael 
Dorris was soon released on bail. At a subsequent meeting with 
his parole officer, Dorris was informed that in light of his 
latest arrest, the officer would seek revocation of his parole. 
Dorris, who under a rational bail system clearly should have been 
held in custody in light of the seriousness of the offense 
charged and his status as a parolee, simply got up and left when 
the parole officer went to locate a marshal. Inadequate bail 
laws could do nothing to stop the revolving door of the criminal 
justice system. Eventually Dorris resurfaced, but only after 
weeks of valuable FBI investigative effort had been wasted in 
trying to locate him. 

The Administration's proposed bail legislation, like similar 
bills introduced in this and the last Congresses, sets out a 
comprehensive statutory scheme that would for the first time 
provide the federal courts with adequate authority to make 
release decisions that effectively protect both the integrity of 
the judicial process and the*public safety. 

The most prevalent criticism of the current bail system is 
that it does not permit the courts, except in capital cases, to 
consider the danger a defendant may pose to others if released .V 



V The broad base of support for permitting consideration of 
defendant dangerousness in all pretrial release decisions is 
cited in the Judiciary Committee's report on S. ^55^ in the last 
Congress -- legislation that is for the most part identical to 
the Administration's bail reform proposal. S. Rep. No. 97-317, 
97th Cong., 2d Sess. 36-7 (1982). 



119 



The sole issue that may be addressed is likelihood that the 
defendant will appear for trial. Thus our Judges are without 
statutory authority to impose conditions of release geared toward 
assuring community safety or to deny release to those defendants 
who pose an especially grave danger to others. As a result, when 
making release decisions with respect to demonstrably dangerous 
defendants, Judges are faced with a dilemma: they may release 
the defendant pending trial despite the fear that this will 
Jeopardize the safety of others, or they can find a reason, such 
as risk of flight, to detain the defendant by imposing a high 
money bond. Many critics of current bail laws believe that too 
often the resolution of this dilemma may cause the courts to make 
intelle<3tually dishonest determinations that the defendant may 
flee when the real problem is that he appears likely to engage in 
further dangerous criminal conduct if released. Our law denies 
the opportunity to address the issue of dangerousness squarely. 

Federal bail law must be changed so that it recognizes that 
the danger a defendant may pose to others is as valid a consid- 
eration in the pretrial release decision as is the presently 
permitted consideration of risk of flight. This change is one of 
the most important elements of our proposed bail legislation. 

Support for giving judges the authority to weigh risks to 
community safety in bail decisions is widely based and is a 
response to the growing problem of crimes committed by persons on 
release — a problem that exists in spite of what many believe is 
a not uncommon practice of detaining especially dangerous 
defendants through the imposition of high money bonds. In a 
recent study conducted by the Lazar Institute, one out of six 
defendants were rearrested during the pretrial period. Nearly 
one-third of these persons were rearrested more than once, and 
some as many as four times. 2/ Similar levels of pretrial crime 
were reported in a study of release practices in the District of 
Columbia where thirteen percent of all felony defendants were 



£/ Lazar Institute, "Pretrial Release: An Evaluation of 

Defendant Outcomes and Program Impact" 48 (Washington, D.C. 
August 1981). 



120 



rearrested. Among defendants released on surety bond, the form 
of conditional release reserved for those who are the greatest 
bail risks, the incidence of rearrest reached the alarming rate 
of twenty-five percent. 3^/ 

Allowing the courts to consider evidence of dangerousness 
and to impose conditions of release specifically geared toward 
reducing the likelihood of further criminal conduct such as third 
party custody or required drug or alcohol abuse treatment, would' 
be a significant improvement in current law. It is, however, 
only a partial solution, for we must recognize that with respect 
to certain defendants, it will be clear that no form of condi- 
tional release will be adequate to address the sigjiificant threat 
they will pose to the safety of the innocent public if released. 
Therefore, it is essential that amendment of our bail laws 
include, as does our current legislative proposal, authority to 
deny release altogether in such cases. 

Pretrial detention has, in the past, been a very controver- 
sial issue. While opposition to this concept still exists, 
increasing numbers of legislators and persons involved in the 
criminal justice system have come to realize that authority to 
deny bail to extremely dangerous defendants is a necessity. V 
Pretrial detention is, of course, already part of our bail 
system. The authority of the courts to deny release to defen- 
dants who are especially serious flight risks or who have 
threatened jurors or witnesses has been recognized in case law. 
Pretrial detention based on dangerousness was incorporated in the 
District of Columbia Code passed by the Congress in 1970 and is 
authorized under federal Juvenile delinquency statutes. More- 
over, a significant number of federal defendants are held in 
custody pending trial because they are unable to meet high money 



3/ Inrtltut* for Law and Social Research, "Pretrial Release 
and Misconduct in the District of Columbia" HI (April 1980). 

V For a discussion of the consCltutlonallty of pretrial 
■* detention, See S. Rep. No. 97-317, supra note 1 , at 37-8. 



121 



bonds?/ — and many argue that at least a portion of these cases 
of detention result from the ^imposition of bonds that are more a 
reflection of a Judge's understandable concerns about the threat 
the defendant poses to others than of concerns that he will not 
appear for trial. 

Of course, the availability of pretrial detention authority 
will not entirely solve the problem of bail crime, nor is 
pretrial detention appropriate for other than a small, but ■ 
identifiable, . group of the most dangerous defendants. However, 
where there is a high probability that a person will commit 
additional crimes if released pending trial, the need to protect 
the public becomes sufficiently compelling that a defendant 
should not be released. This rationale — that a defendant's 
interest in remaining free prior to conviction is, in certain 
circumstances, outweighed by the need to protect societal 
interests — is, in essence, that which has served to support 
court decisions sanctioning the denial of bail to defendants who 
have threatened jurors or witnesses or who pose significant risks 
of flight.^/ In such cases, the societal interest at issue is 
the need to protect the integrity of the judicial process. 
Surely, the need to protect the innocent from brutal crimes is an 
equally compelling basis for ordering detention pending trial. 

Because of the importance of the defendant's interest which 
is at stake when pretrial detention is considered, the authority 
to deny release should be available only in limited types of 
cases, only after a hearing incorporating significant procedural 
safeguards, and only when the findings on which the detention 
order is based are supported by clear and convincing evidence. 



J/ For example, in fiscal year 1982, IB. 4^ of federal defend- 
ants were subject to some period of pretrial detention, and 
61.3% of those defendants were held for more than ten days. 
1982 Reports of the Proceedings of the Judicial Conference of 
the United States and Annual Report of the Director of the 
Administrative Office of the United States Courts (herein- 
after cited as "1982 Annual Report") 352-5 (Table D-13). It 
is likely that a good proportion of the more substantial 
• terms of pretrial detention were' due to difficulties in 
meeting high money bonds. 

6/ See, e.g., United States v. Wind , 527 F.2d 627 (6th Cir. 
1975); United States v. Abrahams , 575 F.2d 3 (1st dr.), 
cert, denied, 1*39 U.S. 621 (1978). 



25-694 O - 84 - 9 



122 



The Administration's pretrial detention provision meets each of 
these requirements, and so provides a framework in which deten- 
tion will be ordered only when no other alternative is available. 

Our legislation also contains a specialized pretrial 
detention authority that would have been especially appropriate 
in the Dorris case we mentioned. This provision allows a tempo- 
rary ten-day detention of defendants who are arrested while they 
are already on bail, parole, or probation. During this period, 
the defendant may be held in custody while the original releasing 
authorities are contacted and given an opportunity to take 
appropriate action. A similar provision of the District of 
Columbia Code has been cited by former United States Attorney 
Charles Ruff as one of the most effective tools available to his 
Office in dealing with recidivists. 

As the statistics on bail jumping among drug defendants 
noted earlier indicate, the problems with current federal bail 
law aren't confined to the area of defendant dangerousness. The 
goal of assuring appearance at trial — the very purpose of our 
present statute — isn't being adequately met. Therefore, our 
bail reform proposals include amendments to address this problem 
as well. First, we provide clear authority for the courts to 
inquire into the sources of property that will be used to post 
bond and to reject the use of proceeds of crime for this purpose. 
Our experience with drug defendants has shown that the forfeiture 
of even very large bonds in these circumstances is not a suffi- 
cient disincentive to flight. Second, our proposals codify the 
existing authority we mentioned earlier to deny release entirely 
to persons who are especially severe flight risks. Third, our 
proposal would enhance the deterrent value of the penalties for 
bail jumping by making them more closely proportionate to the 
severity of the offense with which the defendant was charged when 
he was released and requiring that they run consecutively to any 
other term of imprisonment imposed i 

A final aspect of our proposal — one that has been incorpo- 
rated as well in other bail reform bills now before the Congress 
— would address what the Attorney General's Task Force on 



123 



Violent Crime described as "one of the most disturbing aspects" 
of current federal bail law, namely a standard which presumptive- 
ly favors release of convicted persons who are awaiting imposi- 
tion or execution of sentence or who are appealing their convic- 
tions. The Task Force's reasons for recommending that this 
standard be abandoned are sound ones: 

"First, conviction, in which the defen- 
dant's guilt is established beyond a 
reasonable doubt, is presumptively 
correct at law. Therefore, while a 
statutory presumption in favor of release 
prior to an adjudication of guilt may be 
appropriate, it is not appropriate after 
conviction. Second, the adoption of a 
liberal release policy for convicted 
persons, particularly during the pendency 
of lengthy appeals, undermines the 
deterrent effect of conviction and erodes 
the community's confidence in the 
criminal justice system by permitting 
convicted criminals to remain free even 
though their guilt has been established 
beyond a reasonable doubt."'/ 

In the Administration's bail proposal, post-conviction 
release would be available only in those cases in which the 
convicted person is able to produce convincing evidence that he 
will not flee or pose a danger to the community and, if the 
person is. awaiting appeal, that his appeal raises a substantial 
question of law or fact likely to result in reversal of his 
conviction or an order for a new trial. No lesser standard, In 
our view, is justifiable, particularly since the reversal rate 
for federal convictions is only approximately ten percent. 5/ 

Substantial improvements in federal bail laws are urgently 
needed. We can no longer have a statutory scheme that requires 
Judges to ignore disturbing evidence of defendant dangerousness 
and we must do more to assure that defendants who are seeking 
release meet their responsibility to appear for trial. The ball 
amendments proposed by the Administration, and other similar ball 
reform legislation introduced again this year in the Congress 
such as S. 215, fulfill these needs and provide a framework for 
the courts to strike an appropriate balance between the l«sitl- 



7/ Attorney General's Task Force on Violent Crime , 
- Washington, , D.C. , August 17, 19B1, at 52. 

§/ In fiscal year 1982, the reversal rate for federal criminal 
cases was 9.7%. I9B2 Annual Report , supra note 5 at 196. 



124 



■at* interests of the defendant and the equally legitimate 
interests of the public in preserving the integrity of our 
Judicial system and protecting community safety. 

TITLE II - SENTENCING REFORM 

I. Introduction 

The sentence in a criminal case is imposed at the end of a 
highly structured process designed to assure fairness to the 
defendant and to the public. Ideally, this sentence will 
represent society's statement as to the relative seriousness of 
the defendant's criminal conduct, and will deter criminal conduct 
by others. Unfortunately, despite the best efforts of the 
federal criminal justice system under current law, the sentence 
in a particular criminal case frequently fails to achieve these 
goals. This is true in large measure because the system fails 
not only to provide appropriate sentences in many individual 
cases, but even fails to provide a mechanism that might be 
capable of consistently achieving such a result. 

In the last ten years or so, a consensus has developed among 
persons of different political views that the current federal 
sentencing system is riddled with serious shortcomings. More 
recently, there has developed substantial sirpport for an approach 
by'which the shortcomings might be remedied — the creation of a 
system such as that set forth in title II of S. 829, a system 
that couples sentencing guidelines with determinate sentencing. 
These provisions are substantially identical to sentencing 
provisions approved by this Committee and the full Senate several 
times since the enactment of S. 1437 in 1978, most recently in 



the past Congress with the repeated approval of the sentencing 
provisions contained in S. 2572 and added by the Senate to H.R. 
3963. These provisions also formed the basis of a sentencing 
reform package passed by the State of Minnesota, which the 
National Academy of Sciences has recently reported to be the most 



125 



■uccesaful of any of the State or local sentencing reform 
efforts. The Minnesota system, while providing less 
sophisticated guidelines than we contemplate for the federal 
system, is the only State or local system in operation that is 
similar to this proposal in every significant respect. In 
addition, I was pleased to note that the Judicial Conference of 
the Dnited States has recently proposed legislation that contains 
a form of determinate sentencing guidelines system. 

II. Sentencing Onder Current Law and Practice 

A. The Sentencing Process 

A federal judge might sentence only a few dozen 
offenders a year, and a particular offender before him for 
sentencing might be the only person he has sentenced in a year or 
even longer for committing a particular offense. The judge, 
while trained in the law, has no special competence in imposing a 
sentence that will reflect society's values, and federal statutes 
do little to assist in correcting this problem. 



Current federal law provides a sentencing judge with 
■the discretion to impose sentence pursuant to numerous sentencing 
options and little or no guidance as to how to choose emiong the 
options. The statutes contain no statement of the purposes of 
sentencing, aside from occasional, vague references to 
rehabilitation, and no direction to the judges as to the offense 
and offender characteristics that should be considered in 
determining an appropriate sentence. Federal sentencing law is 
limited mostly to the provision of a maximum term of imprisonment 
and maximum fine that may be imposed for violating a particular 
criminal statute, and these maximum sentences only indicate the 
congressional view of the appropriate sentence for the most 
serious offense committed by an offender with the most serious 
criminal record. 



126 



As a result of this absence of guidance, judges are 
left to impose sentences according to their own notions of the 
purposes of sentences. They are not required to state their 
reasons for choosing a particular sentence, and many of them do 
not. Sentences are reviewcible only for illegality or for 
constitutional violation; a sentence that is substantially out of 
proportion to those for similar offenses committed by similar 
offenders is not otherwise subject to challenge. 



B. Sentencing Options 

While current law provides sentencing alternatives of 
probation, fines, imprisonment, and restitution, the law fails to 
provide a mechanism to inform sentencing judges how they should 
choose sunong them and fails to assure that each option is useable 
to serve the purposes of sentencing in the best way possible. 

1. Probation . — Probation is treated as a suspension 
of the imposition or execution of a sentence rather than as a 
sentence itself. Partly for that reason and partly because 
current law does not recommend possible probation conditions in 
any detail, there has been little incentive to impose conditions 
on probation that might make it a more effective punitive or 
remedial sanction — it is generally viewed solely as a vehicle 
for rehabilitative efforts. This is especially troubling because 
of the crowded conditions of our prisons. As the Attorney 
General has stated recently, effective use of probation 
conditions for many non-violent offenders could alleviate much of 
the stress on our prison capacity without undermining the 
desirability of imposing prison sanctions in appropriate cases. 

' 2. Fines . — The maximum fine levels for criminal 
offenses vary inexplicably. They usually also reflect penalty 
levels of a century or more ago, and today are much too low to be 
a realistic measure of the seriousness of most offenses. They 
are often so low that they are not a realistic substitute for a 



127 



term of imprisonment when the nature of the offense might 
otherwise justify their use. Even if a fine is imposed, it may 
be difficult to collect under current law, which relies heavily 
on cumbersome and inconsistent state collection procedures. 

3. Restitution . — The newly enacted Victim and 
Witness Protection Act of 1982 contains, as you know, important 
new provisions for restitution to victims of crime in many 
federal criminal cases. Early experience with the provisions 
demonstrates that additional guidance as to how to determine the 
amount of restitution and how a payment schedule might be 
tallorei) to the financial situation of the defendant would be 
helpful to sentencing judges. 

4. Impr i sonment . — Jlesponsibility for imposing a 
term of imprisonment and determining its length is divided today 
Joetween the judicial and executive branches. Under a two-step 
process, the sentencing judge imposes a term of imprisonment and 
sets the outside limit of the period of time a defendant may 
spend in prison, and then the Parole Commission decides what 
portion of the maximvim term the defendant will actually serve. 
This practice was originally based on an outmoded 19th Century 
rehabilitative theory that has proved to be so faulty that it is 
no longer followed by the criminal justice system — yet the 
outmoded process remains in place trying as best it can to use a 
more modern approach to sentencing. 

Current imprisonment statutes were enacted at a 
time in which the criminal justice system utilized a "medical 
model" for determining when a prisoner should be released. 
Criminality was viewed as a disease that could be cured through 
rehabilitative programs in a prison setting. While the purpose 
of the sentence was to rehabilitate, no one could know when that 
reheOsilitation would occur. Therefore, a defendant was sentenced 
to a term of imprisonment intended to be longer than the time it 
would take for rehabilitation to occur. Periodically, parole 
authorities would examine the prisoner's adaptation to the prison 



128 ' 



Betting in order to determine whether he had been rehabilitated 
and could be released into society before the expiration of his 
imposed prison term. . 

There are two principal problems with this theory: 
First, many sentences to terms of imprisonment are designed to 
serve purposes other than or in addition to rehabilitation. They 
may be designed to deter future criminal conduct by the defendant 
or others, to protect the public from criminal conduct of the 
defendant, or to punish the defendant for his conduct. Periodic 
review of prisoh behavior is irrelevant to any of these purposes; 
a sentence for any of these purposes logically should be set for 
a definite term. 

Second, even if the sentence is for purposes of 
rehabilitation, the theory leading to an indefinite term is 
unsound. Behavioral scientists hiave concluded in recent years 
that there is no reliable means of inducing rehabilitation. More 
importantly to consideration of this theory, they have also 
concluded that no one can tell from a prisoner's behavior in 
prison or before a parole board whether or when he has become 
rehabilitated. Consequently, the basic reason for an 
indeterminate sentence and thus for the existence of parole 
boards has disappeared. 

The federal Parole Commission today acknowledges 
that it cannot tell from a prisoner's behavior whether or when he 
has become rehabilitated. It therefore no longer even attempts 
to accord its practice with the original theory. Instead, with 
few exceptions, it releases prisoners at the times specified by 
the Commission's self-developed guidelines — guidelines that are 
based upon factors known at time of sentencing. Since the 
Commission's release determinations need no longer await an 
opportunity to observe the prisoner's conduct in confinement, 
there is no reason why the Commission cannot inform a prisoner of 
his proposed release date near the time of his incarceration — 
and the Commission now does so in almost all cases. 



129 



Thus two branches of government — at 
approximately the same time and based on essentially the saxne 
information — set two different sentences to be served by the 
same defendant, with one of these sentences publicly announced 
and the lower one that will actually be served announced in 
private. This occurs because of attempts by the criminal 
justice system to adapt an outmoded mechanism to modern thinking 
about sentencing. The result is that the judges attempt to 
adjust their sentences to override parole guidelines they see as 
inappropriately harsh or lenient, and that the parole 
authorities, in attempting to even out the resulting disparity in 
sentences, regularly ignore the actual sentences imposed by 
judges. 

5. Specialized sentencing statutes . — Finally, 
current law contains a number of specialized sentencing statutes 
that a judge may use in sentencing a specific category of 
offenders, such as young offenders or drug addicts. These 
statutes provide little guidance, other than some references to 
reheibilitation, as to when a judge should use them for a person 
in the category of offender covered by the statute and when he 
should not. They also fail to take into account the fact that a 
particular offender may belong to more than one category covered 
by these statutes. 

One of these statutes, the Youth Corrections Act, 
has caused particular difficulties. Sentencing judges differ as 
to whether it should be used at all for violent offenders. Thus, 
similarly situated offenders sentenced by different judges may be 
sentenced either under the Act or to a regular adult sentence. 
Especially since the parole guidelines generally provide less 
prison time for persons sentenced under the Youth Corrections Act 
than under regular adult sentencing, the result can be that two 
young offenders with similar criminal histories who are convicted 
of similar violent crimes will serve different prison terms 
simply because they were sentenced under different statutes. 



130 



In recent years, a more difficult problem has 
arisen with the Youth Corrections Act — the courts have 
construed the Act to require that the Bureau of Prisons separate 
YCA offenders from adult offenders. Prisons officials have found 
the results of complying with these court decisions to be 
undesirable. Because there are only 1200 YCA offenders now in 
custody, only three institutions — located in Petersburg, 
Virginia; Englewood, California; and Morgantown, West Virginia — 
have been set aside to house them, with the result that most of 
these young offenders must be placed long distances from their 
homes and families. The placement of all YCA offenders in three 
institutions has also, in effect, negated the classification 
process for these inmates. The Bureau classifies inmates into 
six categories, with level one representing the minimal risk and 
level six representing the maximum risk. The result of placing 
these offenders in three institutions is a mixing of the 
criminally sophisticated with the unsophisticated, the hardened 
with the naive, the assaultive with the easily victimized, and 
the first time offender with the repeater. The distance from 
home, combined with the limited ability to separate these 
prisoners according to the prisoner classification system, 
compounds discipline problems with managing a youthful population 
more prone than an older population to act out and be disruptive. 

The Youth Corrections Act should be repealed, not 
only because age is only one factor that may play a role in 
determining the appropriate sentence, but because the separate 
facilities for young offenders sentenced under the Act have 
proved unworkable. Thus, the Department of Justice strongly 
disagrees with the suggestion of the Judicial Conference in its 
proposed bill that sentencing judges be permitted to sentence 
young offenders to separate facilities. 



131 



C. Consequences of the Current System 

The almost inevitable result of the proliferation of 
sentencing options and the lack of statutory guidance as to how 
to use them is considerable disparity in sentences imposed by 
federal judges. This disparity has been documented in numerous 
studies, including one conducted by the Federal Judicial Center 
of district judges in the Sc'cond Circuit and a more recent study 
conducted for the Department of Justice by INSLAW, Inc. and 
Yankelovich, Skelly and White, Inc. In the latter study, 208 
federal judges were presented with 16 hypothetical cases. They 
agreed in only 3 of 16 cases on whether to sentence the defendant 
to prison. The study found that 21 per cent of sentence 
variation was due to the tendency of some judges to impose 
generally harsher or more lenient sentences than other judges, 
rather than to differences in offense or offender 
characteristics, and that even more variation was due to the 
tendency of a particular judge to impose harsher or more lenient 
sentences than other judges for particular classes of offenses or 
offenders. 

Various attempts by the Parole Commission and the 
judicial branch to reduce this disparity have been ineffective. 
The parole guidelines have served to reduce disparity in terms of 
imprisonment, but, as a recent General Accounting Office study 
shows, they have not been fully successful in doing so. And, of 
course, the parole guidelines cannot do anything about a 
probationary sentence that should have been a prison sentence or 
vice versa, or about an inappropriate level of fine or 
restitution, or about a prison term that makes a prisoner 
ineligible for parole on his guidelines date or results in his 
release before that date. 

The judicial branch now supplies sentencing judges with 
information in the pre-sentence report concerning the parole 
guidelines probably applicable to the defendant and the kinds and 



132 



iMiftlia of ■•ntences that are Imposed nationwide and In the 
judge's district for the defendant's offense. I understand that 
it is in the process of improving its data colliection to include 
nore detailed information on sentences imposed on persons with 
particular offense and offender charajiteristlcs. At this stage, 
the information is useful to Inform judges of past sentencing 
practices; it is not designed to alter those practices that need 
to be altered to assure that they adequately reflect sentencing 



The perception of sentencing disparity has serious 
consequences for the public and the criminal justice system. It 
tends to encourage defendants to relitigate their guilt 
continually. Combined with the artificial process by which 
judges Impose long prison terms and parole authorities set early 
release dates shortly thereafter, it serves to undermine public 
confidence in the criminal justice system, thus robbing the 
system of some of its potential deterrent effect. 

III. Sentencing Under Title II of the Bill 

Title II of the bill would completely revise current law to 
legislate the purposes of sentencing, to create a mechanism to 
assure rationality and fairness in sentences designed to carry 
out those purposes, and to provide appellate review of sentences 
to assure their legality and reasonableness. 

A. Legislatively Prescribed Purposes 

Title II would for the first time give legislative 
recognition to the appropriate purposes of sentencing. The 
stated purposes specifically Include reflecting the seriousness 
of the offense and just punishment, deterrence of criminal 
conduct, protection of the public from further crimes of the 
defendant, and providing rehabilitation programs in the most 
effective manner. The bill deliberately does not favor one 
purpose over another, since any one of these purposes may be the 



133 



major purpose of a sentence in any given case. For example, the 
the major purpose of a sentence to imprisonment for a violent 
offender may be just punishment while the major purpose of a 
sentence to probation conditioned on obtaining mental health 
treatment for a non-violent offender may be rehabilitation. The 
bill does recognize that rehabilitation should not be the 
purpose of sentencing a defendant to imprisonment nor a factor in 
determining the length of a prison term. Of course, this does 
not mean that the Department will not continue to make every 
effort to provide suitable rehabilitation programs to prisoners 
in its custody. It is simply unfair to send a person to prison 
for rehabilitation or base the length of that term on whether he 
is rehabilitated when we recognize that no one knows when or 
whether a prisoner has been rehabilitated. 

B. The Sentencing Process 

The sentencing judge would impose sentence after 
considering the purposes of sentencing and sentencing guidelines 
promulgated by a commission in the judicial branch that would 
recommend an appropriate kind and range of sentence for each 
combination of offense and offender characteristics. The judge 
would be required to impose sentence in accord with the 
guidelines recommendation unless he found that a factor in the 
case was not adequately considered in the guidelines and should 
affect the sentence. If the judge imposes sentence outside the 
guidelines, he must state specific reasons for doing so. The . 
question whether the sentence is reasonable is subject to 
appellate review at the request of the defendant if the sentence 
is above the guidelines and at the request of the government, 
made on behalf of the public and personally approved by the 
Solicitor General or the Attorney General, if it is below the 
guidelines. If the sentence was to a term of imprisonment, the 
term imposed by the judge would represent the actual time served 
less a small amount of credit that could be earned for complying 
with institution rules. The Parole Commission and its function 



134 



of Betting release dates would be abolished, and the current 
practice of judges artificially inflating prison terms because of 
the parole system would be eliminated. If the sentencing judge 
thought a defendant would need street supervision following his 
tern of imprisonment, he could impose a term of supervised 
release to follow the term of imprisonment. 

Sentencing guidelines and policy statements would be 
promulgated by a United States Sentencing Commission in the 
judicial branch. The Commission would consist of seven members 
who would be appointed by the President by and with the advice 
and consent of the Senate, after the President had consulted with 
judges, prosecutors, defense counsel, and others interested in 
the criminal justice system for their recommendations. The 
Commission members, including any members from the federal 
judiciary, would serve full time and would be paid at the rate of 
judges of the federal appellate courts. The bill provides for a 
staff of highly qualified professionals for the Commission, and 



directs that the Commission, in addition to promulgating 
guidelines, engage in sentencing research and training. 

C. Sentencing Options 

Each of the sentencing options would be improved under 
title II — and the sentencing guidelines will enable the system 
to make the most effective use of these improved sentencing 
options. 

1. Probation . — Probation would become a sentence in 
itself, rather than a deferral of imposition or execution of 
another form of sentence. If a sentencing judge imposed 
probation in a felony case, he would be required to impose, at a 
minimum, a condition that the defendant pay a fine .or restitution 
or engage in community service. In addition, the judge would be 
required to impose as a condition of probation in every case a 
prohibition against committing a new offense. The bill also 



135 



lists a niunber of new conditions that may be imposed on s 
sentence of probation for consideration of the Sentencing 
Commission and the judges. 

2. Fines . — Title II significantly increases maximum 
fine levels for most federal offenses. The maximums are 
increased to a quarter of a million dollars for an individual 
convicted of a felony and half a million dollars for «n 
organization convicted of a felony. The amount within that 
maximum will be determined according to the sentencing guidelinas 
and will be based in part on the defendant's ability to pay and 
the seriousness of the offense. Fine collection procedures will 
be improved by permitting reliance on lien procedures patterned 
after the federal tax laws. 

3. Restitution . — Restitution provisions are 
substantially similar to the provisions in the Victim and Witness 
Protection Act of 1982, with the provisions dovetailed into the 
new sentencing provisions. This will permit the sentencing 
guidelines and policy statements to provide more detail than is 
present in current law as to how the amount of restitution should 
be calculated and methods by which restitution can be imposed so 
that it can be paid, for example, in installments if the 
defendant is a salaried en^loyee. S. 829 also provides for 
government assistance in collecting unpaid restitution, a measure 
we believe will improve the enforceability of an order of 
restitution. 

4. Imprisonment . — As discussed earlier, title II 
completely changes the way in which the length of a term is 
imposed, abolishing early release on parole and converting to a 
system i»i which the sentence imposed by the judge represents the 
actual time to be served less good time. 

It should be noted that S. 829 differs from the 
sentencing provisions in S. 668 and S. 830 in two respects. 



136 



First, it extends slightly the maximvun terms of imprisonment that 
may be imposed for a particular grade of offense. This will give 
the Sentencing Commission more flexibility in fashioning 
sentencing recommendations for the most serious offenses. 
Second, S.829 does not provide for a repeated reexamination by 
the courts of long sentences. The Department of Justice is of 
the view that such a provision only serves to create unnecessary 
and time-consuming court hearings that are contrary to the 
purpose of creating a system in which final sentences are 
publicly announced at the time of sentencing. The defendant will 
have had an earlier opportunity to appeal his sentence if it is 
unusually high, and we believe that one review is sufficient. S. 
829, like the other bills, does permit reexamination of a 
sentence in other limited circumstances. The Bureau of Prisons 
may request reduction of a sentence for extraordinary and 
compelling reasons, such as terminal illness. In addition, if 
the sentencing guidelines for a particular offense are lowered 
and it is consistent with a policy statement of the Sentencing 
Commission, the court, on its own motion or at the request of the 
defendant or the Bureau of Prisons, may reduce the sentence of a 
defendant sentenced under the old guidelines. We believe these 
limited opportunities to change sentences are sufficient to 
assure reconsideration of sentence whenever justified. 

5. Specialized sentencing statutes . — S. 829 would 
repeal all the specialized sentencing statutes that create 
proviaions applicable to only one category of offender. The 
guidalincs system is a far preferable method of determining an 
appropriate -sentence for offenders with particular 
characteristics since it provides for systematic consideration of 
all offender characteristics at the same time rather than one 
isolated characteristic. 

D. Advantages of Title II Over Current Law 

Title II provides numerous advantages over currant law. The 
Boct la^pertant of these is that it will provide a sentsncing 



137 



mechanism whose purpose is to assure both fair sentences and the 
appearance of fail sentences. The sentencing guidelines will 
enable the sentencing judges to determine an appropriate sentence 
for a defendant with a particular criminal history convicted of a 
particular offense, knowing that the sentence is fair as compared 
to the sentences for all other offenders. Everyone, including 
the defendant, the public, and those in the criminal justice 
system charged with implementing the sentence, will know at the 
time of sentencing exactly what the sentence is and why it was 
imposed. The characteristics of the offense and the offender 
that result in a sentence different from that for another 
offender will be apparent — and if a sentence is inappropriate, 
it can be corrected on appeal. The appeal mechanism has another 
advantage over current law — it will result in the development 
of a body of case law concerning whether particular reasons 
legally justify imposing sentences outside the guidelines. The 
bill permits not only defendant appeal of an unusually high 
sentence but government appeal of an unusually low one. 
Government appeal of sentence — which is clearly constitutional 
under the case law and is supported by the Judicial Conference 
assures that balanced case law will develop on questions of the 
appropriateness of sentencing either above or below the 
guidelines. 

Title II also makes the sentencing options available to a 
judge more effective. In particular, it makes probation and 
fines more useable as options to incarceration in appropriate 
cases. This usefulness is enhanced by placing these options in a 
sentencing guidelines system that will recommend when their use 
is appropriate and when it is not. 

Title II should also save the government money after the 
initial start-up phase. It replaces the expensive and cumbersome 
parole system with a small Sentencing Commission that will not be 
Involved in individual cases. It may reduce somewhat the 
rep«at*d challenges to a conviction caused by the fact that a 



25-694 0-84-10 



138 



defendant thinks his sentence is too high. It may also reduce 
the caseload of probation officers, since it will not 
automatically result in post-release supervision of an offender 
if such supervision is unnecessary. 

Before closing the discussion of title II, I should note 
that the Department welcomes the support of the Judicial 
Conference of the United States of some form of determinate 
sentencing guidelines system with appellate review of a sentence 
outside the guidelines. However, the Department wishes to note 
particular disagreement with two major substantive points of the 
Judicial Conference proposal. First, the Department would make 
the Sentencing Commission a full-time body with members selected 
after participation by all three branches of government rather 
than, as proposed by the Judicial Conference, a part-time body 
selected only by the judicial branch. We believe that it is 
important that the work of the sentencing guidelines agency be 
carried out by a highly visible entity that is able to devote its 
full energies to creation of sound federal sentencing policy — 
and that this is especially important at the initial stages of 
guidelines development and implementation. 

Second, we disagree with the intriguing suggestion of the 
Judicial Conference that the Parole Commission be retained with a 
substantially altered role. Under the proposal, the judge, after 
considering sentencing guidelines, would set both the parole 
eligibility date for a convicted defendant sentenced to prison 
and his maximum term of imprisonment. The defendant would be 
released on his parole eligibility date unless the Parole 
Commission determined tRat he had not substantially complied with 
prison rules, in which case the Parole Commission would set a 
release date within the maximum. The Parole Commission would set' 
conditions of parole release and would determine the consequences 
of parole violations. These provisions would, in effect, keep an 
expensive and cumbersome agency in existence primarily to carry 



139 



out a function that the Bureau of Prisons perfonns today and 
should continue to perform — that of determining credit toward 
service of sentence for good behavior. In addition, the proposal 
seems to perpetuate a problem with current law: the person who 
receives street supervision following his time in prison is the 
one who has time remaining on hie sentence rather than 
necessarily the person who needs supervision, and the better the 
prisoner complies with prison rules the longer his street 
supervision. The result is a waste of resources on supervising 
defendants who may not need it at the same time the system fails 
to supervise others who should be supervised. 

IV. Conclusion 

The Administration strongly recommends the passage of title 
II of S. 829. We do have a number of minor technical suggestions 
that we would like to submit to the Subcommittee shortly. 

TITLE III - The Exclusionary Rule 

Title III of the bill sets oiir a modification of the Fourth 
Amendment exclusionary rule to restrain it to its proper role, 
namely deterring unlawful police conduct. Our proposal is 
identical to that submitted by the Administration and introduced 
by Chairman Thurmond as S. 2231 in the 97th Congress. Our 
proposal is, simply, that the exclusionary rule would not be 
applied in cases in which the law enforcement officers who 
conducted the search acted in a reasonable good faith belief that 
their actions were lawful. 

Before discussing this proposal in greater depth, I would 
like to discuss the origin and development of the rule and some 
specific cases which illustrate the very real contemporary 
problems created by the rule in quite a large number of cases. 
At the outset, however, I think it is important to address one of 
the most seriously misplaced arguments raised in the current 
debate over the rule, the impact of the rule on the criB« rate. 



140 



Supporters of the rule claim that advocates for modification of 
the present rule argue incorrectly that reforming the rule will 
reduce the crime rate. The fact, however, is that 'advocates for 
reform do not claim that any such change is a panacea for crime 
rate reduction. Any thoughtful consideration of contemporary 
crime must recognize, unfortunately, that there is no single 
panacea. On the other hand, advocates for reform do point out 
that the rule operates to free known murderers, robbers, drug • 
traffickers and other violent and non-violent offenders and .that 
a rule of evidence which has such a result without a reasonable 
purpose to support it is intolerable. 

These heavy costs extracted from society by the rule have 
not gone unnoticed by the Supreme court. In Stone v. Powell , 428 
U.S. 465, 490 (1975), the Court stated that the rule "deflects 
the truthfinding process and often frees the guilty." The Court 
has noted that its "cases have consistently recognized that 
unbending application of the exclusionary sanction to enforce 
ideals of governmental rectitude would impede unacceptably the 
truthfinding functions of the Judge and jury." United States v. 
Payner , 44? U.S. 727, 734 (198O). The Court's recognition of the 
price exacted by the rule now causes it to answer the question of 
whether the rule should be applied in a particular context "by 
weighing the utility of the exclusionary rule against the costs 
of extending it..." Stone v. Powell , supra at 489. 
The Rule and its Development 

In tracing the development of the rule it is important at 
the outset to recall the specific words of the Fourth Amendment 
upon which the rule is based: "The right of the people to be 
secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated." 

It is apparent that the "exclusionary rule" itself is not 
articulated in the Fourth Amendment or, for that matter, in any 
part of the constitution, the Bill of Rights, or the federal 
criminal code. The exclusionary rule is, rather, a judicially 



141 



declared rule of law created In 191'^. when the United States 
Supreme Court held In Weeks v. United States , 232 U.S. 383, that 
evidence obtained in violation of the Fourth Amendment is 
inadmissible in federal criminal prosecutions. 

This doctrine was criticized by many commentators from the 
start, but the rule became firmly implanted in the federal 
criminal justice system. The states, however, were divided In 
their opinion of the rule. In the three decades following Weeks , 
sixteen states adopted the rule while thirty-one states refused 
to accept it. 

It was not until 19t9 that the Supreme court was squarely 
confronted with the question of whether the exclusionary rule 
should be applied to state criminal prosecutions. In Wolf v. 
Colorado , 338 U.S. 25 (19^9), the court. held that although the 
guarantees of the Fourth Amendment applied to the states through 
the due process clause of the Fourteenth Amendment, the Four- 
teenth Amendment did not forbid the admission of evidence 
obtained by an unreasonable search and seizure. Later, in Mapp 
V. Ohio , 367 U.S. 6'43 (1961), the Court reversed its decision in 
Wolf and held that because the Fourth Amendment right of privacy 
was enforceable against the states through the Fourteenth 
Amendment, "it is enforceable against them by the same sanction 
of exclusion as is used against the Federal Government." 

When first imposed by the Supreme Court In 191t, the 
exclusionary rule was justified both as a means of deterring 
unlawful police misconduct and on a judicial integrity ground, 
which sought to prevent courts from being accomplices in willful 
constitutional violations. Over time, it has become clear that 
the deterrence rationale is the foremost reason behind the rule. 
Cases such as Stone v. Powell , supra , Michigan v. DeFilllpp o, 4M3 
U.S. 31 (1979), United States v. Peltier , H22 U.S. 531 (1975), 
and United States v. Calandra, 41M U.S. 338 (1974), have clearly 
established that today the rule will be invoked to protect Fourth 
Amendment rights only when to do so is deemed efficacious as a • 
deterrent to unlawful conduct by law enforcement authorities. In 
consistently focusing on the deterrence rationale in defining and 
limiting the application of the rule, the Court has all but 



142 



ignored the judicial integrity ground. At any rate, to the 
extent that notions of "judicial integrity" are still a basis for 
the rule's retention, the Supreme Court in Peltier , supra , has 
stated that "the 'imperative of judicial integrity' is also not 
offended if law enforcement officials reasonably believed in good 
.faith that their conduct was in accordance -with the law..." 422 
U.S. 531, 537-38. 

Although the Court recognizes deterrence as the rule's 
paramount purpose, it has not limited the rule only to those 
situations in which the law enforcement officer's conduct is 
susceptible to being deterred. For example, courts continue to 
suppress evidence seized by law enforcement officers during 
searches conducted pursuant to duly authorized warrants obtained 
in good faith but later found defective by an appellate court. 
Such was the situation in United States v. Alberto Antonio Leon 
(9th Cir. Mar. 4, 1983)- In that recent case, an informant 
advised police officers that he had seen two named persons 
selling drugs from their residence five months before. On the 
basis of that tip, the police conducted a one-month surveillance 
of the two people and their residence. The surveillance event- 
ually expanded to cover two other residences and other persons 
with whom the two earlier identified people had been associating, 
the circumstances strongly suggesting that all persons and 
residences were involved in narcotics trafficking. After 
consulting with three assistant district attorneys, the police 
obtained warrants from a state court judge for the search of the 
residences and various automobiles belonging to the suspects. 
The searches produced narcotics and narcotics paraphernalia. 

The defendants were charged with various drug violation's but 
a district judge ruled that the search warrants were defective 
because the informant's information was probably stale. Much of 
the evidence obtained by the search was suppressed. The Ninth 
Circuit affirmed over the objection of Justice Kennedy, who 
observed In his dissenting opinion that the affidavit in support 
of the warrants "sets forth the details of a police investigation 
conducted with care, diligence, and good-faith." 



143 



United States v. Shorter , 600 F.2d 585 (6th Cir. 1979), !• 
another example of the exclusionary rule being applied where an 
authorized search warrant Is Invalidated by a second Judge or 
court. In that case, local police and agents of the Federal 
Bureau of Investigation (FBI) arrested a suspected Ohio bank 
robber at his home. After the arrest, the FBI agent telephoned a 
federal magistrate and stated his grounds for a search warrant 
which was then issued by the magistrate as permitted by law. The 
subsequent search produced incriminating evidence, including bait 
bills and a firearm. The trial Judge ruled the search lawful, 
but the conviction was reversed on appeal. The appellate court 
decided that although the officer had in fact been placed under 
an oath by the magistrate which incorporated all the testimony 
already provided in the course of reciting the grounds for the 
warrant, the failure of the magistrate to require the oath at the 
beginning of the telephone conversation violated the law because 
the applicable Federal Rule requires that the oath be obtained 
"immediately." 

These cases involved disagreements between judges about 
Judicial conduct — there is no police misconduct involved. The 
police were carrying out their duties as society expects them to 
do: the officers provided their information fully and honestly 
to the court and proceeded to carry out the orders of the court 
once the warrants were issued. Suppression of evidence in 
Instances such as these does not serve the purpose of the 
exclusionary rule, the deterrence of police misconduct. In fact, 
it only serves to damage both a community's perception of Justice 
and the morale of law enforcement officers who have followed the 
rules only to have the evidence suppressed on the premise that 
they have violated the Constitution. Proper police conduct is 
thereupon falsely labeled as illegal. 

The deterrent purpose of the exclusionary rule also is not 
served when courts apply the rule to situations where the 
appellate court cases are not at all clear, where the law is 
thoroughly confused or even in situations where the cases are in 
flat contradiction. Police often are confronted with the 



144 



question of whether to conduct a warrantless search in the field 
when the circumstances they are facing are not covered by 
existing case law. 

For example, the rule was applied in precisely this type of 

situation in Bobbins v. Californ ia, U.S. , 101 S. Ct . 2842 

(1981). In that case, the Court excluded evidence of a substan- 
tial quantity of marihuana found in a car trunk in a decision 
largely based on two previous cases, United states v. Chadwick , 
433 U.S. 1 (1977) and Arkansas v. Sanders , MH2 U.S. 753 (1979), 
neither of which had been decided at the time of the search in 
Bobbins in 1975. On the very same day, the Court decided another 

case, Hew York v. Belton , U.S. , 101 S. Ct . 2860 which was 

remarkably similar factually. In both oases, police officers 
lawfully stopped a car, smelled burnt marihuana, discovered 
marihuana in the passenger compartment of the car, and lawfully 
arrested the occupants. Thereafter, in Bobbins , the officer 
found two packages wrapped in green opaque paper in the recessed 
rear compartment of the car, opened them without a warrant, and 
found 30 pounds of marihuana. In Belton , the officer found a 
jacket in the passenger compartment, unzipped the pocket without 
a warrant, and found a quantity of cocaine. 

Both cases required an analysis of the "automobile excep- 
tion" cases, such as Chadwick , which pertain to the validity of 
warrantless searches of cars and their contents. When the Court 
announced its decisions in Belton and Bobbins , three justices 
opined that both searches were legal; three Justices opined that 
both were Illegal; and three justice controlled the ultimate 
decision that Bobbins was illegal and Belton was legal. When 
Bobbins was finally decided, 11 judges had reviewed the search. 
Seven found it valid and seven invalid. 

Moreover, the decisions hardly clarified the law of search 
and seizure in this area. As stated by Justice Brennan in his 
dissent in Belto n: 

"The Co,urt does not give the police any 'bright 

line' answers to these questions. More important, 

bsoausa the Court's new rule abandons the justifica- 



145 



tions underlying Chimel , It offers no guidance to the 

police officer seeking to work out these answers for 

himself ." 
It was not surprising, therefore, that the whole field of law 
involved in these cases was again before the United States 
Supreme Court less than a year later in United States v. Ross , 

U.S. , 102 S. Ct. 2157 1982). In that case, which 

involved the search of a brown paper bag containing heroin found 
in a car's truck, the Court repudiated the holding in Robbins and 
held that the "automobile exception" to the Fourth Amendment 
allows police" who have lawfully stopped a vehicle which they 
reasonably believe to contain contraband to conduct a warrantless 
search of any part of it, including all containers and packages, 
in which the contraband may be concealed. 

Thus, the rule of law with respect to container searches in 
automobiles has apparently been finally made clear. Meanwhile, 
however, the defendant in Robbins who possessed thirty pounds of 
marihuana, went free because the police at the time of the search 
did not apply the law as it would be applied at the moment the 
Supreme Court considered the Robbins case. It is probably a 
small consolation for the police in that situation that their 
view of the law was ultimately borne out in a subsequent case. 
To say that the suppression of reliable, trustworthy, evidence in 
such a case helps to prevent police "misconduct" is absurd. 

The consequence of applying the exclusionary rule in the 
cases discussed above is two-fold. First, the purpose of the 
exclusionary rule is not served when the officers believe, in 
good faith, that they are performing a lawful search. When law 
enforcement officers obtain a warrant in good faith or when they 
make a reasonable, good faith attempt to predict the decisions 
that future courts will make, there exists no logical basis for 
excluding the evidence they have gathered. Applying the rule in 
these cases fails to further in any degree the rule's deterrent 
purpose, since conduct reasonably engaged in, in good faitff, is 
by definition not susceptible to being deterred by the imposition 
of after-the-fact evidentiary sanctions. 



146 



(Second , application of the exclusionary rule when the police 

have acted reasonably and in good faith results in attaching a 

false label to proper police conduct. This adversely affects the 

criminal justice system by fostering the public perception that 

police are engaged in lawless, improper conduct when that is 

simply not the case. The Supreme Court recognized these effects 

in Stone v. Powell , 428 U.S. 1(65 (1976), in which it stated: 

The disparity in particular cases between the error 
committed by the police officer and the windfall 
afforded a guilty defendant by application of the rule 
is contrary to the idea of proportionality that is 
essential to the concept of justice. Thus, although 
the rule is thought to deter unlawful police activity 
in part through the nurturing of respect for Fourth 
Amendment values, if applied indiscriminately it may 
well have the opposite effect of generating disrespect 
for the law and the administration of justice. 

The unjustified acquittals' of guilty defendants due to 
application of the exclusionary rule has resulted in a growing • 
concern by our citizens that our system of justice is lacking in 
sense and fairness. Unfortunately, it seems unlikely that any of 
these conceptions by the public will change as long as the 
exclusionary rule remains in its present form and courts continue 
to expand its application to situations where law enforcement 
conduct has been manifestly reasonable. ' 

Proposed Legislation Modification 

The specific action we suggest in the area of legislative 

limitation of the rule, as contrasted to legislative abolition of 

the rule, is based upon a recent significant opinion on the rule 

rendered by the Fifth Circuit. In. United States v. Williams , 622 

F.2d 830 (5th Cir. 1980), the Fifth Circuit, after an exhaustive 

analysis of the relevant Supreme Court decisions, announced a 

construction of the exclusionary rule that would allow admission 

at trial of evidence seized during a search undertaken in a 

reasonable and good faith belief on the part of a federal officer 

that his conduct was lawful. A majority of the 24 judges of that 

court, sitting en banc , concurred in an opinion that concluded as 

follows (Id. at 846-847): 

Henceforth in this circuit, when evidence is sought to 
be excluded because of police conduct leading to its 
discovery, it will be open to the proponent of the 
evidence to urge that the conduct in question, if 
mistaken or unauthorized, was yet taken in a reason- 
. able, good-faith belief that it was proper. If the 



147 



court so finds it shall not apply the exclusionary rule 
to the evidence. 

The reasonable good faith rule announced by the Fifth 
Circuit is the same rule urged by the Attorney General's Task 
Force on Violent Crime. If implemented, we believe that this 
restatement of the exclusionary rule would go a long way towards 
insuring that the rule would be applied only in those situations 
in which police misconduct logically can be deterred. Law 
enforcement officers will no longer be penalized for their 
reasonable, good faith efforts to execute the law. On the other 
hand, courts would continue to exclude evidence obtained as a 
result of searches or seizures which were performed in an 
unreasonable manner or in bad faith, such as by deliberately 
misrepresenting the facts used to obtain a warrant. Thus, the 
penalty of exclusion will only be imposed when officers engage in 
the type of conduct the exclusionary rule was designed to deter 
— clear, unreasonable violations of our very important Fourth 
Amendment rights. 

It should be noted that the reasonable, good faith rule 
requires more than an assessment of an officer's subjective state 
of mind and will not, as is sometimes argued, place a premium on 
police ignorance. In fact, the rule requires a showing that the 
officer's good faith belief is grounded in an objective reason- 
ableness. As the Williams court explained, the officer's belief 
in the lawfulness of his action must be "based upon articulable 
premises sufficient to cause a reasonable and reasonably trained 
officer to believe he was acting lawfully." Accordingly, an 
arrest or search that clearly violated the Fourth Amendment under 
prior court decisions would not be excepted from the rule simply 
because a police officer was unaware of the pertinent case law. 
Thus, there would remain a strong incentive for law enforcement 
officers to keep abreast of the latest developments in the law. 
Constitutionality of the Proposed Modification 

In conclusion, I would like to emphasize that the Department 
of Justice is satisfied that our proposal is fully constitutional. 
It is very similar to that already adopted in the Vlilliams case, 
an extensive decision based on a thorough analysis of relevant 



148 



Supreme Court cases. Moreover, the dissent of the chief Justice 
in Bivens v. Six Unknown Named Agents of the Federal Bureau of 
Narcotics , 403 U.S. 388, 422-42i» (1971) invited Congressional 
•OtlOB in this area. Since our proposal Is grouhded primarily on 



the osces decided over the past ten years in which the Supreme 
Court has emphasized the deterrence of unlawful conduct as the 
sole or primary purpose of the rule, the Department has concluded 
that such a modification would be held to be constitutionally 
permissible. In addition, as mentioned above, our proposal Is 
:' fully consistent with the principle of judicial integrity as well 
■^A ma Mlth that of deterrence. 



TITLE IV - FORFEITURE 
Title IV of our bill is designed to enhance the use of 
forfeiture, and la particular the sanction of criminal forfeit- 
ure, as a law enforcement tool in combatting two of the most 
serious crime problems facing the country: racketeering and drug 
trafficking. 

Tl)ere are presently two types of forfeiture statutes in 
federal law. The first provides for civil forfeiture, a civil in 
rem action, brought directly against property which is unlawful 
or contraband, or which has been used for an unlawful purpose. 
The majority of drug-related property. Including drug profits, 
now must be forfeited civilly under 21 U.S.C. 881. While this 
civil forfeiture statute has been an extremely useful tool in the 
effort to combat drug trafficking, a significant drawback is the 
requirement that a separate civil suit be filed in each district 
in which forfeitable property is located. Also, the overcrowding 
of civil dockets may require a substantial delay before these 
civil forfeiture cases may be heard. Where the property to be 
forfeited is the property of a person charged with a drug 
violation, and that violation constitutes the basis for forfeit- 
ure, a more efficient way of achieving forfeiture would be to 
employ the second type of forCeiture statute, a criminal forfeit- 
ure statute, which permits the consolidation of forfeiture issues 
with the trial of the criminal offense. 



149 



Criminal forfeiture is relatively new to federal law, 
although it has its origins in ancient English common law. It is 
an iji personam proceeding against a defendant in a criminal case, 
and is Imposed as a sanction against the defendant upon his 
conviction. Criminal forfeiture is now available under only two 
statutes: the Racketeer Influenced and Corrupt Organization or 
"RICO" statuteV and the Continuing Criminal Enterprise or "CCE" 
statute, 2/ a specialized drug offense which punishes those who 
conduct drug trafficking organizations. 

In the last decade, there has been an increasing awareness 
of the extremely lucrative nature of drug trafficking and of the 
illicit economy which it generates and through which it is 
sustained, and thus, of the importance of effective tools for 
attacking the economic aspects of such crime. A similar 
awareness with respect to racketeering led to the enactment of 
the RICO and CCE statutes more than ten years ago. 

Both civil and criminal forfeiture hold significant promise 
as important law enforcement tools in separating racketeers and 
drug traffickers from their ill-gotten profits and the economic 
power bases through which they operate. However, because of 
limitations of and ambiguities in present forfeiture statutes, 
the law enforcement potential of forfeiture in these areas has 
not been fully realized. Title IV is designed to address these 
problems, and is based with minor modifications on the forfeiture 
provisions of title VI of the Senate-passed comprehensive drug 
enforcement and violent crime bill of the last Congress, 
S. 2572.3/ Substantially similar forfeiture legislation, S. 9'*8, 
is now also before the Judiciary Committee. 

The forfeiture provisions of our bill are divided into four 
parts. The first, Part A, amends the criminal forfeiture 
provisions of the RICO statute. One of the most important of the 
RICO amendments would make the proceeds of racketeering activity 
1/ 18 U.S.C. I960 et seq. 
2/ 21 U.S.C. 848. 



2/ This title of S. 2572 was, with certain amendments, based on 

S. 2320, the forfeiture bill prepared by the Administration which 
was approved by the Senate Judiciary Committee. S. Rept. No. 
97-520, 97th Cong., 1st Sess. (1982). 



150 



specifically subject to an order of criminal forfeiture. While 
it has been our position .that the scope of the current criminal 
forfeiture language of the RICO statute encompasses this type of 
property, certain appellate courts have not agreed, and this 
issue is currently pending review by the Supreme Court. H./ In our 
view, the utility of criminal forfeiture as a means of combatting 
racketeering would be seriously limited if we were unable to 
reach racketeering profits, and this amendment is therefore 
essential to the RICO forfeiture scheme. 

Clarifying the scope of property subject to forfeiture goes 
only part of the way towards making the RICO forfeiture statute 
more effective. We must also address the serious problem of 
defendants defeating criminal forfeiture actions by removing, 
concealing, or transferring forfeitable assets prior to convic- 
tion. To counteract this problem, our RICO forfeiture amendments 
strengthen the government's ability to obtain restraining or 
protective orders to preserve forfeitable assets until trial and 
would permit, under limited circumstances, the issuance of such 
orders prior to indictment — an authority lacking under current 
law. They also provide clear authority to void transfers a 
defendant has undertaken in an attempt to defeat the govern- 
ment's opportunity for forfeiture. Finally, where a defendant 
has succeeded in removing his forfeitable assets from the reach 
of the government, our bill would permit the court to order him 
to forfeit substitute assets of equal value. We believe these 
amendments are essential to an effective criminal forfeiture 
statute. In criminal forfeiture, custody of forfeitable assets 
remains with the defendant until conviction. Therefore, we must 
have strong authority to prevent improper pre-conviction 
transfers and to negate the benefits of such transfers when they 
occur. 

Part B of Title IV of the Administration's bill makes 
several amendments to the Comprehensive Drug Abuse Prevention and 



i*/ Russello V. United States (No. 82-J*72, cert , granted 
Jan. 10, \962T'. 



151 



Control Act of 1970.5/ The most significant of these aM«ndB«nta 
is the creation of a new criminal forfeiture statute that would 
be applicable in all major drug prosecutions. Presently, the 
sole drug offense to which criminal forfeiture applies is the 
specialized Continuing Criminal Enterprise statute. £/ The scope 
of property subject to criminal forfeiture under this new 
provision would be essentially the same as that now subject to 
civil forfeiture under the drug laws, namely, the proceeds of 
drug offenses and property used in the commission of these 
crimes. While there will continue to be cases where the use of 
civil forfeiture will be either necessary or preferable, the 
option of proceeding with a criminal forfeiture action should 
allow greater efficiency in our drug forfeiture efforts by 
reducing the need to pursue parallel civil forfeiture actions and 
criminal prosecutions. The new criminal forfeiture statute for 
drug-related assets tracks the RICO criminal forfeiture provi- 
sions as amended in Part A of this Title. Thus, this new statute 
incorporates impor;tant safeguards to protect against the greatest 
flaw of current criminal forfeiture statutes, the opportunities 
they present for defendants to utterly avoid the forfeiture 
sanction by removing, concealing, or transferring their assets 
before conviction can be obtained. 

Another important aspect of Part B of our forfeiture 
proposal is an amendment of the current civil forfeiture provi- 
sions of the drug laws to permit the forfeiture of real property 
used in the commission of drug felonies. This new authority 
would permit the forfeiture of buildings used as "stash" houses 
and illicit drug laboratories, and would also permit the forfeit- 
ure of land used to cultivate drugs, a problem, particularly with 
respect to the domestic cultivation of marihuana, that is of 
growing concern to federal drug enforcement authorities. The. 
civil forfeiture provisions of our drug laws are also amended in 
Part B to include a provision for the stay of civil forfeiture 
proceedings pending the disposition of a related criminal case. 
Without such stays, the civil forfeiture proceeding can be 
5/ 21 U.S.C. 601 et seq. 



^/ 21 U.S.C. 848. 



152 



manipulated to obtain premature, and otherwise impermissibly 
broad, discovery of matters that will arise in the government's 
prosecution of an associated criminal offense. 

Through the amendments set out in Part B of our forfeiture 
proposal, we should be able to improve significantly our efforts 
to attack the crucial economic aspects of the lucrative illicit 
drug trade. Increased efforts in this area have obvious bene- 
fits. However, we also must recognize that pursuing forfeiture 
can prove to be an expensive proposition for the United States. 
Indeed, in certain cases, the expenses associated with forfeiture 
can exceed the amount that we ultimately realize upon the sale of 
forfeited assets. In our view, it would be particularly appro- 
priate to make the net profits from drug forfeitures available to 
defray the costs incurred by the government in obtaining forfeit- 
ures. Therefore, Part C of this title establishes a trial 
four-year program under which amounts realized by the United 
Stated from the forfeiture of drug profits and other drug-related 
assets would be placed in a special fund from which the Congress 
could appropriate moneys specifically for the purpose of paying 
expenses that arise in civil and criminal forfeiture actions 
under the drug laws. Among the purposes for which these funds 
could ,be used is the payment of rewards for information or 
assistance leading to a forfeiture. The availability of sub- 
stantial rewards is essential if we are to obtain significant 
forfeiture in the secretive and violent setting of drug traf- 
ficking. 

The final group of forfeiture amendments, which make up Part 
D of Title IV, are amendments to the Tariff Act of 1930. These 
provisions govern the seizure and forfeiture of property under 
the customs laws, and are also applicable to seizures and 
forfeitures of drug-related property under 21 U.S.C. 881. The 
most important of these amendments would expand the use of 
efficient administrative forfeiture proceedings in cases in which 
no party comes forward to contest a civil forfeiture action. 
Under current law, administrative forfeiture is available only in 
those uncontested esses which involve property valued at $10,000 



153 



or less; all other cases must be the subject of judicial proceed- 
ings. Because of this current low valuation ceiling on adminis- 
trative forfeitures, judicial proceedings are required in a 
significant number of forfeiture cases, even though there is no 
party in opposition to the forfeiture. In these cases, the 
overcrowding of court dockets often means a delay of more than 
one year before the case may be heard, and during this period of 
delay the property is subject to deterioration and the costs to 
the government in maintaining and safeguarding the property 
escalate. To address these problems, the Tariff Act is amended 
in our bill to permit the use of more efficient administrative 
forfeiture proceedings in uncontested cases involving any 
conveyances used to transport illicit drugs and any other 
property of a value of up to $100,000. 

Also included in these Tariff Act amendments are two changes 
in current law that will enhance cooperation between federal law 
enforcement agencies and their State and local counterparts. 
First, new authority is created whereby property forfeited by the 
United States may be directly transferred to State or local 
agencies which have assisted in developing the case that led to 
the forfeiture. Second, the authority for discontinuance of 
federal forfeitures in favor of State or local forfeiture 
proceedings is clarified. 

Finally, the Tariff Act amendments provide for a trial 
funding mechanism for meeting the expenses of customs forfeitures 
which parallels that established for drug-related forfeitures 
under Part C of this Title. In essence, this provision places 
the moneys realized from forfeitures under the customs laws in a 
special fund from which appropriations may be made to cover the 
costs associated with the seizure, forfeiture, and ultimate 
disposition of assets. • 

For the purposes of our testimony today, we have only 
touched on the more important of the forfeiture amendments of 
Title IV of the Administration's bill. However, in this title of 
the bill, we have attempted to achieve a comprehensive improve- 
ment of our forfeiture laws. Thus, our proposal not only 



25-694 O - 84 - 11 



154 



corrects the most disturbing limitations of current law, but 
also addresses numerous ambiguities and provides needed guidance 
in procedural matters, guidance which is particularly lacking in 
current criminal forfeiture statutes. Forfeiture can be a vital 
element in our efforts to combat racketeering and drug traffick- 
ing. But to achieve this goal, our forfeiture laws must be 
strengthened as provided in Title IV of our bill. 

TITLE V - The Insanity Defense 

Title V of the bill deals with the insanity defense and with 
related procedural matters that apply in the federal criminal 
justice system. The subject is an important one. Although the 
insanity defense is raised in comparatively few federal oases and 
is successful in even fewer, the defense raises fundamental 
Issues of criminal responsibility which the Congress should 
address. Moreover, the insanity defense is often asserted in 
cases of considerable notoriety which influence, far beyond their 
numbers, the public's perception of the fairness and efficiency 
of the criminal justice process. 

It requires little reflection to understand why the public 
is so concerned about the defense. When it is raised following a 
crime involving a prominent defendant or victim, in which there 
is absolutely no question whether the defendant committed the 
acts constituting the offense — indeed we may well have been 
able to see him do it several times over on television news 
reports — and yet the highly publicized trial that follows 
focuses not on those acts so much as on the defendant's mental 
and emotional history, most lawyers and laymen alike would agree • 
that the focus of the judicial process has become grossly 
distorted. 

In spite of these problems with the defense and its impor- 
tance, it is ironic, as the Attorney General pointed out last 
July when he testified before the Committee, that neither the - 



155 



Congress nor the Supreme Court has yet played a major role in its 
development. Its evolution in England and in this country over 
several centuries has been haphazard and confusing. As the 
Conimittee knows from its work over the past decade or more on the 
criminal code revision bills, Congress has never enacted legis- 
lation defining the insanity defense. Likewise, the Supreme 
Court has generally left development of the defense to the 
various federal courts of appeals. As a result, the federal 
circuits do not even at present apply a wholly uniform standard. 
^ In recent years, however, all of the federal circuits have 
adopted, with some variations, the formulation proposed by the 
American Law Institute's Model Penal Code which provides that a 
"person is not responsible for criminal conduct if at the time of 
such conduct as a result of mental disease or defect he lacks 
substantial capacity to appreciate the [criminality] [wrongful- 
ness] of his conduct or to conform to the requirements of the 
law." 

As a result, in a trial involving the insanity defense, the 
defendant's commission of the acts in question is commonly 
conceded or at least not seriously contested. Instead the trial 
centers around t^e issue of insanity and the key participants are 
highly paid psychiatrists who offer conflicting opinions on the 
defendant's sanity. Unfortunately for the Jury and for society, 
the terms used in any statement of the defense — for example the 
term "paranoid schizophrenia" -- are often not defined and the 
experts themselves disagree on their meaning. In addition, the 
experts often do not agree on the extent to which behavior 
patterns or mental disorders that have been labeled "schizo- 
phrenia," "inadequate personality," and "abnormal personality" 
actually cause or impel a person to act in a certain way. For 
example, a December, 1982, statement by the American Psychiatric 
Association on the insanity defense noted that "[t]he line 
between an irresistible impulse, and an impulse not resisted is 
probably no sharper than that between twilight and dusk." 

Since the experts themselves are in disagreement about both 
the meaning of the terms used to define the defendant's mental 
state and the effect of a particular state on the defendant's 



156 



•Otions — but still freely allowed to state their opinion to the 
Jury on the ultimate question of the defendant's sanity — it is 
amall wonder that trials involving an insanity defense are 
arduous, expensive, and worst of all, thoroughly confusing to the 
Jury. Indeed the disagreement of the experts is so basic that it 
-■akes rational deliberation by the Jury virtually impossible. 
Thus, it is not surprising that the Jury's decision can be 
strongly influenced by the procedural question of which side must 
carry the burden of proof on the question of insanity. In this 
regard, we can vividly recall that several of the Jurors in the 
Hinckley case publicly stated, afterwards that they were strongly 
influenced by the fact that the government had the burden of 
proof. 



Thus, Title V has been drafted to reflect three changes in 
the insanity defense in the federal system that would restrain it 
within fair and reasonable boundaries and make .it more comprehen- 
sible to the Jury. First, the defense would be limited to those 
cases in which the defendant, as a result of mental disease or 
defect, was unable to appreciate the nature and quality or 
wrongfulness of his acts, and it is made explicit that mental 
disease or defect does not otherwise constitute a defense. 
Second, opinion evidence on the question whether the defendant 
had the mental state or condition to constitute either an element 
of the crime or a defense is prohibited; and third, the defendant 
would be required to carry the burden of proof of his insanity by 
clear and convincing evidence. 

Limiting the defense to those cases in which a mental disease 
or defect renders the defendant unable to appreciate the nature 
and quality or wrongfulness of his acts would abolish the 
volitional portion of the two-pronged ALI-Model Penal Code test 
for insanity quoted earlier. We have concluded that elimination 
of the volitional portion of the test is appropriate since mental 
health professionals themselves have come to recognize that it is 
very difficult if not impossible to determine whether a particu- 
lar individual lacked the ability to conform his conduct to the 



157 



requirements of the law becfause he was suffering from a mental 
disease or defect. There is, in short, a much stronger agreement 
among psychiatrists about their ability to ascertain whether as a 
result of mental illness a defendant had an understanding of his 
acts than about whether he had the capacity to heed • the law's 
strictures . 

Opinion evidence on the ultimate question of whether the 
defendant haa the mental state or condition to constitute an 
element of the offense or a defense would be proscribed in our 
proposal by an amendment to Rule 704 of the Federal Rules of 
Evidence. We believe that such a provision is critical in 
overcoming the abuses of the insanity defense as it is presently 
employed in the federal system. In many insanity defense trials, 
prosecution and defense psychiatrists agree on the nature and 
extent of the defendant's mental disorder. What they disagree 
about is the probable relationship between his disorder and his 
ability to control his conduct or even to appreciate its wrong- 
fulness. In our view, expert opinion testimony on whether the 
defendant could appreciate the nature and quality or wrongfulness 
of his acts and on his motive, intent, or other mental state 
should be disallowed. As recognized by many psychiatrists 
themselves, there is no basis for believing that psychiatry is 
competent to determine such matters as they existed on a previous 
occasion as opposed to simply describing the person's mental 
disorder or defect. We believe that the question of the connec- 
tion between any mental disease or defect and the defendant's 
inability to understand his acts is the type of fact question 
that ought to be left to the trier of fact unhindered by "expert" 
opinion in an area where no consensus of such opinion exists. 



Our proposal also shifts to the defendant the burden of 
proving his insanity by clear and convincing evidence. Such a 
shift does not present a constitutional issue. The present rule 
followed in the federal courts which places the burden of proving 
sanity on the prosecution stems from the Nineteenth Century case 
of Davis V. United States , 160 U.S. ijeg. The rule has been held 
to establish "no constitutional doctrine, but only the rule to be 



158 



followed in federal courts." Leland v. Orego n. S'^S U.S. 790, 797 
(1952). Leland , which sustained the constitutionality of an 
Oregon statute shifting the burden of persuasion on insanity to 
the defendant beyond a reasonable doubt, was reaffirmed by the 
Supreme Court in Patterson v. New York , ^32 U.S. 197 (1977), a- 
case dealing with the constitutionality generally of the concept 
of affirmative defenses in which the burden of persuasion is 
placed on the defendant. Although Patterson did not deal with 
the insanity defense, it not*d specifically that under Leland 
"once the facts constituting a crime are established beyond a 
reasonable doubt, based on all the evidence, including evidence 
of the defendant's mental state, the State may refuse to sustain 
the affirmative defense of insanity unless demonstrated by the 
defendant by a preponderance of the evidence." Patterson , p. 
206. As recently stated by the Sixth Circuit: " Patterson makes 
it clear that so long as a jury is instructed that the state has 
the burden of proving every element of the crime beyond a 
reasonable doubt, there is no due process violation. The state 
may properly place the burden of proving affirmative defenses 



such as ... insanity upon the defendant." Krzeminski v. Perini, 
61U F.2d 121, 123 (6th Cir. I98O). A little over half of the 
states now place the burden of persuasion on the defendant. 

Our proposal would require the defendant to prove his 
insanity by clear and convincing evidence, a higher standard of 
proof than a mere preponderance of the evidence. In our view, it 
is important to assure that only those defendants who clearly 
satisfy the elements of an insanity defense are exonerated from 
what otherwise would be culpable criminal behavior. It is 
therefore appropriate to require the defendant to demonstrate his 
insanity by something more than a bare preponderance of the 
evidence. 

Moreover, what our proposal does not do is worthy of special 
emphasis. While Title V would shift the burden of proof on the 
insanity defense to the defendant, it does not relieve the 
government of the burden of proving each and every element of th' 
offense, including any statutorily prescribed mental element sue 
as willfulness or malice, beyond a reasonable doubt. 



159 



In sum, we believe that our proposal for a legislative 
limitation of the insanity defense is reasonable, workable, and 
fair. It continues the privilege of the defendant to raise the 
defense of insanity, while restoring the right of society, 
through the Jury, to evaluate all the evidence and determine 
whether any mental disease or defect that the defendant is able 
to show was the cause of the crime. In short, the jury will 
determine whether the defendant committed the crime because he 
could not understand what he was doing or could not appreciate 
the wrongfulness of his conduct due to a mental disease or 
defect, or whether he had such an understanding or appreciation 
but decided to do it anyway. 

Beyond the reforms of the insanity defense itself which we 
have just described, Title V contains a number of provisions for 
the commitment to a mental hospital for treatment of persons at 
various stages in the criminal justice process who are so 
disturbed as to present a danger to the community. These 
provisions are familar to the Committee since they are virtually 
identical to those contained in recent criminal code revision 
bills such as S. 1630 in the last Congress and generally arouse 
little or no controversy. Of paramount importance is the 
establishment for the first time of a civil commitment procedure 
for defendants who, for one reason or another, are charged with a 
crime but not convicted. At present, outside the District of 
Columbia, there is no federal statute authorizing or compelling 
the conunitment of an acquitted but presently dangerous and insane 
individual. When faced with such a situation, federal prosecu- 
tors today can do no more than call the matter to the attention 
of State or local authorities and urge them to institute commit- 
ment proceedings. Of course there is no requirement that this 
will occur, and the lack of such a commitment procedure in the 
federal system creates the very real potential that the public 
will not be adequately protected from a dangerously insane 



160 



62 - 



defendant who is acquitted at trial. In short, federal prosecu- 
tors must at present hope that the state officials will come to 
their rescue and take up what began as a federal responsibility. 

Accordingly, we strongly urge the Committee to include all 
of these comprehensive procedural reforms as an integral part of 
the reform of the insanity defense. 



TITLE VI — Reform of Federal Intervention in 
State Proceedings 

Title VI of the bill responds to the serious problem of 
habeas corpus abuse. The overly broad availability of collateral 
proceedings in the federal courts has been a growing source of 
concern in recent years to legal writers, state judges and 
attorneys general, and federal judges. Indeed, a majority of the 
Justices of the Supreme Court have strongly criticized the 
current operation of federal habeas corpus and have called for 
basic limitations on its scope and availability. \_/ The 
generally recognized shortcomings of the current system include 
the affront to the state courts involved in unnecessary 
re-adjudication of their decisions by the lower federal courts; 
the impossibility of ever conclusively ending the litigation of a 
criminal case on account of the open-ended availeJjility of 
federal habeas corpus; the waste of federal and state resources 
involved in litigating the frivolous and redundant petitions of 
state and federal prisoners; and the virtual nullification of 



1/ See Rose v. Lundy , 455 U.S. 509, 546-47 (1982) (Stevens, J., 
dissenting) ; Schneckloth v. Bustamonte , 412 U.S. 218, 250 
(1973) (concurring opinion ol Powell, J., joined by 
Burger, C.J., and Rehnquist, J.); Burger, 1981 Year-End 
Report on the Judiciary 21; O'Connor, Trends in the 
Relationship Between the Federal and State Courts from the 
Perspective of a State Court Judge " 22 William & Mary L. 
Rev. 801, 814-15 (1981) ; Justice Lewis Powell, Address 
Before the A.B.A. Division of Judicial Administration, 
Aug. 9, 1982. See also Schnecltloth v. Bustamonte , 412 U.S. 
218, 249 (1973) (Blac)tmun, J., concurring); Engle v. Isaac , 
456 U.S. 107, 126-28 (1982). 



161 



state capital punishment laws that has resulted from delayed and 
repetitive habeas corpus applications in capital cases. 

Title VI incorporates a variety of reforms responding 
to these abuses. The proposals in the Title originated as 
S. 2216 of the 97th Congress, which was the subject of hearings 
before the Senate Judiciary Committee in April of 1982. The 
proposals were later re-introduced in the 97th Congress by 
Senator Thurmond as S. 2838 with certain clarifying amendments 
resulting from the hearings. The proposals of Title VI of this 
bill are the same as those of S. 2838. The intended 
interpretation and justification of the proposed reforms have 
been fully set out in prior statements of the Administration and 
the bills' sponsors, y In brief, the major reforms of Title VI 
are as follows: 

First, Title VI would establish a time limit on habeas 
corpus applications. The need for such a reform was cogently 
expressed in a recent statement of Justice Powell: 

Another cause of overload of the federal system is 28 
U.S.C. §2254, conferring federal habeas corpus 
jurisdiction to review state court criminal 
convictions. There is no statute of limitations, and 
no finality of federal review of state convictions. 
Thus, repetitive recourse is commonplace. I know of no 
other system of justice structured in a way that 
assures no end to the litigation of a criminal 
conviction. Our practice in this respect is viewed 
with disbelief by lawyers and judges in other 
countries. Nor does the Constitution require this sort 
of redundancy, "ij 

Title VI would correct this situation by enacting a 

one-year time limit on habeas corpus applications, normally 



y See 128 Cong. Rec. S11851-59 (daily ed. Sept. 21, 1982) 
(statement of Senator Thurmond concerning S. 2838); 129 
Cong. Rec. S3147-48 (daily ed. March 16, 1983) 
(section-by-section analysis of Title VI of S.829); The 
Habeas Corpus Reform Act of 1982: Hearing on S.2216 Before 
the Senate Committee on the Judiciary, 97th Cong., 2d Sess. 
16-107 (1982) (Administration statements and testimony 
concerning S.2216). See also William French Smith, 
"Proposals for Habeas Corpus Reform," in P. McGuigan & 
R. Rader, eds.. Criminal Justice Reform: A Blueprint (Free 
Congress Research and Education Foundation 1983) . 

y Justice Lewis Powell, Address Before the A.B.A. Division of 
Judicial Administration, Aug. 9, 1982. 



162 



running from exhaustion of state remedies. The proposed 
limitation rule may be compared to various other limits presently 
imposed on the review or re-opening of criminal judgments in the 
federal courts, such as the normal 90 day limit on state 
prisoners' applications for direct review in the Supreme Court. 
It would provide ample time for state defendants to seek federal 
. review of their convictions following the conclusion of state 
proceedings. It would, however, create a means for control of 
the current abuses of repetitive filing and the filing of 
petitions years or even decades after the normal termination of a 
criminal case. 

A second reform of Title VI addresses the problem of 
claims that were not properly raised in state proceedings. It is 
particularly disruptive of orderly procedures in criminal 
adjudication if a prisoner who failed to take advantage of a fair 
opportunity to raise a claim in state proceedings is later 
allowed to raise it in a habeas corpus proceeding, with the 
potential for unsettling a criminal conviction long after it 
should be regarded as final. Title VI would establish a general 
rule barring the assertion in federal habeas corpus proceedings 
of a claim that was not properly raised before the state courts/ 
so long as the state provided an opportunity to raise the claim 
that satisfied the requirements of federal law. 

The main practical import of the proposed rule is for 
cases in which attorney error or misjudgment is advanced as the 
reason why a claim was not raised in the state courts, resulting 
in its forfeiture under state rules of procedure. A procedural 
default of this sort would be excused in a subsequent habeas 
corpus proceeding if the attorney's actions amounted to 
constitutionally ineffective assistance of counsel, since in such 
a case the default would be the result of the state's failure, in 
violation of the Sixth Amendment to the Constitution, to afford 



163 



the defendant effective assistance of counsel. £/ But minor or 
technical errors or misjudgments — which even the most able 
attorney will sometimes engage in, given the pressures and 
complexity of criminal adjudication — would not excuse a 
procedural default. As Justice O'Connor stated for the Supreme 
Court in Engle v. Isaac : 

We have long recognized . . . that the Constitution 
guarantees criminal defendants only a fair trial and a 
competent attorney. It does not insure that defense 
counsel will recognize and raise every conceivable 
constitutional claim. 5^/ 

The approach of Title VI is consistent with the 

clearest interpretations of the current rules by the federal 

courts of appeals. §_/ The establishment of this interpretation 

on a uniform basis will avoid many years of additional litigation 

that would be required to resolve the existing uncertainties in 

this area through caselaw development. 

A third major reform of Title VI is affording finality 
to full and fair state adjudications of a petitioner's claims. 
Justice O'Connor has observed: 



If our nation's bifurcated judicial system is to be 
retained, as I am sure it will be, it is clear that we 
should strive to make both the federal and the state 
systems strong, independent, and viable. State courts 
will undoubtedly continue in the future to litigate 
federal constitutional questions. State judges in 
assuming office take an oath -to support the federal as 
well as the state constitution. State judges do in 
fact rise to the occasion when given the responsibility 
and opportunity to do so. It is a step in the right 
direction to defer to the state courts and give finality 
to their judgments on federal constitutional questions 
where a full and fair adjudication has been given in 
the state court. TJ 



4/ See Cuyler v. Sullivan , 446 U.S. 335, 344 (1980) ("The right 
to counsel prevents the state from conducting trials at 
which persons who face incarceration must defend themselvss 
without adequate legal assistance."). 

5/ 456 U.S. 107, 134 (1982). 

6/ See Indivi(^lio v. United States , 612 F.2d 624, 631 (2d Cir. 
197971 "without some showing that counsel's mistakes were 
so egregious as to amount to a Sixth Amendment violation, a 
mere allegation of error by counsel is insufficient to 
establish 'cause' to excuse a procedural default." 

2/ O'Connor, Trends in the Relationship Between the Federal and 
^tate Courts from the Perspective of a State Court Judge , TI 
William and Mary Law Review 801, 814-15 (1981). 



164 



To be full and fair in the intended sense the state 
adjudication must satisfy a nuinber of specific requirements which 
are fully set out in the legislative history of the proposal. 8^/ 
The state court determination must be reasoneible, and must be 
arrived at by procedures consistent with appliczible federal law. 
This standard would preserve federal re-adjudication in cases 
presenting demonstrated deficiencies in the state process. It 
%rould, however, avoid the excesses of the current standard of 
review under which an independent determination of all claims is 
required even where there is nothing to suggest that their 
consideration by the state courts was in any way the deficient. 

The proposed standard is similar to that applied by the 
Supreme Court in habeas corpus proceedings prior to the 
unexplained substitution of the current rules of ■ mandatory 
re-adjudication in Brown v. Allen . £/ It may also be compared to 
standards of review currently employed in various other areas of 
federal law. One exeimple is the "good faith" standard applicable 
to judicial review of state executive action in S 1983 suits, 
under which the disposition similarly depiends on the 
reasonableness of the state official's views concerning the 
requirements of federal law. The effect of the new standard of 
review proposed in Title VI should be a relatively quick and easy 
disposition in federal hzibeas corpus proceedings of most claims 
that have previously been determined by the state courts. 



8/ See 128 Cong. Rec. S11852, S11855-57 (daily ed. Sept. 21, 
TM2) ; The Habeas Corpus Reform Act of 1982: Hearing on 
S. 2216 Before the Senate Committee on the Judiciary, 97th 
Cong., 2d Sess. 16-17, 41-42, 89-101 (1982); 129 Cong. Rec. 
S3147-48 (March 16, 1983). 

£/ 344 U.S. 443 (1953). See Ex Parte Hawk , 321 U.S. 114, 118 
(1944): "Where the state courts have considered and 
adjudicated the merits of ... (a petitioner's] . . . 
contentions ... a federal court will not ordinarily 
reexzimine upon writ of habeas corpus the questions thus 
adjudicated .... But where resort to state court 
remedies has failed to afford a full and fair adjudication 
of the federal contentions raised, either because the state 
affords no remedy ... or because in the particular case 
the remedy afforded by state law proves in practice 
unavailable or seriously inadequate ... a federal court 
should entertain his petition for. habeas corpus, else he 
would be remediless." 



165 



Title VI of the bill would also maintain the general 
conformity of the standards for collateral proceedings involving 
state prisoners and federal prisoners by creating a time limit 
for federal prisoners' collateral attacks and clarifying the 
rules governing excuse of procedural defaults in such 
proceedings. The collateral attacks of federal prisoners on 
their convictions present many of the same problems and involve 
many of the same abuses as habeas corpus applications by state 
prisoners. Imposing reasonable constraints on such attacks is 
accordingly an equally appropriate reform. As Justice O'Connor 
observed for the Supreme Court in United States v. Frady : 

[T]he Federal Government, no less than the States, has 
an interest in the finality of its criminal judgments. 
In addition, a federal prisoner . . . unlike his state 
counterparts, has already had an opportunity to present 
his federal claims in federal trial and appellate 
forums .... lw]e see no basis for affording federal 
prisoners a preferred status when they seek 
post-conviction relief. 10 / 

Finally, Title VI would institute reforms recommended 

by Judge Henry Friendly 1_1_/ and Professor David Shapiro 1_2/ in 

the procedure on appeal in collateral proceedings and the 

operation of the exhaustion requirement. These reforms will 

improve the efficiency of habeas corpus proceedings and reduce 

the litigating burdens presently associated with them. 



10/ 456 U.S. 152, 166 (1982). . 

U^/ See Friendly, Is Innocence Irrelevant? Collateral Attack on 
Criminal Judgments , 38 U. Chi. L. Rev. 142. 144 n.9 (1970) 
(access to appeal in collateral proceedings) . 

_12/ Shapiro, Federal Habeas Corpus: A Study in Massach usetts, 
87 Harv. L. Rev. 321, 358-59 (1$73) (exhaustion of state 
remedies should not be prerequisite to denial of claims on 
the merits) . 



166 

TITLE VII — Drug Enforcement Amendments 
PART A - Drug Penalties 

Title VII of the bill, which contains drug enforcement 
amendments, is divided into two parts. Part A provides a more 
rational penalty structure for the major drug trafficking 
offenses punishable under the Comprehensive Drug Abuse Prevention 
and Control Act of 1970 (21 U.S.C. 801 et seg.). Trafficking in 
illicit drugs is one of the most serious crime problems facing 
the country, yet the present penalties for major drug offenses 
are often inconsistent or inadequate. This title primarily 
focuses on three major problems with current drug penalties. 

First, with the exception of offenses involving marihuana 
( see 21 U.S.C. 6m(b)(5)), the severity of current drug penalties 
is determined exclusively by, the nature of the controlled 
substance involved. While it is appropriate that the relative 
dangerousness of a particular drug should have a bearing on the 
penalty for its importation or distribution, another important 
factor is the amount of the drug involved. Without the inclusion 
of this factor, penalties for trafficking in especially large 
quantities of extremely dangerous drugs are often inadequate. 
Thus, under current law the penalty for trafficking in 500 grams 
of heroin is the same as that provided for an offense involving 



10 grams. This title amends 21 U.S.C. 841 and 960 to prov.ide for 
more severe penalties than are currently available for major 
trafficking offenses. 

The second problem addressed by this title is the current 
fine levels for major drug offenses. Drug trafficking is enor- 
mously profitable. Yet current fine levels are, in relation to 
the illicit profits generated, woefully inadequate. It is not 
uncommon for a major drug transaction to produce profits in the 
hundreds of thousands of dollars. However, with the exception of 
the most recently enacted penalty for distribution of large 
amounts of marihuana (21 U.S.C. 8M1(b)(6)), the maximum fine that 
may be imposed is $25,000. This title provides more realistic 
fine levels that can serve as appropriate punishments for, and 
deterrents to, these tremer;dously lucrative crimes. 



167 



A third problem addressed by this title is the diaparat* 
sentencing for offenses involving Schedule I and II substances, 
which depends on whether the controlled substance involved in the 
offense is a narcotic or non-narcotic drug. Offenses involving 
Schedule I and II narcotic drugs (opiates and cocaine) are 
punishable by a maximum of 15 years' imprisonment and a $25|000 
fine, but in the case of all other Schedule I and II substances, 
the afimum penalty is only five years' imprisonment and a 
$15,000 fine. The same penalty is applicable in the case of a 
violation involving a Schedule III substance. This penalty 
structure is at odds with the fact that non-narcotic Schedule I 
and II controlled substances include such extremely dangerous 
drugs as PCP, LSD, methamphetamines , and methaqualone , and 
federal prosecutions involving these drugs typically involve huge 
amounts of illicit income and sophisticated organizations. Title 
VII would correct these penalty problems in the areas of both 
drug trafficking and importation/exportation offenses. 



PART E - Diversion Control Amendments 

The Comprehensive Drug Abuse Prevention and Control Act of 1970 (CSA) 
(P.L. 91-513) has been in effect for nearly twelve years, during which time 
it has proven to be a relatively effective piece of legislation. Through 
the enforcement of its provisions, the Drug Enforcement Administration has 
actively pursued the immobilization of major drug traffickers and has 
removed from the illicit market significant quantities of both illicit 
and diverted licit controlled substances. However, over this period several 
weaknesses have surfaced which adversely affect the Federal Government's 
ability to deal effectively with the menace of drug abuse in the United States. 
Some of these weaknesses have developed due to the changing character of the 
i-Hicit drug trade since the CSA was enacted. Others are the result of 
omissions or unclear language in the. legislation. The proposed Diversion 
Control Amendments included in Title VII' of the Comprehensive Crime Control 
Act of 1983 address the problem of diversion of legally produced controlled 
substances into the illicit market. It also includes provisions to reduce 
the regulatory burden on the controlled drug industry. 



168 



The problem of abuse of drugs diverted from legitimate channels is a major 
one that is not generally well recognized. In its September 10, 1970 "Report 
on the Comprehensive Drug Abuse Prevention and Control Act of 1970," the 
Committee on Interstate and Foreign Commerce noted that, as of late 1969, 
almost 50 percent of legitimately produced amphetamines and barbiturates were 
being diverted into illicit channels. It was the intent of the CSA to provide 
for a "closed" system of drug distribution for legitimate handlers of controlled 
drugs in order to reduce this level of diversion. 

Despite the provisions of the Act, it was reported in the 1978 GAO 
Report entitled, "Retail Diversion of Legal Drugs--A Major Problem With No 
Easy Solution," that diversion and abuse of legal drugs may be involved 
in as many as 7 out of 10 drug-related injuries and deaths. During the 
period 1980-1982, between 60-70 percent of all emergcTicy room controlled 
substance mentions involved drugs that are legitimate in origin (source: 
Drug Abuse Warning Network). A more direct measure of diversion is the ■ 
documented diversion by convicted violators. The first 21 practitioners 
convicted under Operation Script, a pilot program directed against regis- 
trant violators, were responsible for documented diversion of approximately 
20.6 million dosage units of controlled substances. Operation Script was 
the forerunner of DEA's ongoing Targeted Registrant Investigation Program (TRIP). 
At least one of those convicted was responsible for diverting between 4 and 5 
million dosage units a year. These convicted defendants constitute only a 
portion of the defendants under Operation Script, who in turn make up only 
a small portion of the total number of registrants involved in diversion. 
In FY 1982, DEA Initiated 320 cases involving willful diversion by registrants. 
An example of the success of these actions is the investigation of the so- 
called "store clinics" operating in the Detroit area. We estimate that these 
"clinics" distributed between 6 and 7 million dosage units of Preludin, Desoxyn, 
Dilaudld, and Talwin, all highly abused drugs, over a two-year period. Twenty- 
nine indictments were returned in this case on two physicians, seven pharmacists, 
and six corporations for a variety of drug charges including illegal distribu- 
tion, conspiracy and continuing criminal enterprise. Similar success has been 
achieved in cases against the "stress clinics" which act as "prescription 
mills" for'the diversion of methaqualone. Clearly, diversion by registrants 
appears to be much greater than had previously been estiipated. These figures 



169 



involve only willful diversion and do not include theft, fraud, or misprescribing 
which add to the problem. 

The incentives for diverting legally produced controlled substances are 
many and varied. Certainly, the enormous profits involved make trafficking 
of diverted drugs most attractive. A single dosage unit of Dilaudid, a 
synthetic narcotic which can be purchased by a pharmacy or doctor for 
approximately 17«, can be sold on the streets for up to $60.00. 

Contributing to the demand for and the price of diverted drugs is the 
fact that heroin availability in many parts of the United States has been 
reduced from 1971 levels and continues to remain at a considerable reduced 
level. The demand for a wide variety of diverted drugs to supplement poor 
quality or non-existent heroin continues to be a factor affecting the diversion 
problem. However, it is clear that a large poly-drug abusing population 
has developed and will continue to have a preference for multiple drug use 
particularly among school age children. In some cases, legally produced 
narcotics have replaced narcotics as the drug of choice. 

The responsibility for enforcing the provisions of the Controlled Substances 
Act, as they pertain to legally produced controlled substances, lies with 
DEA's Office of Diversion Control. Created to deal specifically with this 
problem, this office uses a wide range of tools to combat diversion. It 
conducts periodic investigations of manufacturers and distributors; criminal 
investigations of violative registrants; maintains the "closed system" through 
the registration process; sets production limits on Schedule I and II substances; 
places drugs in the appropriate schedule of the CSA; authorizes and monitors 
imports and exports of controlled substances; participates in international 
drug control bodies; and conducts a variety of other activities to control 
diversion. The system of diversion controls in the United States is recognized 
and admired worldwide. 

Despite the successes of our diversion programs, a major problem with . 
combating the diversion problem continues to be the source of the diversion. 
Under the provisions of the Act, DEA has been successful in reducing diversion 
at the manufacturer/distributor level to a relatively small portion of the 
total drugs diverted each year. This success has been a direct result of the 
authority to regulate this level of the "closed" distribution chain. Registra- 
tion to manufacture and distribute controlled substances is issued only when 
clearly consistent with public interest. Authority to enforce the Act through 



25-694 0-84-12 



170 



administrative, civil, and criminal statutes is clear at this level, and 
mechanisms exist to control diversion. This same level of authority does not 
extend to the practitioner level. It is at the practitioner level that 
80-90 percent of all diversion occurs. Registration of practitioners is 
predicated on authorization of the state in which they practice. Grounds 
for denial or revocation are extremely limited. 

This difference in the level of authority between Federal and state 
governments concerning registration requirements established their respective 
roles in the area of drug diversion. Since the inception of the Act, the 
Federal effort has been directed primarily at the upper level of the distribution 
chain, the manufacturers and distributors. The states were left to monitor 
and enforce compliance at the practitioner level. However, the level of 
diversion at the practitioner level demonstrates that the states have 
not been able to maintain effective controls against diversion. As 
reported in the "Comprehensive Final Report on State Regulatory Agencies 
and Professional Associations," legislative deficiencies and organizational 
and resource problems, have all rendered many states ineffectual. As a 
result, the Federal Government has had to increase its support of the states 
in combating practitioner diversion. This support has taken many forms and 
includes both enforcement and non-enforcement efforts and a provision to 
expand this effort is included in the proposed amendments. 

A major part of the Diversion Control Amendments addresses the issue of 
diversion at the -practitioner level where it is estimated that 80-90 percent 
of diversion from legitimate channels occurs. However, we have not strengthened 
our ability to combat the diversion problem by placing undue burdens on the 
drug industry. Whenever possible, these amendments move to reduce the burden 
on the vast majority of registrants who abide by both the letter and the spirit 
of the law. Some of the proposed amendments were developed as the result of 
comments received from industry and the public and through the regulatory review 
process. 

The major areas that the Diversion Control Amendments address are the 
following. 

1 . Expansion of State Assistance Efforts 

In the GAO Report, "Retail Diversion of Legal Drugs," it was recommended 
that Congress enhance the Drug Enforcement Administration's role- by authorizing 
it to either: 



171 



— exercise direct regulatory authority over retail 
level practitioners, or 

implement grant programs for assisting states in 
controlling diversion. 

Due to the complexity of the problem, the varied degree of state level 
capabilities and the need for prompt and effective action at the practitioner 
level, a combination of both avenues is most appropriate. The Federal 
effort will continue at the highest level of practitioner diversion, where 
highly complex, multi-state operations clearly warrant Federal action. 
However, it is clear that the bulk of the enforcement responsibility will 
be at the state and local level where these registrant divertors have a 
significant impact on the abuse of drugs in their locale. To increase the 
ability of the state and local authorities to deal with this currently 
overwhelming problem, we have proposed a new state assistance effort aimed 
against the diversion of legally produced drugs. 

We have proposed an amendment to Section 503 to provide new grant authority 
for the expansion of assistance to states for curtailing practitioner diversion. 
The assistance would be aimed at those areas which have been identified by 
DEA's "Comprehensive Final Report on State Regulatory Agencies and Professional 
Associations," and subsequent GAO reports, as the major problem areas 
inhibiting effective state action in curtailing practitioner diversion. 
These problems include legislative deficiencies, organizational and resource 
problems, and inadequate training. Grants would be established for a specified 
term with appropriate matching funds provided by the state. Each grant will 
be for a specific effort aimed at the diversion problem. 

Through the expansion of its ability to assist the states' efforts, DEA 
would identify and provide the necessary resources to correct many of these 
deficiencies. In many cases, the first step in the process would be to 
establish an Evaluation Task Force to evaluate current state capabilities 
and to'identify specific needs. Based on determined needs, funding would 
then be provided for such projects as the preparation of improved state 
legislation regarding controlled substance handlers; revisions in state 
statutes concerning the authority, duties and responsibilities of state 
regulatory boards; establishing improved systems of controlled substance 
licensing; and initiation of programs to establish Administrative Law Judge 
provisions to adjudicate actions against registrants. 



172 



The expf.nsion of the state assistance authority of DEA is a significant 
step in ced'jcing the diversion of legitimately produced controlled substances. 
The Grant- 111- Ai deprogram, combined with increased support by DEA in the areas 
of training, intelligence support, legal assistance and cooperative informa- 
> tion. exchange, will be part of a comprehensive program aimed at combating 
practitioner diversion at the state and local level. 

2. Strengthening of Registration Requirements 

Current statutory authority to deny, revoke, orjsuspend the DEA 
registration of a practitioner is limited to three criteria. Action can be 
taken upon a finding that a registrant has: 

r 

(1) materially falsified an application, 

(2) been convicted of a drug-related felony, and 

(3) had their state license suspended, revoked or denied. 

The first criterion has proven virtually useless. The third criterion 
is very limited because of the difficulty states have in taking such action. 
This leaves the conviction of a drug-related felony as the only practical 
avenue for action. Unfortunately, many practitioners who are a clear and 
present threat to the health -and safety of the community will never be brought 
to trial in the overloaded judicial system. These registrants will continue 
to divert into the illicit traffic while the legal system slowly grinds on. 

Amendment of Section 303 expands the standards for practitioner registra- 
tion beyond the current sole requirement of the authorization of the jurisdiction 
in which he/she practices. Additional standards pertaining to consistency 
with the public interest are added. They include the recommendation of the 
appropriate state licensing or disciplinary authority, prior conviction 
record with respect to controlled substances, and compliance with applicable 
Federal, state and local laws relating to controlled substances. This amendment 
does not provide for a detailed Federal review of all practitioners, but pro- 
vides the opportunity for action in the most egregious cases. It also provides 
for the full protection of the individual's rights through administrative pro- 
cedures that provide the right to a full hearing and judicial appeals. 

3. Extended Registration Period 

The amendment to Section 302 extends the registration period from 1 year 
to 3 years for practitioners. The practitioner level represents almost 98 percent 
of all DEA registrants. This move will reduce the paperwork required of these 
registrants and will provide substantial cost benefits to the Government. 



173 



These benefits will be used to provide improved service. An additional 
amendment, necessary to maintain an effective registration system, amends 
Section 307 by requiring registrants to report changes of address. 
4. Scheduling Procedures , ' * 

The provision for an emergency scheduling procedure, to be utilized in the 
event of an imminent danger to the public safety, is added to Section 201. 
-This provision allows DEA to control a drug for one year on an emergency basis, 
during which time final determination will be made based on routine scheduling 
procedures under Section 201. Controls would be limited to those activities 
necessary to assure the protection of the public from drugs of abuse that 
appear in the illicit traffic too rapidly to be effectively handled under the 
lengthy routine control procedure. The Department of Health and Human Services 
is provided a 30-day- period during which they may stop the implementation of 
control . 

- 5. Miscellaneous Regulatory Provisions 

A variety of other provisions involve the clarification of record keeping 
requirements, simplification and expansion of the authority to exempt con- 
trolled drug preparations without abuse potential from the application 
of the regulatory provisions of the Act, facilitate the importation of small 
quantities of controlled substances used exclusively for scientific, analytic 
or research purposes, and several other actions to ease the burden on the 
controlled drug industry without increasing the danger to public safety. 

This has only been a brief description of the key proposed amendments. 
We are available at any time to meet with the Committee staff to discuss each 

.proposed amendment in detail and answer any questions. We believe that this 
is a balanced package that will decrease the burden on the law abiding registrant, 
who is clearly in the majority, while at the same time enhancing our ability 
to successfully attack the drug diversion problem. 

We are currently embarking on the largest, most comprehensive effort 
ever levied against drug trafficking and abuse. It is our firm belief, which 
is supported by death and injury data, that no such effort would be complete 
without a major program directed at the diversion of legally produced 
drugs into the illicit market. 



174 



TITLE ■ Vlil -" "JUSTICE ASSISTANCE ACT 

An integral part of the President's comprehensive crime 
program is the proposal to provide assistance to state and local 
law enforcement In order to enlarge their capacity to attack the 
problems of violent crime. The primary responsibility and the 
direct burden for enforcement of criminal laws and programs of 
crime prevention fall on state and local governments, which 
Increased their expenditures for criminal justice by 1A6 percent 
during the 1970 's. State and local governments account for 87 
percent of the total expenditures for criminal Justice. Title 
VIII is a couhterbalance to strengthened Federal law enforcement 
by providing local law enforcement with additional resources 
focused on violent crime, repeat offenders, victim/witness 
assistance, and crime prevention. 

The proposed Justice Assistance Act is based on agreements 
reached in discussions involving members of the Senate and House 
Judiciary Committees, representatives of the Department of 
Justice, and the White House. It closely parallels the financial 
"assistance provisions of legislation passed by the Senate and 
■Hou^e during the 97th Congress, following extensive public 
"hearings. It embraces the concept of a highly-targeted program 
oT -financial assistance to state and local criminal Justice, 
operating within a new, streamlined, and efficient organizational 
structure. The proposal Incorporates the lessons learned from 
past experience with law enforcement assistance programs and 



focuses the available resources on a very limited number of high 
priority objectives. 

The state and local financial assistance portion of current 
law (the Omnibus Crime Control and Safe Streets Act of 1968, as 
amended), has been phased out. No funds for that activity, the 
former Law Enforcement Assistance Administration, have been 
appropriated since Fiscal Year 1980. The prior history of LEAA, 
however, provides us with some Important lessons. It shows, for 



175 



example, that after the expenditure of $8 billion over 12 years. 
money alone was not the answer to the problem of crime. It 
demonstrated that a program whose priorities were unclear and 
constantly shifting resulted In minimal payoff. And the history 
Indicates that overly detailed statutory and regulatory 
specification produces mountains of red tape but little progress 
In the battle against crime. 

We have also learned, however, that the concept of Federal 
seed money for carefully designed programs does work, and that 
certain carefully designed projects can have a significant Impact 
on criminal Justice. . 

Title VIII reflects an appreciation of these lessons and 
embodies the program concepts agreed upon last year In the 
discussions between members of the Senate, the House, and 
representatives of the Administration. It strips away the 
compU-cated and expensive application and administrative red tape 
required under the earlier program and consolidates the 
management of the .program in a single unit of the Department of 
Justice. Moreover, it continues the presently authorized Justice 
research and statistical programs and insures coordination and 
Interaction between the products of research and the programs 
implemented under the financial assistance provisions of the 
proposal. 

The proposal would establish within the Department an Office 
of Justice Assistance (OJA), headed by an Assistant Attorney 
General. Within this office would be three separate units — the 
Bureau of Justice Statistics (BJS), the National Institute of 
Justice (NIJ), and a new Bureau of Justice Programs (BJP) — each 
headed by a director appointed by the Attorney General. The 
directors would be responsible for the day-to-day management of 
their units and would have grantmaking authority, subject to the 
delegation, coordination-, and policy guidance of the Assistant 
Attorney General. 



176 



-The organizational structure established under current law 
(JSIA) was Intended to admlrtlster programs for which $800 million 
were authorized and was expected to be engaged in virtually every 
aspect of the state and local criminal Justice systems. The 
targeted program proposed by Title VIII, on the other hand, will 
operate at a fraction of that amount and does not require the 
elaborate administrative structure provided In current law. 
Moreover, the unified and consolidated administrative structure 
under the direction of an Assistant Attorney General gives new 
emphasis to Federal participation and cooperation with state and 
local criminal Justice. The Assistant Attorney General will be 
the focal point of the Department's interrelationship with state 
and local governments and will serve as the spokesperson for the 
Department on state/local criminal Justice issues and as liaison 
with the academic communities on Justice research and statistics. 

Both the National Institute of Justice and the Bureau of 
Justice Statistics would continue to carry out the Justice 
research and statistical programs authorized in the current 
statute. The Bureau of Justice Programs would administer the new 
technical and financial assistance program. All would be 
directly involved 4n strengthening the capacity of state and 
local criminal Justice to address the problem of crime. 

Advising the Assistant Attorney General would be a Justice 
Assistance Advisory Board appointed by the President. This 
Board, replacing the two separate boards currently advising the 
NIJ and BJS, will consider the full range of criminal Justice 
Issues. and policies, rather than the compartmentalized and 
narrower view of only research or only Justice statistics. 

Under the proposal, the BJP would have the responsibility to 
provide technieal assistance, training, and funds to state and 
local criminal Justice and nonprofit organizations. This 
assistance would be provided through a combination of block and 
dlsorctlonary grant funds. 



177 



The block grant funding will provide each state with an 
allocation based on Its relative population and a proportional 
share of the funds are to be passed through to local 
governinents. The Federal funds would be matched 50/50 and 
Individual projects would be limited to no more than three years 
of Federal assistance. Moreover, the use of the Funds is limited 
to specific types of projects which have a demonstrated track 
record of success. 

We envision a simplified application procedure for block 
grant funds under which the cities and counties would submit 
abbreviated applications to the State. Essentially, these 
applications would indicate which of the authorized programs the 
locality intends to carry out, data to demonstrate the level of 
need for assistance, the amount of funds required, and the level 
of local' funds available to match the Federal dollars. The state 
office, in turn, would compile the local applications along with 
those from state criminal Justice agencies, rank them according 
to Indices of need, and submit the package along with the various 
certifications required under the Act as a single application for 
the state's allocation of funds. 

The discretionary funds would focus on training and 
technical assistance, multi-Jurlsdlctlonal and national programs, 
and demonstration projects to test new antl-crlme ideas. 

In summary, the assistance provisions of the proposal would 
reduce from four to one the number of Presldentlally appointed 
officials, replace two advisory bodies with a single Board; 
consolidate the research, statistical and financial assistance 
efforts into a single organization headed by an Assistant 
Attorney General; eliminate the bureaucratic administrative 
requirements currently imposed on state and local governinents, 
and provide funds and technical assistance to local law 
enforcement for activities directly related to violent crime, 
repeat offenders, victim/witness assistance, and crime 
prevention. 



178 



Also included in Title VIII is a provision which would 
establish a program of emergency law enforcement assistance. 
Part L would authorize the Attorney General to approve or 
disapprove applications from state governors for the designation 
of a "law enforcement emergency Jurisdiction", when an uncommon 
situation develops in which state and local resources are 
Inadequate to provide for the protection of the lives and 
property of citizens or for the enforcement of criminal laws. 
When such an emergency exists, assistance in the form of 
equipment, training, intelligence information, and technical 
expertise can be provided by Federal law enforcement agencies. 
In addition, the Office of Justice Assistance would be authorized 
to provide funds to the emergency Jurisdiction. We anticipate 
that this special aid would be made available in a very limited 
number of situations, such as the child-murder investigations in 
Atlanta, the destruction of police communications by Hurricane 
Frederick, and the Mount St. Helen volcanic eruption. 

Two- additional matters addressed in Title VIII pertain to 
the Public Safety Officers' Benefits program and the Prison 
Industries certification authority. 

The Public Safety Officers' Benefits Act of 1976 (PSOB) 
authorizes the payment of a $50,000 benefit to the survivors of 
law enforcement officers and firefighters who die as the result 
of an Injury sustained in the line of duty. Excluded from 
benefits under the Act, however, are deaths resulting from the 
voluntary intoxication or Intentional misconduct of the 
officer. Our experience in administering the program over the 
past six years has produced evidence of some difficulty in 
applying these exceptions in full accord with the legislative 
history of the Act. Consequently, Title VIII Includes a 
definition of the term "intoxication". Und«r the proposal, no 
benefit would be paid when the deceased officer's blood alcohol 
level Is between .lOJt and .2Qt , unless there Is convincing • 



179 



evidence that the officer was not acting in an intoxicated manner 
immediately prior to his death. No payment io permitted if the 
blood alcohol level is .20% or greater. 

The addition of language to exclude PSOB benefits in 
instances of "gross negligence" is a formalization of the 
legislative intent expressed by the original sponsors of the bill 
and which was believed to have been adequately addressed by the 
prohibition against payment if the officer's death was caused by 
"intentional misconduct". However, our experience and litigation 
on the "gross negligence" issue demonstrates that the more 
specific language of the Administration- proposal is required. 
(See Harold v. U.S. F. 2d 5^7 (Ct. CI. 1980).) 

The amendment to the Prison Industry Enhancement authority 
is designed to increase from 7 to 20 the number of projects 
eligible for exemption from Federal restrictions on the sale and 
transportation of prisoner-made goods. The amendment also makes 
several technical changes to present law to permit prisons 
seeking exemption to obtain it more easily. 

The original Prison Industry Enhancement legislation was 
enacted in 1979 as part of the Justice System Improvement Act and 
the 7 projects It authorized have been designated. The early 
evaluations of the program indicate that the designated projects 
have been successful in teaching inmates marketable Job skills, 
•reducing the need for their families to receive public 
assistance, and decreasing the net cost of operating correctional 
facilities. A modest expansion of the program to 20 projects 
will permit willing and able prisons to participate in the 
program and allow the Department to better evaluate which prison 
industry projects best accomplish the program's goals. 

One technical amendent to the current law would exempt goods 
produced by designated projects from a Federal law which permits 
a state to keep prison-made goods in another state from crossing 
its borders. The final amendment would require states to provide 



180 



compensation to Injured Inmates, but not necessarily under the 
state's workers' compensation law, as the current legislation 
requires. This change Is necessary because many states cannot 
offer workers' compensation to Inmates under their own laws. 

TITLE IX — Surplus Property Amendment 

The last decade has seen dramatic increases in the nation'' s 
prison population. Between 1973 and 1983 the prison population 
has grown from 204,211 to over 400,000, an increase of 98 percent 
in one decade. By comparison, during the same period, the total 
U.S. population has increased by only 11 percent. 

The rapid rise in prison population has overcrowded correc- 
tional facilities and created a number of serious problems. 
Overcrowding results in increased prison violence. Other 'nega- 
tive effects of overcrowding are idleness and a reduction in the 
number of correctional programs available to inmates. 

More than half of the State correctional systems are under 
court orders stemming from overcrowding. Judges are sometimes 
reluctant to sentence offenders to overcrowded institutions. 
The lack of adequate prison space, in effect, hampers the opera- 
tion of the criminal justice system at all levels. 

Many States have responded to overcrowding by double-bunking 
and using tents and trailers. While this approach provides a 
temporary solution, it is neither satisfactory, safe nor humane. 

The construction of new facilities to meet this need is 
extremely expensive. It can cost anywhere from $30,000 to $90,000 
per bed to construct a prison facility. And, it can take anywhere 
from five to seven years to obtain funds and then construct and 
complete a facility. An immediate, short-term, low cost solution 
is desperately needed. 

One solution to this problem is amendment of the Federal 
Property and Administrative Services Act of 1949 to provide 
Federal surplus property to State and local governments for cor- 
rectional use at no cost. Currently, the Federal Property and 
Administrative Services Act of 1949, as amended (40 U.S.C. 484) 
permits transfer of surplus federal property to States and 



181 



localities for public benefit use, not specif Icially including 
correctional facilities. We support legislation that would 
amend the law to permit, specifically, transfer of federal real 
and related personal property to States for correctional use. 
Caking benefits accrued to the United States into account in 
fixing the sale or lease price. We support the inclusion of 
proposed correctional use properties as eligible for transfer. 
In order to encourage and facilitate these types of transfers 
and to meet the current pressing need for more correctional 
facilities, we propose that these transfers be permitted without 
monetary consideration to the United States. 

The Attorney General's Task Force on Violent Crime recommended 
in its first report that the Attorney General work with the appro- 
priate governmental authorities to make available, as needed and 
where feasible, abandoned military bases for use by States and 
localities as correctional facilities on an interim and emergency 
basis only. The report also asks the Attorney General to work 
with the appropriate government authorities to make available, 
as needed and where feasible, federal property for use by States 
and localities as sites for correctional facilities. 



As a direct result of the findings of the Task Force on 
Violent Crime, the Attorney General directed the Bureau of Prisons 
to form a clearinghouse for correctional facilities. The clear- 
inghouse, as it now operates, can provide information to concerned 
parties and serve as liaison with GSA and the Department of 
Defense regarding potential correctional facilities, such as 
former military bases. We view the clearinghouse function as an 
information pipeline that is necessary, but independent of the 
surplus and disposal actions, which should be performed by GSA. 
Four States have acquired surplus property for correctional use, 
but under existing law they must either lease or purchase the 
property at fair market value. This is a financial burden that 
many can hardly afford to bear. A more workable solution is 
needed. 

At present, State and local governments must pay for surplus 
Federal property they intend to use for correctional purposes. 



182 



By amending the Federal Property and Administrative Services Act 
of 1949 to permit conveyance or lease, at no cost, of appropriate 
surplus Federal properties to State and local governments for 
correctional use, we can provide to State and local governments 
immediate additional capacity while relieving State and local 
budgets of the fiscal burden of constructing new facilities. 

TITLE X - REINSTITUTION OF CAPITAL PUNISHMENT 

The purpose of Title X of the Administration's bill is to 
provide constitutional procedures for the imposition of capital 
punishment. Various provisions of the United States Code now 
authorize the imposition of the sentence of death for crimes of 
homicide, treason, and espionage. However, in all but one 
instance, these sentences are unenforceable because they fail to 
incorporate a set of legislated guidelines to guide the sen- 
tencer's discretion in coming to a determination whether the 
sentence of death is merited in a particular case.V This 
requirement was first articulated by the Supreme Court in its 
decision in Furman v. Georgia , 408 U.S. 238 (1972). In a series 
of decisions following Furman, the Court has given further 
guidance on the constitutional requisites of a statute authoriz- 
ing the imposition of capital punishment. Notable in this series 
of cases was a group of landmark death penalty decisions in which 
the Court held that the death penalty was a constitutionally 
permitted sanction if imposed under certain procedures and 
criteria which guarded against the unfettered discretion con- 
demned in Furman , but which retained sufficient flexibility to 



2/ Only the death penalty provisions of the aircraft piracy 

statute, 49 U.S.C. 1473(c), which were enacted after Furman v. 
Georgia , 408 U.S. 238 (1972), appear to comport with the death 
penalty decisions of the Supreme Court over th-e last decade. 



183 



allow the consideration of aggravating and ^litig£^.tlng factors in 
each case.^/ 

In the decade since the Furman decision, two-thirds of the 
States have enacted laws to restore the death penalty as an 
available sanction for the most serious crimes when committed 
under particularly reprehensible circumstances. During this same 
period, the Congress has on several occasions considered legisla- 
tion to provide constitutional procedures that would permit the 
restoration of the death penalty to the federal criminal justice 
system, but with the exception of a death penalty provision 
included in anti-aircraft hijacking legislation in 197^, no such 
statute has been passed by the Congress. 

As the decisions of the Supreme Court over the past ten 
years have made clear, the death penalty is a constitutionally 
permitted sanction for the most grave offenses, committed under 
aggravating circumstances, provided it is imposed under proce- 
dures that guard against arbitrariness and disproportionality . 
Nonetheless, enactment of legislation to permit reinstitution of 
the death penalty at the federal level has been a controversial 
issue, because of strongly felt, but disparate, views on the 
propriety of restoring the availability of the death penalty as 
an element of the federal criminal justice system. 

We are aware that there are men of ability, goodwill, and 
conscience who believe that it is never justified for society to 
deprive an individual of life, however grave and despicable may 
have been his crimes and however much a threat his actions may 
pose to others in the community or to the survival of the 
community itself. But while recognizing these views, this 
Administration does not subscribe to them. As both the President 
and the Attorney General have repeatedly indicated in public 
statements, we support the imposition of the death penalty under 
carefully circumscribed conditions for the most serious crimes -- 



2,/ Gregg v. Georgia , 1428 U.S. 153 (1976); Proffitt v. Florida , 

^28 U.S. 242 (1976); Jurek v. Texa s, U2S U.S. 262 (1976); 

Woodson V. North Carolina , 428 U.S. 280 (1976); and Roberts 

V. Louisiana , 428 U.S. 325 (1976). ' 



184 



a position also held by a majority of the American public. 3/ 

In our view, the death penalty is warranted for two princi- 
pal reasons. First, while studies attempting to assess the 
deterrent effect of the penalty have reached conflicting results, 
we believe that common sense supports the conclusion that the 
death penalty can operate as a deterrent for certain crimes 
involving premeditation and calculation, and that it will thus 
save the lives of persons who would otherwise become the perman- 
ent and irretrievable victims of crime. Second, society does 
have a right — and the Supreme court has confirmed that right -- 
to exact a just and proportionate punishment on those who 
deliberately flout the most basic requirements of its laws; and 
there are some offenses which are so harmful and so reprehensible 
that no other penalty, not even life imprisonment without the 
possibility of parole, would represent an adequate response to 
the defendant's conduct. 

In the 97th Congress, the Senate Judiciary Committee devoted 
considerable effort to the development of leg.islation that would 
establish constitutional procedures for the imposition of the 
death penalty on the federal level. The bill reported by the 
Committee, S. 114, improved on bills introduced in earlier 
Congresses and incorporated provisions to comport with the Supreme 
Court's capital punishment decisions over the past decade. The 
provisions of Title X of the Administration's bill are based, 
with only minor modifications, on this legislation approved by 
the Judiciary Committee in the last Congress. Also, they differ 
in only minor respects from S. 538, death penalty legislation 
now pending consideration by the Committee .V 

The primary focus of the provisions of Title X is on the 
establishment of constitutional procedures for the imposition of 
the death penalty. For the most part, the scope of offenses for 
Vhlch capital punishment may be considered as a sanction remain 

3/ See S. Rep. No. 97-143, 97th Cong., 1st Sess. 19 (1981). 

V The Department's report on S. 538 will soon be transmitted 
to the Committee. 



185 



the same as under current law. One significant change, however, 
is an amendment that would (iermit consideration of the death 
penalty for an attempted assassination of the President which 
resulted in bodily injury to the President or which otherwise 



came dangerously close to causing the death of the President .2/ 
This provision was incorporated in S. 1 1 U by the Judiciary 
Committee during the last Congress.^/ In three other respects, 
however, the bill restricts the availability of the death penalty 
under current statutes. First, in accordance with the Supreme 
Court's decision in Coker v. Georgia , UBS U.S. 58H (1977), the 
death penalty has been deleted for the offense of rape. Second, 
the availability of the death penalty for peacetime espionage 
has been limited to cases involving strategic weapons or major 
elements of national defense. Third, through the mechanism of 
mandatory threshold aggravating factors, the availability of the 
death sentence for homicide is limited to instances in which the 
defendant either intentionally killed the victim or while engaged 
in the commission of a felony, intentionally participated in an 
act which resulted in the death of an innocent victim and which 
the defendant knew or reasonably should have known would result 
in such a death. 

The procedural provisions of Title X may be summarized as 
follows. Under these provisions, the issue of the propriety of 
the de^th penalty in a particular case is the subject of a 
separate sentencing hearing held after the entry of a guilty plea 
or the return of a guilty verdict. The death penalty may be 
imposed only pursuant to such a hearing. 



5/ The bill would also authorize the death penalty for murder of 
a foreign official, official guest, or internationally protected 
person and for -homicide committed in the course of a kidnapping 
-- offenses which do not now provide for the death penalty 
because they were enacted or amended in a period following 
Furman , when the constitutional requisites of a death penalty 
statute were unsettled. 

^/ A memorandum prepared by the Department's Office of Legal 

Counsel on the constitutionality of such a provision was sub- 
mitted to the Judiciary Committee during its consideration of 
S. 114 in the last Congress' and is reproduced in the published 
hearings of the Committee. See, Capital Punishment , Hearings 
before the Committee on the Judiciary, United States Senate on 
S. 114, 97th Cong., 1st Sess. 54-65 (April 10, 27 and May 1, 1981) 



25-694 0-84-13 



186 



The first procedural requirement is that the government 
file, a reasonable time before trial, a notice that it will, in 
the event of conviction, seek the death penalty and a description 
of the aggravating factors it will seek to prove as the basis for 
the penalty. Generally, the sentencing hearing is to be held 
before a jury, either the jury that determined guilt, or where 
the defendant was convicted on a plea of guilty or pursuant to 
a trial without a jury, before a jury specially impaneled for the 
purpose of the sentencing hearing. 

The focus of the hearing is on the consideration of evidence 
of aggravating and mitigating factors bearing on whether the 
death penalty is justified under the circumstances of the case. 
Title X sets out specific mitigating factors which may be 
considered, but, consistent with the Supreme Court's decision in 
Lockett v. Ohio , M38 U.S. 586 (1978), the jury may consider 
other, unenumerated mitigating factors as well. Two sets of 
specific aggravating factors are set out; one set is applicable 
to offenses of treason and espionage and the other applies to 
homicides and the attempted assassination offense. With respect 
to aggravating factors, the jury may also consider ones not 
specifically enumerated. However, a finding of an aggravating, 
factor or factors other than those specifically listed in the 
bill cannot alone support imposition of the death penalty. 

At the sentencing hearing, the government bears the burden 
of proving any aggravating factors beyond a reasonable doubt. 
With respect to mitigating factors, the burden of proof is on the 
defendant, but his proof need meet only a preponderance standard. 
The jury is required to return special findings concerning any 
aggravating or mitigating factors it determines to exist, and 
such findings must be supported by a unanimous vote. If no 
aggravating factor is found to e^ist, or if, in the case of a 
homicide offense, one of the mandatory threshold aggravating 
factors is not found, the court must sentence the defendant to a 
sentence other than death. 

Should the jury return findings of aggravating factors (in 
the case of homicide offenses, aggravating factors in addition to 



187 



those which serve as a threshold limitation) , it then must 
proceed to determine whether these factors outweigh any 
mitigating factors found, or if there were no mitigating factors 
established, whether the aggravating factors alone are sufficient 
to justify imposition of the death sentence. Based on this 
consideration, a finding of whether the sentence is merited must 
be returned. Where the determination is made by a jury, it is 
to be by unanimous vote. The court is bound by the unanimous 
decision of the jury, an approach upheld by the Supreme Court in 
Gregg , supra ■ 

Like S. 1 1 ** as approved by the Judiciary Committee in the 
last Congress, our proposal requires an instruction to the jury 
before whom the sentencing hearing is held that it not consider 
the race, color, national origin, creed, or sex of the defendant 
in determining whether the sentence of death is justified. Each 
juror* is to certify that none of these factors entered into his 
decision. 

Title X also includes a provision, not incorporated in 
S. 1 T4 but which appears in the death penalty bill now before the 
Committee, S. 538, which permits, in capital cases where it is 
determined that the death penalty is not justified, the imposi- 
tion of a life sentence without possibility of parole. 

Also addressed in Title X are the appropriate procedures and 
standards for appellate review of a death sentence. Appeal of 
the sentence is to be filed in the same manner as an appeal of a 
conviction. Consolidation of the appeal of sentence with the 
appeal of conviction is specifically sanctioned, and review in 
capital cases is to be given priority over all other appeals. In 
its review, the appellate court must consider the entire record 
of the case, the .procedures employed in the sentencing hearing, 
and the findings as to- particiilar aggravating and mitigating 
factors'. Affirmance of the death sentence is required if the 
appellate court finds that the sentence of death was not imposed 
under the influence of passion, prejudice, or any other arbitrary 
factors and that the information presented supports the findings 
with respect to aggravating and mitigating factors upon which the 



188 



sentence was based. In all oth.er cases, the appellate court must 
remand the case for reconsideration under the sentencing provi- 
sions of this Title. 

The provisions of Title X of the Administration's bill 
combine, in our .view, to establish procedures for determining 
whether the sentence of death is justified in a particular case 
that comport fully with the constitutional teachings of the 
Supreme Court over the last decade. We believe that in the 
carefully delineated circumstances to which Title X would apply, 
the opportunity for imposition of the death penalty should be 
restored. A criminal justice system limited to lesser sanctions 
is lacking in adequate deterrence and fails to meet society's 
need to exact a just and proportionate punishment for the most 
grave and reprehensible of crimes. 

TITLE XI - Labor "Racketeering Amendments; and 

TITLE XII - Foreign Currency Transaction Reporting 
Amendments 

As these Titles of the bill are before the Committee on 
Labor and Human Resources and the Committee on Banking, Housing 
and Urban Affairs respectively a statement of their provisions 
is not included herein. 

TITLE XIII - Federal Tort Claims Act Amendments 

Title XIII would make the United States the exclusive defen- 
dant for all torts committed by federal employees within the scope 
employment and would, for the first time, make the United . States 
liable for torts arising under the Constitution of the United States. 
The title would provide for the substitution of the United States 
for defendant employees acting within the scope of their employment 
in all suits alleging common law or constitutional torts. Title 
XIII constitutes a significant, equitable and badly needed reform 
of federal tort law. 

The current state of federal tort law, at least in the area of 
the constitutional tort, is unsatisfactory and counterproductive 



189 



from the perspective of every participant. Since the Supreme Court 
announced that a cause of action was available against individual 
federal officers in 1971, federal employees have been the subject 
of an increasing number of suits filed personally against there at 
every level of government. 1^/ They are being sued for doing no 
more than carrying out the duties which Congress and the President 
have ordered them to perform. In a society where virtually every 
other identifiable group is protected by some form of indemnity, 
insurance or rule of law, this exposure to personal financial ruin 
is shocking and unconscionable. In reflecting upon this, one United 
States District Judge has beeen moved to comment, "The effect of 
this development upon the willingness of individuals to serve their 
country is obvious." 2^/ If, as opponents to this type of legisla- 
tion maintain, deterrence is the object of such personal suits, that 
which is deterred is competent government. Effective action in all 
is chilled. Resources and talent are diverted. Careers are short- 
ened, recruitment discouraged, endless nonproductive litigation 
encouraged. ^7 

Despite the ability to sue federal employees, the claimant, 
who may have a meritorious claim of governmental misconduct in vio- 
lation of his constitutional rights, in practical terms has virtu- 
ally has no remedy. As a result of the sound doctrine of sovereign 
immunity, the United States cannot be sued for a constitutional 
tort because it has not consented to be sued. 4/ As a result, a 
plaintiff frequently faces enormous problems in attempting to even 
achieve service of process and jurisdiction over individual defen- 
dants and may only look to the individual assets of those persons 
should he obtain a judgment. Our records indicate that of the 
thousands of lawsuits that have been filed, only sixteen have re- 
sulted in a judgment and, of those, we believe that only six have 
ultimately been paid. b_l Despite the fact that there is no hope 
of meaningful monetary recovery, suits continue to be filed at an 
alarming rate. It appears that they are often prompted by reasons 
other than money damages such as personal revenge or harassment up- 
on a public official or as a means of collateral attack upon an 
otherwise legitimate criminal or civil enforcement effort. The 



190 



proportion of recoveries to the number of law suits filed also . 
demonstrates that federal public servants do not violate the rights 
of their fellow citizens with any significant frequency. Thus the 
current threat of personal lawsuits under which they must now operate 
is unfair and unjustified. The severe disruption that these lawsuits 
cause in the lives of federal employees cannot be overemphasized. 

The American citizen and taxpayer is not being well served by 
the current state of the law. The system for redress is not func- 
tioning and conscientious federal employees are traumatized by the 
threat or reality of suit, sometimes into inaction. In addition, 
the present scheme engenders protracted and expensive litigation 
which costs the taxpayers more money than it should and contributes 
to the serious and increasing problem of backlogs and delays in the 
courts. Because the constitutional tort or Bivens case concerns the 
personal finances of the individual defendants it can only be settled 
in the rarest of cases. In addition, multiple defendants are sued 
in almost seventy-five percent of the cases. As a result, conflicts 
of interest sometimes arise and the Department of Justice must hire 
private counsel to represent each of the groups whose factual posi- 
tions collide. It is anticipated that the cost of hiring private 
attorneys in those cases will exceed $1,300,000.00 for fiscal years 
1982, 1983 and 1984. 

Previous testimony before Congress by several United States 
Attorneys on similar proposals also indicated that a great deal 
of extra attorney time is required for each matter in order to 
deal with the personal concerns and trauma of the individual 
defendants. Those same witnesses also elaborated on the very 
difficult ethical, client relations and resource problems caused 
by the current state of the law. b_l The decisions that must be 
made by both clients and Department of Justice attorneys who repre- 
sent them in these cases are often excrutiating. They must be 
made despite the fact that, most of the lawsuits are wholly without 
merit and will be eventually disposed of on motion. Many of the 



191 



cases will proceed to resolution at a snail's pace at large mone- 
tary and emotional expense to all parties. Thus, from the perspec- 
tive of any objective observer, the current scheme of civil tort 
liability, particularly in the'area of federal constitutional rights, 
is a failure. 

Were Title XIII enacted, federal public servants would no 
longer be subjected to the specter of personal financial ruin and 
inordinate diversion from their duties. At the same time, their 
conduct would just as surely be amenable to the scrutiny of the , 
courts through an action brought against the United States where 
the reasonableness of the actions of the employee could be chal- 
lenged. The citizen would gain his day in court and a defendant, 
the United States, amenable in every case to personal jurisdiction 
and service of process, a defendant who would be in a position to 
settle cases and who could pay any judgments awarded to the plain- 
tiff. Cases would proceed much more expeditiously to trial and 
resolution with the cost to all parties drasti-cally reduced. 

Opponents to legislation of this nature have historically re- 
lied upon an argument best summarized as one of accountability. Al- 
though the number of adherents to this point of view seems to be de- 
clining, the argument is that the threat of suit deters public ser- 
vants from doing wrong. The short answer to this is that it prevents 
the public servant from doing anything, including what is right,. 
As one witness before Congress has stated, "The deterrence we have 
is that of deterring federal employees from doing their duty." l_l 
The increasing number of federal officials who are aware of the 
state of the law cannot help but face a difficult decision with 
trepidation because of what should be an extraneous consideration 
for his or her personal welfare. The law enforcement officer, the 
welfare case worker, the probation officer, the meat inspector, 
the contract officer, the veterinarian, the revenue agent, the 
congressional staffer, the personnel manager, the job foreman, 
and even the forest ranger are at least given pause and perhaps 
prevented from carrying out the very mission that Congress has set 
for them. ^/ 

In addition, this accountability argument places too much 
emphasis upon money damages as the only meaningful remedy and ignores 



192 



the array of other sanctions available ranging from agency punish- 
ment including termination, to a finding that the actions were beyond 
the scope of employment and therefore not defensible by the United 
States, to injury to professional reputation, to criminal prosecu- 
tion. 

Perhaps the best rebuttal to the deterrence argument, however, 
is the fact that its acceptance means that the American people and 
government continue to stumble along with the current inadequate 
system. In other words, in order now to be sure of having the nar- 
row, yet very unlikely, legal possibility of punishing the very few 
through civil damages, we have placed in jeopardy and confusion the 
functioning of all civil servants and have not correspondingly pro- 
vided the plaintiff with a remedy that he or she can expect to be 
realized. The current "remedy" of deterrence is thus grossly dis- 
proportionate to the problem. 

Title XIII preserves the defense of qualified immunity on be- 
half of the United States with respect to constitutional torts. 
It is important to point out that, while labelled as an immunity, 
it is really an affirmative defense that simply gives the United 
States the opportunity to defend the conduct of its employees as 
having been reasonable. The Supreme Court, in the case of Harlow 
Fitzgerald , 102 S.Ct. 2727 (1982), recently defined the test of 
qualified immunity to be one solely of objective reasonableness. 
Under traditional tort law analysis, it is the failure to act as a 
reasonable man in violating a duty owed to an injured person which 
triggers liability. In the private sector, an employer can assert 
the reasonableness of the conduct of an employee when the employer 
is sued for a tort committed by the employee. Retention of the 
qualified immunity defense would simply echo that legal principle. 
Elimination of the qualified immunity defense would be a declara- 
tion by the Congress that considerations of reasonableness are ir- 
relevant to the conduct of government agents. Taxpayers would pay 
damages in cases when courts determined with hindsight that techni- 
cal violations had occurred even though the conduct of the employee 
was properly motivated and eminently reasonable. Agencies and 
agents would hesitate to act for fear of damage claims which would 



193 



reflect adversely upon theni because they would be prevented from 
defending their conduct as reasonable in court. In other words, 
the government would be placed in a situation of strict liability 
were the defense to be eliminated, a disadvantage to the United 
States clearly contrary to existing provisions of the Federal Tort 
Claims Act and to reason and sound poli'cy. 9/ Additionally, elimin- 
ation of the defense would seriously detract from the ability of 
the courts to fully ventilate and get to the truth of alleged mis- 
conduct. That is because the issue of the reasonableness of the 
conduct would have been declared to be irrelevant to liability; and 
thus so would many of the pertinent facts be rendered irrelevant. 
Accordingly, the Department strongly urges that the defense continue 
to be retained. 

Enactment of Title XIII would, for the first time, permit plain- 
tiffs to have recourse to a meaningful defendant because the United 
States would be waiving sovereign immunity for constitutional torts. 
This is a major reform and benefit that cannot be overstressed. At 
the same time, the cloud of personal, financial liability would be 
removed from federal officials who could get on with the business 
of proper government. Perhaps most importantly, the courts would 
be enabled to deal with the serious questions that arise in constitu- 
tional cases of this nature in an expeditious and meaninful way and 
award genuine relief to deserving plaintiffs. 

FOOTNOTES 



1/ Bivens v. Six Unknown Named Agents of the Federal Bureau of 
Narcotics . 403 U.S. 388 (1971). 

2/ Halperin v. Kissinge r, 606 F.2d 1192, 121-4 (D.C. Cir. 1979), 
Judge Gesell concurring. 

3/ -See, Hearings Before the Subcommittee on Administrative Law 
and Governmental Relations of the Committee on the Judiciary, House 
of Representatives, Ninety Seventh Congress, on H.R. 24, October 13, 
1981; May 19 and 20. 1982. 

See also. Hearings before the Subcommittee on Agency Admin- 
istration, Committee on the Judiciary, United States Senate, Ninety 
Seventh Congress, on S. 1775, November 13 and 16, 1981; March 31, 
1982. 

4/ See, Duarte v. U.S., 532 F.2d 850 (2d Cir. 1976); Norton v. U.S. , 
581 F.2d 390 (4th Cir. 1978); Ames v, U.S.. 600 F.2d 183 (8th Cir. 
1979); Jaffee v. U.S.. 592 F.2TTr2 (3r^Cir. 1979); Bake r v. F & F 
Investment Co. , 4F5~F.2d 829 (7th Cir. 1973). 



194 



5/ Askew V. Bloemke r. S-CIV-73-79 (S.D. 111., Sept. 29, 1978). DEA 
agent was held personally liable for violating the Fourth Amendment 
rights of three plaintiffs by conducting a search without probable 
cause or a warrant; the jury awarded damages of $22,000; plaintiffs 
agreed not to enforce the judgment against the uninsured federal 
agent but rather to proceed against defendant state employees who 
were insured. 

Seguin v. Hightower, No. C76-182-V (W.D. Wash., Oct. 24, 1978). 
Customs agent helo personally liable to the owner of an impounded 
car used in a smuggling scheme because the agent delayed four and 
one half months in initiating forfeiture action; the court awarded 
the plaintiff $7,300 for rental value of the car plus consequential 
damages . 

Jihad V. Carlson , CA No. 5-71-805 (E.D. Mich., Oct. 18, 1976). 
Prison guard held personally liable for $992 to inmate for viola- 
ting his right to religious freedom in placing him in segregation 
for refusing to shave his beard; the judgment was reversed on appeal. 

Weiss v. Lehman , CA No. 375-36 (CD. Idaho, July 14, 1978). 
Forest service ranger held personally liable for $1,000 for viola- 
ting plaintiff's Fifth Amendment rights by destroying property owned 
by plaintiff which had been apparently abandoned; the Ninth Circuit 
Court of Appeals affirmed the judgment. A Petition for Writ of 
Certiori was filed in the Supreme Court. The Court granted the 
petition and remanded the. case for reconsideration (No. 80-2159, 
Oct. 5, 1981) in light or Parratt v. Taylor , 49 USLW 4509, Hay 18, 
1981. The Ninth Circuit Court of Appeals then reversed and entered 
judgment for the defendant. 

Halperin v. Kissing er, 424 F.Supp. 838 (D. D.C. 1976) and 434 
F.Supp. 1193 (D. D.C. 1977). Former President Richard Nixon, H.R. 
Haldeman and John Mitchell held personally liable in damages for 
violating plaintiff's Fourth Amendment rights in authorizing wire- 
taps. 

' Dellums v. Powell , 566 F.2d 167 (D.C. Cir. 1977). Chiefs of 
U.S. Capitol and D.C. Police held personally liable for arrests at 
Capitol Building during anti-war demonstration in class action with 
1,200 plaintiffs; a total judgment of approximately 2 1/2 million 
dollars plus interest was entered against all defendants and subse- 
quently paid through Congressional action. 

Tatum v. MorCon , 562 F.2d 1279 (D.C. Cir. 1977). Inspector of 
D.C. Police held personally liable for $500 for disrupting 29 demon- 
strators at the White House. 

Schoneberger v. Hinchcliffe , CA. No. 76-234 (D. Vermont, Sept. 
22, 1980) . FBI agent personally held liable for $150 for retaining 
a firearm (for too long a period) seized during a raid for illegal 
aliens. 

Saxner v. Benson , CA. No. 75-47-C (S.C Indiana 1981). Three 
members of a Federal Corrections Institution Disciplinary Committee 
held personally liable for $3,000 apiece for violating an inmate's 
procedural due process rights. 

Hobson V. Jerry Wilson, et al ., D. D.C. Civil Action No. 76- 
1326. A total of $711,000 was awarded seven former antiwar acti- 
vists against fourteen present or retired officers of the FBI or 
the Washington, D.C. police department. The suit charged violation 
of constitutional rights during undercover surveillance activities 
in the 1960s and 7-Os. The verdict was complex, awarding different 
amounts for and against different parties. 

Epps . V. United States, et al . , D. Md. CA No. 0-78-2373. A 
judgment of $200,000 was awarded against a Field Branch Chief of 
the IRS for allegedly vandalizing the property of the plaintiff 
while her business was in the possession of the IRS. The judgment 
was subsequently vacated on post trial motions. 



195 



Nees V. Bishop, et al . , D. Col. 524 F.Supp. I3l0 (1981). $1,000 
was awarded Co a plaintiff who alleged that the losing defendant had 
deprived him of his right to counsel by allegedly advising state 
custodial authorities that he need not see a state public defender 
since he had been incarcerated on a federal charge. 

Clymer, Jr . v. Grzegorek, et al . E.D. Va. , CA No. 80-1009-12 
(19827"! Damages of $1,000 were awarded against a former federal 
correctional institution warden in favor of a prisoner who claimed 
overcrowding and understaf f ing led to violence and an assault upon 
him. 

Whitney v. Skinner , E.D. Wash. C-78-139 (1982). A judgment of 

$9,000 was awarded to a Federal employee who alleged that her 

rights were violated by her supervisor's action that "intimidated 
her into falling". 

Rodgers v. Hyatt , 83-1 U.S.T.C. ^ 9139 (10th Cir. 1983). The 
Tenth Circuit Court of Appeals affirmed a jury verdict of $1,000 
against an IRS official for disclosure of tax return information 
notwithstanding the fact that the information had been fully dis- 
closed in a prior court proceeding. 

Doran v. Houle, D. Mont. 79-14-GF (1982). A group of veteri- 
narians were awarded $272,000 against a Federal veterinary inspec- 
tor on the allegation that he wrongfully denied them licenses neces- 
sary for innoculation of sheep. The jury trial lasted ten days and 
was the subject of extensive media attention. The adverse decision 
has had a devastating impact on the individual federal defendant 
and upon the Veterinary Service. It is presently on appeal before 
the Ninth Circuit. 

6/ See, testimony of Stanley S. Harris and Royce C. Lamberth 
before this Subcommittee on May 19, 982 and the testimony of Jerome 
F. O'Neill, John S. Martin, Jr., and William B. Cummings, on November 
13, 1981 before the Subcommittee on Agency Administration of the 
Committee on the Judiciary, United States Senate. 

7^/ Testimony of Jerome F. O'Neill, supra . 

8^/ In an article entitled "Suing Our Servants" appearing in the 
1980 edition of The Supreme Court Law Review published by the Univer- 
sity of Chicago, (page 281) Peter H. Schuck, Associate Professor of 
Law, Yale Law School, makes a convincing case for the proposition 
that the most frequent targets of such suits are the everyday public 
servants who operate at the level which deals directly with the pub- 
lic. It is important to understand that our support for proposals 
of this nature is not primarily based upon a desire for relief of 
high level officials. 

9/ See, letter of April 11, 1983 from Deputy Attorney General 
Edward C. Schmults to the Honorable Charles E. Grassley concerning 
the qualified immunity defense. 



196 



Title XIV - Miscellaneous Violent Crime Amendments 

Title XIV in divided into subparts A - M and is designed to 
strengthen a number of provision dealing with violent crime. It 
also creates a limited number of new offense involving violent 
crime to fill gaps in existing law. ~ 

Part A - Murd-er-for-Hire and Violent Crimes in Aid of Racketeering 

Section 1401 adds a new section 16 to title 18 to define the 
term "crime of violence." The term is used in several new or 
revised sections as a result of other provision in this title 
such as section 1U02 proscribing violent crimes committed for 
money or other consideration, and section 1403, prohibiting 
solicitation to commit a crime of violence. _The definition of 
the term "crime of violence" is taken from the Senate version of 
the Criminal Code Reform Bill (S. 1630, 97th Cong.) and predeces- 
sor bills. The term means an offense that has an element the 
use, attempted use, or threatened use of force, or any other 
offense that is a felony and that involves a substantial risk 
that physical force may be used against the person or property of 
another. 

Section 1402 proscribes murder and other violent crimes for 
hire. It is similar to a provision contained in S. 2572 as 
passed by the Senate in the 97th Congress and would add two new 
sections, 1952A and 1952B, to title 18 of the United States Code. 
Although designed primarily for use in cases of murder-f or-hire 
carried out as the orders of organized crime figures, section 
1952A would also reach other such calculated murders. Section 
1952A follows the format of 18 U.S.C. 1952, interstate travel in 
aid of racketeering. 

Section 1952A would reach travel in interstate or foreign 
commerce or -the use of the mails or a facility in interstate or 
foreign commerce (such as a telephone if used for an interstate 
call) with the intent that a murder be committed in violation of 
state or Federal law. The murder must be planned. or carried our 
as consideration for the receipt of something of pecuniary value 
or a promise or agreement to pay something of pecuniary value. 



197 



Both the person who ordered the murder and the "hit-man" would be 
covered. If the victim is killed the punishment can extend to 
life imprisonment and a $50,000 fine but lesser punishments are 
provided if the planned murder did not take place or the attempt 
resulted only in an injury to the victim. 

Section 1952B is designed to deal with contract murders and 
other violent crimes by organized crime figures which do not 
involved interstate travel or other interstate facilities or are 
committed not for money but rather as a part of membership in a 
criminal organization. This section proscribes murder, kidnap- 
ing, maiming, serious assaults and threats of violence committed 
as consideration for payment or a promise to pay anything of 
pecuniary value from an "enterprise" engaged in "racketeering 
activities." "Racketeering activity" is defined as set forth in 
the RICO statute, section 1951, and "enterprise" is defined as an 
organization, group or entity whose activities affect interstate 
commerce. The proposed section also covers murders, kidnapings, 
maimings, serious assaults and threats of violence committed as a 
means of gaining entrance into or improving one's status in an 
enterprise engaged in racketeering activity. Attempts and 
conspiracy to commit these offenses are also covered. The person 
who ordered the offenses set forth in the section could also be 
punished as an aider and abettor under IB U.S.C. 2. 

Part B - Solicitation to Commit a Crime of Violence 

Section 1H03 adds a new section 373 to title 18 of the 
United States Code, to proscribe the offense of solicitation to 
commit a crime of violence. This section is of principal utility 
in a situation where a person makes a serious effort to induce 
another to engage in activity constituting a crime of violence 
but is unsuccessful in doing so. The solicitor is clearly a 
dangerous person and his act merits criminal sanctions. Yet at 
present there is no federal law that prohibits solicitation 
generally, although a solicitation offense was included in 
S. .2572 as passed by the Senate in the 97th congress and in 
S. 1630 (97th Cong.), the proposed federal criminal code reform 
bill. See S. Rept. No. 97-307, pages 179-186. 



198 



Only solicitation to commit a crime of violence is here 
covered. "Crime of violence" is defined, in a new section 16 to 
be added to title 18, as a crime that has as an element the use 
or attempted use of physical force against another's person or 
property, or any felony that involves a substantial risk that 
physical force will be so used. Thus, although the new offense 
rests primarily on words of instigation to crime, what is 
involved is legitimately prescribable criminal activity, not 
advocacy of ideas which is protected by the First Amendment right 
of free speech. 

The punishment provided for the new offense is up to one 
half the term of imprisonment and one half the fine authorized 
for the punishment of the crime solicited, and up to twenty years 
imprisonment for solicitation of an offense punishable by 
death. 1/ 

Part C - Felony Murder 

Section 1404 expands the definition of felony murder in 
18 U.S.C. 1111. It is identical to a provision in S. 2572 as 
passed by the Senate in the last Congress. Presently, premedi- 
tated murder is murder in the first degree. Under common law, a 
murder committed during a common law felony was held to be 
committed with a sufficient degree of malice to warrant punish- 
ment as first degree murder, but section 1111 only applies the 
felony murder doctrine to killings committed during an actual or 
attempted arson, rape, burglary, or robbery. The amendment would 
expand the list of underlying offenses by adding escape, murder 
— for example if the defendant acts in the heat of passion in an 
attempt to kill A but instead kills B — kidnaping, treason, 
espionage, and sabotage since these crimes also pose as great, if 
not, more, danger to human life, as the four presently listed. 



^J We suggest that the legislative history indicate that 
"punishable by death" refers to those offenses, such as 
murder (18 U.S.C. 1111), in which Congress has included the 
death penalty in the statute, irrespective of whether the 
penalty is presently enforceable. Alternatively, the 
Committee may wish to amend this provision to apply the 
twenty-year penalty to solicitation of a crime that covers a 
sentence of up to life imprisonment. 



199 



Part D - Mandatory Penalty for Firearm Use During Violent Crimea 
Section TJOS provides for a mandatory sentence of imprison- 
ment for a determinate period of time for using or carrying a 
firearm in a federal crime of violence. This section is similar 
to one included in S. 2572 2/ ag passed by the Senate in the 
97th Congress and carries out one of the recommendations of the 
Attorney General's Task Force on Violent Crime. This section 
amends present section 924(c) of title 18 which attempts to 
provide for a mandatory minimum sentence, but is drafted in such 
a way that a person convicted of a violation may still be given a 
suspended sentence or placed on probation for his first viola- 
tion. Moreover, present section 924(0) is ambiguous as to 
whether the sentence for a first violation may be made to run 
concurrently with that for the underlying offense. In addition, 
even if a person is sentenced to imprisonment under section 
924(c), the normal parole eligibility rules -apply. Section 1405 
•eliminates the possibility of a suspended or concurrent sentence, 
probation, and parole. A person convicted of using or carrying a 
firearm in relation to a crime of violence would be sentenced to 
imprisonment for five years for his first conviction and ten 
years for a subsequent conviction. 

Part E - Armor Piercing Bullets 
Section 1405 is a response to the problem of criminal use of 
bullets that will pierce the type of armor - resistant clothing 
now being employed by many police departments. The recent 
publicity given to the so called "cop killer" bullets has posed a 
new threat to the police officers and public figures who depend 
on "body armor for protection against surprise handgun attacks. 
The section adds a new section 929 to title 18 to provide for a 
mandatory term of imprisonment for using armor-piercing handgun 
ammunition during and in relation to a federal crime of violence. 



2/ While Part D is similar to a provision in S. 2572, Part D 
- has been drafted to ensure that it applies to offenses such 
as bank robbery and assault on a federal officer which 
already provide for an enhanced, but not mandatory punish- 
ment for the use of a firearm. The way in which the provi- 
sion in S 2572 was phrased would probably have precluded its 
use in such a'case in light of recent Supreme Court decisions 
construing section 924(c). See Simpson v. United State s, 435 
U.S. 6 (1978), and Buslc v. United State s, 446 U.S. 390 
(1980). 



200 



It is identical to a provision in S. 2572 as passed in the last 
Congress. A mandatory sentence of imprisonment for five years is 
provided for using or carrying a handgun loaded with ammunition 
which would, if fired form the handgun, pierce the type of body 
armor commonly worn by police officers. A person convicted of a 
violation of this section could not be given a suspended or 
concurrent sentence or be placed on probation and he would not be 
eligible for parole. 

Since the new section would only he effective if the bullet 
is used or carried during a violent crime, it does not threaten 
any legitimate sporting or recreational use of any type of 
ammunition of firearm. 

It should- be noted that the mandatory punishment for the use 
of the armor-piercing ammunition under section 929 is in addition 
to the mandatory punishment for the use or carrying of the 
firearm under the amended section 924. Thus a person who robbed 
a bank with a handgun loaded with armor-piercing bullets would, 
if charged with and convicted of a violation of 18 U.S.C. 924 and 
929, be sentenced to a mandatory term of imprisonment of ten 
years — five years for carrying the gun and five for the bullets 
— in addition to any punishment for the underlying bank robbery 
offense. This cumulative mandatory punishment for firearms and 
bullets is intended to serve a clear notice on criminals that 
they face substantial jail time for their use and to persuade 
them to leave firearms and particularly dangerous bullets at home 
when they are choosing weapons. 

Part F - Kidnaping of Federal Officials 

Section 1407 proscribes the kidnaping of a federal officer 
in the performance of his duties. It is identical to a provision 
in S. 2572 as passed by the Senate in the 97th Congress and 
amends the present kidnaping statute, 18 U.S.C. 1201, to cover 
the abduction of a federal officer listed in 18 U.S.C. 1114 if 
the crime is committed while the victim is engaged in his 
official duties or on account of his official duties. Presently 
only murder and assault on these persons are federal offenses and 
kidnaping would not be covered unless the victim happened to be 



201 



transported in interstate ooramerce or the offense was committed 
in an area of special federal jurisdiction. The amendment also 
complements the amendments contained in the next section 
of the bill which proscribes the murder, assault, or kidnaping of 
family meir.bers of federal law enforcement officers and high level 
federal officials if the offense is committed to impede or 
retaliate against the federal officer or employee because of his 
official duties. 

Part G - Crimes Against Family Members of Federal Officials 

Section 1^408 adds new section 115 to title 18 to make it a 
federal offense to commit or threaten to commit murder, kidnaping 
or assault upon a close relative of a federal judge, federal law 
enforcement officer, or certain federal officials if the purpose 
of the attack is to impede, interfere with, intimidate, or 
retaliate against the federal employee on account of his official 
duties. Since it would be an element of the new offense that the 
act was done because of the official duties of the employee, the 
section represents no real expansion of federal jurisdiction. 
The scope of the offense is linked to acts done with a purpose to 
obstruct or retaliate against federal officials because of their 
job - related responsibilities -- acts for which a State or local 
jurisdiction might lack the necessary deg^ree of interest to 
vindicate the crime and for which federal jurisdiction is thus 
appropriate . 

The subjects of the new offense are family members — 
spouse, parent, brother, sister, and other relatives of the 
official who actually live in his household — of those govern- 
ment employees and officers most likely to be subjected to 
attacks by terrorists or other criminals in an attempt to 
interfere with vital functions of the government and the adminis- 
tration of justice, namely law enforcement officers, the 
President, Vice President, Members of Congress, Cabinet officers, 
federal judges including Supreme Court Justices, and person 
protected by 18 U.S.C. 1 1 1 U . In part, this section complements 
the provisions of P.L. 97-285, enacted in 1982 to protect Supreme 
Court Justices and cabinet officers themselves by making attacks 
on their persons federal crimes. 



25-694 O - 84 - 14 



202 



Part H - Amendment of the Major Crimes Act 
Section 1M09 amends the Major Crimes Act, 18 U.S.C. 1153, 
which provides for federal jurisdiction over the serious inter- 
personal crimes listed therein if committed by an Indian in the 
Indian country. Presently 14 felony offenses are covered. The 
section would be amended to add the offenses of involuntary 
sodomy and maiming and to cover larceny only if the property 
involved is worth in excess of $100.00. A crime committed by an 
Indian against the person or property of another Indian may only 
be prosecuted in federal court if it is listed in section 1153. 
Other such interpersonal crimes must be prosecuted in tribal 
court where the maximum punishment extends to six months' 
imprisonment and a $500.00 fine. Such, punishment is not suffi- 
cient for the offenses of maiming, traditionally regarded as 
among the most serious of all crimes, or for involuntary sodomy, 
which frequently involves a minor child as the victim. Con- 
versely, tribal courts are fully capable of handling petty 
larceny of amounts less than $100.00 and there is no need to 
continue federal court jurisdiction over such an offense. 
Part I - Destruction of Motor Vehicles 
Section 1410 deals with the destruction of motor vehicles. 
It is identical to a provision contained in S. 2572. It amends 
the definition of "motor vehicle" in 18 U.S.C. 31. the section 
that defines the term as it is applied in 18 U.S.C. 33 which 
proscribes the destruction of motor vehicles. Presently "motor 
vehicle" means any device used for commercial purposes on the 
highways for the transportation of passengers or passengers and 
property. It does not include vehicles used to transport only 
car^o. Another statute which does cover the actual or attempted 
i' truction of cargo moving in interstate commerce, 15 U.S.C. 
1281, is restricted to the destruction of the cargo itself. 
Thus, there is no federal coverage of a sniper who shoots at a 
cargo truck since the truck carries only cargo which usually is 
not destroyed. The amendment would close this gap by expanding 
the definition of "motor vehicle" to include a device used for 
carrying "passengers and property, or property or cargo." 



203 



Part J - Destruction of Energy Facilities 
Section 1111 is also similar to a provision in S. 2572. 
It adds a new section 1365 to title 18 to make it a federal crime 
to knowingly and willfully damage the property of an energy 
producing facility in an amount that exceeds $100,000 or to cause 
any amount of damage which results in a significant interruption 
or impairment 6f the functions of the facility. The penalty for 
this offense may extend to ten years' imprisonment and a $50,000 
fine. A punishment of up to five years' imprisonment and a 
$25,000 fine is provided for the lesser included offense of 
knowingly and willfully damaging the property of an energy 
facility in an amount that exceeds $5,000. The term "energy 
facility" is defined to include all types of electrical 
generating plants, and other facilities involved in the 
distribution, storage or transmission of electricity or other 
types of energy. It does not, however, include a facility 
subject to the jurisdiction of the Nuclear Regulatory Commission 
since the damaging of such facilities is already proscribed by 
12 U.S.C. 228^. 

Part K - Assaults on Federal Officers 
Section 1412 makes three amendments to section 1114 of title 
18 which proscribes the killing of designated federal officers 
and employees while engaged in, or on account of the performance 
of their official duties. 

First, section 1114 is amended to cover attempted murders. 
Second, its coverage is expanded to include certain officers in 
the Intelligence Community. Third, authority is given to the 
Attorney General to designate by regulation other classes of 
federal officers and employees for coverage under section 1114,' 
an approach similar to that in several of the criminal code 
revision bills. This would provide a workable mechanism for 
extending federal protection to miscellaneous classes of persons 
as changing needs dictate. 18 U.S.C. 1114 is also used to define 
the scope of coverage of 18 U.S.C. Ill which sets out the offense 
of assault against persons "designated in section 1114." Thus, 
by virtue of section Ill's cross reference to section -11 14 the 



204 



second and third of the above amendments also operate to modify 

and scope of the assault statute. 

Part L - Escape from Custody Imposed by a Civil Commitment Order 

Section 1413 is designed to make it an offense to escape 
from confinement ordered pursuant to a court under the provisions 
of 28 U.S.C. 1826. That statute empowers a judge to order 
confined any person who, without just cause, refuses to testify 
before a federal court or grand jury. Such confinement may 
extend for the life of the court proceeding or the term of the 
grand jury. Under present law persons who escape or attempt to 
escape from confinement as a result of such an order cannot be 
prosecuted. Moreover, such persons are on occasions already 
serving federal prison terms when they refuse to testify. If a 
federal prisoner is ordered civilly . committed the criminal 
sentence is suspended for the duration of the civil contempt 
sentence to ensure that the confinement is in addition to and 
extends the time of the confinement for the criminal sentence. 
See 28 C.F.R. 522.11(d). This in effect gives the prisoner a 
"free shot" at making an escape while confined pursuant to 
28 U.S.C. 1826. Since such confinement is often in a local jail 
which may not be as secure as a federal prison, the incentive to 
attempt an escape can be great. Recently an unsuccessful attempt 
was made to prosecute under 18 U.S.C. 751 two persons in Arizona 
confined in a local correctional center pursuant to 28 U.S.C. 
1825, but the court ruled that the section was inapplicable. 
Section 1413 of the bill would eliminate this loophole by adding 
a new subsection (c) to 28 U.S.C. 1826 specifically proscribing 
the escape, attempted escape, or rescue of a person confined 
pursuant to that section. Moreover, the new subsection would 
cover the escape, attempted escape, or rescue of certain danger- 
ously insane persons who have been committed under the provisions 
of the new 18 U.S.C. 4243 (added in Title V of the bill dealing 
with the insanity defense) following an acquittal by reason of 
insanity. Punishment of up to three years' imprisonment and a 
$10,000 fine is authorized. 



205 



Part M - Extradition Reform 
This part would create a new. Chapter 210 of Title 18 for 
international extradition laws. Presently, both rendition, which 
deals with the return of fugitives form one state of the Untied 
States to another, and international extradition of fugitives are 
dealt with in Chapter 209. Under our proposal. Chapter 209 is 
left substantively unchanged as it pertains to rendition and 
international extradition is dealt with separately in the new 
Chapter 210. 

The changes made in the extradition laws are designed to 
update those laws which have proven inadequate in modern times. 
Many of the statutes on extradition have been in force for over 
100 years, some having had no significant alteration since 1882 
while others have not been significantly amended since ISMS. The 
marked increase in the number of extradition requests received 
and made by the United States in recent years has revealed 
problems with the present antiquated laws. Moreover, the 
requests have generated a number of published court decisions on 
constitutional and legal issues involved in international 
extradition. While these judicial interpretations fill important 
gaps in statutory law, we believe they should be codified in new 
extradition legislation. Finally, the United States has con- . 
eluded new extradition treaties with many foreign countries in 
the past few years. The language of the present law is not 
adequate to implement some of their provisions, and it therefore 
impedes fulfillment by the United States of its international 
obligations. 

Accordingly, the new Chapter 210, which is virtually 
identical to S. 1940 as passed by the Senate in the last Congress 
on August 19, 1982, is intended to make the following improve- 
ments in international extradition: 

( 1 ) It permits the United States to secure a warrant for 
the arrest of a foreign fugitive even though the fugitive's 
whereabouts in the United States is unknown or even if he is not 
in the United States. This warrant can then be entered into the 
FBI's NCIC system so that if the fugitive attempts to enter the 
United States or is apprehended in the United States for other 



206 



reasons, he can be identified and arrested immediately for 
extradition to the requesting country. 

(2) It provides a statutory procedure for waiver of 
extradition. This feature protects a fugitive's rights while 
facilitating his removal to the requesting country in instances 
in which he is willing to voluntarily go to the requesting 
country without a formal extradition hearing. 

(3) It permits both a fugitive and the United States on 
behalf of the requesting country to directly appeal adverse 
decisions by an extradition court. Under present law a fugitive 
can only attack an adverse decision through habeas corpus. The 
only option available to the United States acting on behalf of a 
requesting country is to refile the extradition complaint with 
another magistrate . 3/ 

(4) It clarifies the applicable standards for bail at all 
stages of an extradition case by adopting standards largely 
derived from Federal court cases. 

(5) It establishes clear statutory procedures and standards 
applicable to all critical phases of the handling and litigation 
of a foreign extradition request. 

(6) It sets forth specific procedures for determination of 
applicability of the political offense exception to extradition 
and removes from that exception violent acts committed by 
terrorists and others and those offenses involving international 
drug trafficking. 

(7) It limits access to United States courts in connection 
with foreign extradition requests to cases initiated by the 
Attorney General. 

(8) It permits use of a summons instead of a warrant of 
arrest in appropriate cases. 

(9) It codifies the rights of a fugitive to legal repre- 
sentation and to a speedy determination of an extradition 
request . 

(10) It simplifies and rationalizes the procedures for 
authenticating documents for use in extradition proceedings. 



3/ Matter of Mackin, 668 F.2d 122 (2 Cir. 1981) 



207 



(11) It ifacilitates temporary extradition of fugitives to 
the United States. 

I 
TITLE XV — Serious Non-Violent Offenses 

Title XV deals with serious, but non-violent crimes. 
PART A - Product Tampering 

Part A concerns product tampering, which is also the subject 
of S. 216. Since we previously testified on S. 216 before the 
full Committee, which has since favorably reported that bill, we 
will not discuss the product tampering provision of S. 829- 

PART B - Child Pornography 
Another area addressed by Title XV is child pornography. The 
bill amends the federal child pornography laws to facilitate the 
prosecution of purveyors of material depicting children engaging 
in sexually explicit conduct. The bill's dhild pornography 
provision is based in part on New York v. Ferbe r , 102 S. Ct . 3346 
(1982), in which the Supreme Court held that material showing 
children engaging in sexually explicit conduct could be banned 
even though the material might not meet the legal definition of 
obscenity as set out in Miller v. California , 413 U.S. 15 (1973). 
Ferber recognized that where children were involved the State had 
a much greater interest in regulating pornography. Accordingly, 
the bill amends 18 U.S.C. 2252 to cover the transportation, 
shipment, receipt, sale, or distribution of material visually 
depicting minors engaging in sexually explicit conduct whether or 
not the conduct is legally obscene, as the law presently 
requires. In addition, the section eliminates the present 
requirement that the material must be sold or produced for 
pecuniary profit. Experience has shown that a certain amount of 
this type of material is produced and traded by "collectors" 
rather than sold, but the harm to the children involved is, of 
course, the same regardless of the motive. 



208 



PART C - Warning the Subject of a Search 

Title XV provides for a new type of obstruction of justice 
offense. Under section 2232 of title 18, it is a misdemeanor to 
impair an authorized search by a law enforcement officer, such as 
a search in the execution of a warrant, by destroying or removing 
the property that is the object of the search. It is not, 
however, an offense to warn a person that his property is about 
to be the target of a search so that he can himself remove or 
destroy it. Title XV fills this gap by making it unlawful to 
give notice, or to attempt to give notice of a search in order to 
prevent the authorized seizing of any property. 

PART D - Program Fraud and Bribery 

Another area covered by Title XV is fraud or bribery 
concerning a program of a private organization or of a State or 
local government that receives federal financial assistance. 
Presently, 18 U.S.C. 665 makes theft or embezzlement by an 
officer or employee of an agency receiving assistance under the 
■Job Training Partnership Act a federal offense. However, there 
is no statute of general applicability in this area, and thefts 
from other organizations receiving federal financial assistance 
can be prosecuted under 18 U.S.C. 641 only if it can be shown 
that the money stolen is property of the United States. However, 
in many cases title has passed to the State or local government 
before the property is stolen, or the funds are so commingled by 
the State or municipality that the federal character of the funds 
cannot be shown. The program fraud and bribery provision of 
Title XV is designed to remedy this situation and to protect 
federal assistance programs by making it unlawful to steal, 
embezzle, or fraudulently obtain property valued at $5,000 or 
more from an organization that receives federal benefits or to 
give or accept a bribe in connection with such an organization if 
the matter involves $5,000 or more. 

PART E - Counterfeiting of State and Corporate Securities 
and Forging of Endorsements or Signatures on 
United States Securities 

T.itle XV makes it a federal crime to counterfeit or forge 
State or corporate securities. Present law is inadequate to 



209 



combat widespread fraud schemes involving the use of counterfeit 
corporate and State securities. The use of these securities as 
collateral for loans and for other illegal purposes has a serious 
detrimental effect on interstate commerce. Moreover, these 
crimes commonly reach beyond State borders, and thus local 
officials are generally unable to cope with thera. 

Title XV also prohibits the forging of an endorsement or 
signature on a Treasury check, bond, or other security of the 
United States and the passing of such an obligation with intent 
to defraud. The bill also makes it a felony to exchange or 
receive, with knowledge of its false character, an obligaton of 
the United States that has been stolen or bears a forged endorse- 
ment . 

At present, violations involving forgery of endorsement 
or fraudulent negotiation of a Treasury check or bond or other 
security of the United States are prosecuted under title 18, 
section U95. However, because section U95 was not drafted to deal 
with Treasury checks or bonds or other obligations of the United 
States, many of the variations of offenses involved with the 
forgery of obligations are not included under section 495. " 
Similarly, other provisions of federal law are inadequate to 
prevent the types of violations covered by this part of Title XV. 

The proposal would make it possible to prosecute both 
forgeries of endorsements and related crimes involving oblij- 
gations of the United States under one section. It would greatly 
assist the Secret Service, which has the primary jurisdiction to 
investigate crimes involving obligations and securities of the 
United States and which would have jurisdiction with regard to 
the new offense. 

PART F - Receipt of Stolen Bank Property 

Title XV includes a provision which deals with the receipt 
of stolen bank property. 18 U.S.C. 2113, proscribing bank 
robbery and bank burglary, prohibits the receipt of property with 
the knowledge that it was stolen from a bank. Cases under this 
provision have held that the government must show that the 
defendant had knowledge that the property he received was stolen 



210 



from a bank, not merely that he knew that it was stolen. The 
offender's culpability, however, is not altered by his knowledge 
or lack thereof as to the source of the stolen property, provided 
he knew that it was stolen. Therefore, this requirement that the 
defendant knew the property was stolen from a bank is unreason- 
able, and the bill revises 18 U.S-.C. 2113(c) to eliminate it. 
The government must still prove, however, that the defendant knew 
the property he was receiving was stolen. 

PART G - Bank Bribery 

Title XV revises and brings up to date the statute dealing 
with bribery of bank officers. Sections 215 and 216 of title 18 
presently cover the receipt of commissions or gifts by bank 
employees for procuring loans, but they are inadequate, unduly 
complex, and obsolete in many respects. For example, these 
sections do not cover bribery of employees of federally insured 
credit unions, of member banks of the Federal Home Loan Bank 
System, such as savings -and loan associations, or of bank holding 
companies. The bill combines existing sections 215 and 216 to 
bring up to date the list of covered institutions and to make 
other needed improvements, including the prohibition of indirect 
as well as direct payments and an increase in applicable - 
penalties. 

PART H - Bank Fraud 

Title XV adds a new section to title 18 to provide for an 
offense of defrauding financial institutions which are federally 
chartered or insured. Present law covers the offenses of 
embezzlement, robbery, larceny ,. burglary, and false statements 
directed at these institutions. There is no similar statute 
generally proscribing bank fraud, and federal prosecution of a 
fraud directed at a bank may only be undertaken if the government 
can prove the elements of some other offense, such as mail or 
wire fraud, or making a false statement to a bank. The utility 
of these statutes has been greatly diminished by Supreme Court 
decisions precluding their applicability in certain cases and by 
the increasing use of private courier services for collection 
purposes in lieu of the mails. The bank fraud provision in 



211 



Title XV is designed to fill the gaps in present law and to 
provide a straightforward way of preventing bank frauds. 

PART I - Possession of Contraband in Prison 

Under existing law, it is an offense to take contraband into 
or out of a federal penal institution. This new provision would 
fill a gap in current law by providing sanctions for the making, 
possession or receipt of an object if the object may be used as 
a means of facilitating an escape and is possessed contrary to 
a rule or regulation established by prison officials. More serious 
penalties are provided for possession of narcotics or a deadly weapon. 
This provision will strengthen the ability of federal prison offi- 
cials to maitain order in our correctional institutions. 



- TITLE XVI - Miscellaneous Procedural Amenglments 

PART A - Juvenile Prosecutions 

Sections 1601-1503 make several amendments to chapter 403 of 
title 18 concerning juvenile delinquency. In general they are 
designed to make it easier to prosecute certain hard-core 
juvenile offenders as adults. Similar provisions were contained 
in S. 2572. Initially, section 1601 amends section 5031 to lower 
from eighteen to seventeen the age at which an act that would be 
considered a crime if committed by an adult is instead considered 
to be only an act of juvenile delinquency. 

Section 1602 contains an amendment to current law that was 
recommended by the Attorney General's Task Force on Violent 
Crime. The Task'Force report indicates, at page 83, that it 
believes that the federal government "should have the opportunity 
to prosecute those individuals be they adults or juveniles, who 
violate federal law." Accordingly, section 1602 amends 18 U.S.C. 
5032 to provide that the provision relating to deferral of 
juvenile prosecutions to State authority does not apply to an 
offense that is a felony if there is such a substantial federal 
interest in the case or in the offense that- the exercise of 



212 



federal jurisdiction is warranted. Under present law, a juvenile 
may not be federally prosecuted unless the Attorney General 
certifies that there is no state jurisdiction over the offense or 
that state programs and services for juveniles are not adequate. 

Section 1602 also amends section 5032 to permit adult 
prosecution of anyone over fourteen who is charged with a crime 
of violence or an offense described in section 841, 952(a), 955, 
or 959 of title 21, United States Code, relating to drug traf- 
ficking. Under current law, a person may be charged as an adult 
only if he is over 16 and is charged with an offense punishable 
by ten years or more in prison, life imprisonment, or death. 

Section 1603 amends section 5038 of title 18 to permit the 
fingerprinting and photographing of a juvenile found guilty of an 
act of juvenile delinquency that, if committed by an adult, would 
be a felony crime of violence or an offense relating to drug 
trafficking under section 841, 952(a), 955, or 959 of title 21. 
Under current law, the name and picture of a juvenile cannot be 
released in connection with any juvenile delinquency proceeding. 
The result is that frequently an adult with an extensive record 
will be sentenced as a first offender because the court is not 
familiar with his juvenile criminal history. This amendment of 
section 5038 is consistent with recommendation 58 of the Attorney 
General's Task Force on Violent Crime. 

PART B - Wiretap Amendments 
Section 1604 amends section 2518(7) of title 18, which is 
part of Title III of the Omnibus Crime Control and Safe Streets 
Act of 1968, to provide for emergency interceptions of wire or 
oral communications in life endangering situations. A similar 
provision was included in S. 2572, and in S. 1640 as passed by 
the Senate on March 25, 1982. 

Generally, Title III requires prior court authorization of 
an interception of communications. However, 18 U.S.C. 2518(7) 
permits an emergency interception without such prior authoriza- 
tion under two types of emergency situations when there is not 
time to obtain a court order: those involving either "conspira- 
torial activities threatening the national security" or 
"conspiratorial activities characteristic of organized- crime ." 



213 



The absence of similar specific authority to Intercept communica- 
tions in emergency situations in which there Is an imminent 
threat to human life has been of grave concern of law enforcement 
authorities. For example, terrorists or other felons, while 
holding hostages, may use an available telephone to arrange with 
associates strategy to force action on their demands or a plan of 
escape. Similarly, there may be situations in which plans for an 
imminent murder are learned, but the location or identity of the 
victim is unknown or law enforcement authorities are otherwise 
unable to take measures to assure his safety. In such situa- 
tions, the interception of communications may be necessary to 
protect the lives of the hostages or victims, yet time for 
obtaining a court order may not be available. 

Section 1604 would amend 18 U.S.C. 2518(7) to provide the 
needed authority to make an emergency interception in this type 
of imminently life-threatening situation. It also amends section 
2516 of title 18 to add the offenses of wire fraud, child 
pornography, and violations of the currency transaction reporting 
statute (31 U.S.C. 5322) to the list of offenses for which a 
court ordered interception of a wire or oral communication is 
authorized, and to ensure that such an interception may be used 
in the investigation of the new witness tampering statutes, 18 
U.S.C. 1512 and 1513, as added by P.L. 97-291. 

PART C - Venue for Threat Offenses 

Part C is designed to remove an unnecessarily restrictive 
choice of venue presently placed on the government in cases 
involving mailing or telephoning threatening communications. 
Under 18 U.S.C. 3239, venue with respect to the offense of 
threatening or mailing threats in violation of 18 U.S.C. 875, 
875, or 877 lies only in the district where the threat was first 
placed in motion such as the district in which the letter was 
mailed or in which the call was made. This statute is an 
exception to the general rule contained in 18 U.S.C. 3237 that an 
offense involving the use of the mails or transportation in 
interstate or foreign commerce is a continuing offense and may be 
prosecuted in any district form, through, or into which the 
commerce or mail matter moves. 



214 



It is difficult to discern any reason to treat venue in 
threat cases differently from other continuing offenses, as a 
matter of right. For example, there appears to be no reason to 
mandate that a defendant who mailed a threat be tried where he 
mailed it but allow the government to prosecute a defendant who 
mailed an explosive in the district of mailing, the district of 
receipt, or any district through which it passed. Hence, section 
3239 is repealed. 

In addition, section 3237 is reworded to make it clear that 
the importation of an object or person into the United States is 
a continuing offense and may be prosecuted in any district from, 
through, or into which the person or object moves. Cases such as 
United States v. Lember , 319 F. Supp. 249 (E.D. Va., 1970) have 
limited venue in importation cases to the district of entry 
rather than of final destination. This has created difficulties 
as the witnesses are usually located in the place of destination. 
PART D - Injunctions Against Fraud 

Part D is designed to allow the Attorney General in appro- 
priate cases to enjoin a violation of chapter 63 dealing with 
wire fraud and mail fraud, and, as amended by section 1508 of 
this bill, with bank fraud. Current law, except for the area of 
securities fraud schemes, contains no injunction authority, thus 
enabling the perpetrators of fraudulent enterprises to continue 
to victimize the public even after the filing of criminal charges 
and the obtaining of a conviction. The section adds a new 
section 1345 to title 18 to allow the Attorney General to put a 
speedy end to a fraud scheme by seeking an injunction in federal 
district court whenever he determines he has received sufficient 
evidence to initiate such an action. A similar provision was 
contained in S. 1630 in the last Congress. Once the Attorney 
General commences the case for injunction relief, the Federal 
Rules of Civil Procedure apply except that if an indictment is 
returned the more restrictive discovery rules of the Federal 
Rules of criminal Procedure would become applicable. 



215 



PART E - Government Appeal of New Trial Orders 
Section 1607 deals with the rights of the government to 
appeal a decision of the district court to grant a new trial to a 
convicted defendant. It is similar to a provision in S. I630. 
Presently 18 U.S.C. 3731 allows an appeal by the government from 
a decision, judgment, or order of a district court dismissing an 
indictment or information except where prohibited by the Double 
Jeopardy clause. There is no provision for a government appeal 
of an order granting a new trial after a verdict or judgment, 
although such an appeal would not violate the Double Jeopardy 
clause. If the government prevails on appeal the original 
verdict or judgment can simply be reinstated. This is a far 
better way to correct an erroneous decision than a costly, 
time-consuming new trial, the only alternative under present law. 
Accordingly, Part E amends section 3731 to allow a government, 
appeal after any decision, judgment or order in a district coUrt 
granting a new trial. 

PART F - Witness Security Program Improvements 

This part of the bill makes several improvements in the 

Witness Protection Program as presently set out in Title V of the 

Organized Crime Control Act of 1970, P.L. 91-'^52. It adds a new 

chapter 224 (sections 3521-3523) to title 18. 

Initially, the new section 3521 expands the authority of th 
Attorney General to provide witness protection in cases other 
than those involving organized crime and broadens the definition 
of witness to include potential witnesses, victims, and their 
families. Moreover, the new section also gives the Attorney 
General wider discretion to order the kinds of protective 
measures which he deems necessary than are authorized under 
present law. The Attorney General could provide official 
documents to enable a protected person to establish a new 
identity. He could provide housing and transportation of 
household goods to a new location if a protected person must be 
relocated. The Attorney General could also provide tax-free 
subsistence payments in a sum established pursuant to regulations 
for such time as he deems necessary. The Attorney General would 
also be authorized to assist the relocated person in obtaining 



e 



216 



employment. Finally, the Attorney General would be authorized, 
in his discretion, to refuse to disclose to anyone the identity, 
location, or other matter concerning a protected person. In 
ruling on a possible disclosure, he would be authorized to 
consider the danger that would result to a relocated or protected 
person, the detriment a disclosure would cause to the general 
effectiveness of the program, and, conversely, the possible 
benefit to the public that might result from a disclosure. 

One problem with the present Witness Protection Program that 
has arisen occasionally concerns a citizen who has a civil cause 
of action against a protected person but who cannot litigate 
because he is unable to learn of the person's new identity or 
location. Subsection 3521(c) is designed to deal with this issue 
by seeking a balance between the usual policy of nondisclosure 
and the right of an innocent person to litigate for civil 
damages. The Attorney General is authorized to accept service or 
process on a person and is required to make a reasonable effort 
to serve the process on him at his last known address. If a 
judgment is entered, the Attorney General must determine if the 
relocated person has made reasonable efforts to comply with its 
provisions. If the Attorney General concludes that such reason- 
able efforts at compliance have not been made, he is granted 
discretion to reveal to the plaintiff the defendant's location, 
after giving appropriate weight to the danger to the protected 
person that will be caused. 

Title XVI, Part G, would clarify the change of venue provisions 
contained in 18 U.S.C. 3237(b) which apply to certain tax offenses. Section 
3237(b) is commonly referred to as the "hare venue option" because it 
affords a defendant the right in certain tax prosecutions and under 
specified circumstances to transfer the venue of the prosecution to the 
district of his residence. 

Section 3237(b) of Title 18 is an exception to 18 U.S.C. 3237(a), vhldh 
permits, inter alia , prosecution of any offense involving use of the mails 
in any district frran, through, or into which the mail matter involved moves. 
Under 18 U.S.C. 3237(b) , a defendant has the cption to require prosecution 
in the district where he resided at the time of the alleged offense "v*ere 
an offense is described in section 7203 of the Internal Revenue Code of 



217 



1954, or where an offense involves use of the nails and is an offense 
described in section 7201 or 7206(1) , (2) , or (5) of such Code * * * and 
prosecution is begun in a judicial district other than the judicial district 
in which the defendant resides * * *." a notion to treinsfer prosecution 
must be filed within twenty days after arraignment of the defendant on an 
indictiTEnt or information. The correct interpretation of Section 3237(b) is 
of critical irtportance in prosecutions directed at abusive tax shelter and 
tax protestor scheines, as well as other multi-defendant tax prosecutions. 

Itie position of the Justice Departnent is that the here venue option is 
available only in tax prosecutions brought in a district other than the 
defendant's place of residence as a consequence or result of the use of the 
mails by the defendant. Tlrte Court of Appeals for the Second Circuit 
sustained the Government's interpretation in In re United States (Clemente) , 
608 F. 2d 76 (1979), cert, denied, 446 U.S. 908 (1980), holding that Section 
3237 (b) is applicable at most only in situations i»tiere use of the mails is 
the iDasis on which the prosecution seel^s to establish venue in a district 
vtere the defendant does not reside. Thus, the court rejected the 
contention that a defendant is entitled to change venue under Section 
3237 (b) in a case in which the prosecution see)cs to establish venue on the 
basis of criminal conduct wholly apart from the use of the mails. In 
reaching its conclusion, the court pointed out that the mischief at which 
Section 3237 (b) was directed was the prosecution of a taxpayer a great 
distance fron his residence sinply because his tax return had been mailed to 
a far distant office of the IRS. The court opined that the interpretation 
of the statute suggested by the United States and adopted by the court 
"fully meets the prcfclera that concerned the Congress." 608 F. 2d at 79. 

In United States v. United States District Court (Solonon) , 693 F. 2d 
68 (1982) , the Court of i^jpeals for the Ninth Circuit adopted a contrary 
interpretation of Section 3237 (b) , finding that \4iere the mails are used as 
part of the offense — such as to file tax returns — defendants who did not 
reside in the district of prosecution were entitled to have the substantive 
tax counts transferred to their district of residence even though venue was 
not predicated on use of the mails. The indictment had been returned in the 
Southern District of California (San Diego) against five defendants and the 
court acknowledged that virtually all of the alleged criminal activity had 
occurred in San Diego. TVro defendants who resided in the San Francisco Bay 



25-694 0-84-15 



218 



area filed motions for transfer of venue under Section 3237 (b) and the grant 
of those notions by the district court was sustained by the Ninth Circuit. 

The Ninth Circuit felt that its reading of the statute was conpelled by 
the plain language of Section 3237(b) , holding that (693 F. 2d at 70): 
"I'Jhatever may have been the original intent of the bill's sponsors, the 
language adopted to accomplish those goals is much broader than that which 
would have covered the situations actually considered by Congress." Thus, 
the venue was transferred inasmuch as the defendants had mailed the tax 
returns at issue to the IRS, despite the fact that the transfer would 
require a trial "in a remote district with no connection to the crime exc^t 
the fortuity of the defendants' residence there." 693 F. 2d at 70. 

Litigation on this issue is pending before the Court of J^peals for the 
Fourth Circuit in United States v. District Court (Nardone) , No. 83-1149, 
a bizarre case that might aptly be described as "a case without a home." In 
Nardone three individual defendants were indicted in the Southern District 
of \'fest Virginia for various offenses revolving aroxond ten fraudulent tax 
shelters involving coal properties located in VIest Virginia. The defendant 
Nardone resided in New York and filed a motion to transfer venue under 
Section 3237 (b) . The district court granted the motion relying on reasoning 
similar to that of the Solcanon decision and the case was transferred to the 
Eastern District of New York. The New York court retransf erred the case to 
Vfest Virginia, citing the Clemente decision. The Vfest Virginia court then 
refused to delay the prosecution of Nardone 's two co-defendants and refused 
to redocket the prosecution against Nardone. The result is that at the 
present time Nardone cannot be prosecuted in either West Virginia or New 
York. The United States has filed a petition for mandamus with the Fourth 
Circuit, seeking revieiv of the decision to transfer the case to New York and 
requesting that the Vfest Virginia court be oatpelled to hear the case. 

Nardone illustrates the difficulties caused by a liberal interpretation 
of Section 3237. The trial of Nardone 's two co-defendants comenced on 
Decerrber 13, 1982, and continued xmtil January 5, 1983, with twenty-seven 
witnesses testifying. When the ijnpasse over the place of prosecution of 
Neirdone is resolved, a like amount of court tine and prosecutorial resources 
will again be expended; another panel of twelve jurors along with alternates 
will be called to serve; and the various witnesses will be' inconvenienced 
again by being subpoenaed to testify a second time. Indeed, if the case is 
ultimately transferred to Mew York, the inconvenience to witnesses required 
to travel frcxn West Virginia to New York to give testimony will be great. 



219 



Finally, the scope of Section 3237(b) and of the Solonr>n decision is 
before the Ninth Circuit in United States v. Dahlstrcn , Nos. 82-1137, 
82-1138, 82-1141, 82-1142 and 82-1143. The case involves five defendants 
who were convicted, following a jury trial in the Western District of 
Washington, of offenses arising out of the promotion and sale in the State 
of VJashington of fraudulent tax shelters in\'olving foreign trusts and sham 
transactions. Ttte trial took 29 days over a two-month period; the evidence 
consisted of testimony by 40 witnesses and the introduction into evidence of 
over 250 exhibits (many of which were multi-document exhibits) . IVio of the 
defendants, including the primary defendant Dahlstrom, filed motions under 
Section 3237 (b) . Dahlstrcn was a resident of Texas and the other defendant 
resident of Arizona. The district court, prior to the decision in Solonon , 
denied the motions. These two defendants now contend that their convictions 
should be overturned and their cases remanded for a transfer of venue and 
retrial in Texas and Arizona respectively. The United States in urging that 
the convictions be sustained, contends that Solomon is distinguishable on 
the facts and alternatively suggests that if Solomon would require reversal, 
the natter should be heard by the Ninth Circuit en banc . 

The facts of the Solcmon, Nardone and Dahlstrcm cases are conpelling 
evidence that whatever the correct interpretation of current Section 
3237 (b) , legislation is needed to expressly oonfine the home venue option to 
the situation which prcnpted its enactment — a prosecution in which venue is 
laid in a district where the defendant does not reside solely on the basis 
of the receipt by the IRS of materials transmitted by mail. Section 3237(b) 
was intended to be a shield against the power of the Govemmsnt to prosecute 
a defendant in a district remote frcm his residence on the basis of a 
mailing to a distant office of the IRS. It is not and should not be a sword 
enabling a taxpayer to transfer prosecution to a place remote frcm the 
primary criminal acts sinply on the fortuity that the defendant resided 
there. 

The Section 3237 (b) issue has arisen primarily in nulti-defendant 
prosecutions of persons proroting fraudulent tax shelters. The Justice 
Department cind the IRS have given high priority to these JcLnds of 
prosecutions because of concerns about the adverse iirpact of these criminal 



220 



cictivities on tax oarpliance generally. The number of prosecutions 
involving tax shelters has increased iji recent years. There there has been, 
however, congressional concern that a greater nuntoer of such prosecutions 
have not been initiated. See generally. House Hearings before the Subcomm. 
on Oversight of the Ifouse Cctnn. on Ways and fteans , 97th Cong. , 2d Sess. 
(1982). 

Prosecutions of tax shelter cases are difficult in part because the 
transactions in these cases generally are extrerrely ccitplex. The true facts 
are disguised and funds raust often be traced through multiple corporations, 
partnerships or trusts. The witnesses and documentation may be scattered 
throughout the United States and even overseas, and each prosecution 
involves a major conriitraent and outlay of resources by the Justice 
Department, the IRS and the courts. Enactment of the suggested clarifi- 
cation to Section 3237 (b) would siirply ensure that the public need not bear ■ 
the cost of two (or in cases like Dahlstrcm three or possibly even more) 
substantially similar trials arising out of criminal actions taken by 
persons acting in concert. The amendnent also would have the beneficial 
effect of avoiding substantial inconvenience to members of the public 
necessarily called as witnesses in such prosecutions. The resources of our 
prosecutors, investigators and the courts are much too scarce to be 
squandered unnecessarily by multiple trials of the prcnoters of these tax 
illegal tax schemes. 



COMPREHENSIVE CRIME CONTROL ACT OF 1983 



WEDNESDAY, MAY 11, 1983 

U.S. Senate, 
Subcommittee on Criminal Law, 

Committee on the Judiciary, 

Washington, D.C. 
The subcommittee met at 10:03 a.m., in room 226, Dirksen 
Senate Office Building, Hon. Paul Laxalt (chairman of the subcom- 
mittee) presiding. 

Present: Senator Specter. 

Staff present: John F. Nash, Jr., chief counsel and staff director; 
William Miller, general counsel; Beverly McKittrick, majority 
counsel; and Susan Fanning, chief clerk. 

OPENING STATEMENT OF HON. PAUL LAXALT, A U.S. SENATOR 
FROM THE STATE OF NEVADA, CHAIRMAN, SUBCOMMITTEE ON 
CRIMINAL LAW 

Senator Laxalt. All right, the subcommittee will be in order. 

This is the second of the scheduled hearings on Senate bill 829, 
the Comprehensive Crime Control Act of 1983. Last week, this sub- 
committee heard from the Attorney General of the United States 
and from other distinguished members of the Department of Jus- 
tice and the Treasury Department, who testified in support of the 
bill from the point of view of Federal law enforcement. 

Today we are honored to receive testimony from eminent offi- 
cials representing the perspective of State and local law enforce- 
ment officers. Gov. Charles Robb of Virginia is the chairman of the 
Committee on Criminal Justice and Public Protection of the Na- 
tional Governors' Association. LeRoy Zimmerman, the attorney 
general of the Commonwealth of Pennsylvania, is the chairman of 
the Criminal Law and Law Enforcement Subcommittee of the Na- 
tional Association of Attorneys General. And District Attorney 
Edwin Miller of San Diego County, Calif, is the president-elect of 
the National District Attorneys Association. 

The appearance of these gentlemen before the subcommittee 
today serves to remind us that the continuing battle against crime 
is fought primarily by local and State officers. The range of Federal 
criminal law jurisdiction is narrow compared to the jurisdiction of 
the States, and this is as it should be. The Founders of our Repub- 
lic intended the States to have this responsibility, and our Consti- 
tution clearly reflects that intent. 

Accordingly, the basic purpose of Senate bill 829 is to put the 
Federal criminal justice system in order, not to make unwarranted 
intrusions into the areas of State and local law enforcement. How- 

(221) 



222 

ever, the extensive reforms included in S. 829 and the proposals in 
the bill to strengthen our ability to fight organized crime and to 
put the illegal drug industry out of business are bound to have a 
significant effect on State and local law enforcement efforts. For 
this reason, it is important to have the advice and counsel of the 
organizations represented by these distinguished witnesses before 
us. 
[The prepared statement submitted by Senator Biden follows:] 

Prepared Statement of Senator Joseph R. Biden, Jr. 

I would like to welcome today the prominent government officials who will be tes- 
tifying on these important criminal justice initiatives. As elected officials I am sure 
they have heard, as I have, that the citizens of this country want the criminal jus- 
tice system to work better than it has to date. They want an effective, efficient and 
fair system to punish law breakers and to protect them and their families from the 
personal and financial hardships that result from crime. 

However, if we are to ever restore the publics' confidence in our commitment to 
crime and drug control then we can't continue to rhetorically call for wars on crime 
or drugs. We have done what in the past and the public has seen us lose these wars 
built on rhetoric. 

As the ranking minority member of the Judiciary Committee I found the Presi- 
dents proposed cuts to law enforcement in 1981 to be inconsistent with his state- 
ments for strong crime control measures. Proposals to eliminate 434 positions in 
DEA, eliminate all justice assistance programs to State and local agencies, close all 
State and local drug task forces, freeze funds for undercover investigations do not 
demonstrate a commitment to solving an unacceptable crime and drug abuse prob- 
lem. Had it not been for the Governments, State attorney generals, law enforcement 
associations, and the U.S. Congress those budget cuts would have had drastic impact 
on the Federal, State, and local response to crime and severely damaged the morale 
of many hard working law enforcement people. 

I believe we are all on a new course this year in which the Congress and now the 
administration recognizes you can't talk about a serious effort to make in roads in 
the crime and drug problem without committing resources. 

I sincerely believe that the President has begun to commit the resources to im- 
prove our law enforcement agencies. The increases in budgets for Federal agencies, 
this year, the start up of the task forces and support for assistance funds for State 
and local agencies demonstrate a willingness to improve our law enforcement agen- 
cies. 

With respect to the administration's bill before us is an example of apparently 
well-intentioned legislation that has aroused a great deal of criticism — with one 
very important difference. Most of this bill has been overwhelmingly approved by 
my colleagues in the Senate and a substantial portion was already proved by the 
House. In addition, last Congress the Senate and House Judiciary Committee mem- 
bers made substantial progress in agreeing upon bail and sentencing reform legisla- 
tion — so much progress that it was only the press of time at the end of the Congress 
that prevented those measures from going to the President as well. Even the Presi- 
dent's veto of the bipartisan crime bill was accompanied by a strong statement of 
support for many of its provisions. 

All of us must appreciate the necessity of once again passing those improvements 
in current law on which agreement has already been reached. In addition, it is clear 
that the sooner we pass bail and sentencing legislation, the greater the likelihood 
that our colleagues in the House will also act on those reforms. 

By this process we are virtually assured of enactment into law of a significant 
criminal law reform package of legislation in the 98th Congress. 

I strongly believe, however, that the administration's proposal may delay or even 
prevented that result. That bill, the Comprehensive Crime Control Act of 1983 (S. 
829) contains provisions which were not in the package which passed the Senate 95 
to 1. They were not in it for a very good reason — we were unable to reach agree- 
ment. Some of those provisions — most notably changes in habeas corpus and in the 
exlusionary rule were not even reported by the Judiciary Committee, despite many 
months of effort. And, we all know that any proposal to establish Federal death pen- 
alty procedures faces a certain filibuster. Last Congress proponents of those bills 
recognized that the only way to pass a comprehensive package of legislation was by 



223 

moving controversial bills separately. That decision was correct last Congress and it 
is correct this Congress. 

Senator Laxalt. Gentlemen, I welcome you to the Subcommittee 
on Criminal Law, and I look forward to hearing your comments 
and evaluations of the crime package. 

Our first witness will be Gov. Charles Robb of the Common- 
wealth of Virginia. 

Governor, we are delighted to have you with us this morning. 
You may proceed in any fashion that you wish. 

STATEMENT OF HON. CHARLES S. ROBB, GOVERNOR, COMMON- 
WEALTH OF VIRGINIA, ON BEHALF OF NATIONAL GOVERNORS' 
ASSOCIATION, ACCOMPANIED BY RICHARD N. HARRIS, DIREC- 
TOR, DEPARTMENT OF CRIMINAL JUSTICE SERVICES, COM- 
MONWEALTH OF VIRGINIA; AND NOLAN E. JONES, STAFF DI- 
RECTOR, COMMITTEE ON CRIMINAL JUSTICE AND PUBLIC PRO- 
TECTION, NATIONAL GOVERNORS' ASSOCIATION 

Governor Robb. Thank you, Mr. Chairman. I am delighted to be 
here and I appreciate very much the invitation to appear before 
you principally as the representative of the National Governors' 
Association, as you indicated, as chairman of the Committee on 
Criminal Justice and Public Protection, but also I will have a few 
comments that relate to some of the things that we are doing in 
my own State and others. 

I think that the testimony that I have given to you and members 
of the committee in written form pretty thoroughly addresses the 
policy positions that the Nation's Governors have enacted formally, 
and I will be happy to elaborate on any of those if you think it is 
appropriate, but I will not cause you to have to sit through an ex- 
tensive reading of that testimony at this time, in accordance with 
the expressed wishes of your very kind invitation. 

Senator Laxalt. We appreciate your consideration, Governor. 

Your full statement will be filed in the record for the benefit of 
my colleagues. You may summarize it, characterize it in any fash- 
ion that you wish. 

Governor Robb. Thank you. 

Obviously the Nation's Governors, the States, and I am sure that 
the testimony of the two distinguished representatives of the State 
attorneys general and district attorneys will hit on a number of the 
same points, but we are very obviously concerned and we applaud 
the effort of the Federal Government to address this problem at 
the Federal level. And I will say, try to suggest some of the areas 
where we think it is particularly important as it interacts with 
State policy and some of the things that we are concerned about. 

The simple statistics that compel all of us to look at this problem 
in a much more serious way, just a couple of them that most of us 
are familiar with, but if every 2.4 seconds we have a crime, obvi- 
ously we have a pretty serious problem. The serious crimes of rape, 
theft, robbery and assault affecting some 25 million households 
each year and some 68 percent of our American public are con- 
cerned that crime is on the rise in this country. And I think that 
this gives some indication of the degree of public concern to which 
we are all responding in one way or another. 



224 

Specifically the areas of the — Senate bill 829 — maybe I should di- 
gress at first and simply say that there is nothing that the Nation's 
Governors, in terms of their formal policy positions, have seen in 
that legislation with which they specifically disagree in any sub- 
stantive way. There are a number of areas that because of the con- 
cepts of federalism that we would not have addressed in our policy, 
but I would like to talk then about some of the areas where there 
is specific overlap in terms of some of the concerns, probably the 
most important area to the States at this point is the old question 
of narcotics enforcement and illegal drug trafficking. 

We had a symposium, as a matter of fact, that led off the most 
recent meeting of the Nation's Governors at the end of February in 
which the Attorney General, William French Smith, and the Direc- 
tor of the FBI, Judge Webster, appeared with several of the Na- 
tion's Governors talking about this specific problem. And as a 
matter of fact, I would like to make a copy of the proceedings of 
that available to you and to other members of the subcommittee 
and to any others that might be desirous of reviewing some of the 
testimony that was taken in that particular proceeding. 

Specifically we are concerned about the need for increased educa- 
tion efforts. We are concerned about the need to intensify interdic- 
tion efforts. We are particularly concerned in this area with the in- 
ternational scope of the problem as discussed in some detail in this 
particular booklet, which I will leave with you when I depart. 

We recognize the international scope of the problem, the source 
question which is clearly beyond the realm of the States to combat, 
and we rely almost exclusively on the Federal Government in that 
particular area. We applaud efforts that are designed to interdict 
that traffic at the source which are clearly outside of our own 
areas. We have increased our own State surveillance in significant 
ways. Virginia, for instance, we have authorized — I have recently 
signed an executive order authorizing the National Guard to in- 
crease surveillance activities, although they have no specific en- 
forcement powers. Our State police, I believe most recent figures 
indicate some 81 members of that force are assigned specifically to 
this particular area. So it is a problem that all of us recognize and 
all of us are dealing with in one form or another. But the use of 
the military, we think, is a valuable component in this entire ap- 
proach. 

The need for information and data that relate to the drug en- 
forcement question is one that we share across the board. We rec- 
ognize the sensitive nature of intelligence and information that is 
developed in the drug suppression activities and the reluctance on 
the part of agencies, even within the same strata of government, 
much less across State, local, and Federal boundaries to release in- 
formation that might compromise the integrity of a particular in- 
vestigation. At the same time, we think that there is a clear need 
for as much centralized intelligence as possible, and we are pleased 
that this is addressed. 

There is a need for obviously a concerted street enforcement ac- 
tivity, and much of this is clearly a State and local responsibility. 
And the States are addressing this in a variety of different ways. 
We believe that there is need in this particular area for standard- 
ized legislation and the Criminal Justice and Public Protection 



225 

Committee is currently in the process of putting together a pro- 
posed uniform package that would permit all of the States to take 
a look at what other States are doing so that the major traffickers 
will not be able to pick and choose between points of entry and the 
various differences in State law in order to carry out their activity. 

We have noticed, particularly in the Southern States, which have 
been hardest hit by the importation of drugs, that when one State 
increases an activity, frequently it will tend to divert that transpor- 
tation into other States. And we have had a meeting with the 
Southern Governors alone, simply to talk about joint efforts to ad- 
dress this problem, and we will continue to work in that particular 
area. 

Clearly there is a need for coordination of the efforts of the agen- 
cies at all levels, and we are pleased that that is addressed, and the 
Governors will continue to look at that particular question. 

The question of forfeiture reform is one that we find particularly 
appealing because it seems to me that the only way we are going to 
have a major impact is to cripple economically those who engage in 
drug trafficking, any forfeitures, and it is addressed in both this 
bill and, I think, slightly to a different extent in Senate bill 830; 
that would remove and penalize those who traffic for any convey- 
ance that is related to it, whether it is planes, boats, cars, the pro- 
ceeds of illegal drug trafficking and things of that nature seems to 
us to be a step in the right direction. 

Florida has instituted a program that began in July 1982, and by 
May 1983 some $658,000 already had been deposited in a Florida 
forfeiture fund. Virginia law took effect last July. Statistics are not 
yet available in that particular area, but the concept of requiring 
forfeiture is one that we find is effective and certainly pushes in 
the right direction. 

Another area that is not perhaps as critical in terms of your 
overall consideration of the bill, but one that the States feel is par- 
ticularly appropriate, has to do with the surplus property that 
might be available for penal institutions, some 39 States at this 
point are under court order to reduce overcrowding in one form or 
another. The prison population continues to increase. At the end of 
1982 alone, there were some 412,303 inmates in Federal and State 
prisons, and that represented an annual increase of some 43,000. So 
it is a problem that does not go away. It becomes more difficult to 
solve. 

In Virginia, like many other States, we are in the process of con- 
structing additional prison facilities, and we have to plan some 8 to 
10 years down the road in terms of the demands on our system, 
and most other States have the same problem. And to the extent 
that Federal properties, surplus Federal properties are available to 
help in some of the capital costs, this can be a very important pro- 
vision for us. 

Senator Laxalt. While you are talking about facilities, is there 
any movement in Virginia or some of these other States in connec- 
tion with private enterprise perhaps getting into the field where 
we have had some increase to that effect? 

Governor Robb. Mr. Chairman, when you say in private enter- 
prise 

Senator Laxalt. Yes. 



226 

Governor Robb. To run as a contractor? 

Senator Laxalt. No, no, not operationally. Simply to provide the 
facility and lease them back to the State or the local subdivision, or 
perhaps even to the Federal Government. 

Governor Robb. Mr. Chairman, I cannot cite you any specific ex- 
ample. In Virginia the private sector is very much concerned about 
the problem and are assisting in a variety of different ways. But in 
terms of specifically making property available, I do not have any 
current evidence that I can cite to you. I will check and if we have 
anything of that nature, either here or elsewhere, I will be happy 
to provide those — that kind of information for you. 

In terms of the sentencing reform effort, although some of the 
efforts that are addressed go beyond the scope of State inquiry, we 
are particularly pleased with the increased emphasis on sentences 
for drug violators, those that commit crimes using a dangerous 
weapon, and those that involve serious bodily injury or where a 
death results in those particular crimes. I think most of the States 
in their own treatment of the same types of offenses have in- 
creased the penalties, in some cases have increased mandatory pen- 
alties, particularly for commission of crimes with firearms , and we 
certainly applaud that particular approach. 

Senator Laxalt. If the Governor would yield. 

While we are talking about sentencing, have you given any par- 
ticular thought about who should determine the sentencing guide- 
lines, whether they should be judges or criminal lawyers? 

Governor Robb. We are in the process right now in Virginia, the 
National Governors' Association has not specifically addressed the 
question in Virginia. I have appointed a sentencing task force 
which consists of legislators, judges, corrections officials, a variety 
of others, who have professional input, and a task force report is 
going to be available toward the end of this year to provide us with 
this kind of guidance. 

I think in terms of any personal response to that question, I 
would prefer to wait until this committee completes its work. I am 
not aware of any NGA policy position that would reflect specifical- 
ly on that question. But if, subsequently, I find that we have any- 
thing that addresses it, I will send it in. 

Senator Laxalt. As you move along, we would appreciate very 
much being advised. The mix that we have in connection with a 
group that is finally going to deal with this is going to be critical 
obviously. 

Governor Robb. Again I will be happy to try to provide any addi- 
tional input into that area that might be appropriate. 

There is another area that we find particularly appealing that 
has to do with the habeas corpus reform. Clearly, in order to in- 
crease public confidence in the system of criminal justice, there has 
to be some degree of finality to the process. The concept of both 
finality and swiftness, we happen to think, are important elements 
in the entire process. And as you know, there has been quite a bit 
of concern at the State level about the habeas corpus procedures 
that permit appeals in many cases, in most cases to be honest, that 
are frivolous in nature to proliferate and to extend the period of 
time until the final conclusion of the carrying out of the sentence. 



227 

Justice Powell, I noted, addressed that topic, I believe it was in 
Florida. I do not recall where the meeting took place but I remem- 
ber reading in the last few days in connection specifically with the 
capital punishment, but the general concern remains that we 
manage to protract those appeals to the point that the certainty of 
that sentence or certainly the swiftness provide very little, if any, 
real deterrent. It is a measure — it is a major concern for all of us. 

Senator Laxalt. Do you see any need for the Feds to obtain any 
kind of jurisdiction over State prisons in the whole area of habeas 
corpus reform or otherwise? 

Governor Robb. Well, I think to the extent that the Federal 
courts continue to protect the due process, and that portion seems 
to me to be reasonable as is consistent with the Governors' posi- 
tion. We would suggest that a time limit for raising any question, 
the one year is particularly appropriate and we would suggest that 
a determination as to factual questions as long as they have been 
fairly and reasonably ascertained by the State courts, that the Fed- 
eral system accord appropriate deference to the State courts in 
that area. I think that as an ultimate protection against the abso- 
lute violation of individual rights, we would not object to that rule 
but it ought, in our judgment, be considerably more limited and 
the proposals, as I have had an opportunity to review them, cer- 
tainly move in that direction and are consistent with the policy 
that we are advocating. 

Senator Laxalt. I rather imagine we would have vigorous consti- 
tutional challenges, too, if we attempted to exclude ourselves com- 
pletely from that area. 

Governor Robe. I think there is no doubt that there would be 
constitutional challenges. It may be that the Attorney General or 
the district attorney may have some additional thoughts on that 
area. 

Senator - Laxalt. So your thought is, and it coincides with the 
thought of the subcommittee, that we should certainly shorten the 
process in some fashion? 

Governor Robb. Absolutely. And almost anything that is done 
consistent with deference to due process that we are all concerned 
about would make sense to us. There is too much evidence that the 
failure to provide swift and certain punishment contributes to the 
increase in criminal activity because there are too many, particu- 
larly those who are referred to from time to time as career crimi- 
nals, that simply know that the system is not going to cause them 
to have to pay the penalty for violating our laws and that that can 
be protracted and dragged out in such a way that it becomes 
almost a mockery in some cases. 

Senator Laxalt. We are close to that already, are we not? 

Governor Robb. In another area, Justice assistance, generally we 
think that there is clearly a Federal role in providing leadership, 
research, technical assistance, and training coordination of the 
Federal and State interests. We like the block grant approach. I do 
not think it would come as any surprise that the Nation's Gover- 
nors and most of the States as a general policy matter, assuming 
that the same degree of funding is available, I think that a number 
of these areas that have a particular State nexus can and ought to 
be administered at the State level. And consequently I think we 



228 

are consistent in our desire to follow up and support efforts to 
create those block grants where the controls and the flexibility 
hopefully is increased, where the States is 50 individual laborato- 
ries for experimentation in a variety of areas, it is important in our 
judgment, and also hopefully where the same general level of fund- 
ing that might be available, there has been some evidence in other 
programs that — programs that were envisioned as approximately 
90-percent funded, in the categorical grants, when transferred to a 
block grant, end up being funded at considerably less and the 
States were less enamored of the prospect of taking over those pro- 
grams simply because the expectations remained high and the effi- 
ciencies of the States could effect themselves, were diminished by 
the fact that the funding was cut considerably more than it had 
been in other areas. That does not relate so much to this, but 
simply a general statement that most Governors do not hestiate to 
articulate whenever they get a chance. 

Senator Laxalt. We noticed last year in the federalism effort we 
underwent that this was a principal concern which we heard about 
not only from Governors but from mayors — the assumption would 
be one of resources. 

Governor Robb. There were a number of elements about the 
whole question of federalism and New Federalism that the Gover- 
nors found very attractive. And if we can find an appropriate 
forum to continue that discussion, we would certainly like to do so. 

Mr. Chairman, I will conclude. I think that those are the areas 
that impact specifically on the States, those areas in which NGA 
policy positions have already been taken, that I think I could in 
good conscience represent to you and the other members of the 
subcommittee reflect the consensus of the Nation's Governors. Ob- 
viously there are individual opinions on a variety of other areas 
and, as I say, I am not aware specifically of anything in the pro- 
posed legislation that goes against the grain of any NGA position. 
And specifically I think that the Nation's Governors, although they 
might want to take issue on the basis of personal experience or 
State experience, with one or more of the specific provisions in the 
legislation, would applaud the overall effort, and be very pleased to 
be generally supportive. 

Senator Laxalt. Thank you very much. Governor. 

I have just a couple of questions for you because I know you are 
operating on a fast track. 

Will the passage of major Federal criminal reform legislation, in 
your opinion, encourage the States to adopt similar reforms? 

Governor Robb. The answer I would say is yes, that the States 
are already moving in this direction, as I have indicated, and in 
some areas, particularly drug enforcement, we are preparing to 
provide guidelines that might assist States in addressing this par- 
ticular question. But the answer is yes. 

Senator Laxalt. I would assume NGA would be out in front to 
accomplish that result because if we can have a uniform applica- 
tion for the reasons that you mentioned, we would benefit. 

Governor Robb. NGA would be very pleased to work with you 
and your committee and Congress and the President and various 
other associations, the Conference of State Legislators, the attor- 
neys general, district attorneys and all others who are concerned 



229 

about this particular problem. We would like very much to have an 
opportunity to cooperate on this area as much as we can. 

Senator Laxalt. You mentioned the problem with drug traffick- 
ers. Of course, this is one of the principal problems that we con- 
front. It is one of the main focuses, really, of this legislation. 

Do the provisions of the bail reform section of Senate bill 829 suf- 
ficiently address the problem? 

Governor Robb. We are very pleased with the bail reform provi- 
sions. To be perfectly honest, we attempted in Virginia to provide 
some specific guidelines in bail reform and we have not yet been 
successful. We are going to continue to pursue that course. 

Some of the guidelines that are incorporated in S. 829 are more 
specific and, to that extent, we find it extremely helpful. 

Senator Laxalt. What kind of problems are you running into? 
Are they mainly political? 

Governor Robb. I would say that we are very fortunate in Virgin- 
ia to have some distinguished representatives of the defense bar 
that served in our general assembly and they are very persuasive 
on some of these issues. I would not characterize the entire argu- 
ment that way, but 

Senator Laxalt. I know what you are saying. 

Governor Robb. But I think you follow my reasoning. 

Senator Laxalt. Does NGA favor a particular Justice assistance 
proposal? You indicated that generally you are in support of the 
concept. Do you have any specific proposal? 

Governor Robb. I do not have anything specific in terms of policy 
at this point. 

I will be happy to follow up with any additional areas. 

Senator Laxalt. As we move along 

Governor Robb. We will be happy to 

Senator Laxalt. If you see anything more specific than has gen- 
erally been outlined, please let us hear from you. 

Governor Robb. We would be delighted. 

Again there are some statistics that indicate that some of the as- 
sistance in the past has provided the impetus for States to continue 
some of the funding and some of the things that they have done on 
their own to a fairly significant degree. And so assistance in some 
of the things that you have done in this area can be very, very 
helpful as far as we are concerned. 

Senator Laxalt. Now, finally, in your statement — this deals with 
the problem of insanity — in your statement you refer to the verdict 
of guilty but mentally ill which some States have adopted. 

Does NGA or you. Governor, personally favor such an alterna- 
tive? 

Governor Robb. I would have to speak personally on this particu- 
lar question. NGA has not formally addressed that particular topic. 

I do support an approach which is quite similar. As a matter of 
fact, we proposed as a part of the crime package that the attorney 
general and I jointly introduce in the 1982 session of the general 
assembly, prior to the notoriety that was associated with that par- 
ticular approach and the shooting of the President, and the nation- 
al concern that was raised, it was set aside at that time, it was con- 
sidered and withdrawn in the 1983 session of the general assembly. 
I recognized some of the problems in that area but personally the 



230 

approach makes sense as long as the concern is related to whether 
or not the individual who is being tried was competent to under- 
stand the seriousness or the gravity of the offense at the time and 
to provide some mechanism for dealing with the punishment that 
flows from a decision that was — from an individual that was capa- 
ble of making that kind of decision. 

So, personally, we like the movement in that direction, but I 
have to tell you on the basis of our own experience that we have 
not been successful yet in Virginia in enacting that legislation. 

Senator Laxalt. Finally, what do you think are the advantages 
or disadvantages over a verdict of not guilty by reason of insanity 
when that is coupled with automatic commitment procedures to 
assure immediate mental examination? 

Governor Robb. I am sorry, I am not sure that I got it. 

Senator Laxalt. I was referring back to the verdict of guilty but 
mentally ill. What are its advantages or disadvantages over a ver- 
dict of not guilty by reason of insanity when it is coupled — when 
the verdict is coupled with automatic commitment procedures to 
ensure automatic mental examination and treatment? 

Governor Robb. I am not sure that I can address that question 
with the specificity that I think would be helpful. 

Well, let me — it is sufficiently technical that I would be winging 
it, I am afraid, to try to compare the two at this point. 

I will be happy to provide some additional comment. 

Clearly the comments that I already made indicate which side 
we fall on, at least I do personally. I will be happy to follow up and 
send you some additional information in that area. 

Senator Laxalt. Thank you very much. We will be moving and 
exploring into this whole general area as we move along anyway. 

Well, Governor, we certainly thank you for coming in, and I 
might say as far as the members of the subcommittee, and certain- 
ly the chairman here, we recognize that we on this level cannot do 
it alone. Most of the work has to be done on the State and local 
level, and I speak as a former Governor and a former prosecutor. 

Governor Robb. We recognize that part of your background, Mr. 
Chairman, which encourages us. 

If you can convey some of those same thoughts not only to the 
members of the subcommittee but to some of your other colleagues 
in the Senate and the House in terms of the appropriateness of the 
Federal, State and local responsibilities, you will find some very 
willing and eager advocates to support your position in the State 
Capitals around the country. 

Senator Laxalt. Very well. That is comforting to know. And as 
far as the subcommittee is concerned, I probably experience the 
same general problems that you have in the Assembly from time- 
to-time. Thank you. 

Governor Robb. Further deponent sayeth not. 

Senator Laxalt. Thank you very kindly. 

Governor Robb. Thank you, Mr. Chairman. 

Senator Laxalt. And we will stay in touch. 

Governor Robb. Thank you. 

Senator Laxalt. All right. 

[The prepared statement and additional material submitted by 
Governor Robb follow:] 



231 



Prepared Statement of Governor Charles S. Robb 

Good Morning. 

Mr. Chairman, and distinguished members of the Subcommittee. 

\ am pleased to have the opportunity to appear before you today to discuss S.S29, 
the Comprehensive Crime Control Act of 19S3 and its impact on the states. I appear 
before you today in my capacity as chairman of the Committee on Criminal Justice and 
Public Protection of the National Governors' Association. The views that I share with 
you today come from the policies adopted by the National Governors' Association. 

Mr. Chairman, as you and the members of this Subcommittee know, statecraft is 
at best an imperfect science. As the Congress begins work on a major legislative 
package to help reduce crime in our country, we received the welcome news that the 
crime rate has gone down for the first time since 1977. It's not clear that word of these 
hearings produced that desired result, but it's a thought worth consideration. 

While we may not have the exact answer to why the crime rate has dropped for 
the first time since 1977, there are several things that we do know. We know that in 1981: 

— A crime was committed every lA seconds in our country; 

— Nearly 25 million households were victimized by rape, robbery, theft or assault; 

— More than 20 percent of all households were victims of at least one larceny; and 

— Finally, we know that almost one-half of our citizens feel unsafe to walk down the 
street in their own neighborhoods, according to a Harris poll. 

In short, crime is still robbing this country of the things we consider most 
important. It is claiming the lives of our people, invading the sanctity of our homes, and 
draining billions of tax dollars. Worst of all, crime is stealing our peace of mind — 
making us a nation of people constantly looking over our shoulder instead of looking 
ahead to where we should be going. 

I don't know if this legislation will help recapture what we have lost. I do believe 
that S.829, the Comprehensive Crime Control Act of 1983, will provide important 
leadership to states in several areas — using the states as a laboratory for testing new 
and innovative ideas. 

In my testimony today, I will highlight those areas of special interest to NGA and 
discuss the overall impact of this legislation on the states. I will also present some of 
the initiatives that we have taken in Virginia to deal with crime, and describe initiatives 
of other states. 



232 



BAIL REFORM 

The bail reform in provision S.829 would permit the court to consider danger to 
the community in making bail determination. Unfortunately, present law would allow a 
dangerous offender to go free if his past record demonstrates an insurance of court 
appearance. 

The National Governors' Association supports reforming the bail system to allow 
"danger to the community" to be a consideration for releasing an individual. Such reform 
is directly responsive to the one critical factor in the public fear of crime: that the 
system upon which it is depending for protection is unconcerned with the possible 
consequences of its release decisions. We also feel that special consideration should be 
given to constraints on the release of individuals with prior drug, firearms or other felony 
convictions. Too often manufacturers and traffickers of illicit drugs are released on bail 
only to flee the country or the jurisdiction in which they are arrested. According to 
Justice Department estimates, there are approximately 3,000 drug dealers in flight from 
federal warrants. 

We in the Commonwealth continue to grapple with the bail reform issue. Virginia 
law permits the court's consideration of an accused person's possible danger to himself 
and the public when granting bail. But there are no criteria to be used in making that 
decision. During the 1982 session of the General Assembly, I offered legislation 
establishing criteria for determining the danger to the public. These criteria included 
previous violent behavior by the acoMcdt use of firearms, threatening witnesses, 
narcotics addiction, multiple prior convictions and probationary or parole status. The 
measure failed to pass the legislature, but we will continue to wrestle with this issue. 

In November 1982, Florida voters approved a ballot measure permitting judges to 
use discretion in setting bail in certain cases. The measure is aimed at drug traffickers, 
especially where large sums of money are involved. Judges are permitted to deny bail 
when they determine that a defendant would be likely to "jump" bail and leave the 
country. 

SENTENCING REFORM 

The National Governors' Association supports an increase in penalties for large- 
scale importation of drugs. NGA also supports tough penalties where violence is 
threatened, a dangerous weapon is used or serious bodDy injury or death results. We 
believe that sentences must be e^iilehh wid retjonai. 



233 



In Virginia we are studying what, if anything, we should do about our present 
sentencing practices and policies. I have appointed a Sentencing Task Force composed of 
legislators, citizens and criminal justice practitioners to examine sentencing practices 
and policies and make recommendations. The task force is to complete its work by this 
fall. Their report will provide me and the General Assembly with valuable guidance. 

1 do know that several states have developed or are developing special programs to 
deal with criminal sentences. Minnesota has been using a sentencing guidelines approach 
for several years, and an evaluation revealed a 73 percent increase in imprisonment of 
offenders committing serious crimes, and a 72 percent reduction of those committing 
less severe offenses. Minnesota indicates that their particular guidelines system has 
allowed them to deal with their prison capacity problem more rationally. The National 
Institute of Justice is currently funding the Maryland Sentencing Guidelines Project. The 
Project's assigned goals are: 

— Tc increase equity in sentencing, i.e. , to reduce unwarranted variation while 
retaining judicial discretion to individualize sentences; 

— To articulate an explicit sentencing policy while providing a regular basis for 
policy review and change; 

— To provide information for new or rotating judges; and 

— To promote increased visibility and understanding of the sentencing process. 

Responsibility for overseeing the development and implementation of the 
guidelines was assigned to an advisory board of ten judges from the project test 
jurisdictions. To broaden the perspective of the board, the judges added eight ex officio , 
non-voting representatives of the legislative and executive branches of government. 

Maryland and some other states using a similar approach tell us that the 
advantage to a sentencing guidelines system lies in its ability to take into account 
systematically and publicly the most common variations in offenders and their offenses, 
within the current statutory framework. They point out that systematic sentencing can 
be achieved by having the judiciary, as a body, agree on the factors to be considered in 
making sentencing decisions. Such an approach is apparently intended to establish a 

25-694 0-84-16 



234 



policy or structure within which judges can then exercise their discretionary powers. It 
is also designed not to be overly restrictive by the inclusion of a means for judges to 
deviate from the established policy in compelling circumstances. 

With respect to the sentencing guidelines approach I would say that the verdict is 
not in yet if the results we are now observing in the several states utilizing this approach 
are any indication. We will continue to watch them with great interest, however. 
FORFEITURE REFORM 

Mr. Chairman, recent attention to forfeiture reform, intended to cripple the drug 
trafficker economically, is attention well-placed and resources well-spent. In the states. 
we are just beginning to develop new forfeiture laws and to experience the results of 
such legislation. 

The State of Florida, for example, collected $658,026.55 between July 1982 and 
May 1983, and uses it to administer the forfeiture program at the state level. Last year, 
the Virginia legislature passed a measure providing stronger laws regarding the forfeiture 
of property and money obtained through the manufacture, distribution and sale of illegal 
drugs. This measure, which took effect on 3u]y 1, 1982, was a part of my larger crime 
package. As the evidence that forfeiture reforms are working is still being collected, the 
nation's Governors strongly support this provision of S.829. 
INSANITY DEFENSE REFORM 

Although NGA does not have a policy regarding this issue, insanity defense reform 
is a major issue in several states which could serve as models for developing a federal 
statute. In its final report in August of 1981, the Attorney General's Task Force on 
Violent Crime recognized the states of Illinois, Indiana, and Michigan where an 
alternative insanity plea verdict of "guilty but mentally ill" was enacted to enable juries 
to respond better to situations of criminal insanity. Under the law in these states, a jury 
may recognize a defendant as mentally ill, but nevertheless hold him responsible for his 
criminal actions, provided that mental illness does not negate the defendant's ability to 
understand the unlawful nature of his conduct and his ability to conform his actions to 
the requirements of the law. Once an individual is incarcerated, corrections intake units 
make a psychiatric evaluation. If the individual is found to be mentally ill, he is sent to 
the state department of mental health for treatment. If he is ever considered to be 
mentally fit during the period of the sentence, he is returned to the department of 
corrections for completion of his sentence. In this way, the individual is held 



235 



accountable and responsible for his actions, and is punished accordingly. 

REFORM OF FEDERAL INTERVENTION IN STATE PROCEEDINGS 

The National Governors' Association believes that one of the principal factors 
contributing to the decline in public confidence in criminal justice is the lack of 
certainty and finality in the criminal justice system. Although certainty and swiftness of 
justice have been universally accepted as strong deterrents to criminal activity, the 
diminishing ability of the states to carry out the judgments of their criminal courts has 
led to an erosion of certainty. 

We believe that the Writ of Habeas Corpus was designed as a shield to protect 
innocent citizens and not as a sword to frustrate the administration of justice. Today, 
however, some of those commendable procedural safeguards attached to the writ are 
being abused and have become instruments with which to delay or stymie justice. 

Because of these and other problems caused by the abuse of the Writ of Habeas 
Corpus, amendments to federal criminal law are necessary to require the orderly and 
timely presentation of claims on behalf of criminal defendants and to restore finality to 
the criminal justice process and a proper respect for state court factual determinations. 
Federal law should be amended to: 

— Require that a district judge, rather than a magistrate, conduct any 
evidentiary hearing held in a habeas corpus proceeding involving a prisoner 
held in state custody. 

— Recognize the legitimacy of the "contemporaneous objection rule" which 
bars litigation of issues not properly raised unless "cause and prejudice" is 
shown for failing to comply with state procedural requirements. 



Establish a reasonable time limit within which state prisoners must institute 
a federal habeas corpus action which challenges their state court conviction. 

Require a habeas corpus court to accept state court findings of fact where 
there is an evidentiary basis for that finding providing the petitioner was 
accorded a full and fair hearing on the factual issue. 



236 



The reform of federal habeas corpus proceedings will ensure a greater finality of 
state crinninal court convictions and a greater deference to findings of fact in state 
criminal proceedings. This proposal is not designed to prevent reasonable review of 
criminal convictions by federal courts, but to prevent the filing of frivolous and 
repetitious petitions for habeas corpus. 

NARCOTICS ENFORCEMENT 

The issue of drug trafficking and organized crime is a major problem faced by 
Governors. It was discussed last year by the Southern Governors at their annual meeting, 
and by NGA at their annual meeting. Furthermore, NGA sponsored a major symposium 
on "Illegal Drug Trafficking in the United States" during the most recent winter meeting 
here in Washington. We discussed the seriousness of the drug problem with Attorney 
General William French Smith and Federal Bureau of Investigation Director William 
Webster. 

I have attached a copy of the Special Governors' Work Session proceedings which 
fully explains the activities in which the Governors have been involved regarding the 
problem of illegal drug trafficking. 

The National Governors' Association unanimously adopted a policy calling for a 
comprehensive approach to reduce the availability of illegal drugs and the adverse 
effects of drug abuse in society. This approach must include international cooperation, 
drug law enforcement, education and prevention, detoxification and treatment, and 
research. We feel that a sound policy to combat drug abuse and trafficking must address 
the following concerns: 



Need for Increased Educational Effort : There must be consistent exchange 
of information and ideas among the various disciplines that can have an 
impact on consumer demand. The ultimate long term success of drug control 
efforts is not possible without a marriage of these disciplines, supported by 
an educated and involved public. Therefore each state should consider the 
establishment of a Blue Ribbon Statewide Drug Education Commission 
involving leaders from the public and private sectors. 

Need for Intensified Eradication and Interdiction: Military/Naval Assistance 
to State/Local Governments : The federal government has exclusive 
responsibility for coordinating interdiction of drug shipments from foreign 
countries and assisting those countries in the eradication of drugs at the 
source. This should be a top priority of the federal government. Also, the 
Administration is urged to expand the role of the military forces of the 
United States in air and sea interdiction efforts. This role should include all 
regions of the country, and should represent a more significant effort than 
presently exists. 

Need for a National Reaction : We must show that this is a very serious 
effort to combat drug abuse and trafficking in this nation. Over the past 



237 



decade, numerous states have been adversely affected by the growing drug 
problem. These states have taken independent steps to combat the problem; 
however, their resource limitations and geographic restrictions have 
hindered their effectiveness. The federal government, realizing the national 
ramifications of the drug problem, has conducted several significant 
operations which have lessened these restrictions and limitations, such as the 
recent Bush Task Force in South Florida and the creation of 12 regional task 
forces. The nation's Governors appreciate this effort and encourage the 
federal government to maintain on a permanent basis the federal resources 
associated with this effort. 

o Need for a Centralized Information and Intelligence Data Base : Law 

enforcement agencies involved in drug control have historically been 
hampered by lack of accessible and assessable intelligence information 
relating to illegal trafficking. A centralized system to receive, analyze and 
disseminate information among state and local law enforcement agencies 
must exist if proactive, non-duplicative and significant targeting efforts are 
to occur. Such a system must interact with similar systems in other states 
and the federal government. 

o Need for Concerted Street Enforcement Activity : Local law enforcement 

agencies must provide the immediate response to a variety of community 
demands in crime control. It is difficult for those agencies to dedicate 
already strained resources to provocative drug prevention and enforcement 
problems. Governors and legislators of the various states should apply 
maximum support and effort toward increasing resources (personnel and 
equipment) of local law enforcement agencies. 

o Need for Standard Legislation : There exists a great deal of disparity among 

the states' drug laws. There is evidence that smuggling organizations have 
taken advantage of some states' deficiencies in legal recourse and 
probabilities of detection, apprehension and prosecution. Therefore, each 
state should establish a legislative committee of prosecutive, enforcement, 
judicial and legislative members to examine and develop a comprehensive 
system of model and uniform laws dealing with the drug problem. Also, a 
national committee should be created, reporting to the National Governors' 
Association's Committee on Criminal Dustice and Public Protection. This 
committee will develop a comprehensive system of model and uniform laws 
dealing with the drug issue. 

o Need for Greater Prosecutorial Commitment : Heavy court dockets and 

broad responsibilities minimize prosecutors' effectiveness in dedicating 
resources to the prosecution of major drug smuggling operations. 
Alternative approaches to drug prosecution and greater levels of 
coordination among circuits dealing with multi-jurisdictional organizations 
are needed. Prosecutors should take steps to expedite drug enforcement 
cases, as has been successfully accomplished in cases involving career 
criminals. Additional prosecutorial resources are needed to provide for 
dedication to prosecution of highly financed and well defended drug 
organizations. 

o Need for Coordination of Efforts of Local Agencies : There is generally no 

mechanism to provide for local/state agencies to pool their resources and 
work together on common drug targets. Equipped with the necessary 
legislation, agencies can draft contractual agreements to effect "joint force 
operations" or "mutual aid pacts" to expand resource and jurisdictional 
abilities to attack drug operatives. States should consider developing the 
necessary legislation for a "mutual aid system," whereby law enforcement 
agencies can contractually join together and pool their knowledge, resources 
and skills toward investigatively attacking drug smuggling networks. 

Addressing these concerns will help us get a handle on the illicit drug problem in 

this nation. Some of these concerns are of a state and local nature and many of our 

states are dealing with this issue, as 1 explained ur>der the forfeiture reform section of 



238 



this testimony. However, there are some concerns that are federal in nature and must be 
addressed by the federal government, e.g., interdicting illegal drugs on high seas and at 
border points, and dealing with major source countries. 

JUSTICE ASSISTANCE 

The federal government's role in crime control lies in the areas of leadership, 
research, technical assistance, and training and coordination of the federal and state 
interests. It has a special responsibility, however, to develop and test alternative 
methods of improving the criminal justice system and to adequately support research on 
criminal justice problems identified by state and local governments. The federal 
government can further provide leadership by funding mooe. pngrams in criminal justice 
and law enforcement at the state and local levels. 

Research and evaluation efforts that are most likely to be of immediate use to 
state and local criminal justice agencies should be given the highest priority by the 
federal government. The National Governors' Association recognizes the importance of 
coordination among federal, state and local governments in dealing with the crime 
problem. Therefore, state and local criminal justice practitioners should be involved in 
the research effort and in the implementation of its results. 

Title VIII of S.829 contains a $90 million justice assistance program providing 
block and discretionary grant programs to states and localities. Several other justice 
assistance proposals have been introduced in this session of Congress including S.53 
sponsored by Senator Arlen Specter and H.R.2175 sponsored by Rep. William 3. Hughes. 
In addition to direct financial assistance to states and localities, these proposals, like 
S.829, reauthorize the National Institute of Justice and the Bureau of Justice Statistics 
which provide the critical criminal justice research and statistical functions at the 
federal level. 

Our support for justice assistance, whether financial or research and statistical, is 
predicated on the principles of federalism, specifically that it should be provided through 
and in cooperation with the states, to insure proper coordination of federal, state and 
local resources. We have learned and now know only too well, that targeting limited 
resources for the purposes of replicating successful programs from one state and 
community to another is the best method for implementing change. To do this 
appropriately, we need to focus our coordinated efforts on projects that work. 

As Governor of Virginia, it is my vi»w that this title could provide valuable 



239 



financial and technical assistance to the states and their localities in the fostering of 
innprovements and innovations in the criminal justice system. Implementation of the 
block grant concept of federal financial assistance provides federal recognition of the 
important role of state and local governments in criminal justice. 

SURPLUS PROPERTY FOR PRISONS 

There are approximately 39 states and territories either under direct court order 
or involved in pending litigation regarding prison population overcrowding and/or general 
conditions. Most of the states are in need of nev. bed-space to house prisoners. As of 
1978, there existed a shortage of over 6S,000 prison bed-spaces. While states are 
attempting to deal with this problem by increasing construction, the need for available 
property would relieve some of the burden placed on states, especially some capital cost. 

According to the Bureau of Justice Statistics, the prison population continues to 
increase. From several scholarly estimates on prison population predictions, we can 
expect a continued increase through 1990. At the end of 1982 there were 'tl2,303 
inmates in federal and state prisons, which represented an annual increase of almost 
43,000 inmates, and was the highest in any year since data became available in 1923. 

In recent years, 37 states passed mandatory sentencing laws and several others 
enacted determinate sentencing statutes. This development has caused prison 
overcrowding to reach crisis proportions. Indeed federal judges have in several instances 
ordered the release of prisoners short of their prescribed sentences. 

Therefore, the National Governors' Association supports the donation of surplus 
federal property to state and local governments for urgently needed prison space. 

CONCLUSION 

Mr. Chairman, the problem of crime in this nation is critical. We must act in the 
name of our domestic defense. Our national constitution states emphatically that "a 
more perfect Union" was formed to insure domestic tranquility. However, many of the 
nation's citizens do not live in peace, but in fear, fear of being robbed or raped if they 
venture out in their own neighberheed*. 

The National Governors* AaaocUtion intends to work more closely with the 
Congress and the Administration in waging this battle against crime, and promoting 
peace in our communities. 
Thank you. 



240 

Illegal Drug Trafficking 
In the United States 



Special Governors' Work Session 
February 27, 1983 
Washington, D.C. 

Sponsored by 

The National Governors' Association 

Committee on Criminal Justice and Public Protection 

Governor Charles S. Robb, Chairman 



INTRODUCTION 

Illegal drug trafficking represents a root cause of many of this country's most 
serious domestic ills. The rate of violent crime remains near an ail-time high level. Data 
developed by the Bureau of Justice Statistics indicate half of all inmates housed in our 
overcrowded prisons were regular drug users during their criminal careers. Recent 
research has shown that drug-addicted criminals are particularly violent, repeat offenders, 
and that a significant proportion of all serious crimes are committed by a small core of 
repeated offenders, many of whom are addicts. 

In addition to cold crime statistics, however, there is a terrible human toll 
associated with drug abuse. The National Institute of Drug Abuse has projected that tens 
of thousands of heroin and cocaine users may suffer drug overdoses this year. 

The economics of the drug trade are staggering. Trafficking is estimated to be an 
$80 billion per year underground enterprise operated by a variety of organized criminal 
elements. Trafficking threatens the nation's economy and undermines its governmental 
institutions. 

In light of these grim statistics, the Administration, the National Governors' 
Association, and the National Criminal Justice Association have developed a special 
Governors' Project as part of an overall national assault on organized crime and drug 
trafficking. The project, and the role of the states in addressing drugs as a national 
priority, were the themes of a special symposium held February 27, 1983, in conjunction 
with the mid-winter meeting of the National Governors' Association in Washington, D.C. 
The program featured top Administration law enforcement officials and Governors who 
have taken lead roles in the areas of criminal justice and public protection. 

The Governors' Project is an important commitment to federal-state cooperation 
and coordination in addressing the pressing problems of organized crime and drug 
trafficking. The special session represented both the culmination of a lengthy series of 
planning and organizational steps, as well as the beginning of a substantive program 
designed to streamline and improve the way all levels of government address the drug 
problem. 

The project is already bearing fruit. The participation of Attorney General William 
French Smith and FBI Director William Webster in the special session was the first of 
what will be twice-yearly meetings between top Administration officials and the 
Governors, to discuss policy issues of mutual concern relating to drug trafficking and 
organized crime. 

At the operations level, a group of leading state drug enforcement program experts 
has been selected to meet on an as-needed basis with top federal operations officials in 
Washington. Meetings have already taken place. Future gatherings will guarantee that 
the states are fully aware of federal organized crime and drug trafficking strategies, and 
that the Administration benefits from the Input of knowlcdfaable state law enforcement 
officials. 



241 



A third level of cooperation and coordination between the federal program and the 
states will soon be established in each of the 12 federal core cities. Governors will be 
encouraged to select lead state drug enforcement coordinators to meet regularly with 
federal leaders in the appropriate centers of regional task force operations. In this way, 
states and their Governors will have direct access to those federal efforts and decision- 
makers most directly affecting them on a day-to-day basis. 

Finally, the National Criminal Justice Association, on behalf of the National 
Governors' Association, has begun an effort to develop new resources that will enable 
individual states to reform and improve their drug laws. The product of this effort will be 
guidance materials for Governors and state legislatures outlining what already exists at 
the state level to address organized crime and drug trafficking, and things states should 
do to improve and expand their programs to make them more effective. 

The Governors' Project is the lynchpin to improve on-going relationships between 
various levels of federal and state law enforcement officials. It has generated a number 
of new ideas which will serve to improve the nation's ability to address organized crime 
and drug trafficking. 

Early proof of this is a White House announcement March 23 that Vice President 
George Bush will head a newly formed National Narcotics Border Interdiction System 
program to coordinate the work of federal agencies involved in the interdiction of 
imported narcotics and drugs. Creation of NNBIS implements the Governors' recom- 
mendation that the federal government take exclusive responsibility for coordinating 
interdiction of drug shipments from foreign source countries. 



NGA DRUG POUCY INITIATIVE 

BACKGROUND 

CHRONOLOGICAL OUTLINE 

The following is a chronological outline of developments regarding the drug issue. 

• 3uly 2?^, 1982 - The Southern Governors' Association meeting placed illegal drug 
trafficking as a priority issue and called for a special meeting among the 
southern states. 



• 



• 



• 



August 8, 1982 - Governor Clements of Texas discussed the drug abuse problem 
before the Governors at their annual meeting in Oklahoma. NGA approved the 
policy entitled "Controlling Illegal Traffic in Narcotics ." 

August 13-30, 1982 - A survey of Committee Governors identified drug 
trafficking, prison overcrowding and sentencing as priority problems. 

September 13, 1982 - The Southern Governors met in Tennessee on the drug 
trafficking problem. A policy outline was developed. 

October 2, 1982 — The President announced his comprehensive drug program on 
his weekly radio program. 



• October 5, 1982 - The President officially released his comprehensive program 
to combat drug abuse and trafficking. 



• 



• 



• 



• 



October ji*^ 1982 - The Department of Justice released its fact sheet on the 
President's initiative to combat drug trafficking and orgcinized crime- the law 
enforcement section of the comprehensive program. The Governors' Project 
was announced in this package. 

November 12, 1982 - Governor Robb initiated the Ad Hoc Drug Working Group 
(NGA/NC3A) and discussed the Committee agenda with the NGA Executive 
Committee in Park City, Utah. 

November 18, 1982 - Ad Hoc Drug Working Group met to define the Governors' 
Project referred to on October U, 1982. 

December 13, 1982 - The Staff Advisory Council met and approved the Ad Hoc 
recommendations for the Governors' Project. 



242 



January 6, 1983 - Governor Robb wet with Attorney General William French 
Smith to discuss the Governors' Project. 

January 13, 1983 - The NGA/NC3A Ad Hoc Drug Working Group met to further 
refine the drug policy recommendations as developed by Governor Bob Graham's 
staff. The first federal/state drug enforcement operations meeting was held at 
the Department of Justice, 

February 27, 1983 - NGA work session on the Illegal Drug Problem in America. 

February 28, 1983 - The Committee recommended and approved drug policy. 

March 1, 1983 - NGA approved new drug policy. 



"Illegal Drug Trafficking in the United States" 

Presentation of 

Governor Charles S. Robb 

Commonwealth of Virginia 

Chairman 

National Governors' Association 

Committee on Criminal Justice and Public Protection 

February 27, 1983 

Thank you for coming. Sunday mornings are usually reserved for less arduous 
exercises. For those of you accustomed to sermons at this hour, I hope that you won't feel 
that this program has in any way fulfilled that obligation. 

Preachers and politicians do have a lot in common though. We have all the right 
answers unfortunately, people keep changing the questions. 

We generally have more questions than answers however, to what has become one of 
the most vexing problems in America — drug trafficking and abuse. Questions like: 

• What actions are necessary to regain control of our borders and reduce the flow 
of drugs into the country and through our states; 

• What continuation of events and programs are needed to restrict production at 
the source and cut the supply lines; 

• Which steps can be taken to eliminate demand; 
And finally, 

• What has changed about the drug problem (in addition to the press coverage) 
that prompted this Sunday morning session? 

In answer to the last questions, the principal change is not that drugs are any more 
deadly — although drug related deaths are steadily rising — but that the dimension of the 
problem has grown to critical proportion. 

I would like to try to set the stage for our discussion — 

• The Drug Enforcement Administration estimates that in 1980 alone, more than 
4.3 metric tons of heroin were imported to the U.S. 

• Between t^O-i^& metric tons of cocaine were imported into the U.S. that same 
year which represented a 57% increase between 1979 and 1980. 

• DEA statistics show that an estimated 25 million Americans are currently users 
of marihuana. 

As each Governor here today is only too well aware, the illegal drug trade in the 



243 



U.S. is a multi-bilUon-dollar business. In fact current sales are estimated to be in excess 
of $80 billion. To put that in the most graphic perspective, consider for a moment that 
the $80 billion figure is more than the combined annual profits of the Fortune 100 
companies; and one-half the combined budgets of all of our 50 states. 

In short, while bankruptcies threaten the future of historically sound industries, 
business is booming in the drug trade. Sales were up an estimated 50% from 1977, while 
seizures, during fiscal years 1977-81, comprised less than 10% of the estimated supply of 
cocaine, heroin and other dangerous drugs. 

The stimulative effect on other crime is immediate. Data from the FBI show that 
one family in three will be the victim of serious crime this year. ..50% of those individuals 
who are now in prison used drugs a month prior to the offense for which they are 
incarcerated. There is a clear link between trafficking in illegal drugs and the growth of 
serious crime in our streets, in our communities, in our homes. 

The problems drug-related crimes create for law enforcement officials are multiple. 
There are too many drug deals and too few police, too much shore line and too few 
patrols. There are too many cases and too few prosecutors for too many felons and too 
few prison cells. 

The ultimate concern, however, goes beyond the economic impact and the law 
enforcement burden; it involves the price we are paying as a society. In the first nine 
months of 1982, almost 10,000 people suffering heroin overdoses were admitted to 
emergency rooms in 820 hospitals in our major metropolitcin areas. During the same six 
months, those same facilities treated more than 1^,500 people suffering from cocaine 
overdoses — more than the total number of such cases for all of 1981. 

And we still do not know the full effect that today's most common drugs will have 
on future generations. But the effect they have had on our present generation should be 
sufficiently disturbing to prompt us to act without delay. 

Obviously our individual states have a major stake in size and type of law 
enforcement effort designed to reduce drug trafficking. As we know when a coordinated 
drug crackdown takes place in Florida or Texas, we see an immediate increase in drug 
drops in Tidewater, Virginia or rural Tennessee and in each of your states — creating a 
"trickle up" situation if you will. Simply put, when the tap is turned off in one region, the 
pipeline pours the problem out into another region — many of which are poorly equipped to 
deal with the problem on a large scale. 

As Governors we realize that the drug problem is not confined to state boundaries 
and it does not recognize territorial borders. It is a problem with state, national and 
international implications and it is going to require a great deal of cooperation if we hope 
to make auiy permanent headway in solving it. 

At every level, we have begun to put in place some of the necessary initiatives to 
deal with the problem. 

♦ The Southern Governors' Association met last summer and began a coordinated 
initiative which has led to policy recommendations every state can utilize if 
they chose to. 

• I appointed an ad hoc committee of operations experts and policymakers last 
fall to work with this committee on the drug issue. 

* President Reagan announced an eight-point law enforcement initiative in 
October which included a special Governors' Project. 

♦ In January, I met with Attorney General Smith who we will hear from in just a 
minute to discuss the Governors' Project and the concept of federal-state-local 
coordination. 

This last item, the Governors' Project, which brings us here this morning is an 
example of what could be a much more coordinated approach, that I believe is essential. 
The project emphasizes the development of new and improved tools to attack the drug 
problem, the cteation and implementation of new policies, and stronger coordination 
among various levels and branches of government. 



244 



Improved tools ; As for improved tools, the states need better laws to address the 
trafficking problem effectively. The Governors' Project is expected to develop 
guidelines to help the states build these tools. We need to reform our bail laws so 
that known traffickers cannot walk the streets; we need to strengthen forfeiture 
statutes so that the costs of trafficking are substantially increased; we need to 
impose tougher sanctions on those convicted of serious drug offenses; and we need 
to improve laws permitting cooperation with the military, particularly in coastal and 
border areas where international trafficking is a serious problem. 

Innovative policies ; In the area of innovative policies, individual states will 
obviously benefit from a package of balanced, flexible policies which can be tailored 
to the needs of each. Bob Graham has led an effort to produce such a package, and 
he will address his recommendations this morning. 

Coordination ; The final and critical part of the Governors' Project is better 
coordination. A major complication in drug cases is balancing the requirements of 
undercover operations with the need to inform other law enforcement officials of 
these activities. When communication lines break down the result is often cops 
arresting cops. As the Governors' Project is envisioned, the various levels and 
branches of government will work more closely together. Top Administration 
officials will meet twice yearly with the Governors at our annual meeting; experts 
from the states will meet regularly with and contribute their ideas to lead 
operational officials in Washington; and representatives of individual Governors will 
have regular access to enforcement and prosecution teams implementing the 12 
regional anti-drug task forces. 

In conclusion, the purpose of the symposium is to explore these state, interstate and 
international strategies and to identify ways in which our various levels of government 
can not only join the battle, but join forces in waging the war on drugs. 

Attorney General William French Smith and Judge William Webster have been the 
architects and engineers of the newly inaugurated national program to combat drug 
trafficking and organized crime and they are here today to discuss with us the progress 
made in putting that program in place. 

After we have heard from them, we will have the opportunity to hear from three 
Governors whose states have taken major initiatives to deal with the drug trade in their 
states. 



Remarks of 

The Honorable William French Smith 

Attorney General of the United States 

February 27, 1983 

As Governor Robb has said, last October the President announced a major. ..initiative 
directed against the drug trafficking problem and organized crime. That was an eight- 
point program and one of those points... was a Governors' Project designed to enlist the 
aide and support. ..of the various states. We're going to discuss a iittle later the specifics 
of the Governors' Project from our vantage point. 

I would like at this point to introduce my colleagues who are here with me: 
Jonathan Rose, the Assistant Attorney General in charge of the Office of Legal Policy, has 
direct responsibility for the Governors' Project. And working with him is Ed McNally. 
Also here to respond in connection with the 12 task forces that are a central part of that 
program is Rudy Giuliani, the Associate Attorney General. 

I thought that before calling on 3on Rose for specifics on the Governors' Project, that 
I would give you a little background as to how we happen to be here this morning at this 
time with respect to this program. One of the first things that we did when we came into 
office was to appoint the Attorney General's Task Force on Violent Crime, co-chaired by 
former Attorney General Griffin Bell and your colleague, Jim Thompson of Illinois. 

That task force produced 6'f very excellent recommendations. ..One of them was that 
the U.S. attorneys, all 9^* of them, be directed to take the leadership. ..to establish 
cooperative relationships with state and local law enforcement officials. We have 



245 



implemented that program and as a result of that have been able to bring together a fine 
resource of federal, state and local law enforcement efforts and to develop priorities 
based upon the needs of those 9'* districts, which of course will vary from time to time; 
the resources will vary; the priorities will vary. 

But it certainly is of interest that every single one of those districts - designated 
drugs, and particularly in connection with organized crime, as being the number one 
priority; all except one. Now, that one has also reported its priorities and has determined 
that drugs there, too, is the number one problem. That makes it unanimous. There is no 
question about the fact that drugs are the number one problem in the criminal area in the 
country. 

Here in Washington, from an organizational standpoint, we established for the first 
time. ..an interagency cabinet-level group to coordinate drug enforcement. We also 
reorganized the Drug Enforcement Administration itself, particularly at the top, to make 
it a tougher organization. And most significantly of all, we consolidated the Drug 
Enforcement Administration into the FBI to bring for the first time the nation's leading 
law enforcement agency into contact with the nation's number one crime problem. 

In addition to that, we also have taken steps to achieve changes in legislation and 
federal law. We sought and were able to obtain from Congress an amendment to the 
Posse Comitatus statute which, again for the first time, permits the use of intelligence- 
gathering capabilities and resources of the armed forces in the battle against drugs. 

That was a major change. That intelligence that we are now using has been 
invaluable, to say nothing about the resources that we are also able to utilize m this 
battle. Other changes, such as the repeal of the Percy Amendment, which now permits 
Paraquat to be used against marijuana in source countries, has been very successful. 
Other changes we have sought but we have not achieved as for now, changes such as 
Governor Robb referred to dealing with bail reform, sentencing and a variety of other 
changes we think are badly needed; we will introduce very shortly an omnibus crime 
package which contains these and other changes... 

We also, for the first time — recognizing that South Florida as a key point in the drug 
trafficking area — organized, under the aegis of the vice president, what has become 
known as the South Florida Task Force. This involved bringing under one entity the 
various agencies of the federal government dealing with drugs and drug trafficking, 
including for example, obviously the FBI and DEA, Customs, the Department of 
Transportation's Coast Guard, the IRS, the ATF, the Department of Defense in certain 
areas. And so that again, for the first time, under a single umbrella, we have brought 
together in a directed effort an organization to deal with that problem in South Florida. 

By every measure, the South Florida Task Force has been a great success. However, 
its very success created two additional problems. First, in order to gather that group, we 
had to pull law enforcement personnel from other parts of the country. Investigators, 
prosecutors, even judges. Prison space. ..created a problem. So that, to that extent, the 
South Florida Task Force has created certain problems in other parts of the country. 

We created a second problem. ..with respect to the South Florida Task Force. ..Drug 
traffickers finding it more difficult to do business there, went elsewhere. Those two 
problems, together with other considerations, were responsible for the development of the 
program which the President announced last October. 

One of the principal elements of that program was the creation of 12 new task 
forces based upon the experiences of the South Florida Task Force, around the country. 
They are not the same as the South Florida Task Force, but they are similar and based 
upon that experience. 

Those task forces are now in the process of being implemented. We expect that by 
summer they will be in full operation. 

Other aspects of this program are certainly important as well. We are going to 
appoint a commission on organized crime to focus further attention on this problem. 
That's along the lines of the Kefauver Commission. ..Other programs include a cabinet- 
level committee, an annual report by the Attorney General to focus attention on this 
problem...and of course additional resources. But certainly critical to this overall 
program is the relationship between the federal authorities which will be responsible for 



246 



these programs and the states. And, of course that is the genesis of the Governors' 
Project that we are talking about today. 

I want to say that I've already met with Governor Robb, chairman of your 
committee in this area. We are most appreciative and gratified for the enthusiasm and 
support that we have seen for this program so far. We want to do everything we can do to 
involve the states fully in this effort. It certainly is a problem that we alJ have to be 
concerned about.... 

So with that as the background... I would like 3on Rose, who has responsibility for the 
Governors' Project, to briefly outline what we have in mind ahead. 



Remarks of 

The Honorable Jonathan Rose 

Assistant Attorney General for Legal Policy 

February 27, 1983 

We have begun our efforts to work with you, recognizing the limitations put upon us 
both by the fact that this is not only a state and local problem, which you fully recognize, 
but it has a very important federal dimension because of its interstate and international 
aspects. We have tried to figure out ways we could constructively work at the most local 
level, which I'll be asking Associate Attorney General Rudy Giuliani to talk about in a 
minute, at the task force level with the local prosecutors, local police, to try to best 
coordinate our joint efforts toward this common problem. 

Our role in the Governors' Project is basically that of a liaison role so that you Cc.n 
get the kind of help that you need at the state level, and at the Governors level at the 
head of the state police level. You have access to the Justice Department, and the 
Attorney General, at the highest level for the kind of help that you need. 

We found, for example, when we first got into this project, that there was no one 
place. ..all of you could turn to find the various things that were available to you in terms 
of training. We have found that law enforcement training is something the federal 
government. ..has a long history of ...the FBI has done it for years. ..very successfully. And 
yet there was no one place that a state official could go to find a catalog of training 
programs that were offered by the federal government that could be used by the various 
people that they might want to send. 

We have developed very recently, a catalog of law enforcement training programs 
that are available from the U.S. government for the states and local governments. That's 
one concrete step that we have been able to take since the Attorney General's meeting 
with Governor Robb. 

The second thing that we have to thank you for is the strong endorsement of the 
President's program to try to move these task forces and to try to achieve greater 
coordination between the state and local level, and also your specific endorsement of 
some of the law enforcement measures. We've had a very terrible time trying to convince 
Congress that all of the tools were in place at the federal level; that we needed 
legislative tools to combat the very serious drug problem that we face. We have terrific 
support from virtually every Governor in convincing the Congress that without these tools, 
they are going to be much less effective at the state and local level. Also, obviously, if 
these tools get enacted as a matter of federal statute, they become.. .examples for state 
legislatures. 

We also hope to serve as a channel of communication where efforts are successful in 
particular areas of the country. We hope to communicate good ideas, good pieces of 
legislation, good projects from one part of the country to another by way of a newsletter. 
If you find this useful, we hope you'll let us know because we think it could be the 
beginning of a nationwide effort to communicate and share good ideas in this very 
important field. 

Finally, I would simply like to say that Ed McNaily on my staff will be continually 
available to those on your staff who have problems in this area. Obviously we must 



247 



confront the fact that there are certain coordination and operational problems that do 
exist in this field from the standpoint of confidentiality, but we would like to try to 
minimize those and try to work with you insofar as we can to pool the kind of resources 
that we have. We obviously are all incUned to budgetary stringency and budgetary 
cutback... 

Remarks of 

The Honorable Rudolph Giuliani 

Associate Attorney General 

February 27, 1983 

The purpose of those Law Enforcement Coordinating Committees is to brinp, 
together federal, state and local law enforcement so that we can plan together how we're 
going to use our resources. They've made many, many contributions to our planning and 
they were a substantial contributor to the development of the 12 task forces... 

When Attorney General Smith became Attorney General, about two years ago, there 
were 1,800 federal agents involved in drug enforcement. With the bringing in of the FBI 
and giving them jurisdiction to do drug work, we added approximately 500 to ^"" 



600 



additional agents to the effort against drugs. And with this additional task force effort, 
we will add another 1,200. So that in the space of about a year and a half, you will have 
doubled the size of federal agents in the field, able to do and ready to do drug 
enforcement work. That's a very, very substantial increase in the number of federal 
agents for drug enforcement. 

How we use those resources is really the key to whether we are going to get the 
impact that we should be getting out of that... 

We would like to work with you, through the Law Enforcement Coordinating 
Committees, in developing. ..the priorities of these task forces, what kinds of cases they 
should be working on, how the agents should be deployed. 

Each one of the task forces is located in a core city. But it is intended to be a 
flexible task force to go where the problems are greatest. We have no special wisdom in 
determining that. Your state and local law enforcement probably knows as much if not 
more about that as we do. 

Each one of the task forces will have local representation on the planning 
committee, and we're beginning to form them now... 



Remarks of 
The Honorable William Webster 

Director 

Federal Bureau of Investigation 

February 27, 1983 

I don't want to overuse the term for the first time, but I do see, as I finish 5 years in 
Washington, a convergence of efforts and interest in the drug problem from the chief of 
police of the smallest hamlet to the President of the United States. And 1 think this 
presents a unique opportunity for all of us in government, and a particular challenge to 
the Governors and those of us in federal law enforcement, to carve out of this challenge a 
more effective way of dealing with a problem that touches each American in his home, in 
his business, in the quality of his life. 

We have come to the time when the approach to federalism has been making more 
and more sense to me. The Law Enforcement Coordinating Committees are illustrative of 
the kind of coming together that is possible in our society to bring all levels of 
government to bear on particular problems. 

I recall my days as a United States Attorney in St. Louis in 1960, and my 
counterpart in St. Louis was currently Serator Tom Eagleton who was the circuit 
attorney. We were good friends, we attended the same college in Massachusetts, and we 



248 



talked about getting together and never got together during the entire time we were in 
office, to discuss problems of crime in our community. 

That's changed today, changed very significantly. I was out in Salt Lake City just a 
few weeks ago with a Law Enforcement Coordinating Committee meeting with every 
federal agency present. ..the state attorney general, a full array of state officials, and 
they were well into their problems. That's encouraging. ..because I see signs of increasing 
ability. ..that in the real world we are providing effective assistance where it's needed... 

This brings us to the problem of drugs. I think Governor Robb made reference to the 
three-pronged areas that need attention in this area. The control of sources — the 
Attorney General has been working for over a year in development of effective programs 
to reduce the source where it is. His trip around the world to some of the major 
producers of drugs and narcotics in the United States. ..has produced assurances of 
cooperation and in very real instances of drug eradication programs there. More will be 
coming. 

The amendment to the Posse Comitatus Act permitted the military for the first 
time to assist law enforcement agencies in the interdiction effort, to stop the flow of 
drugs at the border. The use of attack helicopters, the availability of AWACS...even the 
assistance of the Navy. ..this was an important and significant development in what we are 
trying to do... 

I think we are here this morning to talk primarily about what the federal 
government, the state and local governments are doing and can do in the law enforcement 
effort. And, incidentally, if we were to interdict. ..all of the products coming into the 
country we would still have a major problem because we're growing. ..drugs in substantial 
quantities in specific parts of our country where it is becoming an increasingly imporant 
economic factor... 

The Attorney General mentioned the bringing together of the FBI and the DEA to 
provide a more effective law enforcement program. I'd like to mention just a few of the 
things that have happened. In 3une 1981, the Attorney General designated the Executive 
Assistant Director of the FBI, Francis "Bud" Mullen, to be Acting Administrator of the Drug 
Enforcement Administration and tapped us to develop an approach to a close realign- 
ment. The committee working on that was chaired by Rudy Giuliani, the Associate 
Attorney General. 

In January a year ago, the President announced a new program. The Attorney 
General announced the beginning of concurrent jurisdiction in drugs. ..to the FBI. 
Previously, our only contact with drugs had been through our organized crime enforce- 
ment effort. 

The Drug Enforcement Administration did not lose any of its machinery. We did cut 
off the regional posts which we felt were unnecessary bureaucracy and cutting down on 
efficiency. But all of the vital organs of the DEA remained in pface. A joint committee 
worked out. ..what the FBI would work on, what DEA would work on, what we would work 
on jointly, how we would share information, how we would disseminate information. We 
signed off on that in March. 

In the year that the FBI has had concurrent jurisdiction, we have developed over 
1,100 cases; 300 of which are being operated jointly with the Drug Enforcement 
Administration. These are not street cases. This is not an effort to substitute ourselves 
for state and local law enforcement. It is an effort to carry out the mandate of the 
Attorney General to attack the organized crime apparatus of cartels, motorcycle gangs, 
traditional organized crime families which have now been identified as heavily into drugs 
and narcotics. 

This approach, I believe, is working very well. ..If anything, there has been increased 
respect between DEA and FBI agents over their work, and there has been increased 
efforts on our part to insure that state and local law enforcement agencies are tuned in to 
what we're doing, how we're doing it, and to enlist their aid and assistance. 

We have put in place without any additional resources 500 manyears of FBI effort 
during the past year. 

We have been cross-training Drug Enforcement Administration agents with FBI 



249 



agents. Over 300 FBI agents have attended DEA training at Glynco in Georgia. We have 
worked out the sharing of our laboratories. The FBI has all the forensic work; the DEA 
laboratories do all the drug work. 

The use of FBI accountants, the use of our informant network, the assistance that 
we are now providing for electronic surveillance — court-authorized wiretaps — are 
coming to bear in a very significant way. 

We have tripled the number of important court-authorized wiretaps being operated 
by DEA as a result of the availability of FBI expertise coming in to assist in those 
questions. And it's paying off. 

The FBI's emphasis has not changed. We've identified the role that we think we can 
best play in this effort, and that is to go after, through our investigative efforts, 
organized crime in drugs, financial crime in drugs, and public corruption in drugs. 

To do this, we know we must (conform) our efforts with those of other state 
activities which have been carrying this battle for so long. It's important that we be able 
to deal with street problems, but we know if we're going to reach beyond the streets, as it 
is our historic mission to do, we're going to need all the help and assistance of state and 
local police officers that we can get. I want to make clear to you that in the 
disseminating of information, we are looking for more and mor" effective ways to insure 
that informatics is shared. It's tragic when an undercover operation by a federal agency 
steps on the shoes of an operation of a state or local agency. The drug task forces now 
offer a new means to approach the problem on a coordinated basis. I'd like to emphasize a 
few things as 1 see them as these task forces have evolved. There are 12 regional task 
forces plus the Miami-South Florida task force which also covers Puerto Rico. Originally, 
there was some thought about putting in additional task forces in specific cities. Analysis 
showed that we needed to cover and serve the entire United States, and that's why the 
regional process evolved. 

We identified core cities where we thought these efforts would best serve as a 
vehicle for management to begin. We recognized that we did not want another layer of 
federal bureaucracy operating within those regions, but we did need effective coordina- 
tion. And we did need new resources. Not just more management, but new resources. 
The addition of these will almost double the commitment of federal resources to the drug 
effort. The Governors' Project will provide. ..an avenue, a conduit by which you can make 
your wishes and concerns felt in this process. 

ADDITIONAL COMMENTS 



FBI Director Webster on Public Corruption ; I think this is an area that should be 
presented to the Governors for their consideration. ..We have already identified. ..the 
tremendous problem that develops when large sums of cash are made available for payoffs 
and corrupting of our public officials. We had a case in Henry County, Georgia, in which 
the sheriff, the chief of police, the probate judge and a manager at the airport were 
arrested on a conspiracy to provide a safe escort service for drug traffickers landing in 
Henry County and being escorted into Atlanta for distribution of their drugs. I asked the 
head of the National Sheriffs Association a little bit about this and he came up with an 
interesting comment. He said, "How long does it take a sheriff earning $9,000 a year to 
save $50,000 that he might get just by being somewhere else on a particular evening?" 
This is the kind of challenge that all of us face today. The FBI is not immune; the DEA is 
not immune; even the prosecutors have not been immune from this kind of corrupting 
effect. And it is going to be particularly true in lower-paid political positions where the 
lure of a little bit of cash for doing nothing— nothing violent, just being somewhere elso, 
or even providing early warning — I think it's going to be our major challenge and we've 
got to work at ways to improve the integrity and the resistance of our public officials. 
Corruption of public officials is a key part of organized crime... 

Attorney General Smith on Source Countries : I think an area that has been greatly 
neglected in this drug fight has to do with source countries and transient countries. I 
think that we need to have a much more directed effort at getting at the source countries 
and transient countries and working with them and aiding them to get at this probletn 
there, before it gets into the network. For example, when I was in Pakistan, the day 
before I arrived they seized 100 kilos of pure heroin in one truck. When you think of how 



25-694 O - 84 - 17 



250 



much easier it was to get that 100 kilos there before it had been cut and cut agr.in...you 
see a dollar spent there is a more valuable dollar than one spent anywhere else along tiiL 
distribution trail. 



QUESTION AND ANSWER SESSION 

Governor Charles Robb (Virginia) ; Recently, we've seen some evidence in the newspapers 
that the price of certain controlled substances has decreased, notwithstanding the 
President's initiative. Is this a legitimate indicator of success or lack of success in this 
area, or should we look to some other criteria for evaluating the success of our efforts? 

FBI Director Webster : There are so many factors at work it is very much like asking 
"what causes crime". I think that price is an indicator but certainly not the only 
indicator. Supply can be measured in part by what we are able to interdict and 
seize. And that again is a function not just of the Department of Justice, but also 
the Treasury Department's Customs has primary responsibility there with DE/a 
assisting. The availability of what we see doesn't necessarily indicate what's 
available. It depends on how much intelligence indicates is coming into the country 
to be consumed... 

Associate Attorney General Giuliani ; It is difficult to measure by any one standard 
success in drugs or any kind of law enforcement. 

Governor George Deukmejian (California) ; In the explanation that we have heard about 
the cooperation of the task forces, I did not hear any mention made about the various 
regional information networks that are in existence. I know some of those there were 
some problems with them; the one we have on the West Coast - our Western States 
Information Network — dealing specifically with the drug problem; we have found to be 
very, very successful covering nine Western states. I did not hear in any of the discussion 
what the intent is with respect to maintaining their involvement in the task force. 

FBI Director Webster ; Governor Deukmejian, we are very much aware of those 
systems. Some are better than others, particularly with respect to security. We've 
got to resolve those questions, which we are currently addressing. It is very 
important that investigations go forward without any kind of breach of security. 
Some systems were not originally designed for that level of security. 

Governor Dckmejian ; How successful is the provision that has been recently emphasized 
with respect to the seizure of assets of drug people dealing in drugs, organizations dealing 
in drugs. Can anybody at this point give us any indication as to what extent that has had 
an impact? 

Associate Attorney General Giuliani ; Last year, we came pretty close to seizing 
assets comparable to the entire budget of DEA. In other words, DEA came pretty 
close to paying for itself ...not counting drugs. Three major changes that would be 
very helpful in federal lew would be; (1) if we could reach the profits of drug 
dealers. When they invest their money in legitimate businesses, we can seize 
property but we often can't seize the business and the profit. Legislation that 
passed the Senate last year would permit us to do that. (2) Secondly, more 
simplified procedures to dispose of property. Now it takes two or three years to go 
through civil forfeiture proceedings in order to dispose of a car or even a plane. By 
that time, it may have lost all value. (3) Number three, it would be very helpful if 
some or all of those proceeds that we seize would go into law enforcement rather 
than into the general treasury. If you turn it back to law enforcement, a lot of the 
drug enforcement budget, if not all of it, would be offset really by the profits of 
drug dealers. 



251 



Remarks of 

Governor Dick Thomburgh 

Commonwealth of Pennsylvania 

February 27, 1983 

Our problem in Pennsylvania is somewhat different than in the border states. We 
have a sizable user population and the size and configuration of our state causes us to 
focus upon primarily the distribution networks within our state and in particular on major 
metropolitan areas. For example, our enforcement efforts last year resulted in the 
closing down of 17 major laboratories for manufacturing and processing of narcotics and 
dangerous drugs. We also had a unique exercise dealing with the problem of look-alike 
drugs which is a spin-off from the regular traffick we are all familiar with, in those who 
seek to peddle substances which are in fact harmless and these resemblances can have 
unfortunate consequences among the user population which develops a familiar'ty with 
look-alike drugs and gets a pure substance. 

Our enforcement activities in the last five years have taken a poignant leap as we 
have introduced techniques into law enforcement that are familiar to those of us who 
have been engaged in that effort at the federal level. But in Pennsylvania, for example, 
five years ago we had no electronic surveillance laws. We do have and do utilize a court- 
authorized electronic surveillance technique today with great advantage in this area. 

Five years ago, we had no investigative grand jury. We have had statewide grand 
juries which focus...on narcotics and dangerous drugs. 

Five years ago we did not have an effective immunity law which enables us to 
develop cases up the rungs of the ladder in major organized crime and narcotics 
distribution networks. And we have got the law today. 

We also have an effective victim and witness protection law which enables us to 
thwart efforts to intimidate and terrorize those who are necessary to make these cases 
that often are dependent upon departments' undercover operations and witnesses wouldn't 
cooperate. 

Five years ago we did not have an independent crime commission to carry out its 
own investigative activity and acquaint the public with the true dimensions of organized 
crime and drug trafficking. 

Five years ago, we did not have an independently elected attorney general with 
adequate resources to deal with the problem of crime in general. An attorney general 
who today holds office and focuses attention on the drug problem to great advantage to 
the state. 

In short, we have I think, through the cooperation of our Pennsylvania State Police 
and the attorney general. ..local law enforcement agencies. ..play a real role and have a 
real presence and offer the type of personnel, expertise and commitment that federal 
officials can take full advantage of in mounting a coordinated effort against narcotics and 
dangerous drugs. We have 165 investigators working full-time in our state on drug 
investigations through eight regional drug strike forces which are dispersed throughout the 
state and which will integrate very well in terms of geography with the land configuration 
of the federal effort. 

We also carry out a number of training operations for local law enforcement 
operations and every one of our state troopers is rotated at one time or another through 
the narcotics and dangerous drugs effort. 

We recognize, of course, as is the theme of what is being expounded here this 
morning, that there is in addition to the supply side interdiction that is important to be 
carried out through law enforcement, a demand side to the drug problem which depends 
upon effective programs that are designed to prevent persons from becoming addicted 
either physically or psychologically to drugs of various kinds and which also encompass 
treatment and education programs which are designed to deal with the before and after of 
this tragic problem. 

We have a very effective council on drug and alcohol abuse within state govern- 
ment... Joint projects are carried out within state government and local government 



252 



counterparts in the fields of education, prevention and treatment in an attempt to mount 
an across-the-board effort. Some of the efforts I think are noteworthy are. ..prevention 
networi< which was developed by the state Department of Health and Education. It 
trained some 800 teachers in 135 school districts in drug abuse prevention and has 
developed what we think is a model curriculum to support that effort in the schools. 

We have an employee assistance program to identify and assist state workers with 
drug and alcohol problems that works in cooperation with private employers to enhance 
that capability which has a very harmful effect on the workforce unattended to. 

We have a program called Treatment Alternatives to Street Crime which deals with 
the addict criminal and in an effort to develop alternatives to incarceration on an 
experimental basis in 11 of our counties we have tried to divert those who are commiting 
addiction-connected crimes into alternative programs so that we can assess the efficacy 
of that kind of alternative. 

We have federal drug treatment programs for state prison inmates as well. I think 
what we are most gratified with respect to our own effort is that we have seen 
considerable progress made in public awareness about the nature and extent of the drug 
problem. That there is indeed a massive underground business with substantial profits 
that are being realized from trafficking in human misery and that there is much that can 
be done on the prevention side as well as on the law enforcement side to deal with this 
problem. 



{ Remarks of 

Governor Lamar Alexander 
State of Tennessee 
February 27, 1983 

I'd like to add my appreciation to the Attorney General and Judge Webster. ..for the 
work that they've done. The longer that I stay around government, the more I think that 
still while the extra money. ..is very helpful, that the bigger challenge is spending what 
we've already got well. 

And quite obviously, during the last six months to a year in our state, the previous 
cooperation and coordination with the federal agencies, what we've learned. ..has helped us 
to do a much better job. 

We've consolidated out efforts through the TBI (Tennessee Bureau of Investigation); 
my four-year budget plan for the next four years adds some resources in a more specific 
way than I would have been able to do; and we've got a council working on what the group 
that Bob (Graham) got together in December says should be our number one project, and 
that is to decrease the demand for drugs, and we're using examples from other states.. .We 
are using the Florida model to determine some of the civil remedies... 

Those are specific things that we are doing in our state. We appreciate the work of 
other states and efforts a number of the Governors made and a number of the law 
enforcement officers made in the meeting in Nashville, September 15 and 16. 

Remarks of 

Governor Bob Graham 

State of Florida 

February 27, 1983 

I, too, want to express my appreciation to the Attorney General. ..outstanding 
cooperative efforts that they have rendered to our state and to other states. 

In terms of state action, I would categorize under four headings: 

First, the state action. ..and local governments. In our state, and I think it would be 
true in most states, local governments only have those financial resources and capabilities 
which the state provides. One or two responsibilities of the state is to assure that local 



253 



governments have access to adequate resources with which to fight drugs and other 
criminal activities. In our state, we had not done an adequate job and that resulted in 
many of our local law enforcement agencies having fewer personnel in 1981 than they had 
five years earlier. The last legislature substantially increased funds to local government, 
which resulted in an immediate increase in the law enforcement capabilities of most of 
our local communities. 

Second, is local coordination. Through our Department of Law Enforcement at the 
state level, we have developed mutual aid pacts between municipalities and counties so 
that more effective use of resources is available to government and can be used. 

Third, is state assistance. ..We operate a series of crime laboratories — f oren- 
sics — which do the primary technical support for local law enforcement. 

And, finally, training. The responsibility for setting standards and training law 
enforcement officials in our state is at the state level. 

At the state level, first there are law changes. We have substantially increased our 
legal framework for drug trafficking. There has been a recent case involving a well 
known football player who received a long sentence under our minimum mandatory 
sentence for persons involved in drug trafficking. That has proven to be a strong 
deterrent against drug trafficking in our state. The only ability to waive that minimum 
mandatory under our law is to get the person to agree to cooperate... 

We have both a criminal and a civil RICO act which allow the confiscation of both 
the items and the products of the criminal conspiracy which again has proven to be an 
effective deterrent and a significant gain in resources for law enforcement. 

We recently changed our bail law by constitutional amendment. We received over 
70% voter approval to allow us to increase or even deny bail to people who we have 
reason. ..a judge has reason to feel cannot be restrained. ..regardless of the monetary 
amount; particularly this is a problem with drug trafficking. 

A second goal of the state is statewide investigation, enforcement and prosecution. 
We have centralized intelligence. ..We have a statewide system of highway checkpoints to 
control road transportation of drugs... 

We have a high-level narcotics organization for conspiracy.. .which has been 
particularly aided by the cooperation of federal agencies. We also have a program in 
cooperation with federal agencies to identify profiles of suspected drug dealers and 
organized crime traffickers. 

The third area at the state level is eradication. We have had an extensive manual 
eradication program, and beginning last year for the first time we used Paraquat where 
the scale of the operation is such that it is not feasible to do it manually. In my opinion, 
it is appropriate that this be under state control so that all of the legitimate 
concerns — environmental, health and otherwise — can be controlled by people who have 
appropriate training and supervision for this effort. 

And finally, at the state level is an effective education program. ..We're going to be 
spending, over the next two years, over $5 million beyond our current expenditures on 
drug education programs within our public schools. We think it will be money well spent... 



254 



APPENDIX A 



The Governors' Project 

A Program to Cooperate with the 

Administration's Effort to Combat 

Illegal Drug Trafficking and Organized Crime 

January 6, 1983 



INTRODUCTION 

On November 18, 1982, the National Governors' Association, under the auspices of 
its Committee on Criminal Justice and Public Protection, convened an Ad Hoc Group of 
criminal justice policy makers and practitioners for the purpose of: 

(A) Responding to the Reagan Administration's proposal that a "Governors' Project" 
be incorporated as an element of its eight-point attack on drug trafficking and 
organized crime; and, 

(B) Deliberating future NGA policy in the area of drug trafficking and organized 
crime generally. 

The Ad Hoc Group was assisted in its efforts by Dr. Nolan E. Jones, staff director of 
the NGA Criminal Justice Committee, and staff of the National Criminal Justice 
Association under the direction of its executive vice president, R. Thomas Parker, who 
served as facilitator for the meeting. 

OVERVEW 

In October of 1982, the Reagan Administration made two announcements of its 
intent to intensify its focus on the drug problem in this country — the first, placing 
enforcement efforts in the larger context of the elements required to effect a compre- 
hensive campaign to prevent drug abuse and drug trafficking; the second, focusing on 
enforcement alone and providing an eight-point program directed specifically at stopping 
drug trafficking and destroying the criminal organizations responsible ior the important 
and/or production of illegal drugs, their transportation, and distribution. 

One element of the administration's eight-point enforcement-oriented program was 
a "Governors' Project" described in the October Itt announcement of the same as a "major 
project to enlist all 50 of the nation's Governors in an effort to bring about needed 
criminal justice reforms." The announcement further described this project, in general 
terms, as a vehicle to aid in "coordinat(ing) federal efforts with state and local 
enforcement programs"; a source of assistance to the states in developing "resources they 



1. An October 5 press release from the White House announced the "1982 Federal 
Strategy for the Prevention of Drug Abuse and Drug Trafficking", defining this 
strategy to consist of activity in five areas: international cooperation in eliminating 
foreign sources of illegal drugs; domestic enforcement efforts directed at halting 
trafficking, and destroying organized criminal organizations involved in illegal drug- 
related activities; drug education and prevention; treatment of the drug abuser; and, 
research on drug abuse. 

2. This eight-point program, announced October l^f, encompassed the following: the 
creation of 12 regional task forces to fight drug trafficking; establishment of a 
Presidential Commission on Organized Crime; a "Governors' Project"; creation of a 
cabinet-level Committee on Organized Crime; increased training of state and local 
law enforcement personnel; reforming certain federal criminal laws such as the 
exclusionary rule to support the crack-down on drug traffickers; an annual report 
from the Attorney General on the status of the fight against organized crime; and 
the creation through construction and contracting of additional jail space to house 
drug offenders. 



255 



need for a full role"; as an "important forutn for the states to tell the federal government 
of their concerns about organized crime and related enforcement problems"; and, as a; 
"invaluable supplement to the Law Enforcement Coordinating Committees". 

In its efforts to gather further definition from the administration of its intent in 
calling for a "Governors' Project", the Ad Hoc Group met with Mr. Richard Williams of 
the White House Office of Drug Abuse Policy and Mr. Rudolph Giuliani, Associate Attorney 
General, in the course of its November 18 meeting. Mr. Williams deferred to Mr. Giuliani 
in the discussion of the "Governors' Project" called for in the eight-point program, but 
urged Governors to assume a role in drug abuse prevention encouraging the designation by 
the Governor in each state of a prominent individual to serve as the lead prevention 
advocate on the behalf of the chief executive of the state. 

Mr. Giuliani, in addressing himself to the "Governors' Project", described a 
"mechanism" to provide the opportunity for dialogue between the Governors and key 
members of the administration on issues relating to drug trafficking and organized crime. 
He mentioned specifically the Attorney General of the United States and the Assistant to 
the President for Intergovernmental Affairs as two key Administration officials who 
should be drawn into such dialogue with the Governors. 

Based upon its deliberation of the Administration's call for a ''Governors' Project" 
and the references made by the Administration in so doing, the Ad Hoc Group concludes 
that the Administration is primarily interested in initiating dialogue between the 
Governors and key Administration officials in order to elicit the Governors' support and 
cooperation with the recently intensified federal efforts to crack down on drug trafficking 
and organized crime. 

THE GOVERNORS' PROJECT ; 

The Ad Hoc Group recommends that the nation's Governors agree to support the 
Administration's efforts to crack down on drug trafficking and organized crime but that 
such support be premised upon the Administration's full and continuing commitment to 
winning the "war on drugs"; assume continued federal leadership and preeminence in 
efforts to interdict and eradicate drug supplies; and call for greater sharing of intelli- 
gence and federally-controlled resources by federal enforcement officials with their state 
and local counterparts. 

The Ad Hoc Group further recommends that the "Governors' Project" also include 
the following: 

• That top White House and Department of Justice officials agree to meet twice 
yearly with NGA selected Governors to discuss policy issues of mutual interest 
and concern relating to drug trafficking and organized crime; and that the 
meetings be held in conjunction with NGA's annual and mid-winter meetings or 
other mutually agreed upon times. 

• That the Department of Justice be asked to meet with and to include selected 
representatives of the nation's Governors on the internal operational working 
group responsible for administration of the 12 regional task forces at the 
national level; that these representatives be given equal status to the other 
members of that body and involved as equals in their decision-making; that 
these representatives be state officials actively involved in policymaking and/or 
ojjerations in drug enforcement at the state level. 

• That in an effort vo insure operational coordination between the federal task 
force effort and state and local enforcement programs, each Governor be 
advised to appoint a state drug enforcement coordinator to meet on a regular 
basis with th e lead administering federal official within each of the 12 regional 
task force areas which operates within or encompasses, undef its jurisdiction, a 
given state. Coordination meetings between all Governor appointed state drug 
enforcement coordinators and the appropriate lead federal task force official(s) 
(core area) should take place not less than six times per year. 



• 



That the National Criminal Justice Association, on behalf of NGA, identify 
major areas in which reform of state criminal statutes might be undertaken to 
support state efforts to combat drug trafficking and organized crime and 
develop, for dissemination to the states, a report on drugs and a guide to state 



256 



executive and legislative branch officials in the formulation of legislation in 
those areas. 

That the principles in the NGA policy entitled Controlling Abuse and Illegal 
Traffic in Narcotics (B-6) and the supporting descriptive NGA Report entitled 
Strategies For Drug Control Efforts , together, be recognized as an essential 
part of the "Governors' Project"; each state is strongly encouraged to consider, 
support and implement all or part of the recommendations which will contribute 
to a balanced state-based drug program. 



APPENDIX B 

B. -6 
CONTROLLING ABUSE AND ILLEGAL TRAFFIC IN NARCOTICS 

Illicit drugs have contributed substantially to the crime problem in our states. 
Recent studies show that 50 percent of all prison inmates used drugs prior to the offense 
for which they were arrested. Illegal profits from drug trafficking are in the tens of 
billions of dollars annually. States cannot effectively control crime unless the traffic in 
illegal narcotics is controlled. 

The illicit drug problem goes far beyond state and even national boundaries. I* is an 
international concern which can be controlled only if addressed in an international 
context. The Administration should consider illegal traffic in narcotics as a crucial 
element of foreign policy, especially when negotiating with major source countries. 

Individuals who traffic in large quantities of drugs for substantial profit merit 
treatment in the criminal justice system significantly different from the common street 
user. Court appearance by dealers who make astronomical profits can be assured only by 
setting high bail. Fines and prison terms can be effective deterrents if they are severe 
enough to counterbalance extensive profits. Forfeiture of any profit realized through 
drug trafficking must be a clear consequence of conviction. The Administration and 
Congress deserve support for their efforts to stiffen provisions in the U.S. Criminal Code 
which apply to illegal traffic in narcotics. 

The amended Statute of Posse Comitatus which was signed into law by the President 
in December 1981 also deserves support. The military should work with federal, state and 
local officials in their efforts to control drug smuggling into the country and drug-related 
organized crime. 

These efforts must be complemented with a federal, state and local strategical 
comprehensive approach to reduce the availability of illegal drugs and the adverse effects 
of drug abuse in society. This approach must include international cooperation, drug law 
enforcement, education and prevention, detoxification and treatment, and research. The 
following points should be considered in developing comprehensive sound policy to combat 
drug abuse and trafficking: 

• Need for Increased Educational Effort : There must be consistent exchange of 
information and ideas among the various disciplines that can have an impact 
on consumer demand. The ultimate long term success of drug control efforts 
is not possible without a marriage of these disciplines, supported by an 
educated and involved public. Therefore each state should consider the 
establishment of a Blue Ribbon Statewide Drug Education Commission involv- 
ing leaders from the public and private sector. 

• Need for Intensified Eradication and Interdiction: Military/Naval Assistance 
to State/Local Governments ; The federal government has exclusive respon- 
sibility for coordinating interdiction of drug shipments from foreign countries 
and assisting those countries in the eradication of drugs at the source. This 
should be a top priority of the federal government. Also, the Administration is 
urged to expand the role of the military forces of the United States in air and 



257 



sea interdiction efforts. This role should include all regions of the country, 
and should represent a more significant effort than presently exists. 

• Need for a National Reaction ; We must show that this is a very serious effort 
to combat drug abuse and trafficking in this nation. Over the past decade, 
numerous states have been adversely affected by the growing drug problem. 
These states have taken independent steps to combat the problem; however, 
their resource limitations and geographic restrictions have hindered their 
effectiveness. The federal government, realizing the national ramifications of 
the drug problem, has conducted several significant operations which have 
lessened these restrictions and limitations, such as the recent Bush Task Force 
in South Florida and the creation of 12 regional task forces. The nation'*; 
governors appreciate this effort and encourage the federal government to 
maintain on a permanent basis the federal resources associated with this 
effort. 

• Need for a Centralized Information and Intelligence Data Base ; Law enforce- 
ment agencies involved in drug control have historically been hampered by 
lack of accessible and assessable intelligence information relating to illegal 
trafficking. A centralized systetn to receive, analyze and disseminate 
information among state and local law enforcement agencies must exist if 
proactive, non-duplicative and significant targeting efforts are to occur. Such 
a system must interact with similar systems in other states and the federal 
government. 

• Need for Concerted Street Enforcement Activity ; Local law enforcement 
agencies must provide the immediate response to a variety of community 
demands in crime control. It is difficult for those agencies to dedicate already 
strained resources to provocative drug prevention and enforcement problems. 
Governors and legislators of the various states should apply maximum support 
and effort toward increasing resources (personnel and equipment) of local law 
enforcement agencies. 

• Need for Standard Legislat'on ; There exists a great deal of disparity among 
the states' drug laws. There is evidence that smuggling organizations have 
taken advantage of some states' deficiencies in legal recourse and probabilities 
of detection, apprehension and prosecution. Therefore, each state should 
establish a legislative committee of prosecutive, enforcement, judicial and 
legislative members to examine and develop a comprehensive system of model 
and uniform laws dealing with the drug problem. Also, a National Committee 
should be created, reporting to the National Governors' Association's 
Committee on Criminal Justice and Public Protection. This committee will 
develop a comprehensive system of model and uniform laws dealing with the 
drug issue. 

• Need for Greater Prosecutorial Commitment ; Heavy court dockets and broad 
responsibilities minimize prosecutors' effectiveness in dedicating resources to 
the prosecution of major drug smuggling operations. Alternative approaches 
to drug prosecution and greater levels of coordination among circuits dealing 
with multi-jurisdictional organizations are needed. Prosecutors should take 
steps to expedite drug enforcement cases, as has been successfully ac- 
complished in cases involving career criminals. Additional prosecutorial 
resources are needed to provide for dedication to prosecution of highly 
financed and well defended drug organizations. 

• Need for Coordination of Efforts of Local Agencies ; There is generally no 
mechanism to provide for local/state agencies to pool their resources and work 
together on common drug targets. Equipped with the necessary legislation, 
agencies can draft contractual agreements to effect "jomt force operations'' 
or "mutual aid pacts" to expand resource and jurisdictional abilities to attack 
drug operatives. States should consider developing the necessary legislation 
for a "mutual aid system," whereby law enforcement agencies can contractual- 
ly join together and pool their knowledge, resources and skilJs toward 
investigatively attacking drug smuggling networks. 

These policies are to be included as a part of the report entitled The Governor's 



258 



Project; A Program to Cooperate with the Administration's Efforts to Combat Illegal 
Drug Trafficking and Organized Crime . 

The National Governors' Association also wishes to commend the President for his 
initiatives to combat abuse and illegal drug trafficking, and organized crime. Further- 
more, we support the Presidential initiatives of: 

• A Cabinet level Committee on Organized Crime, chaired by the Attorney 
General, to review and coordinate all federal efforts against organized crime; 

• The Attorney General's annual report to the American people on progress and 
needs in the drug fight; 

• Additional prison and jail space to complement the need caused by the 
creation of the twelve federal task forces; and 

• Emphasis on training of state and local law enforcement personnel. 



259 



j APPENDIX C 

Strategies for Drug Control Efforts 



In July 1982, at the Annual Meeting of the Southern Governors" Association in Hilton 
Head, South Carolina, the southern governors agreed that international drug 
trafficking has become an issue of major regional concern. Governor Lamar .\lexander 
of Tennessee and Governor Bob Graham of Florida invited govemors and state law 
enforcement officials to a special meeting in Nashville, Tennessee to discuss 
strategies for handling drug trafficking problems. The results of that meeting, held in 
September 1982, were eight policy recommendations for states to enhance drug 
control efforts. These recommendations subsequently received unanimous concur- 
rence from all participating states. 

On October 14, 1982, President Reagan announced his national initiatives to combat 
dnjg smuggling and organized crime. These initiatives are consistent with the 
recommendations developed by the govemors in Nashville. 

An ad hoc staff group of the National Governors' Association (NGA) met in 
VC'ashington. D.C on November 18, 1982, to define the role of the Governors' Project 
included in the President's initiatives. The group also agreed to work with staff of 
Governor Bob Graham of Florida to prepare an implementation strategy- for the eight 
policv- recommendations approved by the southern states. On January' 13, 1983, 
Commissioner Robert Dempsey of the Florida Department of Law Enforcement 
presented an implementation strategy to the ad hoc committee for their review and 
comment. The southern govemors wish to express their appreciation to the members 
of this committee for their willingness to work on this endeavor. 

L'pon adoption of the implementation strategy by the NGA, a steering committee 
should be appointed immediately to oversee and ensure implementation. This 
steering committee should submit an annual report to the NGA on progress related to 
these initiatives. 

Both the President's and the govemors' recommendations indicate that it is 
imperative that implementation of drug strategies be closely coordinated among the 
states and at the federal level. 



Executive Summary 

The foUcjwing is a plan for implementmg recommenda- ^ Coocened street enforcement activity, urging 

uoos for drug control that was drafted bv an ad hoc J stronger suppon for local bw enforcement agencies 
group torn the NGA in January 1983 The following eight drug control personnel and equipment; 



iiems were identified as needed for bener drug control in 
the United States: 



4 



6 Standard legislation, to be developed in each suce 
and through a natiorul commiaee formed for this 
purpose, 

7 Greater prosecutorial commitment, with the 
same pnonrv- given to drug cases as to other priont>' 
luiiiiiciii ui uiuc riuDoii cuinmissions in cacn siaie areas; and 

and a fedenJiv sponsored national education ,-_. , _ , . . 

program. Q Coonlinatlon of efforts of local agencies en 

^y abling agencies to pool ir^formation and resources for 
Intensified eradication and Interdiction. Le„ maximum effort 

military/ naval assistance to state and local 
governments, focusing on the destruaion of drugs 

at their source, foreign or domestic, and onan ^ ^ . . . , .- 

increased military commitment to the interdia.on of ^ach recommendauon is accompanied bv specific sugges- 
drugs being imported bv air or sea; "«" ^"' *^'°"* gONemors might take or suppon TTiere 

is also a comment on the fiscal impaa of each recommen- 
Na tion al reaction, encouraging the conunuation of dation and wavs in which this might be minimized 
tfie Bush Task Force and the twelve regional task ^ ^^^ „f p„s,dential initiatives that were not among those 

^"^"^ developed bv the NGA. but which ne\erTheless deserve 

Centralized informatloo and Intelligence data gubernatorial suppon. is included at (he end of this 
base, combining and coordinating data from local. document 

sute. mulu sate and federal sources. 



260 



The Governors' Issues 



INeed for Increased 
Educational Efforts 

The problem of dpjg abuse in our society is related to so 
many bctors thaqp caruiot be successfully addressed by 
any single discipline. A consistent exchange of informa- 
tion and ideas among the various disciplines that can 
affect consumer demarui does not exist. The ultimate 
long-term success of drug control efforts is not possible 
without a marriage of these disciplines, supported by an 
educated and involved public. 

Recommendation 

Each state should consider the establishment of a Blue 
Ribbon Statewide Drug Education G>minission involving 
leaders from the public and private sectors. This 
Commission should consist of high-level representatives 
from a cross seaion of disciplines including law 
enforcement, prosecution, judicial, educational, medical, 
legislative and citizen/parent/young people groups. 

Implementation Strategy 

Q Each governor should consider appointing representa- 
tives from a cross section of the public and private 
sectors to a Statewide Drug Education Commission. It 
is imperative that the membership comprising this 
Commission be commined to and aggressive toward 
accomplishing the goals established by this recom- 
mendation. The Commission should direct efforts 
toward: 

- Private Industry: Providing crime-specific informa- 
tion, identifying industry prevention programs and 
fiinding sources, and integrating mutual industry/ 
citizen.' enforcement activities. 

- Public Awareness and Concern: Coordinate and 
organize citizer«' groups and programs^ develop 
citizens' prevention program modgk; de\'elop media 
campaigns' "technology transfers"; and integration 
with civic and church groups, industry, education 
and enforcement. The Commission should consider 
the 'Texas War on Drugs " program, which has 
established itself as a model in this area. 

- Public School Education: Assist the Department of 
Education in developing and presenting more 
relevant, positive and proactive curricula in law- 
related education. 

- Law Enforcement. Community Organizations arut 
Neighborhood Coordination: Provide training to bw 
enforcement personnel in order to promote more 
effeaive integration of enforcement agencies with 
community educational activities. Existing crime 
prevention and other local networks should be 
recognized and used. 

a Governors should urge that a national effort, ade- 
quately staffed, be undertaken to develop program 
models and information services for the individual 



□ Governors should urge that the federal government 
develop and implement a national education program. 
In this regard, the President has recommended that 
emphasis be placed on training of state and local law 
enforcement personnel. Governors should be encour 
aged to support this initiative. 

Fiscal Impact 

The fiscal impaa of educational efforts can be minimized 
by turning to the private sector for executive resources, 
fund raising activities and creative talent. Membership on 
the Blue Ribbon Commissions would be voluntary. States 
could also save rcsoures by promoting drug education 
through existing citizen networks, such as those address- 
ing crime prevention. 



2 Need for Intensified Eradication 
and Interdiction: Military/Naval 
Assistance to State and Local 
Governments 

The federal government has exclusive responsibilit>' for 
coordinating interdiction of drug shipments from foreign 
countries and assisting those countries in the eradication 
of drugs at the source. As a result of intensive lobbying, 
three significant developments have occurred over the 
past year that have had a positive impact on eradication 
and interdiction efforts: ( 1 ) relaxation of the Posse 
Comitatus doctrine, allowing the miliury to provide 
assistance to civilian law enforcement agencies; (2) the 
removal of the Fttry Amendment to the Foreign 
Assistance Act, which prohibited foreign govemments 
from receiving assisunce from the U.S. government if 
herbicides were used to control illicit drugs, and (3) the 
recent efforts made by the national administration to 
suppon eradication efforts in foreign countnes. 

Recommendation 

The federal government should adopt, as its top drug 
control prionry, the eradication of illicit drugs in source 
countries and the interdiction of drugs leaving those 
countnes. 

The United States should continue encouraging foreign 
govemments to employ eradication methods, including 
herbicidal applications, and should continue to absorb or 
contribute to the costs of some of the more critical 
programs in significant source countries In addition, the 
militarv- forces of the United States should be called upon 
to make a ma/or commitment to increa.se their level of 
suppon in the interdiction effort. 



261 



Implemcntatloa Stntegy 

D GoMcmors should consider adopcmg a resolution to 
Gjngrtss and the President to lu^e the federal 
government: 

- to keep as one of its top drug control pnonty 
programs the eradication of drugs at source coun- 
tnes and to continue to provide adequate funding in 
subsequent years 

- to de\«lop improved eradication techniques. 

- to continue to conmbuie to the cost of these 
control efforts. 

- to continue to ericouiage other countries to utilize 
eradication methods. 

□ Keeping in mind the tremendous increase of domesti 
cally grcA^-n manjuana and clandesiine manufiurture of 
dangerous drugs, governors should support eradication 
effbtrs and the development and application of 
inncAauve measures within their states to combat 
these activities. 

a Gcnemots should urge the nauonal administration to 
e>qnnd the role of the military forces of the United 
States in air and sea interdiaion efforts This increased 
role should include all regions of the country 

a Governors should encouiage their sute and local law 
enforcement agencies to work closely with and seek 
assistatKe from the military forces of the United States 
and develop plans with military forces to coordinate 
efforts against drug trafficking. 

O Governors should etKOuragc their respeaive congres- 
sional delegations to provide sufficient funding to the 
militan,' to offset the costs im-olved in panicipating in 
civilian drug control efforts. 

□ The governors should consider having the National 
Guard and all other approprute resources work with 
state and local law eniforcement agencies in drug 
interdiction and eradication programs. 

RacaJ Impact 

Sates implementing eiadication efforts will experience 
costs Cooperation with federal eradication efforts is 
encouraged to minimize those expenditures. Costs may 
also be associated with National Guard activities aimed at 
assisting state drug law enforcement These costs can be 
minimized, or possibly eliminated, by conduaing 
Natiorul Guard drug enforcement activities in conjunaion 
wnih tegular Guard training e.xercises. 



%J Need for A National Reaction 

Over the past detade. numerous sutes liave been hun bv 
the growing drug problem. These states have taken 
independent steps tc i ombat the problem, however, their 
resource limiutions and geographic restrictions have 
hindered the states' effeaiveness The fiederal govern 
ment. realizing the national ramifications of the drug 
problem, has conducted several significant operations that 
have lessened these restriaions and limitaiioas, such as 
the recent Bush Task Force m South Flonda and the 
creation of twelve regional task forces. 

Recoaunendatlon 

The federal government should be encouraged to 
maintain on a permanent basis the federal resources 
associated with the onginal Bush Task Force and twelve 
new task forces 

Implementation Strategy 

Each governor should urge his her respective congres- 
sional delegation to maintain and continue support of 
the onginal Bush Task Force and the twelve new 
regional drug task forces. 

D The governors should urge that top White House and 
justice officials meet twice yearly with seleaed 
govemors from the NGA to discuss policy issues of 
mutual interest related to drug trafficking 

a Govemors should suppon the Presidential Commis- 
sion on Organized Crime, which will be in operation 
for three years. Membership of this commission 
should include a representative of the NGA. 

a Govemors should request the Department of Justice to 
include state representatives having policymaking or 
operational responsibilities in drug enforcement on 
the internal group responsible for adminisienng the 
regional task forces. Further, that these representatives 
have appropriate decisionmaking status in the group 
within parameters of state related responsibilities. 
Further, that each governor should appoint a state drug 
enforcement coordinator to meet with the lead 
administrator of the respeaive task force on a specific 
periodic basis. 

O The govemors should communicate with their respec 

tive state and local law enforcement officials to aaivelv 

suppon the President's initiative 
D Govemors should consider aaively soliciting public 

suppon of these initiatives through speeches, media 

and other public information resources 
O Govemors should, through their respective legisla 

tures. ensure that adequate resources are available for 

states to coordinate effeaiveh' with and complement 

the federal task force efforts. 

Fiscal Impact 

Each state must analyze its investments to ensure that it is 
taking a balanced approach to drug law enforcement .\ 
aate's investment prionties should reflect the seriousness 
of the drug problem in tliat sute 



262 



4 Need for A Centralized Informa- 
tion and Intelligence Data Base 

Law enforcemeni agencies involved in drug control have 
historically been hampered by lack of accessible and 
assessable intelligence informauon relating to illegal 
trafficking. A centralized system to receive, analyze and 
disseminate information among state and local law 
enforcement agencies must exist if proaaive, non- 
duplicauve and significant targeting efTorrs are to occur. 
Such a system must intetaa with similar SN'stems in other 
sates and with the federal government. 

Recommendation 

Each state must establish a centralized drug-related 
intelligence system. To be effective, tlie individual 
systems must ensure input from and response to local 
enforcement agencies and should interact consistently 
with appropriate state and multi-state systems and the 
Drug Enforcement Administration's El ftiso Intelligence 
Center (EPIC). 

Implementation Strategy 

□ Governors should direct their primary suie drug 
enforcement agency to begin the development of a 
sutewide drug-related intelligence system, with analy- 
sis and targeting capabilities. These systems should be 
joined with the other appropriate state, multi-state and 
fedeial intelligence systems. 

- Sates that possess such systems should share 
concepts, ideas and technologies with other states. 

- States should ensure that these systems provide the 
iriformation to all local bw enforcement agencies 
within their respeaive states. 

- The individual states should ensure that their 
systems are linked with appropriate systems in other 
states, as well as with multi-state and federal 
intelligence systems. 

a Governors should recommend that their appropriate 
law enforcement agencies de\elop a mandatory drug 
statistics reporting system relev'ant to the measurement 
of the drug problem and the impact of enforcement 
effons. 

Hscal Impact 

Costs associated with establishing or enhancing state 
intelligence systems will van- from state to state. 
Purchasing a new computerized system, irKluding both 
hardware and software, is an expensive process. Where 
computer systems are already in place, such as in those 
states where responsibility for collecting UCR data is at 
the state level, costs may be limited to de-zeloping 
necessary software. Some personnel enhancements may 
also be necessary. 



5 Need for Concerted 
Street Enforcement Activity 

Local law enforcement agencies must provide the 
immediate response to a variety of community demands 
for crime control. It is difficult for those agencies to 
dedicate already strained resources to proactive drug 
prevention and enforcemeni problems. Howe\'er, the real 
direct and indirect drug related crimes must be dealt with 
constantly as a part of the required law enforcement 
response to the community This response is as 
adamantly demanded as are responses to violent crime 
areas. 

Recommendation 

Governors and legislators of the \-arioiis states should 
apply maximum suppon and effort toward increasing 
resources (personnel and equipment) of local law 
enforcement agencies. 

Uuplementacion Strategy 

□ Governors should consider alternative funding options, 
such as private sources (foundatic.is, etc.) or via 
legislati%-e mechanisms such as fine and forfeiture 
allocations specifically earmarked for drug control 
enforcement programs. 

D Gov'emors should promote adequate federal and state 
suppon of local law enforcement agencies. Because 
the drug problem is one of national scope, federal 
resources are needed to suppon critical or extraordi- 
nary state and local enforcemeni efforts Governors 
should also stress to local leaders their suppon for the 
allocation of needed resources to conduct drug 
enforcement programs, loint operations and coopera- 
tive efforts. 

Fiscal Impact 

State government statistical systems must provide gover- 
nors with adequate assessments of local drug trafficking 
problems. Resource suppon will \ary from state to state 
depending upon the magnitude of the problem, i.e.. 
border state, source state, major distribution point, etc 
Governors should assess e.xjsting investments to ensure 
they are addressing the problem as a priont\' matter. In 
particuli-. border states must dedicate a portion of 
available new resources to the pnontv- problems of drug 
trafficking and distribution. 



263 



O Need for Standard Legislation 

There is great dispanrv- among the sutes drug laws There 
IS evidence that smuggling orgonizauons have taken 
advanuge of some sates deficiencies in legal recourse 
and probabilities of detecnon. apprehension and 
prosecuuon. 



RecoauDendadoii 

Each state should establish a legislative comminee of 
prosecutive, enforcement, ludicial and legislative 
members to examine and develop a comprehensive 
svstem of model and uniform laws dealing with the drug 
problem The sute bar issociations and law schools 
should be included in this effort This conuninee can be 
a separate entiry-. or a pan of an existing sutewide drug 
X'uvirv- 

Implementation Strategy 

a The Governors should consider the establishment of a 
committee opeiaung within their rcspcaive states to 
examine existing legislation and determine that state's 
needs 

□ A National Comminee should be created, reporting to 
the NG\ GDmminec on Criminal Justice and Public 
ProteCTion This committee will develop a comprehen- 
sive svstem of model and uniform laws dealing with 
the drug issue and will disseminate the model drug 
legislauve package back to the respeaive states for 
their considerauon. 

n The Goviemors should sec that the federal government 
assign appropriate representauves to this National 
Comminee to promote uruformitv' of state and fedeial 
laws and serve as a mechanism to transmit states 
cofKems to the federal legislative process 

Q The Nauonal Comminee should consider at least the 
following Items for the model legislative package: 

- Racketeer Influenced and Corrupt Organizations Act 
(RICO) providing for the prosecution of entire 
cnminal organi2ations and civil forfeiture of real and 
personal propertv' used in the course of, or acquired 
with the proceeds of. their criminal activities. 

- Drug Trafficking Lou's providing appropriate sen- 
tences for drug violators and a graduating scale of 
penalties commensurate with the seriousness of the 
viobtion. and permming considerauon of foreign 
felony drug convictions in sentencing drug law 
violators 

- Vtretaps: providing for court-authorized intercep- 
tion of telephonic communications between drug 
bw V lobtors. 



- Mutual Aid: providing for definitions of interjurlsdic- 
uonal authoniies. liabilities, agreements and re 
source exchanges within and among the vanous 
states. 

- Mandatory Reporting of Currency Transactions 
requiring financial institutions' reporting of certain 
transaaions to the states The statute of limitations 
must provide sufficient time to allow full use of 
complex law enforcement techniques before arrest 

- Conspiracy Prmtsions providing for charging those 
who direct or participate in drug smuggling ventures 
to be sentenced as principals 

- Mandatory Reporting of Drug Statistics to a central 
entity both within the states and at the federal level 
to reduce duplicate reporting and to establish a 
valid data base for problem assessment and resource 
allocation 

- Contraband and Asset Forfeiture Reform with 
application of fines and forfeitures being applied 
directly to law enforcement programs, i e., through 
trust funds. 

- State Department of Reienue Files Access: providing 
for access, vvith appropriate safeguards, by bw 
enforcement agencies. 

- Vitness and Victim Protection: providing authority 
and funding required and making it an offense with 
significant punishment to annoy or iniure a witness 
or viaim involved in the criminal lu-stice process. 

- Bail Reform: to more certainly immobilize drug 
traffickers with less jvxlicial discretion, i.e., where 
smugglers are known to travel internationally or 
where violence is predictable. 

D Governors should urge tfut the Congress remove 
restnaions. with appropriate safeguards, that prevt;nt 
the Internal Revenue Service from sharing intelligence 
regarding criminal activities with state and local 
authorities. 

D The President has asked the Congress to continue its 
efforts to seek passage of essential cnminal law 
reforms The specific bws mentioned were bail reform, 
forfeiture of assets, sentencing reform and amendments 
to the exclusionary rule The governors should 
consider supporting the Presidents initiative in seeking 
passage of these essential reforms and ensure that 
these issues are coordinated with similar state legisb 
tion reform efTotts. 

Fiscal Impact 

There are minimal state costs associated with this activitv. 



264 



7 Need for Greater 
Prosecutorial Coaunitment 

Prosecutors are hindered by heavy court dockets and 
broad responsibilities that make it difficult for them to 
dedicate resources to the prosecution of major drug 
smuggling operations. Alternative approaches to drug 
prosecution and better coordination among circuits 
dealing with multi jurisdictiorul organizations are needed. 
Prosecutors should take steps to expedite drug enforce 
ment cases, as has been done successfully in cases 
involving career criminals. Additional resources are 
needed for prosecution of highly financed and well- 
defended drug organizations. 

Recoaunendatlons 

Governors of the various states are urged 'o eiKOurage 
prosecutors to include drug cases as a pan of their 
lurisdiction's priority prosecution/career criminal 
programs. 

Governors should develop programs that will anraa and 
retain competent prosecuting anomeys. 

Implementation Strategy 

D Governors should seek strong commitments from their 
respective legislatures to ensure that prosecutive 
offices are given the necessary support to recruit and 
retain qualified prosecutors for specific assignment to 
drug cases. 

D Governors should urge that state prosecutive officials 
coordinate with federal task forces and U.S. Attomeys 
to minimize duplicative efforts and maximize the 
impact of prosecutive efforts. This effort should 
include the newly established Law Enforcement 
Coordinating Comminees (LEGO and other recog- 
nized processes created to prc-ide muiiial federal, 
state and local assistance. 

□ Governors should encourage state and local prosecu- 
tors to assume leadership in the development and 
coordination of priority drug investigative efforts and 
priority prosecution strategies, and urge implementa- 
tion of special judicial processes that guarantee fair 
and speedy adjudication of major drug cases. 

Fiscal Impact 

Direa state jurisdiction over prosecution responsibilities 
vary from state to state Where career criminal programs 
have been implemented throughout the state, major drug 
cases should be handled on the same expedited basis as 
a way of establishing pnonties and minimizing expendi- 
tures associated with prosecution. This effon should 
include development and implementation of procedures 
for handling prosecution of both career cnminal and 
maior drug trafficking cases on a priority basis. Where 
prosecution is a shared responsibilitv' of the state and 
local governments, all levels should work together to 
expedite the prosecution of career criminals and drug 
trajficking cases Most costs associated with a new 
emphasis on the prosecution of drug cases will be for 
personnel. 



8 Need for Coordination of 
Efforts of Local Agencies 

There is generally no mechanism to provide for 
local/State agencies to pool their resources and work 
together on common drug targets. Equipped with the 
necessary legislation, agencies can draft contractual 
agreements to effect "joint force operations" or "mutual 
aid pacts ' to expand resource and jurisdictional abilities 
to attack drug operatives. 

Recommendation 

The varioiis states should consider development of 
necessary legislation to develop a 'mutual aid system ', 
whereby law enforcement agencies can contraaually join 
together and pool their knowledge, resources and skills 
toward investigatively attacking drug smuggling networks. 

Implementation Strategy 

O The Governors should coasider, as referenced in the 
legislauve reform section, the development of 'mutual 
aid " legislation to ensure that the law enforcement 
agencies within and among the various states can 
contraaually join together to effect joint force 
opeiations 

O The Governors should ensure that the lead state law 
enforcement agency coordinates with local law 
enforcement agencies so that their operational con 
cems and initiatives are effectively coordinated with 
federal task force efforts. 

Fiscal Impact 

Development of "mutual aid" systems will require a 
dedication of time by existing personnel and minimal 
suppon resoLirces. 

Additional Presidential Initiatives 

In addition to the recommendations made by the 
President that have been included in the previous 
discussions, the following presidential initiatives are also 
worthy of strong support by the NGA 

O The President has called for a Cabinet level Commmee 
on Organized Cnme, chaired by the .-Mtomey General, 
to review and coordinate all federal efforts against 
organized cnme 

n The President has requested thai the Anomey General 
prepare an annual report to the Amencan people to 
report on progress and needs in the drug fight. 

D The President has requested that additiorul pnson and 
pil space be provided to meet the need caused by the 
creation of the rwelve task forces. 

a The President recommends that emphasis be placed 
on training of state and local law enforcement 
personnel 



265 




gepartmtnl of |uslite 



APPENDIX D 



FOR IMMEDIATE RELEASE AG 

TUESDAY, MARCH 1, 1983 202-633-2007 

Attorney General William French Smith today issued the 
following statement 5 

The National Governors' Association deserves the hearty thanks 
of the American public for the far-reaching policy positions 
unanimously adopted in its plenary session today in support of the 
Reagan Administration's new initiatives to combat drug trafficking 
and organized crime. 

Together, the positions form an overall program that recognizes 
the partnership approach necessary to make major inroads against 
crime — especially drug trafficking and the enormous aunount of 
violent crime it causes. 

This partnership of the states and the Federal government is an 
integral element of the program announced by President Reagan last 
fall to take unprecedented steps against organized drug trafficking. 

Now that the Governors' Association has responded in kind, we 
have an opportunity of historic dimensions in the struggle agai.ist 
crime and lawlessness. 

On Sunday, I participated in the discussions of the Associa- 
tion's Committee on Criminal Justice and Public Protection, citing 
the key portions of the President's new initiative — including Drug 
Task Forces, a Presidential commission on organized crime, expanded 
training at a Federal facility for state and local enforcement 
personnel, and major criminal law reforms. 

I also discussed in detail the Governors Project — which is at 
the heart of the President's efforts to develop new levels of 
cooperations with the governors and the states. 

The Governors Project provides a forum for the Governors to 
give us their ideas and concerns. 

It will help to coordinate the efforts by Federal law enforce- 
ment agencies with their state and local counterparts. 

25-694 0-84-18 



266 



And it is now operational. Already, meetings have been held, 
more meetings are scheduled, and a steady flow of information 

between the Federal government and the Governors has begun 

including the first copy of a weekly organized crime report from the 
Justice Department to the Governors that was distributed on Sunday. 

The Governors Project has been set up at the highest levels in 
the Justice Department — headed by Assistant Attorney General 
Jonathan Rose, with Edward McNally as project director. Their job, 
the job of the entire Department, is to serve the Governors. It is 
an exercise in efficiency, not bureaucracy. 

All of us in Federal law enforcement are delighted at the steps 
now taken by the Governors' Association. We are particularly 
pleased at the Association's own Governors Project, developed to 
parallel the Federal initiative. 

The Governors have pledged to cooperate with the Administra- 
tion's drug trafficking and organized crime program and have 
commended the President's creation of it. 

We applaud the specific steps taken by the Governors — 
including proposals to develop uniform state drug laws, greater 
street-level enforcement, greater commitment for prosecution 
agencies, and more coordination among local and state agencies. The 
Governors' commendation of the Administration's efforts to 
strengthen the U.S. Criminal Code is especially critical and we will 
call on their support for our renewed Federal reform efforts in the 
current Congress. 

The President and his Administration are fully committed to 
winning this war on drugs and organized crime. 

During our discussions on Sunday, 1 was impressed with the 
depth of the commitment by the governors who aired their views — 
particularly Charles Robb of Virginia, the Criminal Justice 
Committee chairman; and Robert Graham of Florida, Lamar Alexander of 
Tennessee, and Richard Thornburg of Pennsylvania. 

By working together, we can make a difference — at the 
Federal, state and local levels. And that can mean significant 
improvements in the level of safety for all of the American people. 



267 

Responses of Governor Robb to Questions of Senator Laxalt 
discuss the use of private enterprise dm prisons. 

Several state prison systems are involved in some type o£ prison industry. 
The sizes and types of industry differ. The organizational structure and training 
procedures also vary according to the industry. Some states are entering into 
agreements with certain industry whereby the industry provides training and 
equipment to the inmates, and the state is responsible for management and inmate 
supervision. A good example is the Stillwater prison in Minnesota, where prison 
industries are supported by the Control Data Corporation. These industry programs 
are operating within prison walls. 

There are other prison industry programs where inmates cire released to work 
outside in industry. The prison administration continues to supervise inmates. 
These programs usually allow inmates to leave the prison walls for work during the 
day, and return for supervision at night and all non-working time. Of course, the 
classification of these inmates is very low, so they are not a threat to the 
community. A good example of a program operating on this scale is in the state of 
Kansas. 

Another use of private enterprise is through contractual services. Some 
state prison systems operate food services and medical services on a contractual 
basis. Service providers sometime use inmate help, but they are paid wages 
comparable to those paid outside of the prison walls. Pennsylvania uses private 
contractors to provide food service in some of their penal institutions. 

There have been discussions in some states about leasing private property for 
use as prison facilities, but 1 am not aware of any major initiatives in this area. 
However, it's worth exploring and has potential for saving resources, esjjecially on 
cost of property and some building and equipment. 



2. SHOULD SENTENCING COMMISSIONS BE UNDER THE ADMINISTRATION OF 
THE JUDICIARY OR EXECUTIVE BRANCH OF GOVERNMENT? 

The structure of a sentencing commission will more than likely be 
determined by the state legislature and become a function of state law. In some 



268 



states, Minnesota for example, the state law not only defines sentences, but also 
determines the capacity of the state penal institution. In this circumstance, the 
sentencing commission can operate knowing that bed space is available for a 
particular sentenced felon. 

Commissions operating under the judiciary usually attempt to structure 
sentences within the confinements of present state law so that there is more 
uniformity in the administration of sentences, and some rationale for deviations. 
This is accomplished through regular meetings of the Commission. Maryland's 
Sentencing Commission is administered by the judiciary. 

Governors have generally been involved by appointing task forces, as I have 
done in Virginia, to examine the overall sentencing policy in the state and make 
recommendations for change. These task forces should be balanced with judicial, 
and legislative representation, as well as the private sector and citizen 
representation —providing a broad base for promoting the recommended changes of 
the task force. 



3. SHOULD FEDERAL COURTS BE ALLOWED TO REVIEW STATE COURT 
DECISIONS REGARDING HABEAS CORPUS PROCEEDINGS? 

The Writ of Habeas Corpus should not be denied to anyone, and any attempt 
to do so would probably be unconstitutional. 

However, title 28 of the United States Code could be amended to 
accommodate some of the habeas corpus concerns. The Criminal Justice Report of 
the National Association of Attorneys General recently pointed out several sections 
of title 28 that could be amended to accommodate these concerns. The first 
proposal would be to amend 28 U.S.C. section 224* to prevent litigation of issues in 
federal court if not properly raised in state court proceedings. This would codify 
the Supreme Court's decision in Wainwright v. Sykes, 433 U.S. 72 (1977), which 
barred the litigation of issues not properly raised in state court unless "cause and 
prejudice" is shown for failing to comply with state court procedures. Requiring 
that issues must be raised in the state court system, absent special circumstances, 
is the only fair and sensible approach to the administration of the criminal justice 
system. 

Another proposal would amend title 28 U.S.C. to create a reasonable 



269 



limitation of time within which to bring a habeas corpus petition. This amendment 
is essential in order to bring finality to judgments of state courts. Frequently, 
prisoners wait many years before bringing a habeas corpus action seeking to set 
aside the judgment and sentence. In such instances, witnesses have died, or other 
unusual circumstances render the state incapable of refuting the prisoner's 
testimony and as a consequence, he/she prevails. 

Finally, title 28 U.S.C. could be amended to prevent federal courts from 
holding evidentiary hearings if the state courts have fully and fairly determined the 
evidentiary issue. This proposal would help eliminate duplicative hearings- 



<». WHAT IS THE DIFFERENCE AND RATIONAL BEHIND "GUILTY BUT MENTALLY 
DLL," AND -GUILTY BY REASON OF INSANITY WITH AUTOMATIC 
COMMTTMENT?" 

Under the verdict of "guilty but mentally ill," a jury holds a person 
responsible for his actions under the law, yet recognizes that the individual is 
mentally ill. The individual is sentenced under criminal law for his action. Once 
the individual is incarcerated, an evaluation is performed at corrections intake 
center to determine mental status. If the person is found in need of treatment, he 
is sent to the mental hospital for such time as needed for treatment during the 
process of serving time for the offense he committed. If during the sentence the 
individual is found to be mentally sound again, he is transferred to the department 
of corrections to serve out the sentence. 

Once the individual has completed his sentence, he is released under the 
same provisions as other parolees. However, if there is reason to believe that the 
individual continues to suffer from a mental illness, then the state can enter civil 
proceedings to have the individual committed or continued in the state mental 
institution. 

"Guilty by reason of insanity with automatic commitment" would allow an 
individual to be committed to a mental institution indefinitely for a particular 
offense. The individual becomes a ward of the state mental hospital for 
observation and treatment in accordance with hospital procedures. 

Some legal scholars argue that the verdict of "guilty by reason of insanity 



with automatic commitment" could violate the civil liberties of the committed 
individual. For example, an individual found "guilty by reason of insanity" could be 
committed for an indeterminate number of years, whereas the normal sentence 
would be limited by criminal law. 

Under "guilty but mentally ill," the individual would serve a specified 
sentence either in the mental hospital or prison, or both. 



270 

Senator Laxalt. Our next witness will be Attorney General Zim- 
merman of Pennsylvania on behalf of the National Association of 
Attorneys General. 

General, we are delighted to have you with us and pleased to 
hear your testimony. 

STATEMENT OF HON. LeROY S. ZIMMERMAN, ATTORNEY GENER- 
AL, COMMONWEALTH OF PENNSYLVANIA, ON BEHALF OF NA- 
TIONAL ASSOCIATION OF ATTORNEYS GENERAL, ACCOMPA- 
NIED BY MRS. McINTYRE, DEPUTY ATTORNEY GENERAL, COM- 
MONWEALTH OF PENNSYLVANIA 

Mr. Zimmerman. Mr. Chairman, thank you. 

It is my pleasure to appear before the subcommittee on behalf of 
the National Association of Attorneys General and testify in con- 
nection with and in support of the Comprehensive Crime Control 
Act of 1983, S. 829. 

I appear on behalf of my colleagues, on behalf of the National 
Association of Attorneys General and in support of a number of the 
specific aspects of this particular package. My testimony reflects a 
background of 20 years as a district attorney in Pennsylvania and 2 
years as Pennsylvania's first elected attorney general and statuto- 
rily defined chief law enforcement officer. 

I share your concerns and the concerns of this subcommittee 
about this particular legislation. I know my colleagues do that as 
well. 

I would like to incorporate, at this point, for the record my writ- 
ten statement so that I can, in order to cut down on the time, sum- 
marize it and make specific comments in certain areas and certain- 
ly be available to answer any questions, Mr. Chairman. 

Senator Laxalt. Surely. Our staff has had an opportunity to ex- 
amine the full statement. I have seen most of the summary. It is 
extraordinarily well done. I appreciate it. 

Mr. Zimmerman. Thank you. 

With your permission I would also like to incorporate the testi- 
mony of my colleague, the attorney general from Florida, Jim 
Smith, who testified last year on the urgency of the need for 
habeas corpus reform. He did a very scholarly analysis that I think 
is still on the record and I would like to incorporate it here with 
your permission, as well as the resolutions of the National Associ- 
ation of Attorneys General in this area. 

Senator Laxalt. It will be deemed incorporated. 

Mr. Zimmerman. Thank you, Mr. Chairman. 

The legislation proposed deals with the specifics and the critical 
areas that concern all of us in law enforcement across this Nation. 
The problem that we have working in the States and the local gov- 
ernments is dealing with these things on a day-to-day basis and 
dealing with what has developed, and what I characterize as a 
crisis of confidence in the criminal justice system of our country. 
We hear that recent statistics establish the fact that there has 
been a decline in the crime rate, major crime areas in this country, 
and certainly I cannot quarrel with those statistics. However, my 
concern is that we have developed over a period of time what I 
characterize as an acquiescence quotient in the people of America 



271 

in connection with crime. Americans have developed a tolerance 
for crime, across the board and almost now a willingness to accept 
a certain percentage of crime in our economic centers, on the 
streets of our Nation, and in other places as well. I perceive that as 
a very dangerous problem that confronts us in this country today. 
That is why I urge that this particular S. 829 be expedited because 
it deals with areas that have, in my judgment, created this acquies- 
ence quotient on the part of the people in this country. 

Senator Laxalt. Is much of that tolerance. General, due to the 
fact that we in law enforcement on every area simply are not doing 
our job? Is that part of the problem? 

Mr. Zimmerman. I think that is a part of the problem, Mr. Chair- 
man. I think that we went in this country from a syndrome of "I 
won't or don't want to be involved" to, unfortunately, my acquies- 
cence quotient, "Why get involved because really there is nothing 
they can do about it?" They being all of us in the Congress, in the 
States and in law enforcement as well. 

Bail reform provided for in this package is an extremely impor- 
tant aspect of it because it would provide that judges can now con- 
sider the dangerousness of the criminal in considering bail and the 
amount of bail rather than the traditional test of whether or not 
this person is going to show up at trial. And that has been, I think, 
one of the major areas of concern on the part of the everyday 
person. They go to court, they come home from court. There has 
been a conviction and they see the culprit, the defendent, in the 
same supermarket that they are in after a conviction because he is 
out on bail, or after an arrest because he is out on bail. I think bail 
reform is — and I comment on it first because of my concern in that 
particular area. I think the Crime Control Act would make crime 
control a reality rather than just another theory that we deal with 
day to day and that the people of this Nation feel that we are deal- 
ing with in a theoretical sense. It brings it down, to a common de- 
nominator that I think people understand in this particular legisla- 
tion. 

The National Association of Attorneys General supports a 
change in the exclusionary rule. Evidence that is gathered in good 
faith should be allowed, especially if it was obtained within the 
scope of a lawful warrant issued by an independent detached mag- 
istrate. Because we have seen time and time again that these kinds 
of releases, these kinds of discharges, these kinds of exclusions of 
important evidence, continue to erode the confidence of people in 
our system of justice. 

Senator Laxalt. Have you had a lot of problems in Pennsylva- 
nia, as most States have had, with respect to the exclusionary rule? 

Mr. Zimmerman. Certainly, Mr. Chairman. I could sit here after 
20 years as prosecutor and 2 years as attorney general and give 
you story after story, and I would be happy to provide some of that 
and augment the record for the information. 

Senator Laxalt. I think it might be helpful to put some flesh 
and blood on the bones of this exclusionary rule. I think it helps 
the members of my subcommittee who have had experience with 
prosecution and who think that maybe we are overstressing the im- 
pK)rtance of change because the rule affects only exceptional situa- 
tions. And we are really playing with horror stories. I happen to 



272 

believe that it has become almost a pattern in some of these areas, 
and if people like you in the field can point out specific instances of 
the effects of the exclusionary rule — the present application of it — 
it would be very helpful. 

Mr. Zimmerman. We will be happy to provide some of that. 

Mrs. Mclntyre, my colleague, the deputy attorney general, has 
been with me in the district attorney's office for many years. Again 
we have faced this problem and we will be happy to supply some 
additional information to the subcommittee. 

[Subsequent to the hearing, Mr. Zimmerman supplied the follow- 
ing information:] 

Impact of Exclusionary Rule on Criminal Cases 

Case 1015-82. — On February 16, 1982, Pennsylvania narcotics agents and local 
police officers served an arrest warrant in Bristol Township, Bucks County, Pennsyl- 
vania. The agents arrested the target individual and then proceeded to conduct a 
search of the arrested individual's person pursuant to lawful arrest. Inside the ar- 
rested person's right front pants pocket was a small plastic bag containing a white 
powder suspected to be methamphetamine. There were also in plain view additional 
controlled substances and several deadly weapons displayed on the walls. Present at 
the time of the execution of the arrest warrant were two apparent motorcycle gang 
members. The agents immediately field-tested the white powder found on the arrest- 
ed individual which indicated positive for methamphetamine. Based upon the drugs 
seized from the individual's person and the positive field test as well as the other 
controlled substances in plain view, the agents secured the area, returned to a dis- 
trict justice's office, and received a search warrant for the residence of the arrested 
individual. Seized pursuant to this search warrant was an additional ounce of meth- 
amphetamine and some marihuana. On September 11, 1982, a suppression hearing 
was held in Bucks County criminal court relative to the execution of the search 
warrant referenced above. The reason given by the judge for the suppression of the 
evidence was that even though a field test was performed with positive results on 
the methamphetamine found on the arrested individual's person, not enough was 
left for the Bucks County crime lab to positively identify the remaining amount as 
methamphetamine. The judge held that the fact that one ounce of methampheta- 
mine was found in the residence following execution of the search warrant had no 
bearing upon the charge for possession. 

Case 2084-82.— On October 2, 1982, a Pennsylvania narcotics agent culminated an 
investigation begun approximately one month earlier. The agent had previously 
purchased one ounce of cocaine for $2,100.00 from the subject. On October 2, 1982, 
the agent was to purchase one-quarter pound of cocaine for $6,800,000. When he ar- 
rived at the subject's Delaware County residence, with the subject were two addi- 
tional unknown individuals who approached him as he entered the residence in an 
attempt to search him for weapons. The agent indicated he had a weapon and that 
he would place it in his car and return immediately. It was requested that the agent 
be allowed to test a sample of the cocaine before the transaction was completed. The 
agent remained seated in the living room area while the subject went into the kitch- 
en area. When the subject returned from the kitchen area he placed a clear plastic 
bag containing a white powder on the table and removed a nail clipped from the 
bag. When asked where the rest of the cocaine was, the subject indicated that it was 
"all here," meaning in the house. The field test of the drug proved positive for co- 
caine. Discussions began concerning the price of the cocaine. Finally, the agent iden- 
tified himself as an officer and arrested the subject and the two unknown individ- 
uals. The arrested individuals were read their rights after which the agent request- 
ed the remainder of the quarter pound of cocaine be presented or the agents would 
search the kitchen area where the subject went to get the above referenced sample. 
The subject indicated he did not want his mother's home torn up and the agent told 
the subject he could consent and show the agents the location of the quarter pound. 
At approximately 3:25 p.m. the subject verbally consented and instructed the agent 
to come upstairs. The subject went to his bedroom and pointed to the bed saying, 
"it's under there." The agent looked under the bed and observed one large plastic 
bag containing approximately four ounces of white powder later identified as co- 
caine, a small plastic bag containing a small amount of white powder later identi- 
fied as cocaine, two TV magazines with white powder on them and a spoon. Again 
the subject was read his rights and the agent removed the above-referenced items 



273 

for custody. A suppression hearings was held on January 18, 1983 in Delaware 
County court. The trial judge suppressed the quarter pound of cocaine found in the 
subject's bedroom in that court believed that the subject's consent to search was not 
voluntary. However, the quarter pound of cocaine was not suppressed as to the 
other subjects who were charged with conspiracy with the primary subject in that 
the court beleived they had no expectation of privacy in the subject's home; there- 
fore, they had no legal standing concerning suppression of the quarter pound of co- 
caine. 

Case 504J-77.—A Pennsylvania narcotics agent prepared a search warrant on 
June 1, 1977 which stated that he received information from a confidential inform- 
ant who saw, at the place to be searched, a very large quantity of marihuana and 
methamphetamine in possession of the target. The informant stated that he ob- 
served the target selling marihuana and methamphetamine but the informant 
wished to remain anonymous because of fears for his personal safety. The informant 
indicated that he saw numerous people buying drugs and that he himself had in 
fact very recently purchased one ounce of marihuana which he turned over to the 
agent. The informant indicated that the ounce of marihuana was purchased from 
the target at the location stated in the search warrant. The place described in the 
search warrant was a garage. Found in the search of the garage was a large plastic 
bag containing a large quantity of loose marihuana, a large cardboard box contairi- 
ing a yellow plastic bag containing a large quantity of compressed bale-form mari- 
huana, a smaller cardboard box containing a white plastic bag full of marihuana 
seeds, a large Ohaus scale inside a cardboard box, a white cabinet inside the tool- 
room containing assorted prescription-type drugs, two clear plastic bags containing 
quantities of marihuana, counter-balance scales, and a strainer containing white 
powder residue. On August 23, 1977, a suppression hearing was held in Westmore- 
land County court. Defense argued that the agent had not sufficiently established 
reliability of the informant and that the address on the face of the search warrant 
was incorrect. Defense counsel based his later argument on the case of Common- 
wealth V. Muscheck, 334 A.2d 248 (1975), which deals with the issue of propriety of 
address in a warrant. A portion of the opinion indicated that unless the location of 
search was clearly distinguished from the residence of the owner, the affidavit was 
ambiguous and would fail. The evidence was suppressed despite the large seizure of 
drugs by the officers. 

Commonwealth v. McAfee, 230 Pa.Super. 336 (1974). Although a search warrant 
was properly signed and sealed by the district justice, the affidavit of probable cause 
attached thereto was not so signed and sealed. This defect is fatal and required the 
suppression of all evidence seized during the execution of the judicially authorized 
warrant. 

Commonwealth v. Gates, 4 D&C 3rd 239 (1977). Evidence obtained as a result of a 
search of a residence, authorized by warrant, was suppressed because the warrant 
application failed to specify that the evidence to be seized would be removed or de- 
stroyed if not seized forthwith. 

Commonwealth v. Lovette, 498 Pa. 665 (1982). Placing the defendant and his com- 
panions in a police vehicle for the purpose of transporting them to the scene of the 
crime, without their consent and without exigent circumstances to support such 
action, constituted an illegal arrest without probable cause and required suppression 
of the evidence linking the culprits to the crime. 

Commonwealth v. Ball, 254 Pa.Super. 148 (1978). Police officers searched a truck 
alleged to have been involved in a hit and run accident. The truck was parked some 
150 yards from the defendant's home. The court suppressed the evidence seized on 
the basis that at the time of the search the vehicle was not so mobile that the op- 
portunity to search was fleeting. 

Commonwealth v. Boyer, 236 Pa.Super. 214 (1975). Police, relying on confidential 
information relayed over the state police teletype, stopped a vehicle on the Pennsyl- 
vania turnpike which matched the reported description. Observation of the interior 
of the vehicle revealed packages of heroin. This evidence was suppressed because 
the police officers did not possess sufficient probable cause to believe the confiden- 
tial information was reliable. 

Commonwealth v. Novick, Pa. No. 14 M.D. Appeal Docket 1982, (filed 

April 26, 1983). Relying upon the existence of a Mutual Aid Pact, a police officer 
arrested an arsonist and burglar in a contiguous jurisdiction. The Pennsylvania Su- 
preme Court affirmed the suppression of the defendant's confession and seized phys- 
ical evidence upon a determination that the Mutual Aid Pact has no force and effect 
because of improper execution, thus rendering the arrest illegal. 



274 

Mr. Zimmerman. You know, the focus has been wrong, Mr. 
Chairman. The focus has been on what the police are doing wrong, 
how they have not dotted their i's or crossed their t's in all of this 
when, in fact, the focus ought to be on the fact that this evidence 
was presented by a police officer who really in the overwhelming 
number of cases intends to do the right thing, to follow the law 
where he can understand the law, and that is another area of con- 
cern as well. 

Senator Laxalt. The record should note. General, the arrival of 
someone whom you know as a prosecutor also in the State of Penn- 
sylvania, and the junior Senator from the State of Pennsylvania, 
Senator Specter. 

Senator Specter. Thank you, Mr. Chairman. 

With that opportunity, I will make a very brief statement. 

I regret that I could not be here at the start of the testimony of 
Attorney General Zimmerman, but there is a very hotly contested 
issue at this moment in Veterans Affairs on a major matter that I 
had to be present to make a quorum for and to attend to. 

Senator Laxalt. Everything in Veterans Affairs is hotly contest- 
ed; is it not? 

Senator Specter. Well, there are very few items on Capitol Hill 
which are not hotly contested. 

Senator Laxalt. I think you are right. 

Senator Specter. That is both the vein and the exhiliration of 
our purpose here. But there is no subject with greater importance 
on my mind than crime. Senator Laxalt and I have worked on this 
for the past 2 years and, as you may note, Mr. Chairman, and you 
alluded to, Attorney General Zimmerman and I have been working 
in this field since the mid 1960's. He was a very distinguished dis- 
trict attorney of Dauphin County when I was the DA in Philadel- 
phia and we have worked on many, many projects, invariably in 
harmony. He brings great experience and great wisdom to this 
field, has a very distinguished record as district attorney, and even 
a more distinguished record as State attorney general conducting 
investigations and prosecutions and doing some pioneering work as 
the first elected attorney general in Pennsylvania. So I want to be 
here to present him to this panel, albeit late, but insert it in the 
middle of the record, and to participate in the hearing. 

Thank you. 

Mr. Zimmerman. Thank you. Senator Specter. 

Mr. Chairman, very recently I had the privilege of testifying 
before Senator Specter in connection with a number of the matters 
that we are talking about here this morning, and specifically the 
Senator's career criminal bill which is important to all of us in 
Pennsylvania. And at that time I underscored the need for many of 
the areas that we are talking about here. Senator Specter and I 
have worked together and we in Pennsylvania, of course, know 
well that Senator Specter has made his case as a friend of law en- 
forcement and enjoys an enviable record as a former prosecutor 
and a distinguished Member of the Senate. I thank you for being 
here. Senator. 

Senator Laxalt. 1 might say that as far as those of us on the sub- 
committee and the full committee are concerned, we recognize that 



275 

he has the most recent experience, but he is fast becoming the 
guru in this whole area. 

Senator Specter. It is worth a lot, Mr. Chairman. Thank you. 

Mr. Zimmerman. Senator, an area that we strongly urge move- 
ment on is the reform of Federal intervention in State proceedings. 

1 suppose if I were to characterize two areas, among others, that 
cause a great deal of concern on the part of people that talked with 
me and whom I have listened to as I have traveled across Pennsyl- 
vania and across this Nation as chairman of our Subcommittee on 
Criminal Justice, they are the lack of finality of judgment and 
delay in a criminal justice system. Two areas of genuine concern 
that people simply cannot understand why they cannot be changed. 

Well, I strongly urge that this particular legislation would make 
a significant change by cutting off the time period of attack in the 
Federal courts where State matters have been ventilated, have 
been considered and have been finalized. There must be some point 
in time where there is finality of judgment if we are to punish 
criminal offenders and articulate the fact that what we are doing 
in jails and prisons today is in fact punishment because there 
cannot be an awareness on the part of the individual where he re- 
lates the crime that he has committed to the punishment unless 
there is that finality of judgment. In the system, perhaps more im- 
portantly in that person's mind. So I suggest that this area, the bill 
would limit the time within which habeas corpus relief can be pur- 
sued and bar Federal intervention in cases, as I said, that have 
been fairly and fully adjudicated in our State courts. 

Senator Laxalt. You think our proposal is strong enough? 

Mr. Zimmerman. Yes, I do, Mr. Chairman. Yes, I do. I think it is 

2 years after finality of judgment in a State appellate court pro- 
ceeding, I think it is strong enough. I think there has to be that 
opportunity but I think that there has to be a period which is 
closed, and I think this does do that. 

Senator Specter. Mr. Chairman, if I might ask a question. 

Senator Laxalt. All right. 

Senator Specter. Supreme Court Justice Powell spoke out on a 
related subject on the application of capital punishment saying 
that there ought to be finality and inclusion of the appellate proc- 
ess. 

How would we structure that if legislative change could accom- 
plish that, Mr. Attorney General, in your judgment? 

Mr. Zimmerman. Well, we in Pennsylvania have a new capital 
punishment statute that provides for automatic review of all State 
convictions where the death penalty is imposed in a limited 
number of situations by the Pennsylvania Supreme Court within a 
prescribed time period. When that is done, I think that the way to 
address it would be a narrowing of the time period, limited to capi- 
tal offenses in order to put finality. 

I agree with the concern of Justice Powell about people being on 
death row an inordinate period of time, and this is happening, 
throughout the country. 

Senator Specter. How can we deal with it? Can the Congress 
constitutionally legislate a time limit for all Federal appeals on 
State court cases? 



276 

Mr. Zimmerman. Well, Senator, I am reluctant to render an 
opinion as attorney general at this point in time. There are some 
complexities and I would anticipate that certainly there are some 
areas that would require constitutional analysis, but I am not sure 
of the mechanics. But I think that conceptually that is the way to 
approach the problem. 

Senator Specter. As I read Justice Powell's concern, he does not 
like the repeated appeals. But how can you stop them? If somebody 
is raising an allegation of constitutional magnitude and goes before 
a Federal district court judge, he is right on the same point that 
you are, and the district court judge has to consider it. Then there 
is an appeal to the court of appeals and an application to the U.S. 
Supreme Court, and then it starts all over again. How can you stop 
that? 

Mr. Zimmerman. I Ihink that the Congress can address that so 
long as the law takes into account a full complete fair ventilation 
of these cases on appeal through the State system and at least once 
through the Federal system. I cannot see that going beyond that, 
requiring an endless stream of Federal review is necessary. 

Senator Specter. Well, under Pennsylvania law, as you say, the 
State supreme court has an obligation to review every capital case. 

Mr. Zimmerman. That is a new statute, Senator. We do not have 
a track record on that but it is going to be interesting to see how 
our supreme court in Pennsylvania addresses that and how 
promptly our supreme court 

Senator Specter. Well, you could work it out so that every case 
would be reviewed as in Pennsylvania law. You could say then it 
would be mandatory review. Perhaps the simplest way to handle it 
is to require mandatory review by the Federal system. But some- 
body has to make allegations fair. The courts cannot go through a 
record and speculate about what the defendant wants to raise. The 
issue is if the defense attorney raises allegations of error and it 
goes through the Federal system and then comes back on the brink 
of execution, raising new points. How do you stop that? 

Mr. Zimmerman. Well, I think you stop it if the Congress says 
there is a mandatory review of every conviction where the death 
penalty is imposed. It must take place within a certain period of 
time. 

Senator Specter. And all issues not raised are being waived? 

Mr. Zimmerman. Are waived. 

Senator Specter. The doctrine on the waiver of the death penal- 
ty of a constitutional witness is very tough. 

Mr. Zimmerman. I know it is, and it is going to be interesting to 
see how our court addresses it in Pennsylvania in years ahead with 
the number of cases that we have. 

Senator Laxalt. I think a lot of it is going to rest necessarily in 
the mind set of the Federal judges, whether they can proceed with 
these summarily, with dispatch, if there are no seconds, or if they 
can fool with the judges as many of them have been doing. That 
has caused a lot of the problems that we have. 

Mr. Zimmerman. I think that is correct, Mr. Chairman, and I 
think it is true, as Senator Specter points out, we talk about the 
mandatory review, if everyone knows that there is going to be a 
review, the machinery gets into process very quickly, and I think 



277 

that there are fewer cases where you are going to be concerned 
about the doctrine of waiver in capital cases because they are going 
to be brought together and focused on earher, and perhaps to a 
conclusion. 

The forfeiture provisions of the statute proposed, I think would 
provide a model for the States, would allow transfer of the seized 
assets to State and local agencies which would help considerably in 
our antidrug trafficking efforts. I think that the new efforts being 
made by the President's Drug Task Force across the Nation, and 
prosecution, the interdiction efforts, especially the south Florida 
task force's success, all have focused the people's attention on the 
dimensions of the drug trafficking problem in this Nation, and that 
we are confronted with big business. We are confronted with people 
who are willing to accept the risk of arrest and conviction and even 
jail for the high profit margin that is in major drug trafficking en- 
terprises today. And where we can, as this bill provides the oppor- 
tunity to get the assets, whether it is a car or a yacht, whether it is 
a condominium or whether it is tracing proceeds through those 
assets, it does, for the first time, make a strong dent or an impact 
in the pocketbook of the drug traffickers, the economics of it. And 
that is where we should be focusing. 

Senator Laxalt. Where are we at the State level in this whole 
general area? 

Mr. Zimmerman. Well, I think you will find a variety of patterns. 
I have just proposed a strong forfeiture provision in the law in 
Pennsylvania. I think that right now in Pennsylvania it is very dif- 
ficult to seize an asset unless you seize it when it is directly in- 
volved or used in the commission of a crime in drug trafficking, 
and there is no tracing provision for forfeiture of assets that are 
the economic gain that accrues to an individual involved. So I 
think you will find a patchwork or quiltwork pattern, and that is 
my point. I think that this legislation can be a model for the States 
to follow in developing forfeiture statutes, strong forfeiture statutes 
throughout the Nation. 

Senator Laxalt. Let me ask you as a practical matter, as I asked 
Governor Robb. 

What are the practical chances, assuming we go forward here, of 
inducing the States much as we did in the commercial areas? Re- 
member, we went to uniform laws and negotiable instruments. 
What are the realistic chances of inducing 50 rather independent 
legislatures to accept our guidance and move along in areas like 
forfeiture? 

Mr. Zimmerman. Well, I think that obviously there will be prob- 
lems. You know as well as I, but I think that there is an area of 
common concern that perhaps my colleague, Edwin Miller, the dis- 
trict attorney, may be addressing in his testimony here this morn- 
ing, and that is a concern about whether or not these assets are 
going to go to the Federal, the States, or to the local governments. 
And I think that that concern could be the nexus for developing a 
Federal statute. It might be of some interest to the States. 

Senator Laxalt. Tell me this. Obviously just as a political 
matter, if you were going to attempt to get uniform legislation, I 
would think that the thrust would have to come from the DA's and 



278 

the attorneys general essentially, and certainly the Governors, but 
you primarily. 

What do you read within the institution, within your association, 
if you will, as an attorney general, as to moving forward in this 
fashion? 

Mr. Zimmerman. Oh, we feel very strongly as an association, in 
support of a strong forfeiture bill in the hope that it would be a 
model for the States. 

Senator Laxalt. That second step is being considered once we 
move that they would politically support this move forward in an 
attempt to get uniform legislation. 

Mr. Zimmerman. Yes, sir. The narrowing of the insanity defense 
as incorporated into this package is important to us. A limit to 
those unable to appreciate the nature or wrongfulness of acts, and 
I believe that is the ALI test. We do not have it in Pennsylvania. 
We still have the M'Naghten Rule in Pennsylvania. But it is im- 
portant that this limitation, this narrowing of that insanity de- 
fense, be enacted into law and that the burden of proof be placed 
where we feel it belongs, as attorney general, on the defense. 

The National Association of Attorneys General has urged and 
continues to urge an additional verdict, guilty but mentally ill. Par- 
enthetically, I say that the State of Pennsylvania, has just enacted 
a guilty but mentally ill piece of legislation to provide a fourth 
option for jurors. As you know, it is one of the important focal 
points of this kind of legislation that a jury is given that additional 
option. 

I think that it is important on that issue to make one more 
point, that you have the opportunity with the fourth category, the 
fourth option, guilty but mentally ill, for the jury to incorporate 
treatment which is necessary for mental illness, and we all agree. 
But also punishment as well at some other time perhaps. 

Senator Laxalt. What do we presently have on the State level, 
yours and others, if you know, for the civil commitments of Federal 
prisoners who have been found not guilty by reason of insanity? Is 
that machinery in place? 

Mr. Zimmerman. In Pennsylvania it is. 

Senator Laxalt. Is it working? 

Mr. Zimmerman. Well, it is too soon to tell against the backdrop 
of the guilty but mentally ill type of verdict. But we have had long- 
standing machinery operating in Pennsylvania for these kinds of 
commitments. 

Senator Laxalt. Would you be able to deal with the Hinckley 
case in Pennsylvania — with that type of factual situation — for civil 
commitment? 

Mr. Zimmerman. No, we would not have been. We could not 
have. 

Senator Laxalt. Other States? 

Mr. Zimmerman. Patchwork, quiltwork. That is why the attor- 
neys general^have advocated a strong position on this fourth — we 
debated this very heavily in the aftermath of the Hinckley case, 
which I am sure you will agree has generated a tremendous degree 
of heat and not a lot of light after it. But I think we are headed in 
the right direction and I would be opposed to abolishing the insan- 
ity defense. I will not get into all the background of that. 



279 

My final point, Mr. Chairman, is continued funding for State and 
local anticrime programs, especially those that focus on the control 
of violent crime and repeat offenders, victim witness protection in 
crime protection, whether or not it is discretionary grants or block 
grants. As I have said before in conversations with Senator Specter 
and in my testimony, it is essential that Federal funding come fast 
to the States and to local governments. We need it to preserve the 
current programs that have proved to be worthwhile and to devel- 
op the incentive for new ones as well. 

In conclusion, Mr. Chairman, I am pleased to have this opportu- 
nity to testify on behalf of my colleagues, the National Association 
of Attorneys General, and we stand ready to support this subcom- 
mittee's efforts and provide any additional information we can in 
order to help get this legislative package moving. We can talk 
about a strong defense on our shores, but if we cannot make our 
streets safe, we face a plethora of criticism out there on the part of 
the people and they are not safe. And there is that fear that per- 
vades our senior citizens across the economic lines and across geo- 
graphical boundaries of this Nation. And I urge that you continue 
your efforts as chairman of this subcommittee to make this pro- 
posed legislation a reality. 

Thank you. 

Senator Laxalt. Thank you very much, General Zimmerman. 
You have been very helpful. 

Let me ask you a question. Within Pennsylvania, what is the 
degree of cooperation between the Feds and the States, State law 
enforcement people? I come from Nevada where it has not always 
been that wholesome. More often than not, we have conflicts be- 
tween State officials, IRS, and the FBI and the rest. How does it go 
in Pennsylvania? 

Mr. Zimmerman. I think it is vastly improved, Mr. Chairman. I 
think the traditional boundary lines and battle lines that have sep- 
arated and sometimes caused contusions or aggravations in the 
past are being healed, and there is a more positive progressive 
movement underway in Pennsylvania. And I think I see it across 
the country. And I must say, in large measure, Mr. Chairman, that 
is due to the creation of the law enforcement coordinating commis- 
sions that now exist across the country that include district attor- 
neys, attorneys general, U.S. attorneys, and various other persons 
in the enforcement area as well. They are in place, they are opera- 
tive and we are meeting. In fact, yesterday I had the opportunity to 
meet here in Washington with my colleagues, D. A. Miller, the 
president-elect, and other persons in the law enforcement field, 
Federal, State and local, and we are talking about problems and we 
are proposing solutions to some of these disputes that exist out 
there. 

Senator Laxalt. That is really the name of the game. If these 
various people can talk with one another and exchange their views 
and arrive at common solutions, that will overcome a lot of the 
structural problems every time, will it not? 

Mr. Zimmerman. Yes, sir. The competition has to be together 
against the criminal element and not within the law enforcement 
family in this country. 



280 

Senator Laxalt. Let me ask you a somewhat technical question, 
and if you are not prepared to answer, just say so. 

But would you consider a search conducted pursuant to a war- 
rant that is later deemed to be defective to be a good faith effort? 

It is something that is going to arise, and we have been kicking 
it around lately and we do not quite know at this point how to 
treat it or whether to treat it at all. 

Mr. Zimmerman. Would you repeat that question for me? 

Senator Laxalt. Would a search conducted pursuant to a war- 
rant later found defective, be considered a good faith effort to bring 
within the rule? 

We would think so, we would think so in the subcommittee, but 
you tell us 

Mr. Zimmerman. Yes, I think it would be. I think it would be. 

Senator Laxalt. We think so. 

Mr. Zimmerman. I think that is really the essence of what we 
are saying. 

Senator Laxalt. We are trying to get away from the technical 
aspects, the technical deficiencies, and get to the substance of the 
effort, are we not? 

Mr. Zimmerman. Yes. 

Senator Laxalt. Well, let me ask you one last question. 

You have seen the package, you know where we are trying to go. 
Do you see any major defect in our approach here? 

Mr. Zimmerman. No, not in your approach. I think that you have 
focused on the areas of concern, the areas that need quick move- 
ment, and if we can get it moving, I think there is going to be 
strong broad-based support from the attorneys general, and I am 
sure the district attorneys. Mr. Miller is going to address that fact 
here or that part here this morning. I cannot see why it cannot 
move and why it cannot be successful. 

Senator Laxalt. Do you see any undue infringement on the lib- 
erties of our citizens? 

Mr. Zimmerman. No; I think the proposal is sensitive to the con- 
stitutional dimensions and certainly it would seem to me that al- 
though there would be challenges, certainly, they can pass constitu- 
tional muster. 

Senator Laxalt. We appreciate that because we have attempted, 
I know Justice has and certainly we have in the subcommittee, to 
be sensitive to those concerns. 

Mr. Zimmerman. We appreciate that. 

Senator Laxalt. Senator Specter. 

Senator Specter. Thank you, Mr. Chairman. Just a couple of 
questions, Mr. Attorney General. 

You and I have discussed a proposal which I have introduced, S. 
889, in March, which is a matter looking to the future where an 
effort is being made to direct some very substantial Federal funds 
to the fight on crime. The statistic frequently used is that last year 
there were 23,000 Americans who were murdered on the streets 
whereas we lost nobody, overseas, at a time when we are in a de- 
fense budget of $240 billion. We are not quarreling with the neces- 
sity now, or debating whether for fiscal 1984 it is going to be $270 
or $280 billion, and that more ought to be given to what many of 
us call domestic defense. The proposal embodied in S. 889 is an 



281 

effort to allocate 1 percent of our Federal budget somewhere in the 
neighborhood of $8 to $10 billion a year to fight crime over the 
course of the next 10 years, really a massive serious attack to allo- 
cate resources of $100 billion which many of us believe to be com- 
mensurate with the scope of the problem. 

I think it would be useful to supplement your testimony on the 
specific package which Senator Laxalt has developed with you to 
get your general comment on, that kind of approach, although not 
necessarily the specific contours of S. 889, because that is a subject 
of substantial revision and modification. 

Mr. Zimmerman. My response. Senator Specter, obviously would 
reflect my personal views and not the views of the national associ- 
ation because we have not considered that proposal as of this time. 

I said in the past, in my conversations with you, and I will say 
today that I support that concept. I think it is extremely important 
that that kind of focus, that kind of dimensional attitude be ad- 
dressed and articulated to the people in the country as we focus on 
crime. Because we have gone through a plethora of all kinds of ef- 
forts, but unless we make that kind of commitment, that kind of 
dimensional commitment to fight on domestic defense, as you have 
characterized it, and when we do that, I think we make an an- 
nouncement to the people of this country that we are really serious 
about fighting against crime and we are going to attack it as we do 
other things that are of high priority in this Nation. 

Senator Specter. One specific subject and that will conclude my 
questioning — on the issue of prison construction. This is a subject 
that has been supported by many of us here, the chairman of the 
full committee and the chairman of the subcommittee. Senator 
Dole has been an advocate for many years, Senator Heflin has and 
so have I. 

In full committee yesterday, I proposed an amendment at the re- 
quest of Senator Dole, on behalf of the two of us, to add $100 mil- 
lion for prison construction in the Justice Assistance Act, a modest 
program which we talked about before. 

Mr. Zimmerman. Yes. 

Senator Specter. And last week I offered an amendment to the 
budget resolution to encourage State court judges to sentence 
under habitual offender statutes embodied in S. 58. I propose that 
if State court judges would impose life sentences or long-term sen- 
tences for habitual offenders, the Federal Government should un- 
dertake the responsibility to construct those prisons. The Budget 
Committee is a hard place to get enough votes. There were 17 votes 
in favor, and I believe the sixties or seventies opposed. It was a 
Thursday afternoon and it is difficult to table Thursday afternoon 
and go into Friday. But it was a start and it attracted attention. 
This whole process of legislative change is a long-term process. 

I would be interested in your comments, Mr. Attorney General, 
on two things. First is the desirability or the necessity of Federal 
help in prisons and second, any special incentives that you think 
would be provided by saying to State court judges if you sentence 
under the habitual sentence, you will not have any worry where 
they are going to be placed. 



25-694 O - 84 - 19 



282 

Mr. Zimmerman. Let me answer the last question first. And I am 
speaking on behalf of myself and not the National Association of 
Attorneys General. 

I think that it is irresponsible for those of us in law enforcement 
in this country to talk tough about mandatory sentences, talk 
tough about putting people behind bars, and to convict them unless 
we take the responsibility for taking the initiative to provide the 
essentials of carrying out the sentences, whether you are talking 
about the State or the Federal sentence. The kinds of sentences are 
important to the States. 

We in Pennsylvania have just finished debating, deciding and en- 
acting into law a limited sentencing program that will escalate the 
population in Pennsylvania for the next 7 years. I am told that as 
of the end of 1982 there are 400,000 persons behind bars in this 
Nation, the highest that it has been in a long time. I think that the 
kind of sentences that you are talking about. Senator, are neces- 
sary and acceptable to put this program into reality. We have done 
that in Pennsylvania, I am proud to say, that tie into our manda- 
tory sentencing program a per capita expenditure program for ad- 
ditional prisons to carry out these sentences. That is the kind of 
help that the Federal Government would fashion and provide to 
States. 

Senator Specter. Thank you very much, Mr. Attorney General. 

Senator Laxalt. Just one last philosophical observation. 

Senator Specter and I have discussed these matters and will con- 
tinue to do so. And the thought of earmarking 1 percent of our ef- 
forts here to really get at crime in this country is appealing when 
you are talking about $8 to $10 billion. But the fact is that we have 
thrown substantial money to other areas of domestic concern like 
poverty and education, and I would like to feel that that has result- 
ed in some dividends. 

If I thought that the expenditure of $20 billion would markedly 
reduce crime in this country and make our streets safer, I would be 
right in front of the lines, but I have a basic reservation that our 
throwing money, even at this very serious problem, is going to do 
the job. It would seem to me that much of the problem rests in 
legal loopholes which we as lawyers create as well as the mind set 
of judges at both the State and the Federal level. I just wonder 
really whether or not as a practical matter this is the way to go? 

Mr. Zimmerman. Mr. Chairman, I think part of the answer to 
your question is in the question itself as you phrased it. 

We have in the past thrown those moneys into those kind of 
problems, only to see little if any result. 

I think that the kind of dimension that you are talking about, 
the 1 percent in and of itself articulates implicit need for a very 
comprehensive analysis and a focus on certain limited areas, vio- 
lent crime, organized crime, professional criminal activities and, by 
the way, I personally, as Senator Specter knows, define that a bit 
differently than organized crime. The professional criminal, in my 
opinion, burglary rings are all over the place, people who are will- 
ing to take that risk get caught and convicted because they know 
the profit margin is there. If we can produce attention in those 
areas, not just throwing it in, I think we can see positive results. 
But the fact that you announce that kind of dimension for the Con- 



283 

gress is what is significant to people in this country because it will, 
for the first time, just to pose one thing, domestic defense to na- 
tional defense and will be very positive and very positively re- 
ceived. 

Senator Specter. Let me followup with just one more question, 
Mr. Chairman. Is it going to do any good to spend that money? The 
program that I envision focuses on the career criminal. There are 
two efforts. One is to prevent criminals and the other is to separate 
the career criminals that are in existence. It focuses on rehabilita- 
tion of first and second offenders. We turn out functional illiterates 
without trades or skills, and it is no surprise that they come back 
once they become career criminals. It focuses in society for long pe- 
riods of time, up to life in jail. The major problem in this country 
today dealing with the 200,000 career criminals is that there is no 
place to put them. Jails have increased 42,000 last year so they are 
now in excess of 430,000 people in Federal jails. And just to con- 
struct the prison space for 200,000 would cost between $10 billion 
and about $50 billion. We cannot begin to deal with this career ele- 
ment unless we have space to separate them. All of those men and 
women do come into the system, and we have a chance to put them 
away. 

My question to you, Mr. Attorney General, is would we achieve a 
beneficial effect if we focus on the career criminal and try to 
devote 1 percent of our effort to that? One of the important things 
that LEAA has done is to identify career criminals, bringing that 
term into the lexicon. I would be interested in your observations on 
Senator Laxalt's question as it would focus a real attack on the 
200,000 career criminals in the country. 

Mr. Zimmerman. Senator, I think you are absolutely correct 
when you say that you have placed in the lexicon of law enforce- 
ment the career criminal and the program involving career crimi- 
nals funded by LEAA's. One of the few but very few. 

I think we have to focus on the career criminal. I do not know if 
I undeistand your question. You are saying 1 percent would relate 
totally to career criminals? 

Senator Specter. Not totally because there is too much more. 
But that would be the main focus. My main focus is on that group, 
preventing their becoming career criminals, or once they incarcer- 
ate them and throw away the key. 

Mr. Zimmerman. And incorporated in that kind of question 
would be a willingness to separate the juvenile from the adult of- 
fender. I think we have developed in this country, by the way, a set 
of career juvenile offenders and I think that that would be an im- 
portant focus as well. Whether you are talking about career crimi- 
nals, career juvenile offenders, but in concept, yes. Senator, I think 
that would have to be a high priority in the 1 percent. 

Senator Laxalt. Thank you very kindly, gentlemen. 

While we are discussing this. Senator Specter, perhaps you could 
include in the record, if you have not already, what part these 
200,000 career criminals play in the total crime rate— you gave me 
that number and I thought it was rather interesting. 

Senator Specter. Mr. Chairman, these 200,000 career criniinals 
are said by the experts to commit as many as 300 robberies or 
burglaries a year. These are men and women who are in operation 



284 

every night and they commit more than 70 percent of the robber- 
ies, burglaries, and major crimes that are reported. Those are the 
statistics. I think Attorney General Zimmerman can corroborate 
them. 

Mr. Zimmerman. Yes, I can, and I would add one other thing, 
Mr. Chairman, if I may. 

Consistent with what we have been talking about in the last few 
minutes, and that is the Federal program for surplus properties to 
State prison use, that is important as well, the National Associ- 
ation of Attorneys General supports that concept to be continued, 
while we, unfortunately, debate and decide, these important pro- 
posals. As the Senator has pointed out, the streets are filled every 
night with career criminals assaulting and terrorizing people of 
this Nation, and it is tragic today that the constitutional rights of 
the law-abiding citizens of this Nation have been infringed to the 
extent that they feel and they believe, and I go back to my acquies- 
cence quotient, that they cannot work or even worship where they 
will without that kind of fear pervading. That is why I urge dili- 
gence and fast pursuit in the proposals that you have before you. 

Senator Laxalt. Thank you veiy kindly. Attorney General. You 
have been very helpful. We will continue to be in touch with you, 
you can be assured of that. 

Mr. Zimmerman. Thank you very much. Thank you, Senator 
Specter. 

[The prepared statement of Leroy Zimmerman follows:] 



285 



Prepared Statement of LeRoy S. Ziwerman 



Mr. Chairman and Mambars of the Criminal Justice Subcommlcta* 

Ic Is with plaasura chac I appear before the Subcommittee 
on Criminal Law to present testimony on the Comprehensive 
Crime Control Act of 1983, S.829. I appear before you on 
behalf of the National Association of Attorneys General 
to support the Association's stand on specific aspects of 
Che 1983 crime package. X would note that X had Che 
recent opporcunlty to present testimony before the Honorable 
Arlen Specter, Senator from Pennsylvania and member of 
Chls subcommiccee, concerning proposed career criminal 
leglslaclon. At that time, X expressed support for a 
Justice AsslsCance Act, because of the very urgent need 
for federal assistance to state and local law enforcement 
agencies in the war against crime which is being waged in 
the alleys and streets of our communities. As a criminal 
prosecutor of years standing, I have seen the toll the 
rising crime rate has exacted from our economy, our 
pursuits of happiness, our freedom from fear, our mobility, 
our traditional patterns of living. 

When introducing the Comprehensive Crime Control Act 
in the Congress, Senator Thurmond noted that crime, 
"particularly violenc crime, drug trafficking and organized 
crime -- is one of the major concerns of the people of the 
United ScaCes" and that "crime and the fear it generates 
are equal in importance to the issues surrounding national 
security and the economy." I echo the Senator's concern 
but add that what we are confronted with today is the 
acquiescence quotient in the formula of our criminal 
justice system that law enforcement and the citizens of 
chls country must overcome. Too frequently people 
accept as a fact of life that there will always exist 



286 



a certain percentage of crime in Che streets, in government, 
in the market place and, adjust their lives accordingly. 
This acquiescence quotient occurs because, in my opinion, 
the criminal justice system has not kept pace with the 
times. The law enforcement community has not been as 
innovative and creative as has the criminal community. 

Innovation and creativity are apparent in the 
legislation you are now considering. I urge you, as the 
chief law enforcement officer of the Commonwealth of 
Pennsylvania and as a spokesman for the National Association 
of Attorneys General, to move with all deliberate speed 
to make crime control a reality, not another theory. 

Specifically, the National Association of Attorneys 
General supports federal bail reform. Most federal, state 
and local bail decisions are based solely on the likelihood 
that the defendant will appear for court for his next 
scheduled proceeding. However, since the rate of recidivism 
for individuals released on bail is extremely high, consid- 
eration must be given to the dangerousness of the defendant 
and the risk to the community should he be released on 



bail pending trial. Legislation which requires that judges 
consider the danger that an offender poses to society in 
addition to risk of flight factors in deciding the 
appropriateness of bail is essential as a response to 
the rising numbers of crimes committed by persons released 
on bail. Reform of bail procedures in the area of narcotics 
abuse and control must also be considered. 

The exclusionary rule has surely outlived its 
effectiveness. In a formal statement presented to this 
subcommittee last week, the United States Department of 
Justice urged the exclusionary rule not be applied in 
cases in which law enforcement officers who conduct a 
search acted in a reasonable good faith belief that their 
actions were lawful. 



287 



The fundamental and Legiclmace purpose of che 
•xclualonary rule, to deter illegal police conduct and 
promote respect for the rule of law by preventing illegally 
obtained evidence from being used in a criminal trial, 
has been eroded by action of the courts barring introduction 
of the truth, however important, if there is any investiga- 
tive error, however unintended or trivial, where constitu- 
tional violations have occurred. The remedy for such 
errors must be proportional to the magnitude of the 
violation. Evidence, we submit, should not be excluded 
from a criminal proceeding if it has been obtained by a 
law enforcement officer acting in a reasonable good faith 
belief that the evidence was obtained in conformity with 
the Fourth Amendment to the Constitution. This is 
particularly true if the evidence was obtained pursuant 
to and within the scope of a warrant which was issued 
by a neutral and detached magistrate. 

The Comprehensive Crime Control Act takes a giant 
step toward "reform of federal intervention in state 
proceedings" and will return a measure of certainty to 
the criminal justice system. Public confidence in the 
efficiency of the system is sorely tested by the lack 
of finality in criminal cases, by the never ending 
availability of open courts within which to pursue 
repetitious and frivolous claims for relief from punishment. 
No place is this lack of finality so apparent than in the 
broad availability of-.the writ of habeas corpus. The 
expansion of the writ and the way in which federal courts 
have accepted the invitation to use the writ to review 
•cate court Judgments have resulted in misuse suid abuse 
of the writ. 

In a statement on April 18, 1983 concerning the 
.-denial of certiorari in the case of Spalding v. Aiken , 
...U.S. , No. 82-663, Chief Justice Burger cogently 



288 

recognized the need for habeas corpus reform when he 
said: 

The time has come to consider 
limitations on the availability 
of the writ of habeas corpus 
in federal courts, especially for 
prisoners pressing state claims 
which were fully ventilated in 
state courts. 

and 

Claims presented by way of habeas 
corpus petitions many years after 
conviction impose especially 
heavy burdens on the prison system, 
on society and on the administra- 
tion of justice. Our willingness 
to entertain these late claims 
tells prisoners that they need 
never reconcile themselves to 
what has happened: They need 
never "make peace" with society, 
learn a new way of life, or 
attempt to build a realistic 
future. Our society's constant 
willingness to reopen cases 
long closed tells the public that we 
have no confidence that the laws 
are administered justly. 

We urge broad reform of federal habeas corpus procedures 
and support the legislation which establishes a restricted 
time period within which habeas relief can be pursued, and 
bars federal intervention in state court judgments when 
full and fair adjudication was had. 

Finally, I speak in support of Title IV - Forfeiture; 
Title V - Insanity Defense and Title VIII - Justice 
Assistance. 

Criminal forfeiture is an effective means of 
preventing drug traffickers from profiting from their 
Illegal activities by ensuring that illegally generated 
property will not remain in the hands of convicted 
criminals. Title IV would facilitate the ability of federal 
prosecutors to recover money from drug traffickers and 
would serve as a useful model for state legislatures 
contemplating similar legislation. Importantly for the 
states, the provisions in Title IV, amending the Tariff 



289 



Act of 1903 which would authorize the transfer of 
forfeited property to any state or local law enforcement 
agency which participated directly in any acts which 
led to the seizure or forfeiture of property, would serve 
to enhance significantly both state and local drug law 
enforcement. 

The National Association of Attorneys General supports 
the narrowing of the insanity defense as promulgated in 
Title V by limiting the defense to those who are unable 
to appreciate the nature or wrongfulness of their act; 
placing the burden on the defendant to establish insanity 
by clear and convincing evidence; preventing expert 
testimony on the ultimate issue of the defendant's state 
of mind and establishing procedures for the civil commitment 
of persons found not guilty by reason of insanity. 

The Association would urge, however, the establish- 
ment of an additional verdict of guilty but mentally ill 
with the burden resting on the defendant to prove the 
mental illness. 

The National Association of Attorneys General is 
on record as supporting continued federal funding for 
successful state and local anti-crime programs. We take 
no position, however, regarding the internal organization 
within the Department of Justice. 

The need for this funding on the state and local 
level cannot be seriously questioned. The direct burden 
for the enforcement of criminal laws falls squarely on 
state and local governments. The continued high incidence 
of crime makes this burden intolerable. State and local 
law enforcement efforts are threatened with suffocation 
unless additional resources in the form of federal 
financial assistance become available. Such resources 
should focus on high priority programs for control of 
violent and repeat offenders, victim/witness protection 
and crime prevention. 

May I conclude by encouraging swift congressional 
action on this vital legislation. The criminals are not 
sitting back waiting to see what plans are being considered 
to curtail their activities. No, they are on the streets 
every day and night in every city, town and village, plying 
their nefarious trades. This crime package is innovative. 
It can make a real difference in the fight against crime. 
The package contains not mere statutory changes but provides 
enforcement tools, tools which will mean something to the 
cop on the comer and the citizens he is there to protect. 



290 

Senator Laxalt. Mr. Miller, welcome. We appreciate your being 
here. We are sorry to have taken so long but we lawyers tend to 
absorb a lot of unnecessary time. 

Our next witness for the record is Edwin L. Miller, Jr. 

STATEMENT OF EDWIN L. MILLER, JR., SAN DIEGO COUNTY DIS- 
TRICT ATTORNEY, PRESIDENTELECT, NATIONAL DISTRICT AT- 
TORNEYS ASSOCIATION 

Mr. Miller. Thank you, Mr. Chairman. 

Senator Laxalt. Are you the new president or president-elect? 

Mr. Miller. I am the president-elect of the National District At- 
torneys Association. I will become president at our August confer- 
ence. 

Senator Laxalt. Congratulations and good luck. 

Mr. Miller. Thank you very much. 

I had intended to read my introduction and incorporate into the 
record some of the provisions and then read my position on the ex- 
clusionary rule and then NDAA's position on the expansion of Fed- 
eral jurisdiction into violent crime. But in view of the questions 
that you have asked, perhaps you would prefer that I incorporate 
my entire statement into the record, in order to give you more of 
an opportunity to ask questions that are of particular concern to 
you. 

Senator Laxalt. We would be pleased to do that. 

Mr. Miller. All right. 

Then, with that in mind, let us incorporate into the record my 
entire testimony which covers the supportive testimony with re- 
spect to proposed reform of the exclusionary rule, bail, the insanity 
defense. Federal intervention in State proceedings, sentencing, and 
forfeiture. 

As you may know, our position with respect to expansion of Fed- 
eral jurisdiction into violent crime is reflected in the murder for 
hire provision and is opposed by the National District Attorneys 
Association for the reasons that I state in my testimony. 

Senator Specter touched a little bit on the career criminal area, 
and I am very close to that. In California we have through State 
funding career criminal programs in all large district attorneys' of- 
fices. In my office we have six attorneys who vertically prosecute 
career criminals for robbery and for burglary, and they have been 
highly successful. They do not plea bargain, they take advantage of 
the new determinant sentencing law that exists in California, and 
sentences are maximum for those individuals. 

Senator Laxalt. For the purpose of the record, would you state 
what a career criminal is under the California law? 

Mr. Miller. Well, a career criminal, in short, is a person who in 
effect devotes his entire career to the commission of crimes profes- 
sionally. In our instance, robbery and burglary in California. 

Senator Laxalt. Is there, as there was in the old days when I 
was a prosecutor, a point when three felonies make you a career 
criminal? 

Mr. Miller. Yes. We use the criteria, a point system which is 
based upon the person's past record, the nature of the offense that 
he committed and the particular incident, and a number of other 



291 

factors that go into a profile of that type of individual. That is used 
to select certain individuals who are coming into the system. By 
following that criteria, those cases are shifted to the career crimi- 
nal program, and instead of handling the matters horizontally, 
which means from one court jurisdiction to another, superior court, 
pretrial appellate, pretrial hearings and so on, where different at- 
torneys touch upon the same case, in the area of career criminal, 
there is absolute total concentration on each case carried all the 
way through by that individual prosecutor. 

Senator Laxalt. How is that handled, on a countywide basis? 

Mr. Miller. Countj^wide basis. In California we have 12 separate 
district attorneys' offices of larger size who have those kinds of 
units. We were the first career criminal program on the west coast. 
We started under LEAA back in 1975, our program was used as a 
model, and LEAA was gracious enough to give our office an award 
as having the leading career criminal program in the country. 

Senator Specter. Mr. Miller, would you agree— if I may, Mr. 
Chairman— with the ball park figure of about 200,000 career crimi- 
nals in the country? 

Mr. Miller. You know, I cannot give you the statistics, but lis- 
tening to your approach to this thing, I would like to give you some 
ideas at least. 

Senator Specter. I would be interested to know what your sense 
is. It is a hard fiqure to come up with. 

When I was district attorney in Philadelphia, we put the figure 
of 2,500 with some substantial experience. When Senator Laxalt 
and I were discussing the matter many weeks ago, and he asked 
me for a national focus, I came up with a figure of 200,000. I dis- 
cussed it with people, and it seems to be a reasonable figure. If you 
project the number of crimes that career criminals commit, there 
are lots of studies on this, they go into thousands a year. 

Mr. Miller. We have studies by the Rand Corp., as you well 
know, indicating all sorts of statistics, both in numbers, both in at- 
titudes by the prisoners after they are incarcerated, what the pris- 
oner philosophy is with respect to rehabilitation. There are studies 
that you gentlemen should really read that have to do with the 
whole subject of career criminals. 

Senator Specter. Unfortunately, I have read them. 

Mr. Miller. Have you? 

Senator Specter. Yes. It is disquieting nighttime reading. 

Senator Laxalt. May I ask a question while we are on this 
before it slips my mind? 

You have been into this in San Diego County since 1975? 

Mr. Miller. 1975, yes. 

Senator Laxalt. What has that done to your overall crime rate? 

Mr. Miller. The crime rate, and that is the point I want to 
make, in California — in California the crime rate is down consider- 
ably, is down substantially. 

Senator Laxalt. In relation to other States? 

Mr. Miller. In relation to other States. 

Senator Laxalt. And your county, in relation to other counties? 

Mr. Miller. No, not necessarily. But it is down comparably and 
probably below most counties, yes. 



292 

Bear in mind that the other counties now have career criminal 
programs too. But the thing that is happening, which is exceeding- 
ly important, is that in 1978, the State went from indeterminate 
sentencing to determinate sentencing, and since 1978, and thereaf- 
ter, when sentences and the terms for punishment in California 
were gradually raised in the area of violent crime, more and more 
people have been sent to prison. 

If my figures are correct, and I think they are, there were some 
22,000 to 23,000 individuals in State prison in 1978, and there are 
close to 35,000 in prison now. 

Senator Laxalt. How many of those are career? 

Mr. Miller. Well, there again I cannot give you the figure but it 
is a considerable number. I mean we are concentrating on recidi- 
vists. What I am saying, by putting the recidivist in prison, to a 
greater extent it has had, in my judgment, an effect on the crime 
rate. It is a tough way to go because now the State is feeling the 
pinch and we are having difficulty finding space for the people who 
are going to prison. 

Senator Specter. California has authorized, through referendum, 
bonds for prison construction? 

Mr. Miller. They did authorize it by vote. 

Senator Specter. Which is really surprising for a proposition 13 
State. 

Mr. Miller. Well, what I am saying is the public — the public was 
willing to pay the price of $500 million to build some new prisons 
in order to take care of the people that you are talking about. 

Senator Laxalt. Was this in the 1982 authorization, the 1982 
election? 

Mr. Miller. The 1982 election. 

Senator Laxalt. And they authorized $500 million? 

Mr. Miller. $500 million. 

Senator Specter. Is that one referendum or were there two? 

Mr. Miller. Two. One had to do with jails 

Senator Specter. That impressed me, Mr. Chairman, because I 
found that California authorized the funding in a popular election, 
considering their very, very heavy parsimonious attitude, the origi- 
nator of proposition 13. 

Senator Laxalt. Well, you have obviously made your case. 

Mr. Miller. Yes. But here is another problem that has to be con- 
sidered. 

Under the determinate sentencing law, people sent to State 
prison received a third off for good time. The pressures of the 
prison population are such that the legislature made a modification 
this last year, even with the increase in the sentences, that under 
certain conditions, certain conditions in which the prisoner per- 
formed certain functions and does work in education, whatnot, that 
they would have the good time reduced from one-third to one-half. 

You know, there are pressures that take place in this area that 
have an effect upon the actual deterrent. 

Senator Laxalt. Are those mainly economic in character? 

Mr. Miller. Well, work programs and restitution efforts, things 
of that sort, but my feeling is that that is a good approach, and I 
am hopeful that it is going to have a lasting effect. 



293 

Senator Laxalt. You mean the career criminal approach provid- 
ing space for their detention? 

Mr. Miller. Determinate sentencing and so on, yes. 

Senator Specter. I think it would be useful, Mr. Miller, to the 
extent that you can, to give us judgments on quantification, that is 
how many career criminals there are, how many offenses they 
commit. 

Mr. Miller. Sure. I would be happy to. 

Senator Specter. My own judgment, after having been in the 
field for a long time, is that that 200,000 is a realistic judgmental 
figure; that is you project 500 crimes a year, it is on the conserv- 
ative side, robberies and burglaries for career criminals — I see nod- 
ding in the affirmative. If you multiply 500 by 200,000, you come to 
100 million felonies. And when Senator Laxalt and I discussed it, 
we tried to put it in specific enough terms so that if you are talking 
to other Senators or Congressmen, that it makes sense. And the 
projection that I come back to is the one which was made by the 
National Commission on Criminal Justice Standards and Goals 10 
years ago in 1973, when they had a projection that they believed-I 
served on that Commission — that we believed that violent crime 
could be reduced by 50 percent if you really did a job, and there 
has been a lot of development since on the criminal development. I 
would be interested in your thoughts. 

Mr. Miller. I would certainly be delighted to put together all the 
information. I have reams of information on this entire subject, 
and I will promise you that you will get a package from me that 
covers, I think, every relevant aspect of the career criminal pro- 
gram. I would be happy to do so. 

Senator Specter. Because to the extent that we can document its 
success, we have a chance of getting people onboard to make it 
happen. 

Mr. Miller. Certainly. But we have statewide reports that are 
issued periodically and I will forward those to you, too, which show 
the performance of the various offices in the area. 

Senator Laxalt. Are there any other States which could be used 
as pilots? 

Mr. Miller. Well, I am sure that there are. I do not want to 

Senator Laxalt. We will get into that. 

Mr. Miller. But one of the reasons that I mention this is because 
in your crime package your sentencing is going to determinate sen- 
tencing, and I think it is wise. I think that is the kind of Federal 
proposal that is going to be followed by other States just as the bail 
reform proposal is a model, and for those States that are unable to 
make changes in their own law that have to do with the dangerous- 
ness of an individual to others and to the community, gradually 
the States will take guidance from the Federal Government. So 
what you have here is a crime package that I think is superlative, 
in general it is superlative, and I think it is something that should 
be kept as a package. And I think once it is enacted into law, it 
will have a tremendous effect on crime in this country. I really be- 
lieve that. 

Senator Specter. I want to express my regrets. I have to go but I 
will study the balance of your testimony and look forward to the 
materials from you. 



294 

Mr. Miller. Thank you. Thank you. 

Senator Laxalt, there was one item that is not included in my 
testimony that I would like to bring to your attention. 

The National District Attorneys Association is very concerned 
with the current excess distribution of legally manufactured drugs 
which we believe are being used in great quantities for illegal use. 
The drugs with which we are particularly concerned are Metham- 
phetamine, that is Desoxyn; Phenmetrazine, which are called Pre- 
ludins; Amobarbital, known as downers; Dialudid and Talvin which 
are flowing in from foreign borders. 

On May 1, 1983, the board of directors of the National District 
Attorneys Association adopted a resolution expressing its position 
on this matter, copies of which will be sent to each Member of Con- 
gress. 

I would like to submit that resolution to you at this time. We ask 
that in your drug offenses, particularly in that section, that you 
make certain that the restrictions on production quotas of these 
listed drugs are tightened and not relaxed. And I have a copy of 
that resolution. 

Senator Laxalt. It will be ordered filed and we will certainly 
give your request every serious consideration, Mr. Miller. 

I have a time deadline, too, and you probably do as well. May I 
ask you one question in connection with good time? 

You indicated, I think, if I recall correctly, that you originally 
went to 25 percent good time credit and then went to a 50-percent 
level? 

Mr. Miller. A third. It was one-third good time, and under cer- 
tain conditions it was recently altered, or at least the opportunity 
to take advantage of one-half good time was. 

Senator Laxalt. We are at a 10-percent level, as you know, in 
this bill. Are we unrealistic? 

Mr. Miller. Now, your bill, you mean as far as good time? 

Senator Laxalt. Ten percent credit good time, yes. 

Mr. Miller. Well, as I understand it, under current Federal law. 
Federal prisoners are eligible for parole after a third, so, I would 
hope that when you go to determinate sentencing that you put it 
up around two-thirds. I think that is where it belongs. 

There was one other area that I wanted to bring to your atten- 
tion of a technical nature that has to do with some provisions that 
you have under the insanity defense. And if you will take a look at 
that, my recommended changes there, I think it would be benefi- 
cial to you because I see over the horizon some problems that you 
are going to face, at least based on our California experience. 

Senator Laxalt. Do you have those as suggestions in writing? 

Mr. Miller. Yes, I have them in writing. 

Senator Laxalt. Are they contained in your statement? 

Mr. Miller. They are contained in my statement. There are 
three separate changes recommended of a technical nature. 

Senator Laxalt. All right. We will take a very close look at 
those. 

Mr. Miller, do you have anything else to offer to the committee? 

Mr. Miller. No. The only final statement that I can make, and it 
is covered in my testimony on violent crime, I think that that is 
one area that the National District Attorneys Association opposes. 



295 

We believe that the prosecution of violent crimes should remain 
with the local prosecutor. I have had the opportunity to serve as 
both the U.S. attorney and as a district attorney, and I can tell you 
that a lot of problems are encountered in that delicate relationship 
between the Federal prosecutor and a local DA. We really do not 
need that kind of intrusion into local prosecutions. 

Senator Laxalt. We are sensitive to that. Certainly I speak not 
only for myself but for the other members of the subcommittee. 
The last thing we want to do in this package is to intrude unneces- 
sarily into the State and local realm. We just do not want to do 
that. 

Mr. Miller. It just causes all sorts of problems. 

Senator Laxalt. Well, we thank you very much and we look for- 
ward to working with you. We are just getting started on this 
track. It is going to be a long while. 

Mr. Miller. I just want you to know that the National District 
Attorneys Association, with the exception of that area, murder for 
hire and violent crime, is prepared to support you in every possible 
way that we can. 

Senator Laxalt. That is very reassuring, to say the least, be- 
cause as I indicated initially here, you are out there in the trench- 
es dealing with this problem. 

Mr. Miller. Well, we think the crime package is the best thing 
that has come along in a long, long time. 

Senator Laxalt. Thank you. 

We do, too, in all objectivity. Thank you very kindly. 

[The prepared statement of Mr. Miller and resolution follow:] 



296 



Prepared Statement of Edwin L. Miller^ Jr. 



I am honored to have this opportunity to discuss with you an 
enormously complex and important piece of proposed legislation, 
H.R. 2151, known as the "Comprehensive Crime Control Act of 1983." 
As a former United States Attorney, the first person to be 
appointed to that position in the Southern District of Cali- 
fornia, and as the District Attorney for San Diego County, a 
position to which I was first elected in 1970, I believe I have 
a thorough understanding of both our federal and state systems 
of criminal justice. 

Although I must confess my native California marches to the 
beat of its often peculiar drummer, many of our states follow 
the lead of the federal government in the implementation and 
administration of the criminal law. Thus, any action the Congress 
takes with respect to the administration of criminal justice at 
the national level has a tremendous impact upon state and local 
prosecutions and the way our state courts do business. In addi- 
tion, of course, how well or poorly the federal system deals 
with crime has a residual effect on us at the local level, for 
not only do federal crooks also practice local crime, but we are 
the communities from which they spring. 

I an. addressing you today in my capacity as President-elect 
of the National District Attorneys Association, the representa- 
tive organ iza*. i or, of prosecutors throughout the country. It is 
the position of our association that H.R. 2151 is — with one 
exception -- a particularly valuable piece of proposed legisla- 
tion and one which our association earnestly supports. We believe 
It will restore some much-needed balance in our criminal justice 
system and that it will result in a greatly heightened responsive- 
ness of that system. 

Our system of law attempts to strike a balance between 
competing rignts. We weigh society's right to be free from the 
fear and the tyranny of crime against the individual's right to 
be free from unwarranted state interference, and attempt to 
strike a balance. We define the legitimate role of the police. 



297 



We set forth those instances in which a magistrate's warrant is 
required for searches or arrests. We provide regular legal mechan- 
isms for the full and fair adjudication of disputes. 

In our system, we also attempt to balance the interest of 
the federal gc-.frnment against that of state and local govern- 
ment. We provide feOtral enforcement power, federal sanctions, 
in those ir. y.t onces in which individual conduct is violative of 
some federal standard or right. In other words, federal law 
enforcfmcnt is limited to those areas in which the conduct 
coaplainod of has a federal nexus. Prosecution of other criminal 
conducr is reserved for the states. 

This proposed legislation attempts to redefine the balance 
in both these areas. First, it alters the balance between an 



ir.Gividual ' s rights against the government and the government's 
rights to protect society from crime. In that area, we in the 
prosecutorial conrmuniry believe that this legislation would 
actually restore balance to our criminal justice system, balance 
which until now has been tipping ever farther in favor of the 
accused and to the detriment of the innocent citizen seeking 
protection. 

Second, the bill attempts to alter the balance between state 
and federal enforcement and prosecution, granting to the federal 
government expanded ability to take over some criminal matters 
which are wholly inappropriate for the federal government, and 
to do so whenever some tenuous federal relationship can be 
alleged. It has the potential to deliver unto the federal govern- 
ment, then, the power to selectively take on certain cases 
deemed important or newsworthy enough to merit federal attention 
while leaving the state prosecutor with federal cast-offs. 

It is not surprising that we who are state prosecutors are 
wary of such a proposal. But for a number of other reasons as 
well, we earnestly oppose the federal expansion of jurisdiction 
•• extraordinarily unwise. 

Mith the exception, then, of those provisions calling for an 
• sp*r>«iao of the role of the federal government, the National 



25-694 0-84-20 



298 



Districi Attorneys Association supports the Comprehensive Crime 
Cont.roi Act of 19 83. 

Indeed, xe do more than support it. As NDAA ' s representative, 
I c-.'.gt' passage of those portions of this bill which would 
sti-enq?:hen the government's position in the setting of bail and 
would t?tus offer our communities a greater measure of protec- 
tion; would subst am ial ly raodify the defense of insanity so as 
to properly place the burdtn upon tht- person asserting such 
defense; wouJd ando much of thi- damage done by the courts in t he 
application cf the Exclusionary Rule; would reform sentencing 
procedure an 3 the administration of our laws concerning illicit 
drugs and narcotics. 

I now would like to discuss briefly a few of the major provi- 
sions of this pending legislation, indicating why NDAA offers 
such strong support. 



GOOD Fa:TH exception to the EXCLUSIONAPY RL!LE 



Perhaps the most highly publicized and widely supported 
section of the bill is the Exclusionary Rule Limitation Act. The 
National District Attorneys Association joins the President and 
an impressive list of criminal justice scholars, legislators, 
judges and citizens across the nation in tendering the strongest 
possible support for this Act. 

As you know, our newspapers are filled on a daily basis with 
s:ories of how one criminal defendant or other escaped conviction 
due to a "technicality." Most often, that "technicality" is the 
Exclusionary Rule. 

In general, our citizens don't understand the Exclusionary 
Rule. Most don't even know such a thing exists. They do know, 
however, that in too many cases the murder weapon or the seized 
narcotics or the confession is kept from the jury and justice is 
thus thwarted. They know it, and they resent it. They resent it 
-because they expect, thty demand, a criminal justice system 
which 'set'ks out the truth and punishes -known Jawbreakers, rather 



299 



thar. CI tystem in which truth bfcomc-s but a rtst stop on the 
headJong i ac- Toward procedural purity. 

Our citizf.-.s are concerm-d that our criminal courts have 
demanded not basic fairness, not procedural regularity, but proce- 
dural perfection and that anything short of perfection, no matter 
how close to perfect It might be, is by definition "error" and 
reason enough to suppress evidence -- often, the most probative 
evidence . 

Tl.is act would curt part of that problem, while still provi- 
ding protection for the legitimate rights of our citizens to be 
free of unreasonable' police conduct. 

Under this act, good faith mistakes made by Jaw enforcement 
officers in the collection of criminal evidence would no longer 
automatically result in the suppression of that evidence. 

That IS to say, evidence of a crime could not be excluded 
from trial due to a minor search and seizure violation, as long- 
_as the officer who seized the evidence acted under the reason- 
able and good faith belief that his action was lawful. 

Currently the Exclusionary Rule visits upon our law enforce- 
ment officers, our courts and our communities a nightmare of 
confusion and conflicting decisions. 

The Exclusionary Rule was born of a noble intent. Certainly 
It was not intended to create chaos. It was intended to hold 
police behavior in check by taking away the incentive for 
officers to engage in court -defined "illegal" conduct violative 
of court -recogni zed or court -created rights. The scope of the 
rule has now expanded beyond its legitimate purpose. 

In order for the Rule to have any beneficial effect, two 
elements must be present. First, there must be certainty as to 
the standard of acceptable police behavior. In order to teach an 
officer that unacceptable behavior will produce no usable 
evidence, the officer must first know at what point behavior 
becomes unacceptable. Today, he simply does not know that because 
the courts keep retroactively redefining acceptable police 
conduct and so the "lesson" for the police officer is wholly lost. 



300 



Second, there must be some reasonable proximity in time 
beth-een the officer's conduct and the court ruling on the pro- 
priety of that conduct. Again, that element is missing in our 
system. An officer makes a search incident to an arrest today 
and it will not be for perhaps five years on a trip through the 
appellate courts that today's perfectly proper conduct will be 
pronounced unacceptable, "illegal," by a court in its after- 
acquired wisdom. 

Today's chaos comes because the Exclusionary Rule does not 
deter police misbehavior because it does not punish police mis- 
behavior. Instead, it punishes police lack of prescience, police 
inability to anticipate years in advance how future courts are 
going to rule on search and seizure issues. No one quarrels with 
deterring misconduct, but we should not punish the officer who, 
in good faith, tries to enforce the law to the best of his 
abil 1 t y . 

Today's system has become so unsure, has become so unable to 
offer guidance to the officer that we are not infrequently 
confronted with a magistrate who issues a search warrant, only 
to have second thoughts and suppress the evidence properly seized 
under his own warrant. 

Today, if an honest, well trained and experienced police 
officer who earnestly wants to follow the law goes to see an 
-honest, well trained and experienced deputy district attorney 
who earnest iy wants to follow the law and together they prepare 
an affidavit and warrant and take them to an honest, well 
trained and experienced magistrate who earnestly wants to follow 
the ]aw, and the magistrate then carefully Seviews the affidavit 



and the warrant, all these folks have about a 75% chance of 
doing everything right. 

That means that even under the very worst scenario from the 
crook's standpoint, he's got at least a 25% chance going in that 
the evidence gathered against him is going to be suppressed. 

I submit to you that such a system makes no sense and it's 
time to do something about it. This bill would do it. 



301 



In considering imposition of limits upon application of t he 
Exclusionary Rule, you should, I respectfully suggest, pose five 
quest ions . 

f_i rst , does the Exclusionary Rule really have that much 
impact on criminal trials that it is something we should concern 
ourselves wii h? 

Emphatically, yes. About 90% of all criminal cases in the 
nation are conducted in state courts. The only major study of 
these state court prosecutions, completed in 1982 by the National 
Institute of Justice, has concluded that the Exclusionary Rule 
has a major impact on criminal trials. In California, over a 
third of all felony drug arrestees are ultimately set free 
because of senrch and seizuiu issues. From 1976 to 1979, that 
amounted to over 4,000 felony cases. Of those persons not prosecu- 
ted, nearly half were rearrested within two years of release. 

Second, would establishing a "good faith exception" to the 
Exclusionary Rule weaken its deterrence upon police misconduct? 
The answer to this question is just as emphatic and it is no. 
First of all, to believe that the Exclusionary Rule effec- 
tively deters police misconduct is to believe in the tooth fairy. 
It is a simple illusion, for the rule does not punish the 
officer for misconduct, it punish(?s society by allowing a 
criminal to go free. 

As we discussed, the Exclusionary Rule has not resulted in 
any certainty of standard by which an officer can gauge his 
conduct . 

In the past four years alone, the United States Supreme 
Court nas changed its opinion by split decision, no less than 
foi;r times as to exactly what parts of a car or its contents an 
officer may search without a warrant. Clearly, our courts are 
raking a valiant effort to define the limits of the Fourth 
A.-.vr.dr •..••nt . Such judicial backing and filling, however, provides 
i:-:'i\.- meaningful guidance to police officers, for while the 
-^■iq'.-s think great thoughts and write rough drafts of new Fourth 
A.r.-,T d.T v-m pronouncements, the officer has to decide whether he 



302 



car. dc a pat-down for weapons on this Hell's Angel he's just 
found in a dark alley. 

One- of the more pernicious aspects of the Exclusionary Rule 
in Its present form, is that it protects only the criminal and 
does not hing for the innocent citizen who is wrongly stopped or 
searched by police. It is an ignoble judicial rule which gives 
100% of us benefits -- in every case, at every time, with no 
exceptior;s -- t-o criminals, at the expense of honest citizens. 

Let us suppose for a moment that an officer mistakenly 
enters an innocent citizen's home. Let us suppose, further, that 
the officer's conduct, while technically improper, was both 
reasonable and nade in good faith. What benefit comes to the 
innocent citizen from the Exclusionary Rule? None. 

The invading officer found no drugs, no guns, no dead bodies 
inside the innocent man's house. The innocent man is not prosecu- 
ted for any offense, for the good and sufficient reason that 
he has committed no crime. There is, therefore, no evidence 
to suppress and no trial at which to suppress it. 

So our wronged citizen turns for relief to the civil courts. 
If the officer did act reasonably and in good faith, and if 
he can so demonstrate, the citizen does not collect a penny. 
There is, you see, a good faith exception in civil law which 
bars such recovery. 

I submit to you that the situation is incongruous. The 
innocent victim is denied recovery because the officer acted 
reasonably in good faith, while a similarly aggrieved criminal 
defendant enjoys full immunity from his crime because criminal 
lav. lacks a siT.ilar good faith doctrine. 

I submit to you that this bill evens the score: it limits 
the criminal's "recovery" to that available to the innocent 
victim in civil court and does not allow the criminal to receive 
more protection than does the honest citizen. 

The third question you must ask. m consideration of this 
matter is whether the good faith exception could be used to 
excuse serious Fourth Amendiient violations by the simple assertion 



303 



by thi' officer that he was acting in good faith. 
The answer hero, again, is no. 

Under this bill, the officer's conduct is measured by the 
objective- standard of reasonableness, and clear or serious viola- 
tions of a right of privacy, are by their very nature, not reason- 
able. 

"Good faith" is a recognized legal standard that can be 
measured objectively, it is not a simple incantation to be 
invoked for the purpose of shielding an officer from the conse- 
quences of his misdeeds. 

Fourth , we must ask whether the Exclusionary Rule is a consti- 
tutional requirement not subject to statutory amendment. 

Again, no. The Fourth Amendment offers protection against 
unreasonable searches and seizures, but a whole line of cases 
holds that the Exclusionary Rule as a method of implem ent ing 
that constitutional protection is judge created, not Constitution 
created. As such, it is susceptible to Congressional modification. 

Fiftji, does this proposed exception have precedent in any 
statf or federal law? 

Y^ i . The Fifth Circuit Court of Appeals in 1980 outlined a 
reasc-ai.le , qocd-faith exception to the Exclusionary Rule. 
Another case is p>ending before the United States Supreme Court. 
Appellate courts of two states have adopted a good faith excep- 
tion. Such an exception has been written into state law in 
Arizona and Colorado. 

The Exclusionary Rule has been called "the great irrationa- 
lity in cur systtir of justice." I submit that the "good faith 
exception" will restore some rationality to the rule and I urge 
Its adoption. 

BA IL REFORM 

The Comprehensive Crime Control Act of 1983 also contains 
the Bail Reform Act of 1983, an importan* and overdue overhaul 
of the manner in which we set bail. 



304 



In candor, there is a certain amount of dishonesty in our 
baiJ setting procedure today. This act would remove that and 
allo»j the courts to function in a more straightforward fashion 
vniii.- stii: looking out for the safety of the community. 

Under current law, all defendants save those in capital 
casts are entitlfd as matter of right to an O.R. release or 
reasonable bail, the only purpose of that bail being to guarantee 
the- defendant's appearance in court. The danger the defendant 
POST'S to the comraunity or to particular victims or witnesses in 
thv instant case is not, technically, a factor to be considered 
m setting of bail. 

The courts of this country, however, are not eager to set 
free dangerous offenders. It is not unusual, then, for the danger- 
ous nature of a particular defendant to be noted and used as a 
factor in assessing whetner or not he will flee. 

That approach often solves the temporary problem, but it 
does not address the central question, which is not whether this 
defendant will flee but whether he will hurt someone. 

Under the proposed act, the court would straightforwardly 
face the question of whether a defendant is suitable for pretrial 
release at all. 

No longer would a defendant b* entitled almost as a right to 
an O.R. release. Under this act, a court would have available a 
range of alternatives, from a release O.R., to a release on 
specified conditions such as regular reporting to law enforcement 
or the posting of a substantial bond, to temporary detention, to 
detention until trial. 

Perhaps more importantly, this proposed act shuts down the 
revolving door through which arrestees leave the jail for freedom 
on bail again and again and again while their criminal cases are 
pending. This act provides a presumption that a violent offender 
who has a prior conviction for a violent offense which was 
committed while on pretrial release is not a suitable candidate 
for bai J . 

Often, wtt see cam— ill «Mck tiM vielent offender was, at 



305 



<he tjrc*. ol the offenst, already on bail for assaulting, or 
injur ino some other citizen. This act would, in tliose cases 
before the federal courts, put an effective stop to that needless 
endangernent of our conununi t les . 

The moit controversial provision of this act is its explicit 
aut hor izat loi: of pretrial detention. Such detention would be 
authorized whtrt- the magistrate determined that no condition or 
combination of conditions would assure the defendant's appear- 
ance or the safety of another person in the community. 

This act would change existing law to limit the court's 
discretion in the setting of release conditions by requiring 
that the magistrate, on his own motion or that of the government, 
hold a hearing upon which to base his findings. 

This requirement of a hearing and judicial findings arising 
therefrom provides a regular and fair mechanism by which to 
balance a defendant's right to be free from unreasonable deten- 
tion with the community's right to be free from unreasonable 
risk. 

I find the provisions calling for detention to be well thought 
out, well drafted and designed to protect the civil liberties 
of the accused while protecting the safety of the community. 
Thas section simply declares that the notion that an accused 
has a civil liberty to repetitive releases and multiple opportu- 
nities to do violence to his fellows is silliness, and that 
at some point the court must take into consideration the defen- 
dant's dero.-st rat ed t^-havior and make the not unreasonable deter- 
mination that he wlic has been violent numerous times in the 
past will to violent aqain and shall be detained. 

The proposed act aiso does awa.y with more silliness as it 
tightens provisions for bail after conviction and pending appeal. 
One proposed requirement , for example, is that the court must 
find, before placing a convicted defendant on bail, that his 
appeal is not brought frivolously or for purposes of delay. 
That siatply i^^nhances tht integrity of the judicial process and 
would foster an increased respect for the criminal justice 



306 



system's ability to carry through with sanctions following a 
convict ion. 

The National District Attorneys Association is in strong 
support of this proposed act. 

The aims of this Act are to be conunended. These comprehensive, 
provisions provide that the truly insane person will not be held 
criminally responsible for his insane acts, and that the same 
person will not be prematurely released from hospitalization if 
h< remains a danger to persons or their property. 

Thf Act adopts what is frequently called the M'Naughten 
standard of insanity. That test of insanity requires the criminal 
dw-fendant to prove that a result of mental disease or defect, he 
(or she) was unable to appreciate the nature and quality or the 
wrongf l:^ ness of his act. 

This test IS not new to American crimirja! law. It traces its 
origins lo a test devised in the British Hou.5'i> of Lords in 1843 
in response to an attempt \43cn the life of the Prime Minister, 
Sir Roi>.'rt Peel. ;it has been adopted in numerous states and has 
proven to i.e a fair and trust wc-r thy test of criminal insanity. 

The y'^^aughten t^st focus-cs on the cognitive element of 
orime an; *-e ability of the criminal to know what he was doing. 
If the offu-ier can show he did r.ot know he was holding a gun, 
thought it «as a banana, or that he did not know that it was 
wrong to pjt the gun to someone's temple and pull the trigger, 
he establishes his insanity. 

In some states, other tests have been tried which add a 
control or volitional element. These tests excuse the defendant's 
conduct if he can show that he was unable to control his conduct 
or was moved by some irresistable impulse. Such tests should 
be rejected for good reason. Psychiatric guesswork notwithstand- 
ing, there simply is no valid or reliable way to distinguish 
whether an actor performed the criminal act because he was unable 
or merely unwilling to control his behavior. Indeed, the impossi- 
bility of the task is likely to result in the frustration of 
the fact-finding process and ultimately to unjust verdicts. 



307 



It must bf renn-'mbL-red that M'Naughten is a legal test, not 
a medical or psychiatric or psychological construct. It is a 
narro^- test of Ifgal responsi b l lity intended solely and exclu- 
sively lo separate the truly insane from the merely evil or 
dangerous who commit crimes. 

Criminal acts rarely result from mental disorder. The rela- 
tionship between crime and insanity is not well understood, 
did the proliferation of experts on 16 sides of each issue in 
forensic psychiatry is testar.ert to the state of confusion that 
rtigns. To the extent that a more expansive test of insanity 
is permitted, a legal system irvites the r.cral judgments of 
t hr- experts, thinly veiled in medicolegal terms. If moral judg- 
iti nt s are to bf made at all, as they must in insanity cases, 
thai duty befter falls on the jurors, not the psychiatrists. 
1 urge you to adopt the M'Naughten test. 

A aost vital feature of this Act is the allocation of the 
burden of proof of insanity to the defendant. The most widely 
criticized aspect of the insanity law in some jurisdictions 
IS tht^- impossible burden sometimes placed on the Government 
of proving someone's sanity beyond a reasonable doubt. 

This is not to say that prosecutors should not be required 
to prove each and every element of the offenses charged beyond a 
reasonable doubt. Indeed they should. But the overwhelming 
majority of American ]ur isdict ions recognize that the evidence 
of the defe nse of insanity should be produced by the defendant. 
The defense of insanity is not_ a defense against the elements of 
a crime. It is an affirmative defense to legal and moral responsi- 
bility. It says, "even if I did it, I'm not responsible." As 
such, it IS entirely proper that the defendant have the burden 
of establishing non-responsibility. A defendant is required to 
present the evidence in all other affirmative defenses and this 
IS particularly fitting in the case of insanity. Such evidence 
IS peculiarly available, if at all, to the defendant. On the 
other hand, evidence to establish sanity - beyond any reasonable 
doubt - IS frequently unavailable to the prosecution. 



308 



I have heard judges, prosecutors and defense counsel roundly 
denounce the Herculean task of requiring the Government to prove 
anyone is not insane beyond a reasonable doubt. The single most 
attractive provision of this Act is to fairly require the accused 
to prove his insanity by the leaser standard of clear and 
convincing evidence. 

The standards proposed here for mental competency parallel 
those now employed in most American jurisdictions. The procedures 
carefully balance the need for procedural fairness to those 
hospitalized for psychiatric care and the need to protect Ameri- 
cans from dangerous offenders. 

I am, however, puzzled by one provision of Section 4242 
(Page 173) of the Act. It provides that upon filing of defen- 
dant's not-ice of intent to raise the defense of insanity, ".. .the 
court, upon motion of the attorney for the government, may 
order..." a psychiatric examination. In most jurisdictions the 
procedure requires the court to order such an examination and 
report. It is hard to imagine what good reason exists for giving 
the court unfettered discretion to deny a Government request for 
an independent examination. One could even expect that in such a 
case the only psychiatrists who might appear would be those 
hired by tht- accused. The Government should have an absolute 
right to appointment of additional independent psychiatrists or 
even the psycniatrists of their choice. 

Another provision of the Act that bears closer scrutiny is 
Section 4247(i) (P 194) which penrits a hospitalized defendant 
to petition for a new release hearing every six months. Similar 
provisions elsewhere have resulted in abuse. Often a patient 
barely returns to the therapeutic setting before he is busily 
conc^-rned, not with therapy, but with working on his next peti- 
tion for release. Often such a patient will be "out to court" 
for Sfveral months at a time. I would urge you to consider 
setting a longer period between such petitions. An offender who 
recovers in the interim would not be disadvantaged, since the 
medical director is required to promptly advise the court. 



309 



Pinany, the proposed amendnient to Rule 704(b) of the Federal 
Rules of Evidence (page 196) ic courting disaster. The propo»al 
would keep a mental health expert from expressing an opinion as 
to whether or not the defendant had a particular mental state, 
for example, the intent to Icill. An expert is permitted to opine 
in florid detail every fact of the defendant's sordid life, 
every wretched thought, every psychotic delusion, yet we permit 
all of this only as relevant to one ultimate fact - did he 
intend to l^ill his victim? Does it ma)^e any sense to prevent the 
expert from giving his opinion on the only important issue in 
the case? I say no! 

We tried this very prohibition in California in Penal Code 
Section 29. The result was to confuse jurors even more. Why - 
they asl< - permit all this confusing and contradictory evidence 
and yet stop short of the one question they need the most help 
ta;th? It IS no answer to say that that is the ultimate issue. We 
let all sjaecies of experts testify on ultimate facts on the 
theory it will help the jurors with their decision. If mental 
health exp<yrts are ttj be permjtted to testify at all, they 
should be permitted to state their conclusions and be prepared 
tn defend the-. 

With the i-?w technral exceptions or questions 1 have raised, 
I cdn assure y'>u NDAA strongly supports enactment of the provi- 
Sior.i of Title V. 

HABEAS CO??JS 

One provision of the legislation currently before the 
Cominittee which is of great interest to state prosecutors, and 
which we wholeheartedly support, is the section entitled Reform 
of Federal Intervention in State Proceedings. As you know, 30 
years ago in Brown v. Allen , the Supreme Court opened the door 
to liberal reexamination of state convictions through use of the 
Writ of Habeas Corpus. A concurring justice in that decision 
expressed concern about the "floods of stale, frivolous and 



310 



repititious petitions" he felt were then inundating the lower 
federal courts. The "flood" ne was concerned about consisted of 
541 petitions. Last year over 8,000 habeas corpus petitions 
wt're filed, alinost fifteen times the number Justice Jackson 
t^.ought so excessive. As anyone who has dealt with habeas 
corpus litigation can tell you, the vast majority of these 
petitions are, in fact, stale, frivolous and repititious. 

These figures give some idea of the amount of prosecutorial 
and judicial resources that are tied up in thei? suits. But the 
waste of legal resources is not the true measure of the damage 
they do. The damage is better measured by the less easily 
quan- i£ !abi€> harm that is done to the finality and dignity of 
the jcoQ'.Tient of conviction entered in state court. A final 
judgjTient of conviction from a state ought to terminate the 
litigatiori concerning that case unless it is manifestly clear 
that e constitutional error has been committed. 

When final judgments are later subjected to repititious 
collateral attacks on often trivial grounds, it creates the 
appearance and the reality that criminal justice is merely a game. 

The most important way the bill would limit stale and 
repititious petitions is through proposed 18 USC Section 22-44(e). 
That section would establish a one-year statute of limitations 
on the filing of habeas corpus petitions, which would ordinarily 
commence upon exhaustion of state appellate remedies. Consider- 
ing the difficulties inherent in a retrial years after a 
conviction, when witnesses may be unavailable or may have for- 
gotten much of their earlier testimony, this limitation is 
entirely reasonable. 

State prisoners who have failed to raise issues in the 
state courts should not be permitted to commence litigation of 
those issues in federal habeas corpus proceedings. This bill 
places a reasonable limitation on access to federal court in 
Ejch cases and represents a fair balance of the legitimate 
interests of the state in finality and of the prisoners in fair 
litigation of Constitutional questions. 



311 



The National Di»trict Attorneys Association is also pleased 
by the deference to state courts shown in this bill. It 
provides that a writ of habeas corpus may not be granted with 
respect to any claii* which has fully and fairly been adjudicated 
in state courts. U also establishes that any factual determina- 
tion which has been fully and fairly made by a state court is to 
be presumed correct, and that the defendant must overcome this 
presumption by clear and convincing evidence. These two provi- 
sions will go a long way toward according state courts the 
dignity and deference they are entitled to under our federal 
system. 

These reforms have the full support of NDAA. They will 
enhance the status of state courts by eliminating much of the 
post-conviction 'second guessing" that presently occurs. They 
will force criminal offenders to recognize, and come to terms 
with, the fact that they have been found guilty in formal and 
solemn proceedings. 

The NDAA wishes to express its support for the provisions of 
this bill regarding sentencing reform. The most fundamental 
change the Association sees in the bill is the complete reform 
of federal law relating to sentences of imprisonment. As stated 
in the report accompanying the bill, it: 

"moves to a determinate system, abolishing early release 
on parole and providing for the first time that the sentence 
announced by the sentencing ]udge will be for almost all 
cases the sentence actually served by the defendant." 

The NDAA supports the sentencing provisions for a number of 
nasons. First, they finally free the federal criniinal justice 
system from the fictions that the only appropriate correctional 
goal is rehabilitation, and that imprisonment is an appropriate 
ne'hod of rehabilitating an offender. In this bill, the goals of 
3ust punishment, deterrence and protection of the public assume 
their appropriate places. 

Secondly, the bill restores to its proper ascendency one of 
the most fundamen*aj notions of justice found in our civili- 
rar Lo.-Jt the idea that the punishment should fit the crime. By 
iequ;:.T;g the est abl ishnent of sentencing guidelines proportional 



312 



to tJie Gravity of the offense and the history of the offender, 
and provizir-.g for review of sentences whach deviate from these 
guideJines, the act ensures that just sentences which do not 
vary inexplicably from defendant to defendant will be imposed. 

Finally, by ensuring that the sentence pronounced by the 
court will in almost all cases be that actually served, the bill 
removes a phenomenon most destructive of public respect for the 
criminal justice systems: the spectacle of a judicial officer 
pronouncing a sentence which he, the defendant and the public 
know cannot be taken seriously, since it will later be counter- 
manded by the parole commissioner. When the courts once again 
prounounce sentences that will be carried out, it will add 
immeasurably to the dignity fo the judgment of conviction. 
FORFEITURE 

1 would also like to speak in support of the expanded' 
criminal forfeiture provisions contained in this bill. The NDAA 
believes that forfeiture of profits acquired as a result of 
criminal activities is an effective means of punishing and deter- 
ring the criminal activities of organized crime. 

The possibility of losing accumulated profits serves as 
an extremely effective deterrent to those who regard their illegal 
activities as a business. Moreover, it is just and appropriate 
that criminals not be permitted to retain ill-gotten gains, and 
that the proceeds of their depredations on society go to support 
governmental services thai will help the public. In recognition 
of these factors, some states have recently enacted extensive 
forfeiture provisions. 

The NDAA finds a number of the forfeiture provisions impres- 
sive. We support rhe expansion of forfeitable proceeds to include 
profits from RICO or drug related activities, and applaud the 
intention to clarify the law relating to forfeitability of profits 
d«riv-?d from RICO activities. We further support the expansive 
def i/iilions given of the types of property forfeitable. Organized 
crime activities may involve extraordinarily complex financial 
arrangeeents, and w« believe that providing for forfeiture of 



313 



virtual!/ any property, tangible or intangible, real or personal, 
tainted by RICO or drug-related offenses will provide the Govern- 
ment with the tools it needs to effectively discourage such 
cr im inal act i vi t y . 

The N3AA finds especially impressive, however, the provisions 
intended to prevent criminal offenders from hiding, transferring 
or otherwise acting to prevent forfeiture before the Government 
has an opportunity to act. The provisions for a pre- indictment 
temporary restraining order and issuance of warrants for the 
seizure of valuables in drug cases appear properly calculated 
to prevent defendants from performing a "sleight of hand" with 
their crime-related assets when they come to realize they are 
the subject of an investigation under Federal law. Perhaps the 
most innovative provision of the proposed law is the one that 
permits forfeiture of property equivalent in value to property 
that would have been directly forfeitable when the defendant 
has succeeded in making forfeitable property unavailable. This 
provision will go a long way toward making sleights of hand that 
are successfully performed an unavailing maneuver for organized 
crime defendants and drug traffickers. 

At the same time the bill appears to make appropriate 
provisions for innocent persons who unwittingly invest in enter- 
prises supported by tainted assets or who purchase forfeitable 
property. By committing to the Attorney General the administra- 
tive t.as>. of entertaining petitions for remission or mitigation 
of forfeitures, the bill demonstrates an admirable concern for 
the limitations on federal judicial resources. 



VIOLENT CVlfZ 

We are particularly concerned with Title X.IV, 'Miscellaneous 
Violent Crime Amendments." Our concern is in part because we as 
state and local prosecutors see a portion of that proposal as 
misguided, and in part because we perceive the potential for an 
unnecessary piecemeal expansion of federal jurisdiction over 
crimes which traditionally have been prosecuted at the state 
level. Such expansion of federal jurisdiction is not only 



25-694 O - 84 - 21 



314 



unwarranted by any current or forseeable needs of the criminal 
justice system, but would actually hinder law enforcement efforts. 

Specifically, I refer to Section 1952A, having to do with 
murd«-: for hire. 

This provision would allow United States Attorneys to select- 
ively prosecute a crime that should be handled at the local 
level. As I mentioned, state and local officials have traditional- 
ly prosecuted violent crime. It is only where some federal 
connection exists that federal prosecution should be permitted. 
The members of the National District Attorneys ftssociation find 
it somewhat incongruous that any expansion of the federal govern- 
ment's jurisdiction could be contemplated while federal 
prosecutors, as now, de-clme prosecution of many clearly federal 
crimes in favor of the states. 

In fact, the entire area of concurrent federal and state 
jurisdiction is under serious review by the metropolitan 
prosecutors, state attorneys general and officials of the U.S. 
Department of Justice. In many cases of contemporary concurrent 
j urisdi ction, there exists an unclear federal policy of declining 
to prosecute cases which "don't rise to the dignity of the 
federal court." That means those cases are dumped upon the 
states or not prosecuted at all. 

The existence of a declination policy problem involving 
already established federal jurisdiction raises serious questions 
as to why there should be a further expansion of federal 
jurisdiction into state crimes. State and local prosecutors, 
who have received a number of federal matters for prosecution 
because federal authorities have found them not serious enough 
for the federal system, are a bit skeptical about a federal 
incursion into stste territory. Not only do we see no need for 
such federal intervention, but we also are concerned that when 
an evidently busy federal system takes on additional responsibili- 
ties a consequence of that is off-loading additional unwanted 
federal cases upon us. 

Our concern, then, is that criminal matters we are now 
actively investigating and prosecuting could be, under this 



315 



titie, taien over by the federal government at th? sole discre- 
tion of ".re federaJ government and in return we cojld be given 
federal Cc-:-offs to handle. It seems that no one is served by 
i:..-h an ar 1 ancement . 

Oi>t explanation for the proposal is that murder for hire 
often involves organized crime activity, a proper subject for 
federal attention. 

Although it is true that organized crime is involved in 
contract killing, there are many murders solicited and committed 
for money that do not involve organized crime in any fashion. 
Indeed, solicitation of an undercover policeman by a ]ealous 
or greedy husband, wife or business partner is far more common 
than a murder solicited or committed for money which involves 
organzed crime. 

yet all murder for hire would be, at least potentially, 
a federal matter with the jurisdictional touchstone of travel 
in, or use of a facility of, interstate commerce. 

Tr.e expansive score of section 1952A means that virtually 
every r.rder for hire would be subject to investigation and 
prosecuti.-r by two law enforcement agencies in each jurisdiction. 
For exaiip;e, if the initial investigation indicates that a killing 
was comr-.-.:ed for raorr^y and the mails were used to transmit 
messages, ran the FBI step in to take over the investigation? 
And if that investigation goes on to indicate that the murder 
was not committed for hire, rust the FBI then turn the case back 
to local authorities? Will the FBI investigate a broad range 
of murder cases to determine if money was paid or offered for 
the killing? If so, and if the determination is that money was 
not paid, Will the FBI furnish its investigative Material? 

The possibility of confusion or conflict regarding who should 
be conducting the investigation or preparing the case for prosecu- 
tion IS especially acute here in comparison with other federal 
offenses, since the elements which aake murder for hire a federal 
offense are not as readily ascertainable as, for instance, whether 
a robbed bank is federally insured. 



316 



Moreover, it is difficult to •nviaion what possible benefit 
insures to the community as a result of making murder for hire a 
federal offense. Indeed, there are substantial risks with such 
a proposal. 

The aggravating circumstance of a hired killing which in 
this proposal is an essential element of the crime itself is not 
now ignored in state law. Rather, it is a factor used in 
assessing the gravity of the offense which may result in a more 
substantial sentence. In California, as an instance, commission 
of a murder for financial gain is one of the special circum- 
stances which can result in a sentence of death. 

A United States Attorney prosecuting under proposed section 
1952A, however, would have to prove each element required to 
convict under state law and would, in addition, have to prove 
beyond a reasonable doubt the elements of pecuniary gain and the 
interstate commerce nexus. If he proved the murder but failed 
to prove either of those additional elements, he would lose his 
entire case. At state court, the prosecutor would have secured 
a murder conviction and jeopardized only a longer sentence. 

Further, once having been through federal prosecution the 
defendant has a claim that the state is not entitled to try him 
under state law for the same set of facts. So, a potential 
state trial is placed in jeopardy for no discernible purpose. 

Section 1952A is not the only portion of this title about 
which I have serious reservations. Section 1952B also raises 
some questions and I would recommend that your committee closely 
examine each section in this title. My concern has to do with 
the potential for expansion of federal jurisdiction for no good 
purpose. 

Section 1952B does not appear to be unduly usurpatious of 
local authority and, indeed, carries with it even the promise 
of a local benefit. As you may know, many years ago I established 
a program of cross-designating state and federal prosecutors 
so that artificial jurisdictional boundaries would not hamper 
the investigation and prosecution of important cases, and recently 



317 



the United States Attorney General ordered similar cross- 
designation programs in every federal Judicial district. I can 
easily envision my depjties, actively investigating a criminal 
carte] and finding conduct which fits the requirements of 1952B, 
taking the case to federal court for prosecution at the direction 
of the United States Attorney under the cross-designation program. 
The proposal, then, is not without benefit. 

Yet, in any area in which the federal government seeks to 
•xpand Its jurisdiction over violent crime traditionally handled 
by the states, I must urge caution. I must expiess to you, also, 
that district attorneys of this nation view such federal expansion 
with great caution. 

It is not that we canno<r use some extra help in the fight 
against viole.T. crime, particularly organized crime. Rather, 
cjr hesitation coraes from what I believe to be an understandable 
res-rntiient at being asked, in effect, to take on whatever cases 
the federal prosecutorial establishment does not want and, by 
the same token, to give over any important cases, any what we 
call 'high visibility" cases which the federal prosecutor covets. 

Many state prosecutors, including iiyself, have experienced 
the thrill of a Onit-ed States Attorney stepping into and all 
over a case which has high publicity value even though such a 
case is customarily handled at the state level. Unless you have 
observed the conflict and disruption such action brings into 
the criminal justice system, a system which is supposed to operate 
for the benefit of the community and not for the personal 
aggrandizement of its players, you cannot fully appreciate why 
the National District Attorneys Association is so strongly 
opposed to unnecessary federal expansion of jurisdiction. 

Again, it is not the position of the National District 
Attorneys Association that either of the sections I have described 
are, in themselves, offensive. We believe the murder for hire 
section to be woefully ill-advised, and we are only cautious 
in our support for section 1952B having to do with violent crime 
committed in the furtherance of racketeering activity. 

In sumriation, the National District Attorneys Association 
offers strong support for almost every major provision of this 
comprehensive crime control act. We believe that it is measured 
in approach, wise in concept and salutory in the affect it will 
have on both the administration of the criminal justice system 
and the respect it will foster among our people for that system. 
Thank you. 



318 



RESOLUTION 



WHEREAS the National District Attorneys Association was formed to 
promote and foster professionalism and effectiveness of effort among 
Prosecuting Attorneys in the United States; and 

WHEREAS the National District Attorneys Association throughout the 
United States has worked with marked success, in coordinating prosecutorial 
services to increase both the volume and effectiveness of prosecution; and 

WHEREAS legally manufactured drugs and narcotics have become ever 
increasingly the root cause of crime in our communities, sapping the human 
health and will of our young people; and 

WHEREAS according to the Drug Enforcement Administration Talwin ("T's") 
has through its increased street use created a problem for law enforcement; 
and 

WHEREAS the Winthrop Laboratories, the largest licensed manufacturer 
of Talwin, has embarked on a phasing out program of Talwin by adding .5 
milligrams of the narcotic antagonistic ingredient Naloxone into its product 
thereby eliminating the euphoric effect when taken intravenously causing 
the addict to suffer immediate withdrawal which thereby limits its "street 
value"; and 

WHEREAS the flow of Talwin into the United States will not be abated 
by the actions of Winthrop Laboratories due to the continuous unmonitored 
flow of Talwin through foreign borders, thereby creating an international 
control problem; and 

WHEREAS in 1980 the states of California, Nevada, Colorado, 
Louisiana, Michigan, Ohio and Pennsylvania led the nation in the amount 
of Phenmetrazine (Preludins), each receiving at least 101 grams per 10,000 
population, followed closely by Texas, Oklahoma, Florida, and Indiana; and 

WHEREAS in 1981 the stimulant drugs: Methamphetamine (Desoxyn) with 
149,853 grams and Phenmetrazine (Preludins) with 1,326,392 grams were manu- 
factured and distributed throughout the United States; and 

WHEREAS in 1981 Amobarbital capsules (downers) with 665,5000 grams 
and Dialudid with 82,911 grams (enough Dialudid tablets were produced, 
according to the 1983 American Cancer Society death rate projections, to 
give every terminally ill cancer patient enough medication for 43 years) 
were also made available to the states for direct retail sales; and 

WHEREAS the National District Attorneys Association is especially 
cognizant of this new and different kind of drug phenomenon, the over- 
zealous production of legitimately manufactured controlled substances by 
pharmaceutical firms; and 

WHEREAS the President of the United States has recently declared a 
"war on drugs" the second largest business in America, and has appointed 
a task force to fight the growing influx of illegal drugs into this country 
such as cocaine, marijuana and heroin; and 

WHEREAS pursuant to the United States Code, Volume 21 §811 the Congress 
of the United States empowered the Executive Branch to add to, transfer from 
or remove any drug or other substance from established controlled substance 
schedules; and 

WHEREAS the Congress of the United States pursuant to the United States 
Code, Volume 21 §826(a) empowered the Executive Branch to determine the total 
quantity and to establish production quotas for each class of controlled sub- 
stances in schedules I and II to be manufactured by registered pharmaceutical 
manufacturers each calendar year and to provide for the estimated medical, 
scientific research, and Industrial needs of the United States, for lawful 



319 

export requirements and for the establishment and maintenance of reserve 
stocks; and 

WHEREAS pursuant to the United States Code. Volume 21 §826(b) the 
Attorney General shall limit or reduce individual production quotas to the 
extent necessary to prevent the aggregate of individual quotas from exceeding 
the amount determined necessary each year by the Attorney General; and 

WHEREAS despite the continuing efforts of Federal, State and local 
authorities to stem the flow of legally manufactured drugs that are being 
diverted into illicit channels thereby increasing street crime and escalat- 
ing this already paralyzing social problem; and 

WHEREAS the National District Attorneys Association expresses its 
strong belief that the amount of legitimately manufactured controlled 
substances must be curtailed by pharmaceutical manufacturers in order to 
reduce the availability of these drugs being diverted for illicit purposes; 

NOW, THEREFORE, the National District Attorneys Association urges and 
encourages the United States Congress to provide solutions to this menacing 
problem, and urges each state association to go on record and actively seek 
a solution through their individual state congressional delegations and 
urges each state association to go on record as actively seeking solutions 
through their individual state congressional delegations; and 

FURTHER, BE IT RESOLVED that the National District Attorneys Association 
strongly urges and endorses Federal action, be it legislation, regulation, 
criminal sanctions or other methods to address this urgent problem and there- 
by impose new and realistic drug quotas for the manufacturers of controlled 
substances under the authority of the United States Attorney General; and 

FURTHER, BE IT RESOLVED that the National District Attorneys Association 
forwards this resolution to each and every member of the United States Congress 
urging them to address this most urgent problem that confronts this nation's 
law enforcement and criminal justice system. 



Adopted this 1st day of May, 1983, 
in Washington, D.C. by the Board 
of Directors of the National District 
Attomeys Association. 




Senator Laxalt. The committee will now stand adjourned subject 
to keeping the record open for the inclusion of statements to be in- 
serted by Senator Biden, who intended to be here but who was 
unable to do so because of conflicting requirements, and for the 
purpose of receiving statements from any of the other members of 
the subcommittee as well. We thank everybody. 

[Whereupon, at 11:38 a.m., the subcommittee adjourned, subject 
to the call of the Chair.] 



COMPREHENSIVE CRIME CONTROL ACT OF 1983 



WEDNESDAY. MAY 18, 1983 

U.S. Senate, 
Subcommittee on Criminal Law, 

Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 10 a.m., in room 
226 Dirksen Senate Office Building, the Honorable Paul Laxalt, 
chairman of the subcommittee, presiding. 

Staff present: John F. Nash, Jr., chief counsel and staff director; 
William Miller, general counsel; Beverly McKittrick, majority 
counsel; Debbie Murdock, legislative assistant; and Susan Fanning, 
chief clerk. 

Senator Laxalt. The subcommittee will be in order. 

In today's hearing on Senate bill 829, the Comprehensive Crime 
Control Act of 1983, the subcommittee will hear from a series of 
witnesses who are concerned about the protection of individual 
rights and liberties. 

Senator Steven Symms and representatives of the Gun Owners of 
America and the Citizens' Committee for the Right to Keep and 
Bear Arms are here today to testify in favor of individual rights 
that are often forgotten in discussions about anticrime legislation; 
namely, the rights of Americans to protect themselves and their 
families. 

The Congress must also be alerted to any possible conflicts be- 
tween society's rightful interest in ridding our lives of the fear and 
the fact of violent and drug-related crime and the defendants' 
rights to fair police and judicial procedures. There are no more ca- 
pable advocates of these rights than the other organizations repre- 
sented here today — the American Civil Liberties Union and the 
State and Federal Public Defenders. 

Ladies and gentlemen, we welcome you all to the Subcommittee 
on Criminal Law. 

Senator Symms, would you kindly be our first witness. We wel- 
come you to the committee and look forward to your testimony. 

STATEMENT OF SENATOR STEVEN SYMMS, U.S. SENATOR FROM 
IDAHO, ACCOMPANIED BY LARRY PRATT, EXECUTIVE DIREC- 
TOR, GUN OWNERS OF AMERICA AND JOHN M. SNYDER, DIREC- 
TOR OF PUBLICATIONS AND PUBLIC AFFAIRS, CITIZENS COM- 
MITTEE FOR THE RIGHT TO KEEP AND BEAR ARMS. 

Senator Symms. Thank you very much, Mr. Chairman, and I 
would like to commend you for your quick action to hold these 
hearings on S. 829, President Reagan's crime control bill. I am 

(321) 



322 

hopeful that this bill will quickly make its way through the Con- 
gress and be presented to the President for his signature. 

This bill deals with many matters of criminal law, such as sen- 
tencing and bail reform, which are desperately needed to combat 
the plague of crime that afflicts our Nation. 

My purpose in appearing before the committee is not to comment 
upon what the bill contains as much as to comment on what it 
should contain. My purpose here is to comment on crime and how 
the individual living in a society that can provide only limited pro- 
tection can best protect himself, his family, his property. 

Mr. Chairman, there appears to be inherent in any type or form 
of Government a tendency toward paternalism. Faced with a prob- 
lem affecting its citizens, governmental units tend to enact legisla- 
tion in response to the problem. 

Unfortunately, time after time the legislation adopted is quite 
often cosmetic. This, of course, accomplishes nothing to solve the 
problem and often makes the situation worse. But of far greater 
concern is the fact that when governmental bodies seek to solve 
problems of citizens, these bodies often do so at the expense of the 
rights of the individual members of our society. 

This tendency of Government to take upon itself all responsibili- 
ty for the well-being of its citizens also requires these same citizens 
to surrender their individual liberties. As the responsibility of citi- 
zenship go, so go the individual freedoms. 

One of the major problems we face is crime. I have, in previous 
statements on the floor, outlined the overwhelming seriousness of 
crime in our country and of its impact on individuals and commu- 
nities. Each member of this body is aware of the scope and impact 
and I will not here repeat the sobering statistics of crime because I 
am sure the chairman is well aware of it. But it sufficient to state 
that crime in the United States remains an epidemic. 

Faced with this situation, it is natural and proper for all levels of 
government, acting in their respective spheres, to attempt to bring 
the problem under control. In the majority of cases, actions taken 
by governing bodies are effective, to the point and in the interest of 
its citizens or residents. 

Unfortunately, in a few cases, not only is an adopted solution 
meaningless and ineffective in fighting crime, it is actually destruc- 
tive of individual rights. Such is the case where local units of gov- 
ernment have sought to halt crime within their boundaries by ban- 
ning the individual ownership or possession of firearms. 

Of course, this banning of the private possession or ownership of 
firearms is done with the hope that somehow it will stop the use of 
firearms in the commission of a crime. Such a hope is merely that, 
a hope. Such action is not founded on reason. It is not founded on 
logic or it is not founded on an understanding of the nature of 
crime. 

But here, of greater concern is that this action on the part of 
Government interferes with the most basic and fundamental civil 
right of an American citizen, that is, the right to protect one's self, 
one's family and one's property. 

Those who favor and push for such legislation will say that it is 
not in the interest of the individual to allow for private possession 
or ownership of firearms. They believe it is the responsibility of 



323 

governmental bodies to maintain order in a society through the es- 
tablishment of police departments and other law enforcement 
agencies. 

This type of thinking is what I alluded to in the beginning of my 
statement. It is as incorrect and paternalistic as it is destructive of 
individual rights. In frustration over the inability to solve a prob- 
lem, governments tend to enact extreme legislation taking upon 
themselves the prerogatives of citizens under the guise of protect- 
ing those citizens. 

In the case at hand, we have the situation where communities 
frustrated over the crime occurring in their streets, enact ordin- 
ances that erroneously attempt to stop this crime by banning, even 
in one's own home, the ownership or possession of a firearm. In so 
doing, the rights of the individual are usurped by government with 
the promise of safer, crime-free streets. 

But this promise of crime-free streets is a deception and a sham, 
however well meaning. It is a sham because the very basis of fire- 
arm prohibition to combat crime flies in the face of reality. 

There are approximately 60 million handguns in the United 
States today. Less than one-half of 1 percent of these handguns will 
be used in the commission of a crime. In other words, over 99.6 per- 
cent of all handguns in possession of private Americans are not 
used in the commission of any crime. 

Having these facts, it cannot reasonably be concluded that pri- 
vate ownership of handguns in the United States is a significant 
cause of crime. As Profs. James Wright and Peter Rossi found in a 
tl.S. Department of Justice study entitled "Weapons and Violent 
Crime," and I quote: 

There is little evidence to show that gun ownership among the population as a 
whole is an important cause of criminal violence. 

Further, Professors Wright and Rossi found that laws restricting 
handgun ownership or possession neither curb crime nor limit 
access of criminals to firearms. Their previously mentioned study 
supports the findings of Douglass Murry of the University of Wis- 
consin who, in a study of the Wisconsin State Council on Criminal 
Justice, found that, and I quote: 

The severity of handgun control laws has no significant effect on the violent 
crime rates in the fifty states; thus far the relationship between gun laws and crime 
is nonexistent. 

In checking the results of the Wisconsin study, Matthew De Zee 
of Florida State University agreed. He said: 

The results indicate that not a single gun control law, not all the gun control laws 
added together, had a significant impact. Gun laws do not appear to affect gun 
crimes. 

Commonsense would dictate that criminals are criminals because 
they break laws. An individual who has little concern for laws 
against assault, robbery, rape, drug trafficking, or murder is going 
to have little concern about laws restricting or prohibiting his pos- 
session of handguns. 

More and more, people are realizing this fact. Even D.C. Police 
Chief Turner commented a little over a year ago, "What has the 
gun control law done to keep criminals from getting guns?" The 
answer, of course, was, "Absolutely nothing. City residents ought to 



324 

have the opportunity to have a handgun and to legally use it in 
their homes." 

While law-abiding citizens are likely to comply with gun control 
laws, criminals will not. Such facts should surprise no one. Crimi- 
nals, if they choose to obtain weapons, merely deal on the street 
with other criminals. Such dealing is identical in nature to that 
done in drugs and stolen property and is done as a matter of course 
circumventing any gun control laws. That is why the theory of 
"gun control as crime control" is false and without basis. 

An ever-growing number of Americans are concluding reluctant- 
ly that they must be able to provide for their own self-defense. 
Such a need of self-defense cannot be dismissed or taken lightly. In 
their studies. Professors Wright and Rossi found that half of all the 
households in the United States keep firearms. In these over 37 
million gun-owning households, some 15 percent or over 5,550,000 
had a member of the household actually use the gun in self-defense 
at some time. 

Those who seek gun control make vague references to the days of 
the wild west and would have us rely solely on law enforcement 
agencies for our protection. This approach is not realistic. It is 
little comfort for an unarmed citizen to have to rely on a police 
force whose resources have long been dangerously stretched thin 
and whose response time is often measured not in minutes but in 
hours. 

Indeed, the courts have long recognized the sheer impossibility of 
providing police protection to individual citizens. A recent D.C. ap- 
pellate court opinion reaffirmed a well-established and uniformly 
accepted rule that said, quote, "A government and its agents are 
under no general duty to provide public services, such as police 
protection to any particular individual citizen," end of quote. 

The court held that the police have a duty only to the public at 
large and not to individual members of the community. I would 
have to just divert for a moment, Mr. Chairman, and say that after 
having spent this last weekend in the country of El Salvador that 
the point is driven home when you see an entire population being 
held at bay by criminal terrorists that are supported from out of 
the country — financed by the Soviets and Cubans. The farmers and 
people, the citizens, in El Salvador are helpless to do much of any- 
thing unless they can get the Army troops there on time to protect 
their property. 

And I was thinking in your State or in my State how difficult it 
would be for guerrillas like that to operate because of the armed 
citizens who could take care of their own property. 

Governments, regardless of the level, do not have the necessary 
resources and cannot protect the individual against crime. 

Now, I'm not calling for the arming of each citizen in our 
Nation. I'm saying that the right of an individual to keep and bear 
arms must be maintained. The right of an individual to arm him- 
self for the protection of himself, his family, and his property must 
be maintained. 

The Senate has already taken a position on this issue during the 
consideration of the final passage of the Gun Control Act of 1968. It 
was the position of the Senate that — 



325 

No governmental agency, including state or political subdivision, may legalize the 
confiscation of otherwise legally held and used firearms. 

The people of our Nation are being robbed, assaulted, and mur- 
dered. Resources to fight crime at the State and local levels are 
stretched dangerously thin. Even now, before both Houses of this 
Congress, we have legislation that will provide hundreds of mil- 
lions of Federal dollars to States and localities to help them fight 
crime. 

Yet, as these States and localities are requesting Federal funds 
to combat crime, many localities pass laws that effectively neuter 
an individuals best protection against crime, the individual him- 
self 

The Federal Government cannot be called upon to underwrite 
such a course of action and bear the additional burden of giving 
Federal crime-fighting dollars to municipalities that forbid a citi- 
zen the ability to protect himself For this reason, I have intro- 
duced the Firearms Ownership Act of 1983, and at the proper time, 
I would like to offer a modified version or ask the distinguished 
chairman to incorporate it in this legislation currently being con- 
sidered by this subcommittee. I hope that it will have the support 
of the members of the panel. 

Specifically the language of the amendment would: 

One. Make a policy statement that the Congress is in favor of 
citizens being able to protect themselves. 

Two. Make a policy statement that no level of government may 
confiscate or legalize the confiscation of otherwise legally held fire- 
arms, and 

Three. Provides for a cutoff of criminal justice or law enforce- 
ment funds to any level of government which enacts laws that re- 
strict the private lawful ownership of firearms. 

Now, the purpose of the bill is not to occupy the field in the area 
of firearms legislation to the exclusion of State and local govern- 
ments. The purpose of this legislation is to clarify the position of 
the Congress as previously stated that no governmental agency, in- 
cluding States and their political subdivisions, may legalize the 
confiscation of otherwise legally held and used firearms. 

This legislation does not provide for more interference, but 
rather emphasizes the importance of recognizing the rights and 
needs of the individual citizenry. 

Such recognition of individual rights strengthens our heritage of 
freedoms and liberties. This is a proper role for Congress. Madison 
saw local. State, and Federal levels of government acting to correct 
the abuses of each other and of themselves when he wrote as Pub- 
lius in the Federalist Papers: 

In the compound republic of America, the power surrendered by the people is first 
divided between two distinct governments and then the portion allotted to each sub- 
divided among distinct and separate departments. Hence, a double security arises to 
the rights of the peopl^. The different governments will control each other, at the 
same time that each will be controlled by itself. 

A far better approach than the myth of crime control through 
gun control is to foster the responsible ownership of weapons. This 
is being done on a small scale at local levels nationwide. We don't 
have to give everyone a .38 special. We do have to recognize that 
the wrong people already have them. We must, as President 



326 

Reagan pointed out, encourage those who desire to have firearms 
to learn how to use them properly and safely. 

This most basic of all civil rights can be of immeasurable benefit 
to society. As the Director of the National Institute of Justice 
stated in a recent report on citizen involvement in combating local 
crime, 

What the study really shows, is that you don't have to just sit around and watch 
your neighborhood deteriorate and let criminal predators come in and take over 
your neighborhood, your parks, and your city streets. You no longer have to become 
prisoners in your own homes. 

Gun ownership by individual Americans is a basic part of secu- 
rity for ourselves, our families, and our property. Responsible fire- 
arms ownership must be allowed and encouraged. 

But we recognize it is a basic civil right of immeasurable benefit 
to our society for people to have the right to protect themselves, 
and as the Director of the National Institute of Justice stated re- 
cently in a report on the citizens involvement in combating local 
crime, what the study really shows is that you do not have to sit 
around and watch your neighborhood deteriorate and let the crimi- 
nal predators come in and take over your neighborhood, your 
parks, your city streets. You no longer have to become prisoners in 
your own homes. Gun ownership by individual Americans is a 
basic part of security for ourselves, for our families, and our prop- 
erties, and responsible firearms ownership must be allowed and en- 
couraged. 

That is why I would hope that the committee would, in its 
wisdom, incorporate such legislation as I am speaking on today 
into this bill of the President's. I think it will make President Rea- 
gan's crime control bill somewhat better than it now is. 

As I said at the outset, I am supportive of what the President is 
trying to do and I am hopeful that the bill will make its way 
through the Congress and I hope we can add this language to it. I 
thank you very much for your patience this morning, and I look 
forward to hearing from these two distinguished gentlemen that 
are here with me this morning. 

Senator Laxalt. Thank you very kindly. Senator. 

Mr. Pratt? 

STATEMENT OF LARRY PRATT 

Mr. Pratt. Thank you. Senator. I appreciate very much the op- 
portunity to appear here today and for your consideration of the 
Criminal Code and in particular the legislation that Senator 
Symms has presented. 

We think it is important that the Congress make a statement re- 
garding the firearms freedoms of Americans. Municipalities such 
as Morton Grove which enact ordinances to prohibit private posses- 
sion of firearms should not be aided by the Federal Government. 

Law enforcement and criminal justice funding, we think, should 
be cut off for such municipalities. Not to do so would tacitly place 
the Congress in a position of affirming firearms prohibitions, and 
this is not permitted by the Federal Government under the second 
amendment. 



327 

There is ample empirical support for disputing the wisdom of 
handgun prohibitions or for that matter other firearms prohibi- 
tions as a tool for fighting crime. According to the 1981 uniform 
crime reports per capita handgun ownership increased 25 percent 
in the period 1974 to 1981. Long gun ownership rose 15 percent 
during that time. Yet firearm involvement in murder fell 8 percent 
and handgun involvement fell 7 percent. 

In other words, the notion that firearms availability causes crime 
is simply not true. 

Morton Grove, 111., and Kennesaw, Ga., have chosen opposite ap- 
proaches to fighting crime, and their experience underscores the 
folly of the Morton Grove ordinance and the others that have pur- 
sued the same policy. 

Kennesaw passed its well-known ordinance requiring firearm 
ownership for those with no conscientious objection in order to 
reduce their home burglary problem. They were immensely suc- 
cessful. Home burglaries dropped from 42 to 2 in 1 year. 

Morton Grove's ban has had no provable impact since the drop 
in home burglaries from 67 to 49 was close to the national average 
which dipped during the same time. Also, if the figures in both mu- 
nicipalities were adjusted to account for the different populations, 
Kennesaw's drop would have been from 200 to 10. 

These figures give convincing support to the argument that Con- 
gress should not be assisting the criminal justice problems of mu- 
nicipalities such as Morton Grove where they refuse to deal realis- 
tically with crime. 

Some might argue that Congress should not be intervening in 
local affairs 

Senator Laxalt. Does this not fly in the face of something I have 
heard about to the effect that federalism is good? 

Mr. Pratt. Well, if we are going to be consistent on that position, 
I think we would have to take an awful hard look at just about 
every major program of the Federal Government. So I think that 
while we are dealing with a situation where the Constitution clear- 
ly prohibits the Federal Government from doing anjrthing to inter- 
fere with the firearms freedoms of individual Americans, that 
should take precedence. Certainly the Congress does not seem to 
have had any difficulty in getting involved in local affairs. Evident- 
ly the question is just how much. 

Senator Laxalt. I understand that, but the overall policy ques- 
tion is the extent to which the Federal Government should get in- 
volved in this whole area. As you know, we are in by virtue of the 
1968 act which precludes confiscation. That is an affirmation, I 
guess, of the constitutional protection. But I am playing devil's ad- 
vocate because I have a widely diverse philosophical opinion on 
this subcommittee and I have to ask the questions which I am sure 
will be addressed to me later. 

How far should the Federal Government get into this area? If a 
local unit of government, say a city like Morton Grove — in its 
wisdom or lack thereof, depending on your perspective — passes an 
appropriate ordinance, what business do we have, really, in trying 
to intrude into that local judgment? 

Mr. Pratt. Frankly, Senator, I am not convinced — I wish I could 
say I were, but I am not convinced that the second amendment 



328 

would apply to what the Federal Government could do vis-a-vis a 
State or a municipality. I believe the second amendment was set up 
as a protection for individual citizens against the Federal Govern- 
ment. 

Senator Laxalt. I think so, too. 

Mr. Pratt. But by the same token, then, using that same logic, 
hopefully the Federal Government would choose not to aid and 
abet a municipality that was doing something that the Federal 
Government should not be doing. 

Senator Laxalt. That is the distinction, I guess. If they choose to 
do this, they are on their own, and we are not intruding. By the 
same token, we are not lending Federal assistance. 

Mr. Pratt. Please do not use my money to help. 

Senator Symms. Mr. Chairman, part of my testimony which I 
submitted — if I could just comment for 30 seconds on that. 

This legislation does not provide for more interference in the 
State and local matters, but emphasizes the importance of recogniz- 
ing the rights of the citizens, and as Madison said in the Federalist 
Papers, and I quote him: 

In the compound republic of America, the power surrendered by the people is first 
divided between two distinct governments, and then the portion allotted to each 
subdivided among distinct and separate departments, hence a double security arises 
to the rights of the people. The different governments will control each other and at 
the same time that each will be controlled by itself. 

So I think with that historical precedent, what we are saying is 
what Larry Pratt just said that we certainly, would be within our 
rights as Federal legislators to defend the rights of the individual 
citizens that are also our constituents in addition to the fact that 
they are constituents of a local government. 

So we are a buffer to protect our constituents from local govern- 
ments attempting to deny them the rights to defend their lives, 
their families, and so forth. 

Senator Laxalt. Please continue, Mr. Pratt. 

Mr. Pratt. That concluded my testimony, Senator. Thank you 
very much. 

Senator Laxalt. Thank you very kindly. 

Mr. Snyder, welcome. 

STATEMENT OF JOHN M. SNYDER 

Mr. Snyder. Thank you, Mr. Chairman. Let me thank you and 
the subcommittee for this opportunity to testify in support of the 
right of law-abiding Americans to keep and bear arms and of legis- 
lative efforts of your colleague. Senator Symms, in this regard. 

Among the many rights cherished by our citizens since the incep- 
tion of our Republic, perhaps none other is more significant or in 
greater need of congressional reaffirmation today. 

Without the right to keep and bear arms, the other traditional 
rights which we cherish may be placed in jeopardy. This is because 
the right to keep and bear arms serves as a guarantor of our most 
basic right, the right to life itself, the right upon which all of our 
other rights depend. Without the right to life itself, other rights 
have no meaning for other rights presuppose one's in fact exercis- 
ing a right to life. 



329 

This right to Ufe, then, is basic, philosophically, to the whole con- 
cept of rights on which our Nation was founded, grew, and flour- 
ished. 

The right to life itself supports a right to the means necessary 
and therefore to the use of the means necessary to preserve that 
right to life. This includes the right to defend one's life against 
those who illegitimately would deprive one of it, and therefore the 
right to keep and bear those arms the presence and use of which is 
necessary to insure a proper defense, a proper and effective self-de- 
fense. 

One of the arms which law-abiding Americans choose to keep 
and bear for defense of life, family, and property is the handgun. 
Over 50 million handguns now are in the hands of private Ameri- 
can citizens and that number increases by from 2 to 3 million each 
year. Obviously, tens of millions of Americans want handguns or 
they wouldn't be owning them or buying them. 

When handgun-ban promoters argue that about 11,000 murders 
each year are committed with handguns, they fail to mention that 
this also indicates that only twenty-two ten-thousandths of 1 per- 
cent of the privately owned handguns are so represented by these 
numbers. 

In other words, over ninety-nine and nine-hundred and ninety- 
nine ten-thousandths percent of the privately owned handguns in 
the United States are not used in these criminal acts. Also, since, 
as we saw, the number of handguns constantly increases, the per- 
centage of the total used in these crimes constantly decreases. 

On the other hand, handguns are used about 300,000 times per 
year for self-protection and to thwart criminal acts 

Senator Laxalt. How is that computed? I have always been in- 
terested in that number. 

Mr. Snyder. All right. That is computed from a poll conducted 
by the 

Senator Laxalt. First of all, is it a practice out there? When I 
was in prosecution, I don't recall that people who had to use a 
handgun in self-defense — whether it was a domestic situation or 
otherwise — being compelled, under the law, to report that situa- 
tion. Do they do so voluntarily? Or are there laws on the books out 
there that compel that kind of reporting? 

Mr. Snyder. No, Mr. Chairman, this computation was not based 
on reports received by law enforcement agencies. This was a survey 
conducted by Cambridge Reports which is ironically the Patrick 
Caddell firm, for this Eisenhower Study for the Prevention of 
Handgun Violence. 

It was on the basis of his interviewing people across the country 
that he came to the figures upon which this conclusion is based. So 
it was not law enforcement figures. It was a polling survey. 

From these facts, it is obvious that a ban on the private posses- 
sion of handguns is, in effect, a ban on the right to self-defense, a 
ban on the right of law-abiding citizens to protect themselves from 
criminals and to thwart criminal acts. 

However, as we have already seen, it is this very ban on private 
handgun possession which is at issue today. 

As we have seen, 2 years ago, the Board of Trustees of Morton 
Grove, 111., enacted such a ban. This ordinance has caused Gerald 



25-694 0-84-22 



330 

Arenberg, executive director of the American Federation of Police, 
to state that, "That tells criminals this town is easy pickings." 

Senator Laxalt. Has that been the record since? Has there been 
a higher crime rate in Morton Grove since the enactment of the 
ordinance? 

Mr. Snyder. In violent crime, yes. 

Senator Laxalt. There has been? 

Mr. Snyder. Yes. 

Senator Laxalt. Substantial? Well, first of all, how long has that 
ordinance been in effect now? 

Mr. Snyder. Well, the ordinance was passed 2 years ago, just 
about 2 years ago, and there have been a couple of Federal court 
decisions, also one State court decision, on that. So it's been on the 
books for 2 years. The figures upon which this Gerald Arenberg 
was basing his statements were for 1 year in which he was able to 
compare the situation in Morton Grove with the situation in Ken- 
nesaw, Ga. 

He was making a comparison on the effects of the two opposite 
approaches to firearms ownership. 

Senator Laxalt. I am asking this for the benefit of my colleagues 
more than myself, I guess. But is it your testimony that since the 
enactment of the ordinance, there has been a substantial increase 
in crime in Morton Grove — violent crime? 

Mr. Snyder. There is exactly what was stated. Senator. In 
Morton Grove where guns were banned on February 1, 1982, total 
handgun crimes jumped from 8 in 1981 to 10 last year. So that was 
a tenfold increase. Pardon me. From 8 to 10, that is a 25-percent 
increase. 

Senator Laxalt. During what period of time? 

Mr. Snyder. From February 1, 1982, until the end of that year as 
compared with the same period in 1981. 

Senator Laxalt. By any objective standard, I would think that 
this is a fairly safe community, when you are dealing in these 
numbers. Am I wrong in that assumption? 

Mr. Snyder. Well, it was a safe community in the first place. It 
was a safe community before the handgun ban was enacted which 
led many people to believe that it was selected by the proponents 
of a handgun ban because the evidence was already there to indi- 
cate that it was a safe community in the first place. 

And it is ironic that there has been an increase in the handgun 
crimes of violence since the ordinance went into effect. 

Senator Symms. Did they actually get rid of the handguns? 

Mr. Snyder. I think the last I heard, less than 20 had been 
turned in though it is estimated that from hundreds to thousands 
are actually owned by the citizens of the community. So the people 
are not abiding by the statute. 

There has been some discussion in Morton Grove as to wheth- 
er 

Senator Laxalt. Well, they could not legally, by ordinance, re- 
. quire confiscation, could they? 

Mr. Snyder. Well, that gets into a 

Senator Laxalt. You are getting back to the 1968 Act then. 

Mr. Snyder. That gets into a very interesting question, Senator. 
The State of Illinois has registration statutes on its books, and 



331 

there has been some discussion as to whether or not the authorities 
in the village of Morton Grove, when the legal cases are finally 
handled, if they are handled in favor of the village of Morton 
Grove, have the right to use the registration figures and addresses 
of people that the Illinois police have, because of the Illinois State 
registration act to confiscate the handguns of people living in 
Morton Grove. 

Senator Laxalt. That is still in the legal mill, is it not? 

Mr. Snyder. It is a question that has been raised by a number of 
people, and obviously, it is creating a lot of debate or reason for 
debate among the pro-gun and antigun communities. 

Senator Laxalt. Very well. 

Mr. Snyder. As Mr. Arenberg stated: 

People in Morton Grove are frightened because they can no longer legally protect 
themselves. They are frightened of being defenseless against intruders, rapists, mug- 
gers and so on. They are frightened of having to use a firearm and then going to jail 
for owning it. 

Late last year, a three-judge panel of the U.S. Court of Appeals 
for the Seventh Circuit in a 2 to 1 decision upheld the ban. 

As Judge Coffey said in his dissenting opinion: 

The majority cavalierly dismisses the argument that the right to possess common- 
ly owned arms for self-defense and the protection of loved ones is a fundamental 
right protected by the Constitution. Justice Cardozo in Palko v. Connecticut defined 
fundamental rights as those rights implicit in the concept of ordered liberty. Surely 
nothing could be more fundamental to the concept of ordered liberty than the basic 
right of an individual within the confines of the criminal law to protect his home 
and family from unlawful and dangerous intrustions. 

Senator Laxalt. Is this case on appeal to the U.S. Supreme 
Court now? 

Mr. Snyder. The Second Amendment Foundation intends to 
appeal the case to the Supreme Court; yes. 

Those two Federal appellate judges in the majority, the one Fed- 
eral district judge who initially upheld the Morton Grove ban and 
the five Morton Grove trustees who voted for the ban in the first 
place have denied thousands of law-abiding American citizens the 
right to possess a handgun legally, even in the home, for defense of 
life, family, and property. This borders on, if it does not actually 
signify, incipient oligarchic tyranny, the abrogation of a people's 
civil rights by a small minority, a minority of eight people. 

If this situation remains unchallenged, despite the overwhelming 
defeat at the polls of a proposed handgun ban in California last 
year, the rights of minorities in Morton Grove and places like 
Morton Grove will be no more. The handgun ban movement is com- 
mitted to the deprivation of this civil right wherever it can get a 
majority of local officials to go along with it. 

Hence, it is particularly appropriate that Senator Symms' pro- 
posal, if accepted by this subcommittee and enacted, would cut Fed- 
eral law enforcement or criminal justice funds from going to 
Morton Grove and to places like Morton Grove. Places like that ob- 
viously do not want their citizens to be able to protect themselves 
from criminals. They certainly do not deserve anticrime funding 
from law-abiding taxpayers. 

It is just as obvious that we cannot rely on the courts to protect 
us in the maintenance of our rights. Too many judges are going off 
halfcocked following Pied Piper ideologies denying individual 



332 

rights. Consequently, we have got to have legislative initiatives 
such as that proposed by Senator Symms and cosponsored by Sena- 
tors Hatch, Helms, McClure, Stevens, and Zorinsky. 

By accepting this proposal. Congress would be disassociating 
itself from the ban-the-handgun movement in the United States 
and reaffirming the right of individual law-abiding American citi- 
zens to keep and bear arms for protection of life, family, and prop- 
erty as well as for other legitimate purposes. 

Obviously, Mr. Chairman, we heartily support this proposal and 
urge this subcommittee to support it. 

Senator Laxalt. Thank you very kindly, Mr. Snyder. 

Members of the panel, is there anything you see in this crime- 
control package that would infringe in any degree upon the rights 
of gun people in this country? Is there anything in this act that 
infringes in the least? 

Senator Symms. Mr. Chairman, I do not think I am capable to 
answer that. 

Senator Laxalt. Mr. Pratt, are you familiar with the act? 

Mr. Pratt. From what I know of it, sir, it is an improvement by 
some measure over the bill that was in the Congress last year, and 
I think, on the whole, we are much happier with it. 

Senator Laxalt. And your appearance here, I guess, is to reaf- 
firm the rights of gun owners for the reasons you have stated, and 
to solicit the support of the subcommittee in favorably acting upon 
the Symms amendment, is that essentially the thrust of it? 

Senator Symms. That is correct, Mr. Chairman. We have two or 
three suggested amendments, and I would be happy to work with 
the committee on that 

Senator Laxalt. If you would, we would welcome it. 

Senator Symms [continuing]. Toward something that would be 
satisfactory. I think what we would like to do is to make a policy 
statement that the U.S. Congress is in favor of citizens' rights to 
protect themselves, and in so doing follow up with the policy that 
no local government can confiscate or legalize the confiscation of 
otherwise legally held firearms and back that up with the Federal 
stick that says that no local municipality or level of government 
that does allow for confiscation will get any more law enforcement 
funds. 

I think that that would be our way of making a positive state- 
ment. As John Snyder so aptly stated, it will put the Congress on 
record of disassociating ourselves from the ban-the-gun movement. 

Senator Laxalt. Let me ask just a couple of general policy ques- 
tions, and I do not want to hold you too long. What is your reaction 
about possible Federal movement into the area of waiting periods? 
However you statistically compute it, there are 11,000 people who 
are dead because of the use of handguns. 

It has been suggested to this subcommittee — and we certainly 
have dealt with it an awful lot in the full committee — that it might 
serve a useful public purpose for the Federal Government to estab- 
lish a uniform holding period. 

This would not intrude in any respect or cause any undue regis- 
tration problems, but in many, many of the cases where we have 
had difficulties — particularly in marital disputes — a reasonable 
holding period would be useful. Most recently, of course, it has 



333 

been suggested — and I do not know whether it is true — that had 
young Hinckley been required to wait to secure the weapon that he 
purchased, perhaps what happened would not have happened. 

I would be interested to have the comments of the panel as to 
whether it might serve a useful public purpose to have a uniform 
Federal holding period. I know your concerns are getting the nose 
in under the big tent and have it move from there to something 
else. 

Mr. Pratt. Senator, I would suggest that we start with Mr. 
Hinckley. There was a case of extraordinary premeditation and a 
14- or a 21-day waiting period would not arguably have made any 
difference in what he was about to do. 

I think that is probably the case in many domestic disputes, 
which as a rule, are not something that flairs up all at once result- 
ing in an instant impulse to commit murder. Many times these 
things cook and percolate over time. 

But beyond that, we are talking about a fundamental freedom of 
people to defend themselves. In one of the few municipalities where 
they keep records of this sort, in Chicago, the most recent statistics 
that I am aware of tell us that the citizens are more successful 
than the police in killing or wounding assailants. 

There are people who face life-threatening situations that devel- 
op suddenly, and I do not think it is the business of Government 
which cannot, and as Senator Symms pointed out, will not, as a 
matter of principle, come to our defense at our beck and call before 
a crime actually occurs. The crime must occur first and then per- 
haps in a few hours the police will be there. 

Well, that is not satisfactory. In any case, I do not think that it is 
the role of the Government to wait on our doorstep. We know how 
the waiting periods operate in places like New York, and whatever 
you might say in such legislation, once Government officials get a 
hold of that who want to violate the second amendment, they will 
make it impossible for citizens to obtain the means for their own 
protection. 

Senator Laxalt. Are you saying it can be empirically demon- 
strated that holding periods have not resulted in the savings of 
lives? 

Mr. Pratt. New York City would certainly indicate that, yes, sir. 

Senator Laxalt. I would like to have some information on that 
for members of the subcommittee. 

Mr. Pratt. I will be very happy to get some material together. 
Basically, the top crime cities in the country have, from our point 
of view, the worst gun laws, the most stringent. 

Senator Laxalt. I think that is certainly the case. 

Gentlemen, we thank you very kindly. Do you have any closing 
statements you would like to make for the members of the subcom- 
mittee Mr. Snyder. 

Mr. Snyder. Senator, in answering your concluding question 
there with regard to the waiting periods, say you might think of 
putting it on personal terms. Supposing somebody threatens you 
this afternoon. You are going to want to defend yourself tonight, 
not 7 days from now. You are going to need the protection tonight. 

Senator Laxalt. I suppose, or I might call in security. 



334 

Mr. Snyder. As a U.S. Senator, you probably would not have any 
problem doing that, but the average American citizen does not 
have those benefits. 

Senator Laxalt. I know what you are saying, but if there is an 
open threat of the type that you describe, I would hope that the 
police would respond to that kind of thing. 

Mr. Pratt. That is not their policy. Senator. They do not do that. 

Senator Laxalt. I know they do not in many areas. I just happen 
to come from an area where if the police did not respond to any- 
thing that was a serious threat, they would be in deep trouble. It is 
like anything else. You have differences in these situations depend- 
ing on the people involved. 

Mr. Pratt. That is another reason a uniform national policy 
ought to be avoided. 

Senator Symms. Mr. Chairman, if I could just say in closing, you 
did mention the Hinkley case. I believe that we should correct the 
laws that allow for such results. You are the attorney, I am not, 
but the insanity plea must be modified. 

I think that for us to allow such heinous crimes to go on in this 
country and allow people to use loopholes in the law to plead in- 
sanity or whatever else, is a travesty of justice. 

If it would not deter anybody else from doing it, it would certain- 
ly deter Hinkley from doing it again because we do not know what 
the future holds for him. He may be out in 4 or 5 years and then 
decide to do it all over again. 

That is our problem. We should punish — we should give justice 
to those people who commit capital crimes. 

Senator Laxalt. We are attempting to meet this in the package. 

Senator Symms. That is why I support the bill because I think 
this bill is heading in that direction. In my opinion, in a general 
sense of direction, that is what the bill is making as a policy state- 
ment that we are going to try to give expeditious justice to people 
who commit capital crimes which will, in fact, protect the citizens 
of this country. 

I think the President is on the right track with it, and I think we 
should support it. I would just like to tighten up this one part so 
that we can even assure more protection for individuals to be able 
to protect themselves. 

Senator Laxalt. Of course, you will have every consideration, 
Senator. 

Senator Symms. Thank you very much. 

Senator Laxalt. Thank you very kindly, all of you. 

We now have as the next panel representatives of the American 
Civil Liberties Union. I welcome you all. Mr. Shattuck, Mr. 
Landau, and Mr. Friedman. My staff tells me that you have done a 
great deal of work on this bill, and I want you to know on behalf of 
the members of the subcommittee, that we appreciate it. 



335 

STATEMENT OF THE AMERICAN CIVIL LIBERTIES UNION PANEL 
CONSISTING OF JOHN SHATTUCK, NATIONAL LEGISLATIVE DI- 
RECTOR. DAVID E. LANDAU, LEGISLATIVE COUNSEL AND LEON 
FRIEDMAN, PROFESSOR OF LAW, HOFSTRA (NEW YORK) LAW 
SCHOOL 

Mr. Shattuck. Thank you very much, Mr. Chairman. 

We are, as you note, a panel and we will all be addressing var- 
ious aspects of the bill. Let me just introduce the subject by stating 
how pleased we are to appear here this morning and to indicate 
that we have a lengthy statement and appendices which we would 
like to submit for the record and will not read or otherwise burden 
the subcommittee with but we do commend the material to you. 

We have attempted to cover as much of the bill as we could 
within the reasonably short time available. 

Mr. Chairman, we recognize that crime is a problem in America 
today. We think it is a law enforcement problem and a civil lib- 
erties problem. We think that even though recent statistics show 
that crime rates have fallen in the last year Americans are justifi- 
ably concerned about effective law enforcement and they are par- 
ticularly concerned, I think, about the inability of particularly 
State and local police departments but some Federal departments 
as well to perform their functions because of substantial budget 
cutting that has been necessitated or has been conducted at various 
levels of government. 

There is no question that civil liberties are affected by high 
crime rates and that inadequate law enforcement resources in 
many respects affect civil liberties. On one level, the victims of 
crime, as you know, Mr. Chairman, are cheated in their expecta- 
tion that the Government will protect public safety. In that respect 
we commend you and the committee last year for achieving reason- 
able success in the area of victims' rights, a bill that we were proud 
to be able to assist the subcommittee on ' 

Senator Laxalt. It was a start. 

Mr. Shattuck. It was a start. 

But we are deeply concerned about another aspect in which civil 
liberties are affected by the crime problem, and that is the substan- 
tial straining of resources at all levels of government, as I stated, 
where the pressure builds as a result of those resource strains for a 
cost-free solution to the crime problem which, in our view, is not 
going to be a solution at all. 

The temptation is great when resources are cut from law enforce- 
ment agencies to blame the crime problem on the rules and proce- 
dures of the Bill of Rights and the Constitution. We think for two 
reasons it is essential that this temptation be rejected. 

First, as we will tell you in a number of instances throughout the 
bill, a crime fighting program that is based on the curtailment of 
civil liberties is simply not going to be effective. It is, folly to expect 
that curtailing the exclusionary rule and the right of Federal 
habeas corpus or the enactment of new bail laws that provide for 
preventive detention or the reinstitution of capital punishment or 
the abolition of parole and the increased use of incarceration will, 
in fact, result in a reduction in violent crime. 



336 

Most available evidence that we have seen and we have cited in 
our materials is to the contrary. Second, and I know you would 
agree with us on this, Mr. Chairman, it is fundamentally wrong to 
characterize the rules of the criminal justice system as legal techni- 
calities whose sole beneficiaries are guilty persons seeking to 
escape the penalties of the law. 

The rules of the system, the rule against warrantless searches 
and seizures, the requirements of due process of law, the presump- 
tion of innocence, the prohibition against cruel and unusual pun- 
ishment, these are all rules that were fashioned over the years, 
most of them right in the Constitution itself, to protect the civil lib- 
erties of everyone. 

If these rules are rewritten in ways that affect the Constitution 
in an effort to come up with some kind of an expedient cost-free 
crime control program, those who are most affected will not be the 
guilty. They will be the innocent and they will be all citizens. 

Let me just as an introduction to this subject, Mr. Chairman 

Senator Laxalt. Before you move on to that, need they be mutu- 
ally exclusive? 

Mr. Shattuck. Well, we do not think they are mutually exclu- 
sive so long as the constitutional requirements are followed. Those 
constitutional requirements, in fact, in many respects aid law en- 
forcement, as we will tell you. The rules that the police need to 
follow in conducting searches we think are essential for law en- 
forcement purposes. 

But the problem that we have with large parts of S. 829, frankly, 
and I think we would be remiss if we did not state it clearly and 
upfront, is that it pares down many of these constitutional rules 
and procedures and it does so presumably because there are not 
substantial resources to be devoted to the crime fighting program 
that we think should be adopted. 

The bill is comprised of 16 titles. Many of those titles have al- 
ready been separately considered and rejected by one or more com- 
mittees in the Congress, and in our view, there are substantial con- 
stitutional problems throughout, and that with the exception of the 
justice assistance act provision in the bill which we believe is a 
useful start in the area of providing resources to State and local 
authorities, without exception there are very few resources offered 
for grossly underfunded crime fighting efforts. 

The provisions that we have addressed of the bill fall into three 
categories. The rules of criminal procedure are revised, the rules of 
criminal sentencing are revised, and third, criminal laws are re- 
vised. We would like to take those up separately starting with the 
rules of criminal procedure which my colleague. Professor Fried- 
man, will address for a brief opening period, and then Mr. Landau 
will discuss the sentencing issues, and if time permits, I will sum- 
marize our concerns in the area of proposed criminal law changes. 

Senator Laxalt. Very well. Thank you. 

Professor Friedman? 

STATEMENT OF LEON FRIEDMAN 

Professor Friedman. Thank you. Senator Laxalt. 



337 



BAIL 



I am to talk in about 10 minutes on bail, the exclusionary rule 
and habeas corpus, and I would just like to hit the high points of 
the ACLU's concern in each one of these areas. 

On bail, S. 829 would greatly change the current philosophy in 
the protections of the Bail Reform Act of 1966. Our whole system of 
bail in this country rests on the assumption, unlike other countries 
in the world, that a person should not go to jail just because he has 
been arrested and that no one should be punished until there is a 
full, due process trial in which he is proved to have committed the 
crime beyond a reasonable doubt. The whole notion that someone 
should go to jail and be incarcerated and lose his freedom on the 
say so of a policeman who arrested him somehow goes against the 
presumption of innocence and against the whole notion on which 
our Bill of Rights is based. 

Indeed, if you look across all the statistics on arrests across the 
country. State and Federal, the fact of the matter is that about 40 
percent of all the arrests are eventually dismissed outright, an- 
other 20 or 30 percent the person may be found guilty but may not 
have any jail time as his punishment. 

So if you look at all the arrests across the board, how many 
people eventually are found guilty of the crime and have to do 
some time, and it is significantly less than 50 percent. 

Now, if you reverse the presumption on bail and start saying: 
"People, you have to stay in jail until your trial," then a lot of 
people who are, indeed, innocent in the way our system determines 
that are going to be punished nevertheless. 

Senator Laxalt. It is my understanding that the reform is not 
quite that sweeping, though. All the judge has to find is that, in 
addition to the element of some certainty that he will return for 
the next judicial proceeding, to find that he or she is a dangerous 
person. 

Professor Friedman. I wish it were that easy to find that out. 

Senator Laxalt. Well, that is what we are trying to get at. We 
certainly do not want to infringe on the rights and liberties of 
people and suddenly have innocent people subjected to jail time. 

But, based upon records that have been submitted to us — and if 
they are false or inaccurate you tell us — there is a high incidence 
of crime in this country by people who are out on bail. 

Professor Friedman. Well, that just is not true, and if I could 
point to whatever statistics there are on the subect, the most com- 
prehensive study, the Lazar Institute study, in 1981, indicates 
that — again, everybody plays games with these statistics — that 
people who are out on bail may be arrested for another charge 
while they are out on bail and that may run in the 15-percent 
figure according to the Lazar study, but again, we are assuming 
that if you are arrested you must have committed the crime. 

The Lazar study shows that in only 1.9 percent of the cases is 
someone arrested, and convicted, and sent off to jail for a serious 
crime. Now, that strikes me as a very small number. 

Now, again, in 4 percent of the cases, they are arrested and con- 
victed for some crime. That may be drunkenness for all we know, 
some minor misdemeanor. 



338 

So we are at the very bottom end of the spectrum in terms of 
any study showing that people who are released on bail go out and 
commit another serious crime while they are out on release. It is 
down in the less than 4 percent, and I think the 1.9-percent figure 
is the one that really points to what we are talking about. 

Senator Laxalt. Well, assuming that is the case, when a court 
finds, based on his track record, that a given person has dangerous 
qualities, why should that person be turned loose on society? 

Professor Friedman. Well, Senator Laxalt, a judge looks at some- 
one and sees his record and says: "You are a dangerous person. 
You are the 1.9 percent that are going to go out and commit a 
crime," it is simply impossible to be able to predict that. That is 
the real problem. 

What you are saying is that, you know, arrest the usual suspects, 
that is to say, if you got a long track record of arrests, you must be 
one of those people who are going to do it in the future. 

It becomes a self-fulfilling prophecy. The number of times that 
you get arrested automatically puts you in the category of someone 
who is not going to be released the next time around. 

Senator Laxalt. I would hope not. 

Professor Friedman. It is simply an impossible thing to predict. 
In other words, to stick in the law that you will consider the possi- 
ble dangerousness to the community and to another person and 
have a judge somehow make that kind of a judgment strikes us, 
strikes me, as impossible to predict. It is something that judges, 
and psychiatrists, and sociologists have found impossible to deter- 
mine for the future. 

The same issue comes up on sentencing. The same issue comes 
up on parole. Are you the kind of person who is going to commit 
another crime in the future. 

Senator Laxalt. Are you telling me that the judicial system is so 
bereft that they could not make a finding of this kind? 

Professor Friedman. I respect judges and they have very difficult 
decisions to make. They have to decide whether it is $10,000 or 
$50,000 money bail, and how they make that decision is difficult 
enough. 

But for a judge on a 5-minute, or 10-minute, or 1 hour determina- 
tion to look someone in the eye and say: "Well, you have been ar- 
rested twice before. You have been convicted of burglary and as- 
sault, and now you are on another assault. You are going to do it 
again while you are out on bail," I don't know how any judge can 
make that kind of a judgment. 

Senator Laxalt. Well, you have opened an interesting line of in- 
quiry, and before these hearings are over we should have some 
judges testify as to whether they can make this kind of judgment. 

Professor Friedman. I think that would be a very good idea. 

Senator Laxalt. It would be interesting testimony. 

Mr. Shattuck. Mr. Chairman, can I just interject one sentence 
here to draw your attention in the materials that we have submit- 
ted as appendices to our testimony that there is a substantial 
amount of scholarly research that has been conducted on this ques- 
tion of prediction of dangerousness, and there is no study that we 
are aware of that says that the kind of prediction that this bill 
would require can be made in the absence of a full-scale criminal 



339 

trial which, of course, is the very thing that ultimately the defend- 
ant is entitled to in this setting. 

So there is a great deal of statistical information out there. We 
do not want to burden you in our prepared statement with it, but it 
is in the material. 

Senator Laxalt. You be assured that we will take a good look at 
it. 

EXCLUSIONARY RULE 

Professor Friedman. If I can turn to the exclusionary rule which, 
of course, involves a whole host of other problems. Once again, we 
have a problem where the statistics belie any notion that change in 
the exclusionary rule is really going to affect the rate of crime. 

The General Accounting Office study in 1979 which dealt with 
the Federal system talks about successful suppression motions 
being made in one 1.3 percent of the cases. 

Senator Laxalt. What was that? 1.6? 

Professor Friedman. 1.3 percent is a successful suppression 
motion made, and in half of those cases the defendant is convicted 
anyhow. So that in theory all we know is 

Senator Laxalt. What numbers are we talking about when we 
translate the percentages into people who have been convicted? 

Professor Friedman. Well, that is in the Federal system. That 
was the General Accounting Office study, Federal only. 

Senator Laxalt. And this did not extend into the States and lo- 
calities? 

Professor Friedman. No; the National Institute of Justice study 
in Calfornia which was released in December last year made a 5- 
year study or a 4-year study in California, and their statistics were 
equally unimpressive, if I may say so, because they found that of 
the 520,000 cases presented to prosecutors, in only 4,000, which is 
0.78 percent, was prosecution rejected for search-and-seizure rea- 
sons; 4,000 out of 520,000. 

And in those 4,000 cases, 2,900 were drug cases so over a 4-year 
period, 1976 to 1979, prosecution was declined for search-and-seiz- 
ure problems in only 4 murder cases, 4 out of 520,000. Rape cases 
in only 12. That is not percent. That is total numbers. 

Senator Laxalt. Four cases out of how many murder cases? 

Professor Friedman. Well, 4 cases out of a total of 520,000. 

Senator Laxalt. Those are total cases. Those are not murder 
cases. 

Professor Friedman. I understand that. I have a figure here that, 
in the 5-year period, there was 648,000 murders, rapes, assaults, 
and robberies reported to the California police in that same period 
of time, serious crimes; 648,000 murder, rapes, assaults, and robber- 
ies. 

Of those offenses, 1 in 2,500 resulted in prosecutorial decisions 
not to proceed. Again, 248 includes 134 assaults and 88 robberies. 
This is in a 4-year period, only 12 rapes and 4 murders. 

Now, that is a very small percentage of serious crimes. Now, it is 
true that in drug cases that is the area in which the search and 
seizure, the exclusionary rule has worked to the benefit of the de- 
fendant, if you want to put it that way. 



340 

But the effect on the total crime rate is miniscule; 0.78 percent 
according to the National Institute of Justice study. 

Now, who else does it benefit. The other people it benefits besides 
a few drug offenders are millions of American citizens and their 
privacy rights. The point of the exclusionary rule is to give a bright 
line definition to law enforcement officers about what they can and 
what they cannot do in invading the homes of Americans, and to 
the extent there is a firm, clearly defined bright line for law en- 
forcement officials on what they can do and what they cannot do, 
then the privacy rights of tens of millions of other Americans are 
going to be protected, and that is the reason for it. 

The testimony of law enforcement professionals, the commission- 
ers, Steven Sachs, the attorney general of Maryland, the people 
who have investigated have been saying that the exclusionary rule 
is the most important device they have to inform and educate law 
enforcement officers about what they can and cannot do. 

As long as there is that bright line definition of what search and 
seizure means, of what probable cause is, of what the warrant re- 
quirement is, then millions of law-abiding Americans are also 
going to be protected because they are not going to have to worry 
about law enforcement officers coming into their homes on suspi- 
cion, on a whim, or anything else. 

Senator Laxalt. We are not doing away with all that, are we, by 
simply injecting a good-faith test into the rules? 

Professor Friedman. Well, that is why I say, and I know we have 
just a short period of time, but the minute you start fudging at the 
edges of the exclusionary rule, I think law enforcement officers will 
agree, that the clearer the line is the better it is for them so that 
they know what to do. 

Senator Laxalt. That is the gun owners' argument. That is why 
they do not want to talk about holding periods. 

Professor Friedman. We are in a slightly different area here. 
When we talk to a law enforcement officer, we want a clear line. 
Now, the minute you say there is a good faith exception, that what 
counts is not, you know, what the law is but what a police officer 
thinks it is 

Senator Laxalt. Well, I would hope that his judgment would be 
based upon adequate training and guidelines. I hope that police of- 
ficers are not sent out blindly without some degree of training. 

Professor Friedman. Yes; but there is no incentive to train them 
any more if there is the exclusionary rule gets 

Senator Laxalt. Do you really believe that? 

Professor Friedman. Well, I know it happened before. 

Senator Laxalt. I cannot believe that in sending his people out, 
a responsible chief of police or a sheriff is simply going to say: 
"You go out and search and seize without respect for the citizens' 
constitutional rights." I just cannot believe that. It would be the 
most irresponsible, red-neck situation one could conceive. 

Professor Friedman. Well, it is not quite that obvious. What hap- 
pens now is that there is, in the larger law enforcement places, 
very strict training. This is what the latest Supreme Court case is. 
This is what it means. There is a lot of law enforcement education 
that goes on now based on the latest Supreme Court cases in the 
search-and-seizure area. 



341 

What I am saying is that in cost cutting and everything else, if 
there is a good-faith exception, there is an incentive to cut back on 
that, not to send them out bhndly, but certainly not to send them 
out with the kind of education that they are getting now. And that 
is the bad idea. 

Senator Laxalt. What you are saying is that to move from the 
so-called hard, clear line will remove a lot of incentive for the offi- 
cers to really toe that line. The good-faith exception creates a gray 
area which might pose problems. 

Professor Friedman. Precisely. 

HABEAS CORPUS 

I do not know how much time I have on habeas corpus. Perhaps I 
would just say a couple of things on the habeas corpus bill. 

If there is one thing that the Federal courts are supposed to do it 
is to protect the constitutional rights of citizens. That was their 
function way back when when James Madison introduced the Bill 
of Rights. 

Senator Laxalt. That is given as far as this committee is con- 
cerned. It is simply a question of abuse. That is all we are trying to 
get at. 

Professor Friedman. Well, again on statistics — I know we are 
throwing a lot of statistics at you today — in the Federal system in 
the last year, the Administrative Office reports 165 habeas corpus 
hearings; 165. There are a lot of petitions. There are 7,000 petitions 
filed by State prisoners. 

How many of those State prisoners can get over the initial bur- 
dens that are imposed under the habeas corpus rule and with frivo- 
lous cases getting thrown out and with cases where they have not 
exhausted, how many are serious enough to mandate a trial in the 
Federal system, and the answer is 165. 

And some of those are 1-day trials. So that the burden on the 
system is minimal. It's true there is paperwork that goes through 
the clerks, they have to get these pro se petitions and look at them. 

Senator Laxalt. Judges feel that burden, too, though, do they 
not? 

Professor Friedman. The Federal judges? 

Senator Laxalt. I hardly ever go to a seminar involving Federal 
judges that they are not complaining very strongly about their 
greatly increased workload due to habeas corpus cases. Are they 
exaggerating that situation? 

Professor Friedman. They may have a lot of section 1983, civil 
rights cases, but the total number of trials in which a State prison- 
er has succeeded or gets to the trial stage is ust insignificant. It is 
very small, and it seems to me that, again, 30 years ago in the Su- 
preme Court in Brown against Allen held that a State court deter- 
mination of constitutional rights is the end of the road. 

Once that has happened, you then can come back into the Feder- 
al system and have a Federal court whose function it is to interpret 
the Constitution to take another look at this and to perform the 
functions they have of interpreting the Bill of Rights. 

Now, it seems to me if there is this rather insignificant burden 
on the Federal courts that ultimately if you do not allow the Feder- 



342 

al courts to do this, then the burden goes back to the Supreme 
Court to review each and every proceeding out of the State system. 

In that sense, the lower Federal courts are serving as surrogates 
for the Supreme Court who, otherwise, would have that obligation, 
and I can tell you that in the one area where the Supreme Court 
has moved in that area. Stone against Powell, where they said that 
State court is the end of the road as far as fourth amendment 
claims are concerned, you see a lot of dissent from denial of cert by 
Supreme Court justices who are very conscious of the fact that if 
the Federal courts cannot overlook what the State courts are 
saying in the fourth amendment area that they would have an in- 
creased obligation to do so, because there must be some ultimate 
Federal say so on what the Constitution means. A Federal court 
say-so on what the Constitution means, and it seems to me the 
chief defect of S. 829 is to overrule Brown against Allen and to de- 
prive Federal courts of that function that they have. 

I also think the 1-year statute of limitations is far too short 
under these circumstances, and the Wainwright against Sykes, the 
cutback on cause and prejudice which limits what the Supreme 
Court definition of these subjects is is far to stringent under the 
circumstances, and I leave to our written testimony an analysis. 

Senator Laxalt. Thank you very kindly. You have been very 
helpful. 

Mr. Landau? 

STATEMENT OF DAVID E. LANDAU 

Mr. Landau. Mr. Chairman, in the area of sentencing, it is an 
area which has been debated in this committee and in the Congress 
for over a decade now. By way of introduction, I think we would 
like to note that the model in the bill, the flat-time-sentencing 
model, unlike many other model statutes which Congress adopts 
which may serve as a model for State reforms, the States have 
been far ahead of the Federal Government in sentencing reform 
and dozens of States have adopted variations of the flat-time-sen- 
tencing model. 

It is a model which was developed in the early 1970's, and we 
have some experience under those State statutes, and we would 
urge this committee to look into that experience. We believe that 
no matter how good the intent of those reforms has been, they 
have not simply worked out in the States and are causing prison 
population explosions which we read about every day. 

A large part of that explosion according to the studies that are 
now being done is due to the sentencing models which have been 
adopted, which have not simply limited judicial discretion, but vir- 
tually eliminated it in the sentencing process, giving judges no 
flexibility and leaving no post sentence administration available to 
adjust the prison populations in severe overcrowding situations. 
That is one of the principal reasons we have, I think, we have 30 
States now under court order for unconstitutional conditions in 
their prison systems. 

As far as the specifics of S. 829 are concerned, the bill is similar 
to S. 2572 which passed the Congress last year and also similar to 
the criminal code, omnibus Federal Criminal Code revision which 



343 

has been passed out of this committee in the last several Congress- 
es. We believe that it does include several valuable reforms such as 
the requirement that judges for the first time state on the record 
the reasons for imposing sentences and the specific inclusion of 
community service as a permissible condition of probation. 

But we believe that the reforms contained in the bill do not 
outweigh the significant flaws in the sentencing provisions. They 
fall into three areas. 

First, the Government is given extraordinary new authority to 
appeal sentences imposed by trial courts, and there are two prob- 
lems with that which are outlined completely in our appendies. 

First is the double jeopardy clause of the Bill of Rights. We be- 
lieve that Government appeal of sentences does violate the double 
jeopardy clause. Second the Government's right to appeal becomes 
a powerful new weapon in the arsenal of the prosecutor to coerce 
plea bargains and to coerce a defendant to waive his to appeal. 

The second major problem in the sentencing provisions of S. 829 
is that the bill itself is substantially tilted toward the use of impris- 
onment as a sanction, and that there is a substantial risk that 
prison terms will be much longer than under current law. 

Little, if any, incentive is given in the bill for judges or the sen- 
tencing commission to devise alternative sentences to imprison- 
ment for nondangerous, nonviolent offenders. By abolishing parole, 
limiting good time, the bill closes the safety valves of the present 
system and risks longer periods of incarceration. 

Under current law, of course, most offenders receive a presump- 
tive release date of one-third of the sentence the judge has given. If 
parole release is abolished and statutory maximums remain the 
same, then the sentencing commission guidelines can go as high as 
the statutory maximum and without any subsequent reduction by 
a parole release mechanism, which means in some cases sentences 
could be as much as two-thirds higher than the time served under 
current law. 

Of course, we have to consider the budgetary impact and human 
impact of this result. 

Now, the sentencing commission is required to look at current 
time served but that does little in the end to mitigate the risk of 
substantial prison sentences. We believe that there should be some 
administrative release mechanism, not necessarily the parole 
system, which should remain in effect in a transitional period after 
the guidelines go into effect which would be able to monitor the 
system and have the authority to order the early release of offend- 
ers, looking at factors such as prison populations. Certainly we 
would oppose the use of rehabilitation and dangerousness as a cri- 
teria for release which is what parole is all about. 

Senator Laxalt. Do you see any existing mechanisms which 
could handle that? 

Mr. Landau. Well, California has a type of an administrative 
mechanism which does that and I believe the Minnesota model and 
the Oregon model also have administrative agencies which do per- 
form that function. They do not set a release date and determine 
when a prisoner has been rehabilitated. 

The presumptive release date is the one set by the judge, but 
they do have authority to alter that release date under certain cir- 



344 

cumstances, and I would recommend to the committee to look at 
the details of these various State models. There are so many of 
them, particularly look at the Oregon and Minnesota model. 

Senator Laxalt. Are these generally within the purview of the 
executive or of the judicial branch? 

Mr. Landau. There is a split authority still. There are sentenc- 
ing guidelines which are similar to the one in this bill, set up to 
guide judicial discretion. But then there would be an executive 
branch agency which would monitor the post-sentence administra- 
tion. Of course, for other reasons, you could still petition the court 
for review of sentence after a certain period of time. 

I would like to note in the sentencing area three differences 
which are important to us between this bill S. 829, and the bill that 
passed the Senate last year, S. 2572. 

First of all, the statutory maximums in certain categories are 
longer and the bill, S. 2572, had some longer statutory maximums 
in the criminal code rewrite. We believe that is a dangerous expan- 
sion. I think we have to carefully review these categories because 
they sweep across so many criminal statutes to look at what the 
appropriate statutory maximum should be. 

Senator Laxalt. What do you suggest we do — review it on a 
crime-by-crime basis? 

Mr. Landau. Well, that is one alternative which the House of 
Representatives did 4 or 5 years ago. They went through every stat- 
ute and categorized the statutory maximum according to the new 
system of A, B, C, D, and E felonies. At least that way we can look 
at each individual crime and see what the appropriate statutory 
maximum might be, and in some instances, it may be appropriate 
to raise the statutory maximum. In other instances, we may want 
to reduce the statutory maximum. 

Senator Laxalt. Have you made that kind of analysis, any of 
you? 

Mr. Landau. We have not done that, but we would recommend 
the bill from the 95th Congress, I believe, that came out of the 
House Judiciary Committee. 

Senator Laxalt. Does that meet with your satisfaction? 

Mr. Landau. Generally, yes; with some specific changes. 

Senator Laxalt. We can use that as a mark? 

Mr. Landau. Yes. 

The second difference, and it is a very important difference, 
there was a safety valve in the guideline system in 2572 which re- 
quired that if the sentence was above the minimum range of the 
guideline, then after that minimum range was reached, in other 
words, that time had been served, the offender could petition the 
court for review of sentence and reduction for sentence. Automatic. 
That petition was a petition of right. 

That safety valve has been eliminated from S. 829, and that was 
an important safety valve given the abolition of parole. 

And the third major difference is in the consideration of actual 
time served in the development of the guidelines. Under S. 2572, 
actual time served was the starting point and the bill required the 
commission to use actual time served under current law as the gen- 
eral rule so that we would not have this two-thirds increase in sen- 
tences under the guidelines. 



345 

The bill in section 9941 on page 107 of S. 829 changes that re- 
quirement, and basically creates the reverse presumption, that is, 
that current time served in many cases is not appropriate and the 
sentencing commission should feel free to go above current time 
served wherever it is appropriate. 

We believe that that kind of mandate will lead the commission 
to substantially longer sentences. 

The final flaw briefly in the sentencing provisions is that there 
are a number of inconsistencies in the way the sentencing guide- 
lines are drafted, a number of conflicting policy matters which are 
given to the commission and to judges which may lead to unwar- 
ranted disparity. 

For example, the judges can consider deterrence, in certain cases 
rehabilitation, in certain cases community view of the offense, and 
the retribution theory of punishment; and a judge could say, "I am 
sentencing this person for purposes of retribution but I am giving 
another person who committed the almost identical crime, I am 
sentencing that person for purposes of deterrence," and you get a 
different sentence. 

We believe that the guidelines and the sentences should be limit- 
ed to the so-called just desserts theory of punishment, that is the 
sentence must match the seriousness and gravity of the offense and 
the role of the defendant in the offense, and other considerations 
such as rehabilitation and deterrence should not be considered in 
determining the appropriate sanction. 

Briefly, Mr. Chairman. I would like to review the capital punish- 
ment sentencing. Now, that is the — 

Senator Laxalt. Can you do that very quickly? I do not want to 
rush you, but unfortunately my questions have overly extended 
this hearing. 

Mr. Landau. This is identical to S.114 as reported by the Judici- 
ary Committee and we have a lengthy memorandum. Of course, 
the ACLU opposes capital punishment under all circumstances. 

I would just point out here that the Supreme Court has upheld 
capital punishment but under careful limited circumstances. This 
bill does not meet with the Supreme Court decisions' test for proce- 
dures, and it does not meet it in two areas, substantively and pro- 
cedurally. 

First, the bill applies the death penalty to nonhomicidal offenses 
such as peacetime treason and espionage, attempted assassination 
of the President where there has been no death. 

The Supreme Court has made very clear that if there is no death 
resulting from the offense, capital punishment is excessive and is 
unconstitutional. 

Second, the procedures for implementing the death penalty. Ag- 
gregating and mitigating circumstances are considered and certain 
aggregating circumstances have been struck down by the Supreme 
Court already but they are included in this bill. Also, the proce- 
dures for appellate review of death sentences are not in conform- 
ance with Supreme Court decisions. 

We urge the committee to review our memorandum in those 
areas. 

Senator Laxalt. Well, I would hope that what we craft here, and 
what you tell me is a little bit surprising, would certainly be con- 



25-694 0-84-23 



346 

sistent with the Supreme Court determination. We will take a very 
close look at that. 

Gentlemen, I wish we could continue this. I would like to do it 
for much longer but time precludes that. 

Mr. Shattuck. Mr. Chairman, before we conclude, and I appreci- 
ate that you are running out of time, but I do not want to leave 
you with the impression that those important criminal law changes 
that we have not had an opportunity to discuss in this testimony 
that are cited on pages 31 to 36 of our statement and in the appen- 
dices are not worth discussing. 

We are very concerned about some of the changes in the insanity 
defense area. We are extremely concerned about the amendments 
to the tort claims act, the international extradition laws, the 
changes in the Federal wiretap laws, the broadening of the offense 
of solicitation, all of that is laid out in our prepared statement. 

We would welcome the opportunity to amplify or explain any- 
thing that is said in there. We really do consider that this bill is 
frankly biting off much, much more than the Congress and the 
country can chew consistent with the Constitution and the Bill of 
Rights. 

We are anxious to be as helpful as we can in developing a rea- 
sonable criminal justice reform proposal, and there have been 
measures that have come out of this committee and out of the 
Senate that are, indeed, in some respects reasonable and which we 
have supported. 

I mentioned the victims bill before, the justice assistance amend- 
ments that passed the House just the other day. These are the 
kinds of things that are going in the right direction. 

But frankly, when you take on these criminal procedures and 
rules that are intended to protect everyone's rights, that is just not 
the appropriate solution to the crime problem in the country and it 
is misleading, because it really misleads the people into thinking 
that something is being done when it really is not. 

Resources are not made available. Constitutional rules are 
changed. The statistics that we cited demonstrate that those 
changes in the constitutional procedures are not going to result in 
a cutdown on violent crime. All they will result in is a substantial 
cutback on the constitutional rights of citizens. 

Senator Laxalt. We hear you. Thank you very kindly and we 
will make certain — I assure you of this. We will look very closely at 
your materials, and you may also look for some staff followup. We 
would like to work with you on this. 

Mr. Shattuck. We would be delighted to help. 

Senator Laxalt. Thank you very kindly. 

Our last panel consists of public defenders on both the Federal 
and State level. I thank you both for coming. I thank you for your 
patience. I wish it has not extended quite so long but as you can 
see it was almost unavoidable. 

We have Edward F. Marek who is a public defender in Cleve- 
land, Ohio, and Richard J. Wilson who is the director of the De- 
fender Division of the National Legal Aid and Defenders Associ- 
ation. 

You may proceed, gentlemen, in any fashion that you wish. In 
view of the little time remaining, however, please summarize your 



347 

prepared statements. Frankly, on a topical basis, I would be very 
thankful if you could just give us your view of some of this prior 
testimony. You are in the pit, and your perspective would be very 
valuable to the members of this subcommittee. 
[The following was received for the record:] 



348 



Prepared Statement of John Shattuck^ Havid E, Landau, and Leon Friedman 

On Behalf of The American Civil Liberties Union 

Mr. Chairman and Members of the Committee: 

I am John Shattuck, National Legislative Director of the 
American Civil Liberties Union, and accompanying me are David 
Landau, ACLU Legislative Counsel, and Professor Leon Friedman 
of the Hofstra University Law School. We are pleased to appear 
on behalf of the American Civil Liberties Union to offer our 
comments on S. 829, "The Comprehensive Crime Control Act of 
1983." The ACLU is a nationwide, nonpartisan organization of 
approximately 250,000 members devoted solely to defending and 
enforcing rights and liberties guaranteed by the Constitution 
and the Bill of Rights. For many years the ACLU has taken a 
strong interest in criminal justice issues and in the develop- 
ment of reforms that provide both for more effective law enforce- 
ment and for the protection of civil liberties. 

Introduction 

Mr. Chairman, crime is a serious problem in America today. 
It is a law enforcement problem and a civil liberties problem. 
Although recent statistics released by the Department of Justice 
show that crime rates have fallen over the last year, the public 
is justifiably concerned about crime and what government, at the 
federal, state and local level, is doing about it. Law enforce- 
ment resources are severely strained as a result of government 
budget-cutting and there is widespread public dissatisfaction 
with the inability of police departments and law enforcement 
agencies to adequately perform their functions of solving crimes 
and apprehending criminals. 

There is no question that civil liberties are adversely 
affected by high crime rates and inadequate law enforcement 
resources. On one level crime victims are cheated in their 
expectation that the government will protect public safety. 
The victims of crime are entitled to compensation and assistance 



349 



for the harm done to them, not as a civil liberties matter, 

but as a matter of basic fairness and decency. On another 

level the crime problem cuts deeply into civil liberties. 

When law enforcement resources are severely strained--when 

major urban police departments are forced to cut back personnel 

(since 1968, for example, the New York City Police Department 

■has been reduced from 30,000 to 20,000, and the Boston Police 

Department has dropped from 2,500 to 1,620); when federal law 

enforcement agencies such as the lEBl, the Drug Enforcement 

Administration and the Bureau of Alcohol, Tobacco and Firearms 

have also experienced budget and personnel reductions in recent 

1 
years — the pressure builds for a political "cost-free" solution 

to the crime problem. Under these circumstances the temptation 

is great to blame crime on the rules and procedures of the 

criminal justice system, particularly those rules guaranteed by 

the Constitution and the Bill of Rights. 

On two levels it is urgent that this temptation be rejected. 

First, a crime-fighting program based on curtailing civil 

liberties is bound to be ineffective. As we will explain, it 

is sheer folly to expect that cutbacks in the exclusionary rule 

and the right of federal hcibeas corpus, the enactment of a 

preventive detention statute, reinstitution of federal capital 

punishment, abolition of parole and the increased use of 

incarceration will result in a reduction of violent crime. 

Most availcible evidence is to the contrary. Second, it is 

fundcunentally wrong to characterize rules of the criminal 

justice system as "legal technicalities" whose sole beneficiaries 

are guilty persons seeking to escape the penalties of the law. 

The principal rules of the system — for example, the rule against 

warrantless searches and seizures, the requirements of due 

process of law, the presumption of innocence, the prohibition 

against cruel and unusual punishment — are rules that were 



See Appendix A 



350 



fashioned to protect the civil liberties of everyone. If these 

rules are rewritten in order to promote an expedient "cost-free" 

crime control program, those most affected will not be the 

guilty but the innocent. 

It has always been tempting to pare down the laws of 

criminal procedure in order to get at criminals. In fact, the 

temptation is so strong that it sometimes seems irresistible 

until examined more closely. In A Man For All Seasons , Sir Thomas 

More has a debate with his daughter about whom the law is intended 

to protect. The daughter asks whether More would "give the devil 

the benefit of the law." More answers, "What would you do? Cut 

down a great road through the law in order to get after the 

devil?" The daughter answers, "Yes, I'd cut down every law in 

England to do that." Then More replies, "and when the law 

was down, and the devil turned around on you, where would 

you hide, the laws all being flat? This country's planted 

thick with laws, and if you cut them down, do you really 

think you could stand upright in the winds that would blow 

2 
then?" 

S. 829 would tear up many of the rules of our criminal 
justice system and leave the public exposed to major infringe- 
ments on rights and liberties. No legislation has been proposed 
at the federal level in the last decade that would strike as 
harshly and as broadly at basic constitutional values. More- 
over, it is difficult to imagine any legislation that would be 
less effective at curbing violent crime. S. 829 is comprised of 
sixteen titles, nearly every one of which has already been 
separately considered and rejected by one or more committees 
in the Congress. There is virtually nothing new in the bill and 
there is little that is constructive or is likely to win legis- 
lative approval. The bill is constitutionally flawed in many 
of its provisions, it offers few resources for grossly underfunded 

2 Robert Bolt, A Man For All Seasons (Heineman Educational Books 
1960) . 



351 



crirae-fighting efforts, and it cannot pass the Congress. It 
should be rejected by this Committee. 

The provisions of S. 829 that threaten civil liberties fall 
essentially into three categories: first, revisions of criminal 
procedure; second, revisions of criminal sentencing; and third, 
revisions in criminal law. Since it is impossible in the space 
and time available to cover all the objectionable features 
of this 391 - page bill, we will focus in the balance 
of our testimony of its most glaring problems. 

I. CRIMINAL PROCEDURE 
1. Bail 

S. 829 would reverse important procedural protections 

enacted by the Bail Reform Act of 1966. The current bail 
provisions rest on the creditable assumption that (1) a per- 
son should not be punished by pre-trial detention on the say-so 
of the police officer who arrested him before a full due 
process trial has proven him guilty of the crime; (2) there is 
something unfair and discriminatory to imprison a person before 
trial because he lacks money or property (often in very small 
amounts) to post bond; (3) bail should.be imposed only to in- 
sure the presence of the defendant at trial; (4) every other 
method of insuring the defendant's presence at trial should be 
explored before money bail is imposed in amounts that a defend- 
ant cannot meet; (5) there should 'be quick review . by higher courts 
of pre-trial detention conditions that keep a defendant in jail 
before trial; and (6) every presumption should be made in 
favor of release before trial. 

The Bail Reform Act of 1966 was a truly conservative 
enactment, linking American law with early English common law 
precedents. As in many other areas, the Anglo-American tradi- 
tion is unique in the world, which is precisely why we enjoy 
more freedom than any other society. The idea that a police- 



352 



man's arrest alone is enough to detain and imprison a person 
until he stands trial may be the rule in many non-democratic 
societies. But we have rejected that notion. Setting high 
levels or not permitting release because the government claims, 
and a court determines that his release "will endanger the 

safety of any other person or the community" is a start down 
a dangerous road. 

More importantly, reversing the rule in favor of pre- 
trial release is a serious due process threat. Careful statisti- 
cal studies have shown that a person who is not released on 
bail before a trial is twice as likely to be found guilty than 
a person who is not detained, and after being found guilty is 
likely to receive a heavier sentence. This is true regardless 
of the type of crime, the amount of evidence or the prior 
record of the accused. Being in jail makes it more difficult 
to prepare a defense and puts more pressure on an accused to 
plead guilty. 

Furthermore, there is no need for an extensive re- 
vision of the bail procedure system. Again, careful statistical 
studies indicate that very few accused persons released on bail 
commit another serious crime while awaiting trial on the first 
charge. The Lazar Institute Study of 1981 found that only 
1.9% cf all defendants released before trial are convicted of 
and imprisoned for serious crimes committed while on release. 

S. 829 would make significant changes in the current 
system, changes which would lead to a major increase in pre- 
trial detention with little if any effect on the crime rate. 
Instead of making the defendant's presence at trial the only 
consideration, a judicial officer can require detention of any 
person if he finds his release "will endanger the safety of 
any other person or the community." Since it is generally 
agreed that it is impossible to predict whether a given person 
will commit another crime in the immediate future, it is dif- 



353 



ficult to see how this provision can be intelligently and 

fairly applied. 

S. 829 also requires that anyone convicted for a crime 
while on bail, pending trial for a felony, must be detained for 
10 days. It also provide^ for an elaborate procedure for pre- 
trial detention in which a mini-trial is held immediately after 
arrest to determine whether a person should be released. 
There are presumptions in many cases against a defendant (if 
he had once before committed a crime of violence while on 
release pending trial) . The rule in favor of bail on appeal is 
reversed and a person may be released only if a court finds 
that an appeal is likely to result in reversal. Very stiff, 
double penalties are added for failing to appear for trial, 
which probably violate the Double Jeopardy Clause. 

All of this is undesirable, unnecessary and dangerous 
to our liberties. Moreover, it is not possible accurately to 
predict who among a given group of criminal defendants would, if 
released before trial, commit serious crimes. Studies of this 
question demonstrate that neither psychiatrists nor judges can make 
such predictions with substantial reliability. To achieve even 
a slight reduction in the rearrest rate -- and a reduction in the 
reconviction and imprisonment rate -- would require the wholesale 
imprisonment of defendants awaiting trial. 

Effective alternatives are available for curtailing 
crimes committed by defendants on pretrial release. For 
example, providing various services and supervision to 
persons awaiting trial has proven to be an effective alterna- 
tive to preventive detention. The General Accounting Office 
recently conducted a study of the pilot federal pre-trial 
service agencies program. The results of this program have 
been dramatic. The new arrest rate for all defendants on 
release has decreased to 3.9 percent. The failure-to- 
appear rate has decreased to 1 . 3 percent. The GAO concluded: 
In our opinion, these statistics indicate that pre- 



354 



trial service agencies are having positive effects on 
the bail process. By interviewing defendants and 
verifying information about them, making bail recommen- 
dations to judicial officers, supervising defendants 
released to their custody, and helping selected defen- 
dants obtain needed social services, pre-trial service 
agencies are assisting the courts in making better 
bail decisions and are contributing to the downward 
trends in failure to appear in new crime rates among 
defendants on bail." 

Legislation to extend this prograr*> nationwide was 
enacted by the last Congress. 

Speedy trials are also an effective and constitutional 
alternative to preventive detention. Available evidence 
suggests that the least likely times of rearrest are shortly 
after arrest and just prior to trial. Thus, full and vigorous 
implementation of the speedy trial rules is likely to be 
increasingly effective in reducing pre-trial crime. Appendix 
contains a full discussion of the ACLU views on preventive 
detention. 

Aside from the issue of whether judges should consider 
dangerousness in making pre-trial release decisions, the 
procedures in S. 829 for implementing preventive detention 
are ineffective. Unclear, unspecific procedural require- 
ments will exacerbate the evils of preventive detention and 
result in disparity of treatment of accused persons and 
excessive imprisonment. There are at least five specific 
due process problems in S. 829: 

1) Section 3142(e) of the bill creates a "presumption 
of dangerousness" in a whole class of cases, thus altering 
the underlying concept of our criminal justice system — 
the presumption of innocence [Sec. 3142(e)]. 

2) The bill makes no requirement that before preven- 
tive detention is imposed, a judicial officer must find 
that a substantial probability exists that the accused 
committed the offense for which he is being charged. A 
lawful arrest alone will be sufficient to trigger a detention 
hearing. Because of the substantial liberty interest involved 



355 



in pre-trial detention, the prosecution should show more 
than mere probable cause before detaining a person before 
trial. 

3) At the detention hearing, the rules of admissibility 
of evidence in criminal trials do not apply; the government 
may offer hearsay and proffered information [Sec. 3142(f) ]. 

4) The bill may deny the defendant's Sixth Amendment 
confrontation and compulsory process riths because it grants 
defendants only the limited rights to "cross examine witnesses 
who appear at the hearing ." Thus, the bill does not guarantee 
a right to compel the presence of a government witness 

whose testimony ]Sec. 3142(f)]. 

5) The bill does not protect the accused against the 
use of his detention hearing testimony by the prosecution 

in subsequent criminal proceedings [Sec. 3142(f)]. A lengthy 
analysis of the procedural flaws in Title I is attached as 
Appendix D 

2. Exclusionary Rule 

Title III would add a good faith exception to the 

Exclusionary Rule. We believe that such a law is not only 

unwise, it is beyond the power of Congress to enact. The Su- 

3 
preme Court may alter the rule in Illinois v. Gates , but it 

can be done only in a constitutional context. 

Fundamentally we believe that any legislation to 
eliminate, limit or restrict the exclusionary rule is uncon- 
stitutional, unwise and undesirable. The exclusionary rule, 
though a judicially made remedy, is of constitutional dimension. 
Furthermore, the rule serves the best interests of both law en- 
forcement and the privacy interests of all Americans. 

It is our position that there is no need for attempting 

3 The inadequacy of a "good faith defense" to protect 

constitutional rights against Fourth Amendment violations is fully 

discussed in the ACLU's amicus brief in Gates , attached to our 
testimony as Exhibit E. 



356 



to change the exclusionary rule at this time. The rule is simply 
not a serious problem for law enforcement at this time, particu- 
larly at the federal level. Put another way, the cost of the 
exclusionary rule to society is quite low. Furthermore, the 
cost can be lowered by better training and instruction. The 
exclusionary rule is not a bar to effective law enforcem.ent but 
ineffective law enforcement. Finally, the benefit to society 
and law enforcement by adhering to the exclusionary rule is 
considerable. It is sound in theory and it works. 

Whatever studies have been made of the exclusionary 
rule emphasize the relatively low number of instances in which 
it produces the evil which has prompted the legislation — 
setting the criminal free because the constable has blundered. 
The GAO study, Impact of the Exclusionary Rule on Federal 
Criminal Prosecution (Report by the Comptroller General of the 
United States, April 19, 1979) shows how rarely suppression 
motions are made, how rarely they are successful and how seldom 
they lead to release of the defendant. In the GAO study it 
was found that in only 16% of the 2408 cases analyzed was a 
suppression motion made. All in all, in only 1.3% of the 2804 
defendant cases (or 36), was evidence excluded. In only 3% 
of the 16% was the motion granted in total and in only about 
9% was the motion granted in part. Typically in the latter 
situation the defendant will move to suppress some evidence in 
one place and other evidence in another place. 

In addition, the various studies made of the impact 
of the exclusionary rule indicate that suppression of evidence 
does not occur in cases involving murder, assault or rape. 
It occurs primarily in narcotics or gambling cases. A study 
prepared by the Institute for Law and Social Research confirmed 
the low incidence of dismissals for due process violations. In 
less than 1% of the arrests studied was prosecution declined 
because the police failed to protect the defendant's consti- 
tutional rights and thereafter it beccime a problem at the 



357 



prosecutorial level in only 2% of the cases. INSLAW, "What 
Happens After Arrest," May, 1978. In a later study "A Cross- 
City Comparison of Felong Case Processing," April, 1979, INSLAW 
concluded that due process reasons had "little impact on the 
overall flow of criminal cases after arrest." Among the cities 
studied, Washington, Salt Lake City, Los Angeles, New Orleans, 
there was only one homicide arrest rejected for due process 
reasons and no rapes. Drug cases accounted for most of the 
rejections . 

In summary, the "cost" to society of the exclusionary 
rule is quite low: very few defendants walk out of the court- 
house free of all charges because the constable has blundered. 
Those few who do may be retried on other charges or theories. 
And the cases in which successful suppression motions are made 
rarely involve major index crimes, murder, assault, or rape. 

More important, the "cost" has to be paid only be- 
cause a law enforcement officer has not followed the proper 
procedures. As we said above, the exclusionary rule is a bar to 
ineffective law enforcement, that is, it operates only when a 
blunder has occurred by the police. And in virtually every 
case in which suppression is required, proper operation by the 
police would allow admission of the evidence. 

In case after case decided by federal courts up to 
the Supreme Court, the courts tell law enforcement officers that 
they managed to take the one illegal or unconstitutional path 
where cmy other procedure would have been proper. Why does 
this happen? 

While we were preparing this testimony we did some 
research on the number of search warrants and arrest warrants 
obtained by federal officers from federal magistrates. We dis- 
covered what we consider a startling statistic. In the years 
from 1972 to 1980 there has been a steady decline in the number 
of warrants issued by federal magistrates. According to the 1980 
Annual Report of the Director of the Administrative Office of 



358 



the U.S. Courts (at p. 140) the warrants issued over the years 
have gone down: 

Warrants issued by federal magistrates 

1972 1976 1977 1978 1979 1980 

search warrants 7,338 6,068 5,203 4,491 4,606 4,756 
arrest warrants 36,833 19,904 17,716 14,721 11,423 9,721 

The Fourth Amendment requires that warrants issue for both arrests 
and searches, signed by an independent magistrate who has de- 
termined that there is probable cause for a search or seizure. 
Even if the grant of a warrant is now quite perfunctory, war- 
rants serve as an important paper record, requiring law enforce- 
ment officers to memorialize the evidence they have obtained 
before a search or seizure is made. This allows a court to 
test their claims and weigh their evidence in a later adversary 
proceeding. But federal law enforcement officers are seeking 
warrants less and less. 

The federal rules of criminal procedure were changed 
in 1974 to allow summons to be issued instead of warrants in 
some cases but since only 1,552 summons were issued in 1980, 
that cannot explain the difference. More important, the rules 
were changed in 1977 to make it easier to obtain a search 
warrant, by telephone, yet the number of search warrants have 
declined by close to 40% since 1972. 

It must be remembered that the purpose of the exclusion- 
ary rule is not to protect a handful of drug dealers and allow 
them to go free. Contrary to what White House counselors may 
say, the ACLU is not part of a criminal lobby trying to get 
criminals out on the street as fast as we can. The purpose of 
the exclusionary rule, and the Fourth Amendment is to protect 
the privacy rights of all Americans, in particular the millions 
of law abiding Americans who would otherwise be subject to 
seizure of their persons or invasions of their homes because the 
police are looking for a criminal. Without the protection of 
the Fourth Amendment, dragnet arrests or seizures and indis- 



359 



criminate breaking into homes would become a frequent occurrence. 

Just to remind the Committee of what could happen, a 
few years ago there was a search for the so-called Zebra 
killings in San Francisco. There had been 17 murders of whites 
in late 1973 and 1974 and two young black males were described 
as the assailants. The police department issued a directive 
to stop and pat down all young black males in the city of San 
Francisco, 20 to 30 years old, 5 '8" to 6" tall. A lawsuit 
was immediately filed to stop this indiscriminate frisking of 
tens of thousands of innocent citizens who merely had some of 
the same physical characteristics of the suspects. See 
Williams v. Alioto , 549 F.2d 13b (9th Cir. 1977). 

In an earlier case in Baltimore, Lanford v. Gelston , 
F.2d (4th Cir. 1966) the police in Baltimore invaded 



300 private homes in the black section of the city looking 
for suspects in a police killing. They had no warrants to do 
so and in most cases the searches were based on unverified 
anonymous tips. They broke into homes at all hours of the day 
or night without verifying the tips they received. A federal 
court issued an injunction against any further invasions. 

We are afraid that without the full protection of the 
Fourth Amendment and the exclusionary rule, dragnet arrests or 
frisks and indiscriminate break-ins of homes could become a far 
more frequent occurrence. 

The importance of the exclusionary rule as the es- 
sential remedy to protect the requirements of the Fourth Amend- 
ment has been repeated in case after case. See United States v. 
Calandra , 414 U.S. 338, 348 (1974). At its heart the exclusion- 
ary rule is crucial for Fourth Amendment protection for two 
interrelated reasons: (1) the criminal cases excluding evidence 
by reason of the exclusionary rule are our chief means of 
defining the limits and meaning of the Fourth Amendment; 
(2) the exclusionary rule provides the key incentive for making 
law enforcement officers obey the law. 



360 



Definition ; The general words of the Fourth Amend- 
ment are not self-defining or self-enforcing. "The right of 
the people to be secure in their persons, houses, papers and 
effects against unreasonable searches and seizures shall not 
be violated and no warrants shall issue, but upon probable 
cause, supported by oath or affirmation, and particularly 
describing the place to be searched, and persons or things to 
be seized." 

What is probable cause? How is it determined? Are 
there any exceptions to the warrant requirement? What is the 
plain view doctrine? How is consent determined? How far may 
a police officer search incident to arrest? What is a Terry 
stop? What justifies a pat-down of a suspect? 

We have now built up an elaborate body of law 
answering these and other questions. But it has been done by 
state and federal courts applying the exclusionary rule in case 
after case on motions to suppress evidence. Without the exclusion- 
ary rule, there would be no occasion to worry about probable 
cause, plain view, consent, pat-down, Terry stops and so on. It 
is true that civil suits for damages under 42 U.S. Section 1983 
require the definition of Fourth Amendment protection. But 
Fourth Amendment violations rarely produce Section 198 3 cases 
and successful actions are rarer still. Citizens do not bring 
civil suits for damages under Section 1983 for bad stops, 
searches, arrests or seizures. Suits for injunctive orders 
generally require department-wide or jurisdiction-wide problems 
before relief can be granted, as in the Williams or Langston 
cases. It is only because of the exclusionary rule that we have 
built up a basic set of rules of what the Fourth Amendment 
means. That definitional and educational function has been one 
of the chief benefits of the Weeks and Wolf rules. In short, the 
law enforcement community have learned what the Fourth Amend- 
ment means primarily because of the exclusionary rule. 

Enforcement; Once having learned what the rules 



361 



require, the police must be given an incentive for obeying 
them. It defies logic to say that the Fourth Amendment means 
what the courts say it means but the police do not have to pay 
attention to what the rules are. When we say that the exclusion- 
ary rule acts as a deterrent what we mean is that the courts 
are telling the police that they must obey the law. Otherwise, 
the courts would become accomplices to the violations that occur. 
For the courts to tell the police that they can disregard the 
basic tenets of our fundamental charter, that the rules do not 
mean anything as far as they are concerned, is to ignore the 
entire meaning of the Bill of Rights. When James Madison 
introduced the first ten amendments to the Constitution, he 
relied on the courts as the chief mechanism of enforcement. "If 
they (the amendments) are incorporated into the Constitution, 
independent tribunals of justice will consider them in a pe- 
culiar manner the guardians of those rights, they will be an 
impenetrable bulwark against every assumption of power in the 
legislative or executive; they will be naturally led to resist 
every encroachment upon rights expressly stipulated for in the 
constitution by the declaration of rights." Should we now say 
that Madison was wrong, the courts should not be a guardian of 
Fourth Amendment rights, they should not resist encroachment 
into privacy rights by the police, that they should be a 
penetrable bulwark when the police invade our homes. To tell 
the police that they can violate the law is to teach society a 
terrible lesson, as Justice Brandeis said in his famous dissent 
in Olmstead v. United States, 277 U.S. 438, 483 (1928). 

"When the government, having full knowledge, 
sought, through the Department of Justice, to 
avail itself of the fruits of the acts in order 
to accomplish its own ends, it assumed nioral 
respcnsibility for the officers crimes.... 
and if this Court should permit the Government, 
by means of its officers' crimes, to effect its 
purposes of punishing the defendants.... the 
government itself would become a lawbreaker. 

.... In a government of laws, existence of the 
government will be imperilled if it fails to observe 
the law scrupulously. Our government is the 

25-694 0-84-24 



362 



patent, the omnipresent teacher. For good or for 
ill, it teachers the whole people by its example. 
Crime is contagious. If the Government becomes 
a lawbreaker, it breeds contempt for law; it 
invites every man to become a law unto himself; 
it invites anarchy." 

As Brandeis said, the end does not justify the means since the 
consequences of sanctioning official lawbreaking would bring 
"terrible retribution." The police would learn again the ad- 
vantages of breaking the law, at a terrible cost to the privacy 
of us all. As Yale Kamisar has written, it was only when the 
exclusionary rule was applied to the states, that state police 
officers began to pay attention to the requirements of the 
Fourth Amendment. Every time a police officer asks his super- 
iors what he is supposed to do, when he can invade a home or 
stop a car or search a citizen and he is told what the rules are, 
then the exclusionary rule is working. We cannot retreat into 
the dark days before Weeks and Wolf . 

3. Habeas Corpus 

Title VI of S. 829 would reverse 30 years of practice 
in the habeas corpus field and deprive federal courts of their 
chief function under the Constitution — namely, to protect 
the constitutional rights of its citizens. 

We first, stress that no case has been made for a change 
in the habeas corpus laws. It has been repeatedly argued that 
habeas petitions are clogging the courts. The facts, however, 
reveal the contrary. In the year ending June 30, 1981, there 
were a total of. 211, 863 civil and criminal filings in federal 
district courts. Of these, 7,790 were habeas corpus petitions 
of state prisoners. This means that only 3.67% of the total 
filings in 1981 were habeas petitions. This hardly amounts to 
clogging. The stage at which most habeas petitions are disposed 
of is also informative. Of the 7,302 habeas petitions terminated 
in 1981, 7,018 (96.1%) were dismissed before pre-trial; only 
165 (2.2%) terminated during or after trial. 



363 



The most disturbing and radical change proposed by 
S. 829 is that it would require a federal court reviewing a habeas 
corpus petition to accept the legal determination of a state 
court on a federal constitutional issue, so long as the state's 
court conclusion was "fully and fairly adjudicated." Sec. 605. 
This would largely overrule the Supreme Court's decision in 
Brown v. Allen, 344 U.S. 443 (1953), which holds that federal 
courts have clear authority to determine questions of constitu- 
tional law raised in habeas corpus petitions. This rule was 
codified by Congress in 28 U.S.C. 2254. This principle has become 
an integral and important part of our law. It is noteworthy 
that since Brown v. Allen was decided nearly three decades ago, 
no member of the Supreme Court has suggested that it be over- 
rules. It is only in the special situation of Fourth Amend- 
ment claims that the Supreme Court altered the rule in Stone 
V. Powell , and said that adjudication by a state court is all 
that is necessary. To overrule Brown v. Allen is to provide 
that all state criminal convictions which have been "fully 
and fairly" adjudicated at the state level will be insulated 
from federal review no matter how compelling the facts or con- 
stitutional claims may be. 

As a practical matter, S. 8 29 will not achieve a re- 
duction in workload for the federal courts. Petitions will still 
be filed; state attorneys will be required to respond accordingly 
and federal courts will have to make initial determinations 
whether the claim has been "fully and fairly" adjudicated in 
state court. Since 96% of all habeas petitions are summarily 
disposed of under current law, S. 829 will result in little 
workload change. 

The second major problem in S. 829 is its attempt to 
broaden the circumstances in which procedural errors are insulated 
from federal review, thereby limiting the presentation of con- 
stitutional issues in federal court. Under the Supreme Court's 
decision in Wainwright v. Sykes , 422 U.S. 72 (1977), a constitu- 



364 



tional issue not raised in state court in accordance with a 
state's contemporaneous objection rule is deemed forfeited 
unless a defendant shows "cause" for the failure to raise the 
issue and "prejudice" arising from the claimed constitutional 
defect. The court left "cause" and "prejudice" undefined to 
protect against miscarriages of justice. S. 829 would severely 
restrict the definition of "cause." In so doing, it could 
creat serious injustice. Consider for example, the case of a 
defendant's lawyer who suffers a stroke after conviction but 
before a notice of appeal is filed. The notice is eventually 
filed but is not timely and the state considers the failure 
jurisdictional. The bill would foreclose federal habeas relief 
no matter how compelling the petitioner's claim may be. The 
bill also arguably prohibits constitutionally ineffective assist- 
ance of counsel from being considered "cause." 

Given the variety -Of..;>f actual circumstances presented 
in habeas corpus petitions, federal courts should be free to 
-determine whether a specific by-pass of state procedure is 
justified by the circnmatances of feiie case. Congress cannot 
possibly write a statuteivrtiich covers all possible situations of 
injustice. The Supreme Court recognized this in the Wainwright 
decision when it stated that the new test would not prevent "a 
federal habeas court from adjudicating for the first time the 
federal constitutional claim of a defendant who in the absence 
of such an adjudication will be the victim of a miscarriage of 
justice? 344 U.S. at 91. Just last year, the Supreme Court 
again emphasized the necessity of flexibility in determining 
"cause." 

"The terms 'cause' and 'actual prejudice' are not 
rigid concepts. They take their meaning from the 
principles of comity and finality discussed above. 
In appropriate circumstances those must yield to 
the imperative of a fundeunentally unjust incar- 
ceration," Engle v. Isaac, 50 U.S. LW 4359 
(April 5, 1982) . 

The categorial rules in S. 829 will require federal 

judges to close their eyes to miscarriages of justice. 



365 



A third major problem in S. 829 is the proposed 
statute of limitations. We believe that current law is ade- 
quate in this regard and the proposed limitations raise serious 
constitutional questions in light of the Article I prohobition 
against suspension of the writ, particularly insofar as it may 
result in punishment of a person who has committed no crime. 
Rule 9(b) of the Rules Governing Section 2254 cases permits a 
court to dismiss a habeas petition if the state has been pre- 
judiced in its ability to respond because of delay. No evidence 
has been presented that this provision is insufficient to 
protect state interests. 

Moreover, the one year limit is totally unreasonable 
and impractical. The problems are detailed in Professor Cillers' 
statement. They include the lack of any escape clause for cases 
of manifest injustice, the inadequacy of the one-year period to 
comply with the suggestion in the recent decision in Rose v. 
Lundy , 50 U.S. L.W. 9272 (March 3, 1972) that all claims be 
filed in one petition, and the ambiguity of the paragraphs 
which set forth the commencement of the time limit. We urge 
that the current law be retained. At the very least, the time 
limit should be extended and an escape clause added for cases 
of "manifest injustice on the issue of guilt or innocence or 
on the legality of sentence." 

II. CRIMINAL SENTENCING 

1 . Sentencing Policies and Procedures 
The ACLU has had a long-standing interest in federal 
sentencing reform. We have carefully studied the sentencing 
provisions in Title II of S. 829, which are identical to 
the provisions in S. 2572 of the last Congress. We have 
concluded that while including several valuable reforms, 
these provisions have a variety of fundamental problems. 
A complete analysis is attached as Appendix G . The reforms 
include a requirement that judges state on the record their 



366 



reasons for imposing sentences, and specific inclusion of 
community service as a permissible condition of probation. 

The reforms, however, do not balance the significant 
flaws in the sentencing provisions. First, the government 
is given extraordinary new authority to appeal sentences 
imposed by trial courts. Second, S. 829 is substantially 
tilted towards increasing the use of imprisonment, and 
there is a substantial risk that prison terms longer than 
under current law will be widely imposed under the bill. 
Little, if any, incentive is given to judges or the proposed 
sentencing commission to devise alternative sentences to 
imprisonment for non-dangerous offenders. By abolishing 
parole and limiting good time, the bill closes the safety 
valves of the system and risks even longer periods of incarceration 
than under current law. Under current law, most offenders 
receive a presumptive release date of one-third of the 
sentence of imprisonment. If parole release is abolished 
without cutting statutory maximums, time spent in prison 
could increase indiscriminately by as much as two-thirds. 
The federal prison population could easily double in a 
short time. The budgetary and human impact of this result 
would be extremely damaging to effective crime control. 
The fact that the sentencing commission will consider current 
actual time served in setting the guidelines does little to 
mitigate the risk of substantial increase in prison sentence 
lengths. For this reason, an administrative early-release 
mechanism should remain in place during a transitional 
period after the guidelines are implemented. Unlike parole, 
this mechanism would not consider rehabilitation. Rather, 
it would be limited to a safety valve function, considering 
factors such as prison populations. 

The third flaw in the sentencing provisions is that 
the system for guiding judicial discretion is riddled with 



367 



inconsistencies, and unwarranted disparity in sentencing 
will therefore be likely to continue. For example, under 
Section 3553, an offender could be sentenced for the purpose 
of deterrence while another offender who committed the same 
crime in similar circumstances could receive a different 
sentence for the purpose of incapacitation. 

2. Capital Punishment 

Title X of S. 829 would reinstitute the death penalty for 
certain federal offenses. Title X is identical to S. 114, as 
reported by the Judiciary Committee, of the 97th Congress. A 
memorandum of law containing our complete views is attached as 
Appendix H 

The ACLU maintains that the death penalty under all circum- 
stances is cruel and unusual punishment prohibited by the 
Eighth Amendment. Therefore, we strongly oppose the enactment 
of a federal death statute. 

A majority of the Supreme Court has so far declined to 
hold that capital punishment is unconstitutional. 
However, the Court has declared that the death penalty is only 
permissible in extremely limited circumstances and in confor- 
mance with tightly drawn procedures. Title X of S. 829, fails 
to meet well-established requirements for death penalty statutes 
and is therefore unconstitutional on both substantive and 
procedural grounds. Substantively, the bill does not restrict 
the imposition of this ultimate sanction to a narrow class of 
heinous crimes involving the taking of human life. Instead, 
it impermissibly authorizes death sentences for such non- 
homicidal crimes as treason and espionage, in contravention of 
the Supreme Court decision in Coker v. Georgia , 433 U.S. 584 
(1977). In addition. Title X unconstitutionally provides that 
death sentences can be imposed for unintended deaths under a 
felony-murder theory. 

Title X also is marred by numerous procedural defects. 



368 



First, it does not require that findings of specific aggravating 
circumstances be made by unanimous vote. 

Second, the language of many of these aggravating factors is 
unconstitutionally broad and vague. Third, the jury is given 
insufficient guidance in determining whether to impose the 
death penalty. Fourth, S. 114 burdens the defendant with the 
risk of non-persuasion concerning all mitigating factors, in 
contravention of Mullaney v. Wilbur , 421 U.S. 684 (1975). 
Finally, the bill fails to adhere to the constitutional require 
ments for appellate review of death sentences. 

III. CRIMINAL LAW 
1. Insanity Defense 

1. Insanity Defense 

The insanity defense is based on a simple but fundamental 
principle: a person cannot be held criminally responsible for 
acts he or she did not intend to commit and did not know were 
criminal as a result of a mental disease or defect. Title V 
of S. 829 restricts the traditional insanity defense and makes 
several other changes in the law relating to procedures for 
committing persons suffering from a mental defect or illness. 
-We oppose these changes. 

The most significant change in the bill involves the test 

for determining whether a defendant can invoke the insanity 

defense. While the bill retains the requirement that a criminal 

defendant be able "to appreciate the nature and quality of his 

act," it eliminates the separate requirement that he or she be 

able to "conform to the requirements of the law." The bill's 

section-by-section analysis states that "this limitation of the 

insanity defense in effect eliminates the volitional portion of 

the two-pronged ALI-Model Penal Code test for insanity which has 

4 
been adopted by the federal courts". 



"129 CONG REC. S 3146 (March 16, 1983) 



369 



The effect of this narrowing of the defense is to permit 
the criminal conviction of a person who is mentally ill and 
unable to conform to the criminal law. Under this new formula- 
tion, a mentally ill defendant who shoots a person but thinks 
he is shooting a tree could plead the insanity defense, but a 
mentally ill defendcint who shoots a person in the belief that he 
is shooting the devil could not. In the first case, the 
defendant did not understand the nature of his act. In the 
second, he knew what he was doing but lacked the will to obey 
the law. This narrowing of the insanity defense raises serious 
questions of constitutional due process of law and cruel and 
unusual punishment under the Fifth and Eighth Amendments, and it 

represents a substantial break from all the recognized criminal 

5 
law tests for insanity. 

The second significant change of law in Title V of S. 829 

involves the burden and standard of proof in civil commitment 

proceedings. The bill creates a statutory presumption of future 

dangerousness for persons found not guilty by reason of insanity. 

This new presumption is at odds with the constitutional principle 

that the government ~ust bear the burden of proving that a person 

will be dangerous in the future in order to -ustify civil commit- 

6 
ment. Furthermore, the presumption is misplaced: the insanity 

defense is based on the defendant's state of mind at the time of 

the offense, but civil commitment proceedings focus on the 

defendant's present and future characteristics. For these 

reasons, the statutory presumption should be eliminated and the 



5 E.G. M'Naghten (whether the accused "was laboring under such a 
defect of reason, from the disease of the mind, as not to know the 
nature and quality of the act he was doing; and if he did know it, 
that he did not know he was doing what was wrong") ; Durham 
(whether the unlawful act was "the product of mental disease or 
defect"); or the ALI-Model Penal Code (whether the accused "as a 
result of mental disease or defect. . . lacks substantial capacity 
either to appreciate the criminality (wrongfulness) of his conduct 
or the conform his conduct to the requirements of law"). 

6 See Addington v. Texas , 441 U.S. 418 (1979); O'Connor v. 
Donaldson, 422 U.S. 563 (1975). 



370 



government required to prove by clear and convincing evidence 
that the defendant is mentally ill and a danger to the conununity. 

2. Solicitation 

Solicitation is an entirely new federal crime which makes 
culpable certain types of speech when no criminal act occurs. 
As a general proposition such a crime implicates the First 
Amendment. While solicitation of a crime of violence may be 
a proper subject of the criminal law, the new crime in S. 829 
is unnecessary and should not be enacted because of the constitu- 
tional sensitivity of pure speech. Other provisions of current 
law already cover those situations where solicitation actually 
results in violent criminal conduct. Thus, if a solicitation 
is successful, the solicitor can be held criminally as an 
accomplice. If the solicitation does not result in the commission 
of a crime, but the solicitee agrees and thereafter commits an 
overt act, the solicitor can be charged with conspiracy. Thus, 
existing law is entirely sufficient to reach the criminal 
activity intended to be proscribed by the new crime of solicita- 
tion of a crime of violence. 
3 . Destruction of Energy Facilities 

Under current law, federal criminal jurisdiction does not 
extend to most state-owned or private commercial property. Under 
a federal system of government, these areas are the responsibility 
of state and local authorities. 

Breaking with this principle, S. 829 creates a new juris- 
dictional basis for certain crimes "committed on premises that 
are part of a facility that is involved in the production or 
distribution of electricity, fuel or other forms or sources of 
energy, or research, development, or demonstration facilities 
relating thereto, regardless of vrhether such facility is still 
under construction or otherwise not functioning." 

In contrast to current federal law, which leaves property 
crimes committed outside of federal enclaves or premises to state 
or local jurisdiction, the new energy facility jurisdiction 



371 



proposal would substantially expand federal authority without any 
showing that such expansion is necessary or that state and local 
enforcement in this area is inadequate. 

This jurisdictional provision is broad in scope and potentially 
dangerous in effect. When coupled with inchoate offenses it 
could be interpreted to provide new authority for federal investiga- 
tive agencies to conduct surveillance of demonstrations and other 
political activities in the vicinity of nuclear and other energy 
facilities. Because inchoate crimes of conspiracy, attempt and 
solicitation would apply to any speech, plan or activity suspected 
of leading to arson, aggravated property destruction or criminal 
entry, the effect of the new jurisdictional provisions could be 
to focus federal investigative efforts on persons and groups who 
publicly oppose certain forms of energy production. 

We opposed this provision when it first appeared in 
the criminal code revision bill, and we remain opposed to it. 

4. Child Pornography 

Part B of Title XV amends the federal child pornography 
laws to permit prosecution of persons who exchange material 
depicting children engaging in conduct which does not meet 
the constitutional standards of obscenity, even if that exchange 
is private and non-commercial. The law is already straining 
against the First Amendment in this area. The new crime 
established by S. 829 is almost certainly unconstitutional. 

5. Miscellaneous Provisions 

The ACLU strongly objects to a variety of other provisions 
in S. 829, and we wish to reserve the right to supplement this 
testimony with additional comments. We oppose any expansion of 
the authority for federal wiretapping under Title III of the 
Omnibus Crime Control and Safe Streets Act of 1968, especially 
since no case whatsoever has been made for the additional 
authority provided in Title XVI of S. 829. We oppose the revision 
of international extradition law proposed in Title XIV, and 
submit as an appendix to this testimony our views on this important 



372 



subject. We also oppose the proposed substantial changes in the 
Federal Tort Claims Act (Title XIII), immunising federal officials 
from liability for constitutional torts without providing an 
adequate substitute of governmental liability and individual 
accountability. Additional areas of the bill which we oppose 
include (a) new authority for warrantless customs searches for 
currency (Title XII) , (b) new crimes of sodomy and maiming 
on Indian Reservations (Title XIV) , (c) new authority for 
prosecution of certain juveniles as adults (Title XVI) , and 
(d) new authority for the government to appeal a district coxirt 
order granting a new trial . 



APPENDIX A : STAFF REDUCTIONS 
IN FEDERAL LAW ENFORCEMENT 
AGENCIES 



STAFFING LAW ENFORCEMENT AGENCIES 

This chart shows how the number of employes (sic) at 
certain agencies involved in law enforcement activities has, 
in most cases, declined since fiscal 1981. Not all of these 
employes, (sic) however, are directly involved in law 
enforcement activities. 



AGENCY 1983 1982 1981 

Internal Revenue Service 65,575 56,876 76,575 

U.S. Coast Guard* 34,938 35,689 38,586 

FBI 19,048 19,456 19,306 

U.S. Customs Service 12,214 14,018 13,228 
Immigration and Naturalization 

Service 10,661 10,604 10,886 

U.S. Attorneys and Marshals 6,334 6,520 6,801 

Secret Service 5,473 5,473 3,722 

Drug Enforcement Administration 3,953 3,953 4,030 
Bureau of Alcohol, Tobacco and 

Firearms 2,450 2,454 3,671 

SOURCE: Justice Department, cited in Congressional Record 
*military employes only 



WASHINGTON POST, January 18, 1983, p. A. 15 



373 



APPENDIX B: "Realistic Approaches to Crime Control" 

CIVIL I.IBERTIRS, KVhruniy I983/Pil|{c 7 



II. REALISTIC APPROACHES 



Thv i^overnnient's simplistic, stop ^np prutfrum 
will nul niakr a dont in tK<: crime pri>l>lrm It will 
iiimply tfxpand govi-rnmrntnl powt-r .il the rxpenso 
of individual ri);hts. potr nlially Miltjt'Ctini; all ofuA 
to thr iibuKos which would inevitably follow But 
thrcT nrv rvrorms, »upportcd by niiiny in llic law 
rnrorccmcnt, judicial and corrections communi 
tien. which, \( implemrntcd, would be both etfrc 
tive and constitutional appro.-ichc)i to crime. Some 
of thciir reforms hiive bvvn trimi cipi-rimentuHy in 
various parts nf the country Althouch the rcxults 
hove bi-en cncourttcin^:. they have not been 
adopted to any significant de^ec 



Policing Reforms 

Improved rt'lHtionk with thr community. 
"Information from cititen» is the lifeblood of suc- 
cessful policins." writes ftitrick V Murphy. Presi- 
dent of the I\>ltce f'oundution and former police 
commissioner of New York City, Detroit. Washinu 
ton.D.C-andSyr»cuse.N,Y. "If cituens trust their 



to cut olf fund-s until the police and other nicvncieii 
adopt lawful hirini; practicea. 

The widesipieiul replacement of foot pntrols by 
patrol cars is nnuther formidnblr ohntncle to police 
community coopenittun "By chttn|{in|[ the role of 
the beat pntrolninn," n big city police chief wrote, 
"weeliminuted the effective, personal rehitionship 
between the police officer and the people he served 
We severed communications with our greatest 
nnti crime ally, the citiiens themselves" 

Keceiit expei'inientji reiiitroducini' foot patrols 
indicate they have ii positive elFevt on the commu 
nity. For cuample, the Flint Nei|;hborhood Foot 
Patrol Proj;rnm in Flint. MichiKun has signifi- 
cantly curtailed crime. While the crime rate in 
Flint actually increased from 1^79 to 19B2. it 
decreased by 8 7 percent in the 14 foot patrolled 
areas The largest decrejisc (46 percent) was in 
criminal sexual a^j^ault. Minor complaints such as 
broken windows and illegally parked cars were 
handled more swiftly and cfficicnlly by officers on 
foot patrol, freeing patrol cars for more serious 
calls And 70 percent of the residents believed their 




"By changing'the role of the beat patrolman, wc eliminated the effective, 
personal relationship between the police officer and the people he served." 



police officers, they will provide the information 
police must have to deter crime" There are formi 
dable obstacles to establishing such a relationship 
of trust. 

Race prejudice plagues many of the police 
departments throughout the country Because of 
unnecessary use of force, deadly and otherwise. 
against blacks and other minorities, minority com- 
munities teod to view the police as an occupying 
army rather than as their protectors. (Indeed. 
ACLU oflices throughout the country are repre- 
senting dozens of minority victima of police abuse 
in lawsuits for damages.) 

The National Black Police Association proposes 
that alt police cfficers be given awareness and 
black culture training to enhance their under- 
standing of the black community, Patrick Murphy 
argues thai the racial composition of a police 
department must reflect the racial makeup of the 
community it services. "In my experience," Mur- 
phy explains, "a police department that attempts 
to recruit and select blacks and other minorities 
for %la ranks gains the trust of minority members 
in the community and is a better police depart- 
ment for It* efforts '■ 

In many localities throughout the country and 
especially in the South, however, police depart 
menls are the last bastion of traditional discrimi- 
natory hiring practices. In those places, in spite of 
large minority populations, the police forces ore 
composed exclusively of white males The ACLU 
has filed complaints on behalf of local citizens 
against dotens of small and medium sized South 
ern municipalities, asking the federal government 



neighborhood was safer because of the presence of 
officers on foot patrol 

Other community-police programs that have 
succeeded include the Citizen's Local Alliance for a 
Safer Philadelphia, which assists block associa- 
tions in the organization of "neighborhood walks" 
at night, and Seattle's Community Crime Preven- 
tion Program, which helps residents organize 
block watches Crime has decreased in the neigh 
borhoods participating in these programs 

More police intervention in incidents of 
domestic violence. In the U.S today, roughly 
one-half of all murders and serious injuries occur 
within families and close-friendship groups. 
Approximately 13 percent of all murders involve 
one spouse killing another. In spite of these fright 
ening statistics, the police and the criminal justice 
system in general do not treat domestic violence 
seriously As one social scientist put it: "Underly- 
ing the criminal justice system is the covert tolera- 
tion of wife-bealing. as indicated in the policy and 
personal attitudes of the police, prosecutors and 
judges" 

An expenmenl in Detroit. Michigan, has shown 
that reforms in this area make u difference In 
1978. alarmed at the mcreaRing homicide rate, the 
state legislature passed a bill giving police more 
power to intervene in domestic disputes That 
same year the Detroit Family Clmic was esLab 
lished and began serving two of the city's 12 pre 
cincts The Detroit police now respond to oil family 
trouble calls, and once they have brought the vio 
lence under control, the p«rtiea are referred to the 



clinic ThiH joint effort him led to jin upprrciabli' 
decienpu* in Detroit's murder rule 

Sentencing Reforms 

One of the laudable ijumIh of mandatory sentenc 
ing was to prevent the great diopiiritieh which 
sometimes occurred under indeterminate iM^-ntenc 
ing schemes, in which only miiximurn terms were 
miindnted by ktiitule ond the juH|;e c<nild give nnv 
sentence, or noM-ntence iil till, as lung us il did not 
exceed the maximum Moreover, bvciiusr the %vn- 
Icncc Wds indelerniinate. the parole board could 
later decide how much of that sentence a convicted 
criminal would octually serve But noM state legis 
latorshave gone too far in deny ing judges any lleii 
bility or discretion in shaping apprupnuie senten 
ces for the offenders who come before them L<-gi*t 
lative sentencing has led to the lengthy 
imprisonment of many offenders who would have 
been good candidates for probation or some form of 
alternative sentence, and to the overcrowding 
which has reached crisis proportions in many 
states 

Indiana is a good example of what is wrong wuh 
mandatory sentencing Since 1978 when the state 
passed lis mandatory sentencing law. its prison 
population has increased by 15 percent each year 
(compared to 1 percent per year before 1978> 
About 40 percent of the new prison population is 
made up of persons convicted of minor, nun- violent 
crimes such as second time shoplifting The 
prisons are also receiving violent offenders with 
extremely long terms, who have no incentive for 
cooperating with prison officials because under 
mandatory sentencing they have no chance for 
parole As a result, the prisons are overcrowded 
and tense, yet there has been no demonstrable 
reduction of crime in the slate 

Many reformers now support "detcrmmule" or 
"presumptive" sentencing, which sets up clear 
guidelines but al<w leaves some discretion to sen 
tencing judges. They point to the determinate sen- 
tencing law passed by Minnesota in 1980. which 
was designed to keep the lid on that stale's rapidly 
expanding prison population. Basically, a "grid" 
formula quantifies an offender's criminal past and 
his current offense, and assigns the appropriate 
sentence A judge who believes a greater or lesser 
sentence is called for can do so but must justify his 
decision in writing. An offender who is sentenced 
to a lerm greater than that prescribed by the grid 
has the right to appeal his sentence. This compro 
mise between mandatory and indeterminate sen- 
tencing has led to the stabilization of Minnesota's 
prison population at 90 percent of capacity and a 
drop in the proportion of properly criminals in 
prison- 
Alternatives to incarceration. Nationally, 
about one-half of all prisoners are behind bars not 
for crimes of violence, but for property crimes 
Over-incarceration is at best meaningles*, and at 
worst extraordinarily counterproductive There is 
now general agreement among experts that 
prisons do not rehabilitate More typically, they 
are crime factories. As Norman Carlson, head of 
the Federal Bureau of Prisons, has charged. "Any 
one not a criminal when he goes in will be when he 
comes out." 

The ACLU believes that alternatives to incar 
ceration. particularly programs in which nonvio 
lent offenders repay the victim or community 
through restitution or service, ahould be more 
widely used There are numerous workable and 
effective models, 

Asa result of an ACLU case seven year& ago. the 
stale of Alabama established several work release 
centers which now accommodate 20 percent of the 
stale prisoners During the first eight mnnthK of 
1981, the 1,000 inmates in the program earned 
close to $2 million, and pa id some S900.000 to their 
dependents, to the Department of Corrections, and 
in state and federal taxes In prison, they would 
have cost the taxpayers of Alabama $10 million 
instead 

New York City's Community Service Sentencing 
Project, run by the VERA Invlitute. has handled 
more than 1.800 non-violent offenders who were 



374 



Page ft/CrVIL LIDEKTIKS. Februory 1963 



e«ch »cnl«nced to perform ttcvcnly houre of unpuid 
service for the benefit of the community. They 
cleaned senior citizen ccnlerb. youth centers ond 
parks, installed smoke alarms for the elderly, and 
performed other useful work Ninety percent com 
pleted their sentences, and aomc even continued 
on as volunteers. 

"A aenlenc* requiring an offender to perform 
community service in lieu of jnil opts for repara 
lion and rejects destructive vengeance." Judge 
William Erlbaum of the Criminal Court of New 
York says of the VERA program. "Jailing the petty 
offender punishes the community doubly; having 
suffered the crime the community must now bear 
the staggering costs of confining the offender < $75- 
100 per day per offender). Jail also instills further 
resentment in the offender, which, down the line, 
causes further crime. But for many offenders, the 
experience of hard labor on behalf of their neigh- 
bors produces a renewed sense of inclusion in the 
work force, of the rise of dormant skills, and of self 
worth." 

Prison Reform 

Prison conditioDS must meet cortstir.utionaJ 
standards of decency. Approximately thirty 
state prison systems are now under federal court 
supervision, many due to cases brought by the 
ACLU's National Prison Project. The project's first 
"totality of conditions" case was against Alabama, 
whose prisons in 1976 were found to be "barbaric 
and inhumane" in violation of the Eighth Amend- 
ment's prohibition against cruel and unusual pun- 
ishment The federal judge in the case, ruling that 
prison conditions were debilitating and made 
inmates worse rather than better, ordered the 
slate to provide each inmate 60 square feet of liv 
ing space, a change of linen once a week, and three 
wholesome and nutritious meals per day The num- 
ber of guards had to be nearly doubled to prevent 
physical violence among inmates Prisoners had to 
be given meaningful jobs and an opportunity to 
participate in an educational and vocational train- 
ing program. Similar orders have been issued by 
judges throughout the country. Rather than spend 
ing billions on new prisons, already existing facili- 
ties must be vastly improved 

Prisoners should be reclassified nation- 
wide. Today. 70 percent of all inmates are confined 
m maximum security facilities. And yet, only 15- 
20 percent fall into the category of high security 
risks. Thus, most offenders are being confined in 
unduly restrictive institutions which are 
extremely costly to build, operate and maintain 

In ihe Alabama prison case. Judge Johnson 
ordered the stale to reclassify all its prisoners who 
could be transferred to alternative facilities such 
as work release and community based programb 
Before reclassification, only 9 percent of the 
inmates were considered community security 
risks. Afier reclassification, that figure rose to 32 
percent and the maximum security population 
went from 34 percent down to a mere 3 percent 

The ACLU supports the development of a 
rational classification system in every stale based 
on the rule of "least restrictive" classification 
This would free majiimum security space for those 
who really require it and would give less serious 
offenders greater opportunities for rehabilitation. 
Vocational training and education must be 
improved. IVrhaps the most oppressive feature of 
prison life is ils unrelenting boredom Typically 
only a fraction of a prison's inmates receive any 
vocalional training, the rest are forced to serve 
Iheir time in idleness 

"VS'hat we have to do." says New York Stale Cor 
reclions Commissioner Thomas Coughlin. "is lo 
Lake the mass of people, the 9.000 people that we 
gel every year, and we have to say, 'Here ore the 
range of options If you don't speak English, we'll 
leach you English as a aocond language. If yuu 
don't have a fiflh-p-jde education, we're going lo 
iry to give you a fifth grade education If you want 
to go to school— college, we'll provide a collepe pro 
gram for you If you want lo learn a skill, we'll prT> 
vide a skill for you' Now that's wh,il a prison -.ys 
lems supposed lo do. You can'l ju'.l lock 'em up 
twenty three hours a day, bvcau-*e. when you dn 
that, prisons blow up" 



"community service in lieu of jail" 




An ofTender works off his sentence in VERA's community service progi. 



Emergency measures to ease overcrowding 
are needed. Several sUtes have recently enacted 
legislation to deal with this problem. The Michi- 
gan Overcrowding Emergency Powera Act. for 
example, creates a relief mechanism that is trig- 
gered when the prison population exceeds the 
rated capacities for thirty consecutive days. At this 
point prisoners wilhin ninety days of parole eligi- 
bility become immediately eligible for parole 
release consideration until such time aa the emer- 
gency condition ts relieved The elates with similar 
laws have been able lo prevent dangerous over- 
crowding in their prisons 

Conclusion 

Crime 18 an enormous aocial problem for which 
there are no simple solutions. "Its causes are com 
plex and no doubt reach deeply into the whole 
political, economic, social and psychic fabric of our 
way of life," says Justice E. LcoMilonae. Appellate 
Division, NY SlaU Supreme Court "Whatever 
the inadequacies of the courts, as well as of the 
other components of the criminal ju.slice system, 
the disease in nol caused by their deficiencies" 

Acknowledging and effectively attacking 
crime's root causes-among ihem poverty, unem 
ploymenl, dinsniulion of family ties, lack of com 
munity supporU — is a task the governmenl has 
been unwilling to undertake. President Reagan's 
Ti-fk Force on Violent Crimea explicitly declined to 
invvBligale the causes of crime, end the preaidcnt 
himself has iimplislically and unhelpfully attnb 
uttfd crime to man's propensity for "evil ' 

CaUh.words and law and -order rhetoric are poor 



Bubfilitutes for a serious approach U) crime, onv 
which combines short-term criminal justice 
reforms with long-term programs that ameliorate 
crime's underlying causes We must pressure our 
elected officials lo etop deceiving us wiih slogans 
and Lo start getting down to the serious business of 
fighting crime 



Studies Cited in this Report 

1 The Laior Inalilute. "Pre tnol Rclea.-iC An Kvuli. 
• lion of Defendant Outcomes and Pro^'ram Impaci 
Summary and PoUcy Analyeis." U.S Department of Jus 
lice, March, 1981. p ix 

2 See Ennit A Lilwuck, 'Psychialrj and the Pn- 
■umplion of Expertise Flipping Coins in the Court 
room." 62 Colif Law Rtu 693 (1974) for a revitwof lIv 
literature 

3 Arthur R Angel, el *1 "Preventive Dclirntion, An 
Empirical An«ly>i8." 6 Harvard Ctuil Rights- Cn.,1 Li^ 
rrtitt Low Rtuitin, 300, 360 (197 U. J W Locke. *( oi 
"Compililion mnd V*t of Criminal Court, DjIb .n RiIj 
lion lo Pre trial Release of Drfcndants Pilot Stud> 
Washington. DC , National Bureau of Sljnd^ird-, t' S 
Department of Commerce (1970) at 165. 109 

4 Report by ihe Comptroller General of ihc United 
States, "Impact of the Exclusionary Rule on Fcder.i' 
Criminal Proaecoliona." April 19. 1979 

5 U S Department of Jualice. NalionjI InMilul.- vl 
Justice, "The EffecUofthe Exclusionary RuU- A Slu.lv 
■ nCalirornia." December 1962 

6 ABT Study. "American Prison* and Jail* I' ^ 
Department of Juilicr. Satmnal Inatiiute of Justice 
Ocujber. 19S0; William C N.ikc'. On bchaU of a Mor.i 
lorium on Priaon Conairuclion. ' Cnmr and IJfli'. 
quftcy. April 1977 

7 William J Bo»trr« and CIrnn L Pierce. "ATbilr^n 
nru and Dincnminniion undtr ^<t Furmun C»piial 
Statutes," Crime an(^ f>^/(n(/u.'nc>. Octobtrr lyfO. p 'ifi'l 



375 



APPENDIX D 

MEMORANDUM 

July 26, 1982 

Analysis of S. 2572, "Bail Reform Act of 1982" 

Title I of S. 2572 is a proposed federal preventive detention 
statute. It would permit consideration of danger to the community 
in pretrial release conditions and pretrial detention of those 
individuals which the judge predicted would commit future 
crimes while out on bail. The American Civil Liberties Union 
has consistently expressed its opposition to preventive deten- 
tion. In our judgment, pretrial release provisions which 
would authorize judges to imprison untried persons based on a 
prediction of their dangerousness violates the Fifth and Eighth 
Amendments. 

Although we do not believe that pretrial detention for purposes 
other than to assure a defendant's appearance at trial is 
constitutional, this memorandum, in response to the request of 
members of Congress, will analyze the pretrial procedures of 
S. 2572 and make recommendations for changes. We steadfastly 
maintain, however, that preventive detention is unconstitutional 
and that improvement of the due process aspect of S. 2572 
cannot repair its constitutional defects. Furthermore, as set 
out in our testimony on S. 2572 before the Subcommittee on 
Courts, Civil Libr'-ties and the Administration of Justice, 
there is little evidence that preventive detention will be 
effective in curbing crime, and substantial evidence that it 
could have the opposite result. Available evidence indicates 
that speedy trials and improved pretrial services would substan- 
tially reduce crimes committed by defendants released on bail. 
A recent study by the General Accounting Office shows that the 
pilot pretrial services programs now in effect in various 
federal judicial districts has substantially reduced pretrial 
crime. The pretrial rearrest rate is now under 4% where pretrial 
services have been established. Congress is about to extend 
this program nationwide. 

I. Section 3142 - Eligibil ity and Triggering Mechanisms 

In defining the eligibility and triggering mechanisms for a 
detention hearing, § 3142(f) sweeps too broadly. Section 3142 
(f)(1) requires an automatic detention hearing if the case 
involves a crime of violence, an offense whose maximum sentence 
is life imprisonment or death, or an offense for which a maximum 
term of imprisonment of ten years or more is prescribed in the 
Controlled Substances Act, the Controlled Substances Import 
and Export Act or the Act of September 15, 1982. Additionally, 
upon the goverment or the judge's motion, a hearing will be 
held under § 3142(f)(2) where there is a serious risk that the 
accused will flee, obstruct or attempt to obstruct justice, 
threaten, injure or intimidate a prospective witness or juror 
or where an individual charged with a felony has been convicted 
of two or more crimes of violence, offenses whose maximum 
sentence is life imprisonment or death or drug offenses described 
in 5 3142(f)(1)(C) whose maximum term of imprisonment is at 
least ten years. 

The elasticity of the eligibility standards and triggering 
mechanisms would allow for a detention hearing in almost every 
case that comes before the court. Although § 3149(c)(4)(A) 
and (B) define a "crime of violence," the definition is vague 
and overbroad. 
According to § 3149(c)(4), a crime of violence is 



376 



(A) "an offense that has as an element of the offense the 
use, attempted use, or threatened use of physical force 
against the person or property of another; or (B) any 
other offense that is a felony and that, by its nature, 
involves a substantial risk that physical force against 
the person or property of another may be used in the course 
of committing the offense." 

Although § 3149(c)(4)(A) could be applied consistently by 
judges in different jurisdictions, § 3149(c)(4)(B) could lead 
to disparity of treatment of the accused due to differing 
judicial interpretations of what constitutes a felony involving 
a "substantial risk" of physical force. Moreover, the definition 
could be broadly read to include First Amendment activity, 
such as demonstrations. 

Section 314 2(f)(2)(C) also provides for a pretrial detention 
hearing upon a government or the judge's motion for any defendant 
charged with any felony who has twice been convicted of offenses 
covered by § 3142(f)(1). But, § 3142 (f)(2)(C) neither 
gives a time limit within which the convictions must have 
occurred nor limits eligibility to serious or violent felonies. 
Thus, this section may encourage the overly-zealous prosecutor 
to charge a defendant with a felony even though the evidence 
supports only a misdemeanor charge. Furthermore, a defendant 
who is charged with a non-violent, less-serious felony which 
normally would not trigger eligibility for a hearing may be 
detained because of convictions which took place many years 
earlier. In this situation, pretrial detention would penalize 
the defendant for past offenses for which he or she has already 
been punished. 

Although a hearing under § 3142(f)(2) will take place only 
upon a government or judge's motion, § 3142(f) ( P ) does not set 
forth a standard which the gover nmcnr ' ■- motion must meet before 
a hearing will be granted and does n^t recommend factors which 
a judge should take into account in determining whether a case 
involves a serious risk that the defendant will flee or obstruct 
justice. The lack of any standard could lead to serious prosecutorial 
abuse: a mere assertion that a serious risk of flight or obstruction 
of justice exists may be sufficient to trigger a detention 
hearing . 

The combination of § 3149(c)(4)(B), which gives a vague definition 
of "a crime of violence," and § 3142(f)(2), which allows the 
judge to move for a detention hearing, grants the judge enormous 
discretion to order a hearing. This discretion opens the 
judge to political pressures and creates a strong incentive to 
hold more hearings and detain more individuals than necessary.]^/ 

ACLU Recommendation 

A. El igibil ity 

Section 3142(f)(1) should be amended to make eligible for 
detention hearings only those defendants who have been previously 
convicted of serious, violent crimes such as rape, murder, 
kidnapping, and arson within a specific amount of time prior 
to arrest for the present charge and who now stand charged 
with one of those offenses. Section 3142(f)(1)(A) should be 
replaced by a specific enumeration of the offenses which make 
a defendant eligible for a hearing. Because 5 3142(f)(1)(A) 
will enumerate the offenses covered, § 3142(f)(1)(B) and (C) 
should be deleted. 

Section 3142(f)(2)(A) and (B) should list factors which a 

judge should take into account in determining whether a case 

involves a serious risk that the defendant will flee or obstruct 
justice, etc. 



377 



B. Tr iggerinq 

The following triggering mechanisms should be applied equally 

to all defendants who are eligible for a hearing. 

A detention hearing should be held only upon a government 

motion. Thus, § 3142(f)(1) should not provide for an automatic 

heating but rather should require that the government certify 

that the defendant previously has been convicted of and is 

presently charged with one of the enumerated offenses. Furthermore 

the statute should require that the government's motion prove 

the existence of a substantial probability that the defendant 

committed the offense charged, similar to the requirement in 

the D.C. statute. 

The words "or upon the ]udge's own motion" in S 3142(fl(2> 
should be deleted. ->isz(iM^; 

II. Procedural Rights 

S. 2572 does not provide adequate procedures to protect the 
rights of the individual at the detention hearing. First, the 
rules of admissibility of evidence in criminal trials do not 
apply at the hearing. The government may offer hearsay and 
proffered information. Second, the bill may deny the defendant's 
Sixth Amendment confrontation and compulsory process rights 
because it grants defendants only the limited rights "to cross- 
examine witnesses who appear at the hearing . " (emphasis added.) 
Third, the bill does not guarantee a right to compel the presence 
of a government witness whose testimony is proffered to the 
court. The government thus will be able to defeat a defendant's 
rights to confrontation, cross-examination and compulsory 
process merely by introducing hearsay and proffered testimony. 
Finally, the bill does not protect the accused's testimony 
from use against him or her in subsequent proceedings. 2/ 

ACLU Recommendation 

A. Confrontation, Compulsory Process and Cross-Examination 
In addition to those procedural rights guaranteed by § 3142 
(f) , the defendant must be permitted to compel the presence of 
and to confront and cross-examine all witnesses against him or 
her. Section 3142(f) should be altered by deleting "to cross- 
examine witnesses who appear at the hearing" and adding "to 
compel the presence of and confront and cross-examine all 
witnesses against him or her." 

B. Notice 

Section 3142(f) should also include a provision which requires 
that defendants be given written notice of the charges, of the 
defendant's "past conduct" which the government plans to use 
to prove dangerousness, and of any other "evidence" the government 
intends to use. 3/ 

C. Federal Rules of Evidence 

Section 3142(f) should be altered to require the application 

of the Federal Rules of Evidence as they apply to other preliminary 

hearings in accord with the ABA Standards. 

D. Use of Defendant's Testimony 

Section 3142(f) should add a guarantee that a defendant's 
testimony will not be used against him even for impeachment 
purposes in a subsequent proceeding other than for prosecution 
of the defendant for perjury in accordance with the ABA Standards. 4 

III. S tandard of Proof 

Section 3142(e) requires that the judicial officer find only 
"that no condition or combination of conditions will reasonably 
assure the appearance of the person as required and the safety 
of any other person and the community" before ordering pretrial 



25-694 0-84-25 



378 



detention. Section 3142(f) provides that "clear and convincing 
evidence" support the facts which a judicial officer uses to 
support a finding pursuant to § 3142(e) that no condition or 
combination of conditions will reasonably asure the safety of 
any other person and the community. 

This section makes no requirement that the judicial officer 

find that a substantial probability exists that the accused 

committed the offense for which he has been charged. A determiniat ion 

at the preliminary hearing that probable cause exists that the 

accused committed the crime for which he or she is charged 

will suffice. 

Although the ACLU supports the clear and convincing evidence 
requirement, it opposes the probable cause standard. An accused 
who faces pretrial detention for lengthy time period possesses 
a substantial liberty interest which cannot be overcome by a 
mere showing that there is probable cause that he or she committed 
the offense charged. The "probable cause" standard would 
further undermine the presumption of innocence afforded defendants 
in our criminal justice system. The Constitution requires, at 
the very least, a showing of substantial probabil ity . 5/ 

ACLU Recommendation 

Section 3142(e) should be altered to require that before a 
detention order is granted, the government has the burden of 
proving that a) there is a substantial probability that the 
accused committed the offense charged; b) there is clear and 
convincing evidence that the defendant falls into the eligibility 
category; and c) there is clear and convincing evidence that 
there is no financial or non-financial condition or combination 
of conditions of release which will reasonably assure the 
safety of any other persons or the community . 7 / 
IV. Burden of Proof 

Section 3]42(e) creates a rebuttable presumption that no condition 
or combination of conditions will reasonably assure the safety 
of the community if 1) the accused has been convicted of an 
offense covered by subsection (f) (1) which 2) was committed 
while the accused was on release pending trial for a federal, 
state or local offense and 3) five years have not elapsed 
since the date of conviction or the accused's release from 
imprisonment, whichever is later. 

The ACLU opposes the presumption of dangerousness. Such a 

presumption effectively punishes the accused for a crime for 

which he or she has already been punished. Moreover, § 3142(e) (2) 

requires only that the accused be convicted of a crime described 

in (f)(1) while awaiting trial for "a federal, state, or local 

offense." Therefore, an accused who has been convicted of a 

"crime of violence" [§ 3142(f)(1)(A)] while awaiting trial for 

a local traffic offense will be presumed dangerous. As we 

have noted above, definition of "crime of violence" in § 3149(c) (4) (B) 

is too broad and may lead to indiscriminate detention of accused 

persons. The presumption exacerbates the vagueness problem of 

the definition of a "crime of violence." 

Section 3142(e) also creates a rebuttable presumption that no 
condition or combination of conditons of release will assure 
the appearance of the defendant and the safety of the community 
if the judicial officer finds that there is probable cause to 
believe that the person committed a drug offense punishable by 
ten years or more of imprisonment. 7/ The ACLU strongly opposes 
this provision. Creating a presumption of dangerousness based 
on the offense charged before an accused has been tried destroys 
the underlying concept of our criminal justice system -- the 
presumption of innocence. Moreover, the presumption violates 
constitutional principles of due process and equal protection 
by singling out a specific group of the accused for special 
treatment without taking into account the individual characteristics 
of the members of the class. The acclaimed purpose of the 
pretrial detention hearing is to make a prediction of dangerousness. 



379 



based on the individual ' s record. A presumption would destroy 
that purpose by placing an almost insurmountable burden on the 
defendant to prove that he or she will appear for trial and 
will not pose a danger to the community. 

ACm Recommendation 

Section 3142(e) should place the burden on the government to 
prove that no condition or combination of conditions exist 
which would reasonably assure the safety of any other person 
or of the community. 

V. Detention Order 

Section 3142(i) (1) requires that a detention order include 
"written findings of fact and a written statement of the reasons 
for detention . " 

ACLU Recommendation 

Section 3142(i)(l) should be amended to require that within 24 

hours of the issuance of a detention order, the judge shall 

file written findings of facts and conclusions of law justifyng 

the order. The judge must show specifically that financial and 

non-financial conditions of release have been considered and 

that the government proved by clear and convincing evidence 

that all less-restrictive alternatives were inadequate to assure 

the defendant's appearance in court and the safety of the community. 

VI . Time Limitation 

Section 3142 does not establish a maximum time limit for pretrial 
detention of a defendant pursuant to a detention order. The 
Speedy Trial Act currently requires that persons detained must 
be tried or released pending trial within ninety days 
after detention. 18 U.S.C. 3164. 

ACLU Recommendation 

The Speedy Trial Act should be amended to reduce th time between 
detention ndtrial to 45 days for tose persons detained unde § 
3142. Any defendant who is held 45 days without being tried 
should be released pending trial 8/ 

VII. Conditions of Release 

A. Compulsory Psychiatric Treatment 

Section 3142(c) (2) (J) allows the judge to require the defendant 
to undergo psychiatric treatment. This section, however, does 
not provide guidance as to how a judge should determine which 
defendants suffer from violence-producing psychiatric disorders 
which, when treated, will reduce defendant's dangerousness . 
The inquiries which would be necessary to make such detemination 
are time-consuming, "ultimately speculative, and not germane to 
the typical accused." 9/ 

Moreover, even assuming the success of such inquiries, the bill 
is inadequate: it failes to create the necessary social services 
to supervise such treatment. 

ACLU Recommendation 

§ 3142(c) (2) (J) should be deleted. 

B. Money Bail 

Section 3142(c) (2) (L) allows the judicial officer to impose 
money bail in order "to assure the appearance of the person a 
required." Section 3142 also provides that "(t)he judicial 
officer may not impose a financial condition that results in 
the pretrial detention of the person." Therefore, the judicial 
officer may not impose excessive bail as a means of detaining 
the individual and thereby assuring the safety of the community. 
Although § 3142 does not explicitly state that the judge will 
tailor the amount of money bond to the defendant's ability to 
pay, such tailoring will be necessary in order to prevent the 
imposition of money bail from resulting in the defendant's 
detention . 



380 



The ACLU supports this section because it eliminates the curent 
practice of setting excessive money bail for the purpose of 
protecting society from individuals whom the judge believes to 
be dangerous. Moreover, it requires a judicial officer to 
conduct a detention hearing and to make a finding of dangerousness 
before pretrial detention results. 

C. Least Restrictive Alternatives 

Although § 3142(c)(2) requires that the least restr ictivecondi t ions 

be imposed, it does not define which condition or combinatons 

be imposed, it does not define which condition or combination 

of conditions is the least restrictive. Thus, judges are ganted 

excessive discretion which may lead to unfair disparity of 

treatment of the accused. 

ACLU Recommendation 

Section 3142(c)(2) should define "least restrictive" and specify 

the priority of the conditions of release. 10/ 

VIII. Revocation of Release Order 

Section 3148(b) authorizes a judicial officer to revoke a order, 
upon the government's motion if, after a hearing, the judical 
officer finds 1) that there is clear and convincing evidence 
that the person has violated a condition of release and 2) 
there is no condition or combination of conditions of release 
that will assure that the person will not flee or pose a danger 
to the community or the person is unlikely to abide by any 
condition or combination of conditions of release. 

Although § 3148(b) requires that the judge make findings after 
a hearing, it does not specify whether the procedural protections 
guaranteed by § 3142(f) apply to revocation hearing. In addition, 
§ 3148(b) does not require the clear and convincing evidence 
standard. The lack of procedural protections including the 
clear and convincing evidence standard combined with the requirement 
that the judicial officer merely find that probable cause exists 
that an accused committed a crime while on release grants excessive 
discretion to the judicial officer. Under § 3148, a judicial 
officer could revoke an accused's release order in a hearing 
with no procedural protections by finding that probable cause 
exists that the defendant committed a minor offense and that 
the defendant is unlikely to abide by any conditions of release. 
Because the clear and convincing evidence standard is not required, 
the finding that a defendant is unlikely to abide by a condition 
of release could be reached upon a mere assertion by the government. 
Section 3148(b) also creates a rebuttable presumption that no 
condition or combination of conditions will assure the safety 
of the community if there is probable cause to believe that the 
person committed a federal, state, or local felony while on 
release. This presumption, unlike that in § 3142(e), is based 
on present conduct rather than past convictions. However, 
because the defendant in a revocation hearing possesses a liberty 
interest which is equal to the interest at stake in the original 
detention hearing, the substantial probability standard should 
be required for the revocation hearing as well as for the original 
detention hearing. Furthermore, even a substantial probability 
that the person committed a felony while on release is insufficient 
to create a presumption of dangerousess . 

ACLU Recommendation 

Section 3148(b) should state that the same procedural protections 
apply at the revocation hearing as those required at a pretrial 
detention hearing under § 3142(f). Section 3148(b) should 
require the clear and convincing evidence standard and a showing 
of substantial probability that the accused committed the offense 
charged. Section 3148(b) should also enumerate specific, serious, 
violent felonies such as rape, murder, kidnapping and arson 
which, if a judicial officer finds that there is a substantial 
probability that the accused committed while on release, would 
trigger the presumption of dangerousness. 



381 



Conclusion 

The ACLU believes that preventive detention is an unconstitutional 
restraint on a defendant's liberty and, will because of the 
impossibility of predicting future dangerousness , will lead to 
the detention of vast numbers of individuals who would never 
commit a crime while on release. If Congress is determined to 
require preventive detention, then a defendant must be granted 
a hearing which affords adequate due process rights. S. 2572 
does not protect adequately the accused's liberty interest. It 
grants excessive discretion to the judicial officer and will 
lead to the unnecessary imprisonment of many individuals. We 
have set forth the absolute minimum requirements which would 
protect defendant's procedural rights, the standard and burden 
of proof, a time limitation for detention, the opportunity 
for appellate review penalties for failure to appear, and 
procedures necessary to revoke a release order. An unclear, 
unspecific statute which grants discretion to the judge will 
exacerbate the evils of preventive detetnion and result in 
disparity of treatment of the accused and excessive imprisonment 
because judges will be vulnerable to political presssures to 
imprison ever increasing numbers of i3ef.endants before trial. 



382 



FOOTNOTES 

1/ 23 D.C. Code § 1322, in contrast, requires a detention 
hearing only if the prosecutor moves for a hearing. Thus, if 
the prosecutor does not move for detention, the judge "cannot 
be faulted for releasing a person without first having determined 
his eligibility for preventive detention." Duke, S. Bail Reform 
for the Eighties : a Reply to Senator Kennedy , 49 Fordham L. 
Rev. 40, 69 (1980) . 

2/ 23 D.C. Code § 1322 Forbids the use of an accused's testimony 
in subsequent proceedings except for impeachment purposes. The 
ABA standard 10-5 . 9 (e) ( iv) recommends that the testimony of the 
defendant should never be used in subsequent proceedings except 
in prosecutions for perjury. American Bar Association Standards 
for Criminal Justice , Ch . 10, Pretrial Release. 

3/ See Morrissey v. Brewer, 408 U.S. 471 (1972). 
The ACLU believes that in U.S. v. Edwards (May 8, 1981), the 
District of Columbia Court of Appeals erred in relying on Gerstein 
V. Pugh, 420 U.S. 103 (1975), instead of Morrissey. 

In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court set 
forth the minimum procedrual protections required by the Constitution 
for a parole revocation hearing. 

Like the decision to revoke parole, a decision to detain 
an individual in order to assure the safety of the community 
requires a determination of two issues. The first issue, like 
the probable cause determination in the preliminary hearing, is 
factual. The parole board decides whether the parolee violated 
conditions of parole; the judicial officer in a detention hearing 
decides whether there is a "substantial probability" that the 
accused committed the offense charged. The second issue in 
parole revocation and detention hearings involves involves a 
more complex determination, one which is absent from the Gerstein 
preliminary hearing. In Morrissey, the Supreme Court stated: 

The second question involves the application of expertise 
by the parole authority in making a prediction as to the 
abilty of the individual to live in society without committing 
antisocial acts. 

Id. at 480. (emphasis added). Because the nature of the preventive 

detention determination more closely resembles the parole revocation 

than the preliminary hearing, Morrissey, and not Gerstein, 

should guide the court's decision. However, the liberty interest 

of an individual who is detained before trial is higher than 

that of a convicted criminal on parole. The potential pretrial 

detainee should be granted even greater procedural protection 

if his due process rights are not to be violated. In Morrissey, 

the Court expressly recognized that a paroled convict does not 

have the same liberty interests as other persons who have not 

been convicted o£ crimes: "[ r] evocation deprives an individual 

not of the absolute liberty to which every citizen is entitled, 

but only of the conditional liberty properly dependent on observance 

of special parole restrictions." S. 2572 does not even grant 

the minimum requirements set forth in Morrissey. 

4/ See 23 D.C. Code § 1322, and ABA Standard 10-5 . 9 (e) (iv) , 
note 3 supra . 

5/ United States v. Edwards, D.C. Ct. App. (May 8, 1981). 

6/ Because the ACLU believes that preventive detention is 
punishment, we believe that the prosecutor should prove dangerousness 
beyond a reasonable doubt. The recommended "clear and convincing" 
standard assumes, arguendo , the constitutionality of detaining 
individuals for the purpose of protecting the community. 

7/ The Amendment is limited to drug offenses prescribed in the 
Controlled Import and Export Act (21 U.S.C. 951 et. seg . ) and 
Section 1 of the Act of September 15, 1980 (21 U.S.C. 955a). 



383 



8/ 23 D.C. Code 5 1322 requires that a defendant who is detained 
before trial be released if he or she has not been tried within 
60 days. 



9/ See Duke, S. supra , note 2 at 57. 
10/ See Duke, S. supra , note 2 at 69. 



384 

APPENDIX E 
No. 81-430 



In the 



S^npxtmz (ttnurt ai ti\t MnxUb ^ates 



October Term, 1982 



The State of Illinois, 



-V.- 



Lance and Susan Gates, 



ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ILLINOIS 



Petitioner, 



Respondents. 



BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION 
AND THE AMERICAN CIVIL LIBERTIES 
UNION OF ILLINOIS, AS AMICI CURIAE 



Charles S. Sims, Counsel of Record 

Burt Neuborne 

American Civil Liberties Union 

Foundation 
132 West 43rd Street 
New York, NY 10036 
(212) 944-9800 

Counsel for Amici Curiae 



February, 1983 



385 



TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES . iv 

INTEREST OF AfllCI CURIAE 1 

SUMMARY 0^ ARGUMENT 4 

INTRODUCTORY STATEMENT 9 

I. THE FOURTH AJ^IENDMENT ' S PROBABLE 
CAUSE STANDARE ALREADY AFFORDS 
lav; ENFORCEMENT OFFICERS THE 
SCOPE FOR OBJECTIVELY REASON- 
ABLE ERRORS WHICH COULD CONSTI- 
TUTIONALLY BE PROVIDED BY A 
GOOD FAITH EXCEPTION TO THE 
EXCLUSIONARY RULE 13 

A. The Fourth Amendment 
Requires Only Probable 
Cause, Not Certainty, And 
Is Not Defeated By Reason- 
able Errors Of Fact Or Of 

Law 15 

B. In Ruling On A Suppression 
Motion Challenging Search 
Pursuant To A Warrant As 
Lacking Probable Cause, The 
Question Which Proponents 
Of An Objective Good Faith 
Exception To The Exclusionary 
Rule Would Make Determina- 
tive — Did The Magistrate 
Reasonably Assess The Existence 
Of Probable Cause — Is 
Precisely The Same As 

Asking Whether Probable 

Cause Existed 17 



386 



Page 

C- If A Good Faith Exception 
Would Afford Any Broader 
Scope For Error Than Prob- 
able Cause, It Would Vio- 
late The Fourth T^jnendment 
By Systematically Failing 
To Deter And Indeed Induc- 
ing Searches On Warrants 
Absent Probable Cause . 24 

II. ILLEGALLY SEIZED EVIDENCE IS 
INADMISSIBLE AT TRIAL EVEN 
WHEN THE ILLEGAL SEIZURE WAS 
EFFECTED IN GOOD FAITH BECAUSE 
(A) THE FOURTH ATlENDiMENT FOR- 
BIDS IT; (B) THE USE OF SUCH 
EVIDENCE IVOULD ENCOURAGE 
UNLAWFUL ACTIVITY; AND (C) 
RECOGNITION OF A DEFENSE 
BASED ON IGNORANCE OF THE LAW 
WOULD DISCOURAGE EFFECTIVE 
POLICE TRAINING 34 

A. The Use At Trial Of Evi- 
dence Obtained On Less 

Than Probable Cause Violates 

The Fourth Amendment 35 

B. The Use of Illegally Seized 
Evidence, Even If Obtained In 
Good Faith, Would Encourage 
The Commission of Unlawful 

Acts 40 



11 



J 



387 



Page 

C. Maintenance Of The Present 
Scope Of The Fourth Anendment 
VJouIg Be Impermissible Under 
A Good Faith Exception. The 
Fourth Amendment Would Shrink 
To Reasonableness In Every 
Case, VJithout The Specific 
And P.easonablly Bright-Line 
Rules The Court Has Relied On 
To Cabin Police Investigation 
Within Constitutional Limits 50 

D. The Remaining Arguments Support- 
ing A Good Faith Exception Are 
Insufficient to VJarrant, and 
Additional Considerations 
Militate Against, Its Acceptance .. 55 

1. Cost 56 

2 . Premium on Iqnorance 6 3 



COtJCLUSION. 6 4 

APPENDIX la 



111 



388 

TABLE OF AUTHORITIES 

Cases : Page 

Aguilar v. Texas, 378 U.S. 110 

(1964) passim 

Almeida-Sanchez v. United States, 

413 U.S. 916 (1975) 29, 46 

Beck V. Ohio, 379 U.S. 89 (1964) 51 

Bowen v. United States, 422 U.S. 916 

(1975) 5, 29, 48 

Bradley v. Fisher, 13 Wall. (80 U.S.) 

3 35 (187 2) 31 

Brewer v. Williams, 430 U.S. 387 

(1976) 61 

Brinegar v. United States, 338 U.S. 

160 (1943) passim 

Brown V. Illinois, 422 U.S. 610 (1976) .21 

Bumper v. North Carolina, 391 U.S. 

543 (19 68) C 

Carroll v. United States, 267 U.S. 

132 (1925) 11, 20, 34 

Chambers v. Maroney, 399 U.S. 42 

(197 0) 2 8 

Chimel v. California, 395 U.S. 725 

(196 9) 48, 50 

City of Los Angeles v. Lyons, No. 

31-1064, 48 

Coolidge v. New Hampshire, 403 

U.S. 443 (1971) 15, 28, 61 



IV 



389 

Page 

Davis V. Mississippi, 394 U.S. 721 

(1964) 61 

Davis V. Passman, 442 U.S. (1979). ...24 

DeFunis v. Odenaard, 416 U.S. 312 

(1974) \ 5, 29 

Delaware v. Prouse, 440 U.S. 648 

(1979) 22, 45, 62 

Draper v. United States, 358 U.S. 

307 (1959) 16, 19 

Dunaway v. New York, 4 42 U.S. 200 

(1979) 22 

Elkins V. United States, 364 U.S. 

206 (1960) 3, 25 

Franks v. Delaware, 438 U.S. 168 

(1978) passim 

Hill v. California, 401 U.S. 797 

(1971) 16 

Hutto v. Davis, 7C L.Ed. 2d 556 

(1982) 63 

Lanibert v. California, 355 U.S. 225 

(1957) 44 

Mapp V. Ohio, 367 U.S. 643 

(1961) passim 

Michigan v. DeFillippo, 443 U.S. 

31 "(1979) ". ^ , 17 

Mincey v. Arizona, 437 U.S. 385 

(1978) 6, 61 



V 



390 



Paae 

Natiianson v. United States, 290 U.S. 

41 (1933) 22, 25, 31, 33 

New York v. Adams, 443 N.E.2d 537, 

439 N,Y.2d 877 (1931) 16 

New York v. Belton, 453 U.S. 

45 4 (19 81) 51 

Olmstead v. United States, 277 

U.S. 438,(1978) 37 39, 49 

O'Shea v. Littleton, 414 U.S. 488 

(1974) 48 

Owen V. City of Independence, 445 

U.S. 622 (1980) 32, 33 

Payton v. New York, 445 U.S. 573 

(19 80) . 49, 6 2 

People V. Cahan, 44 Cal.2d 434, 

282 P. 2d 905 (1955) 25, 38 

Pierson v. Ray, 386 U.S. 547 (1967). ...48 

Procunier v. Navarette, 434 U.S. 

555 (19 78) 29 

Rizzo V. Goode, 423 U.S. 362 

(1976) 28, 48 

Rose V. Mitchell, 443 U.S. 545 

(19 79) 31 

Rummel v. Es telle, 445 U.S. 263 

(198 0) 6 3 

Scott V. United States, 436 U.S. 

128 (197 8) 18 



VI 



391 



Page 

Shadwick v. City of Tampa, 407 

U.S. 395 (1972) 32 

Steaqeld v. United States, 451 

U.S. 204 (1981) 49 

Stone V. Powell, 428 U.S. 465 

(1976) 39, 41 

Stovall V. Denno, 388 U.S. 298 

(1967) 29 

Stump V. Sparkman, 435 U.S. 349 

(1978) 28, 30, 31 

Terry v. Ohio, 392 U.S. 1 (1963) 33 

Torres v. Puerto Rico, 442 U.S. 

465 (1979) 7, 22, 53 

United States v. Calandia, 414 U.S. 

338 (197 3) 3 9 

United States v. Janis , 428 U.S. 433 

(1976) . 41 

United States v. Johnson, 73 .L.Ed. 

2d 202 (1982) 32 

United States v. Jones, 362 U.S. 

2 57 (19 60) 20 

United States v. Katz, 389 U.S. 

347 (1967) : 49 

United States v. Matlock, 415 

U.S. 164 (1974) 16 

United States v. Rabinowitz, 339 

U.S. 56 (1950) ...passim 



Vll 



392 

Page 

United States v. Robinson, 414 U.S. 

218 (1973) A, 16 

United States v. Ross, 72 L.Ed. 2d 

572 (1982) 28, 34, 51, 65 

United States v. United States 
District Court, 407 U.S. 316 
(1972) 15, 50, 52 

United States v. Ventresca, 380 U.S. 

108 (1965) 16, 19, 20 

Weeks v. United States, 232 U.S. 

391 (1914) passim 

Whitely v. Warden, 401 U.S. 560 

(19 71) 15, 23 

Wolf V. Colorado, 338 U.S. 2 5 

(1948) 3, 36, 41, 42 

Ybarra v. Illinois, 444 U.S. 

85 (1980) 7, 22, 53 

Other Authorities : 

Amsterdam, Perspectives on the 
Fourth Amendment , 58 Minn. L. Rev. 
349 (1974) 41, 50, 51, 52 

Brosi, A Cross-City Comparison of 
Felony Case Processing (INSLAV;) 
1979) 58, 62 

Canon, Is The Exclusionary Rule 
in Failing Health ?, 6 2 Ky.L.J. 
651 (1974) 46, 53 



Vlll 



393 



Page 

Davies, Do Criminals Due Process 
Principles Make A Difference ?^ 
1982 Am. Bar Assn. Res. J. 247 62 

^olmes , The Common Law 48 (1881) 44 

Kamisar, Is The Exclusionary Rule 
an "Illegal" or "Unnatural " 
Interpretation of tiie Fourth 
Amendment? " , 62 Jud . 66 (1978) 26 

Kamisar, On The Tactics of Police - 
Prosecutor Oriented Critics of 
the Court , 49 Cornell L.Q. 436 
(196 4) 5 3 

Kamisar, The Exclusionary Rule 
in Historical Perspective: The 
Struggle to Make the Fourth 
Amendment More Than "An 
Empty Blessing ", 6 2 Jud. 3 37 
(1979) 27 

Kaplan, The Limits of the Exclu - 
sionary Rule , 26 Stan. L. Rev. 
10 27 (197 4) 6 4 

LaFave, The Fourth Amendment in an 
Imperfect VJorld: On Drawing 
Bright Lines and Good Faith , 
43 U. Pitt. L. Rev. 307 (1982) 32 

LaFave, Search and Seizure § 1 

n.9 (19 81 Supp.) 58 

Las son. History and Development 
of the Fourth Amendment to the 
United States Constitution, (1937)... 28 



IX 



25-694 0-84-26 



394 

Page 

Meters & Wasserstrom, The Good Faith 
Exception to the Exclusionary Rul e: 
Deregulating the Police and ~ 
Derailing the Law , 70 Geo. L.J. 
365 (198i) passim 

Newman, Suing the Lawbreakers: Pro- 
posals to Strengthen the Section 
1983 Remedy for Law Enforcer^ ' 
Misconduct , 87 Yale L.J. 447 
(1978) 19 

T. Taylor, Two Studies' in Consti- 
tutional Interpretation , 23 
(1969) '. 28, 54 

Traynor, Mapp v. Ohio at Large in 
the Fifty' States, 1962 Duke L.J. 
319 ' 25 



395 



INTEREST OF AMICI CURIAE 
The American Civil Liberties Union 
is a nationwide, nonpartisan organization 
of over 250,000 members, and the ACLU of 
Illinois is one of its state affiliates, 
dedicated to preserving and protecting 
the liberties safeguarded by the Consti- 
tution and its Bill of Rights. The pro- 
hibitions against unreasonable searches 
and seizures embodied in the Fourth Amend- 
ment are critically important among those 
safeguards. They belong, as Justice 
Jackson forcefully observed after his re- 
turn to the Court in 1948, "in the cata- 
log of indispensible freedoms." Brinegar 
V. United States , 338 U.S. 160, 180 (1948) 
(dissenting opinion) . 

The American Civil Liberties Union 
has participated in many of the leading 
decisions by which this Court has given 



1. A letter consenting to the filing of this 
brief has been lodged with the Clerk. 



396 

shape and life to the Fourth Amendment's 
guarantee. Indeed, the ACLU filed the only 
brief ,be£ore the Court in Mapp v. Ohio 
urging application of the exclusionary 
rule to the states, and was invited by the 
Court to raise the point at oral argument. 
367 U.S. 643, 646 n. 3 (1961). We appear 
here amici curiae because, in light of the 
order requesting reargument, this case now 
appears to present the most serious risk 
faced by Americans in recent years to the 
preservation of the Fourth i\mendment as a 
real barrier to unconstitutional searches 
and seizures. 

In the view of amici , any question 
concerning good faith defense is not 
properly before the Court, not only for 
the reasons set forth by Justice Stevens 
dissenting to the order for reargument, 
but also for the reason, advanced by 
respondents, that Illinois adopted 
the exclusionary rule as a matter of 



397 

state law in 19 23 and stoutly adhered to 
it again after Wolf v. Colorado , 338 U.S. 
25 (1948). See E lkins v. United States , 
364 U.S. 206, 226 (1960) (citing Illinois 
cases) . Should the Court reach the ques- 
tion, however, we hope that the analysis 
presented here — demonstrating that in 
probable cause cases the good faith excep- 
tion would be either redundant to the 
probable cause standard, or an impermis- 
sible substantive dilution of heretofore 
unchallenged standards of probable cause - 
will be of assistance to the Court, and 
to the Fourth Amendment which protects 
us all. 



398 

SUI'U^ARY OF ARGUMENT 
A magistrate may issue a warrant 
where the facts presented to him, reason- 
ably credited by officers, would justify 
a prudent person in believing that a search 
would probable be fruitful. Since prob- 
able cause is not defeated by reasonable 
errors of fact, e.g . , United States v . 
Robinson , 414 uS. 218 (1973) or of law, 
Michigan v. DeFillippo , 443 U.S. 31 (1979) , 
an objective good faith exception would 
be wholly redundant in cases where the only 
claimed violation was of the subs.tantive 
probable cause standard. 

Illinois appears to recognize the 
congruence of probable cause and a good 
faith exception, and properly urges the 
Court to decide this case without reach- 
ing a good faith standard. If a good 
faith exception were broader than probable 
cause, as suggested by the United States, 
that lesser standard would become the sub- 



399 

stantive measure of Fourth Amendment pro- 
tection, since exclusion is the only means 
available for giving life to the probable 
cause standard. Damage suits and injunc- 
tive suits are unavailable; and Article 
III would bar a court upholding admission 
through a good faith exception from going 
on to decide the Fourth Amendment issue. 
E.g . , Bowen v. United St a tes , 4 2 2 U.S. 
916 (1975); DeFunis v. Odegaard , 416 U.S. 
312 (1974) . 

This Court — unanimously in Weeks v . 
United States and Qlmsteadv. United States , and 
again in iMapp v. Ohio — has held that the Fourth 
Amendment itself, and imperatives of judi- 
cial integrity, forbid introduction at 
trial of evidence illegally seized from a 
defendant. The illegal search and seizure 
is inescapably part of a larger eviden- 
tiary transaction for which it was under- 
taken; and the Courts may not insulate 
themselves from the entire illeciality — 



400 



the illegal acquisition of evidence for 
use at trial — of which they are inevit- 
ably a part. 

Even when viewed under a cost-benefit 
analysis, exclusion when good faith is 
present is essential. The costs incurred 
by exclusion are only the costs the framers 
decided to impose under the Fourth Amend- 
ment were it obeyed. The benefits are the 
systemic deterrence afforded whenever 
this Court announces a Fourth Amendment 
rule^ and police departments thereupon dis- 
seminate it to officers throughout the 
field through training, and continuing 
education. A good faith exception would 
nearly always be applicable in close cases, 
cases resolving previously unsettled is- 
sues, or cases reversing prior decisions; 
and it is precisely in those cases, where 
the opportunity to determine law is avail- 
able only through application of the exclu- 
sionary rule, where systemic deterrence has 



401 

its greatest effect. 

A good faith exception would signal 
a departure from the Court's reliance on 
categorical rules and bright lines and would 
return the Court instead to the discredited, 
unguided reasonableness approach of United 
States V. Rabinowitz , 339 U.S. 56 (1950). 
By focussing attention not on the legality 
of searches but on the reasonableness of 
belief in their legality, it would have 
prevented adjudication of some of this 
Court's most important recent Fourth Amend- 
ment precedents, e.g ., Torres v. Puerto 
Rico , 442 U.S. 465 (1979) and Ybarra v . 
Illinois , 444 U.S. 85 (1980). 

Even if the "costs" of enforcing the 
Fourth Amendment are relevant, the stati- 
stical data relied on by the United 
States, largely erroneous, interested, 
and irrelevant, is wholly incapable of 
justifying adoption of a good faith 
exception. Moreover, such an exception 



402 

would place a heavy premium on police 
ignorance, and would predictably lead to 
a deterioration of police training and 
in-service education programs regarding 
Fourth Amendment standards . 



8 



403 



INTRODUCTORY STATEMENT 
The Fourth Amendment is an exclusion- 
ary rule. It embodies a judgment that a 
free society is best served by preventing 
the police from acquiring certain relevant 
evidence, even at the cost of unprosecuted 
crime. Thus, every case in which evidence 
is suopressed because it was gathered in 
violation of the Fourth Amendment is one 
in which the founders had already deter- 
mined that aovernment should have foregone 



a 



ccess to that information in the first 



2 
place. The exclusionary rule merely pro- 
vides specific performance of the will of 
the founders. 

In a perfect world, all officials 



2. See , e.g . , United States v. Rabinowitz , 339 
U.S. 56, 67-68 (1950) (Black, J., dissenting) ("the 
framers of the Fourth Amendment must have con- 
cluded that reasonably strict search and seizure 
requirements were not too costly a price to 
pay ...."); Mincey v. Arizona , 437 U.S. 385, 393 
(1978). See also Appendix A, infra (contemporary 
response to Dean Wigmore's criticism of Weeks v . 
United States, 232 U.S. 383 (1914)). 



404 

would voluntarily comply with tlie require- 
ments of the Fourth Amendm