Ominous Crime Bill

By Gene Guerrero

Vol. 16, No. 1, 1994, pp. 1-6

Congress is about to pass yet another massive, omnibus crime bill—the most expensive and possibly the most destructive ever. Like its predecessors, this crime bill was primarily fashioned with an eye towards the coming elections. What few genuine reforms it does contain are due largely to three Southern members.

Beginning in the mid-1960s, U.S. crime rates increased to the point where our rates of crimes of violence are three to ten times those in other industrialized countries. In 1943, for example, New York City had forty-four gunshot homicides. In 1992, with a slightly smaller population, 1,499 persons were killed by guns in the Big Apple. Today's seventh grader has an 80 percent chance of being a victim of a violent crime at least once during his or her lifetime. The impact of crime falls heaviest on the poor. Nearly half of all crimes are committed against households with incomes below $15,000.

Over the past twenty-five years politicians gave us first a "law and order" war on crime and then a "just say no" war on drugs as answers to crime. During the 1980s, while the nation's adult population increased by 13 percent, the number of prisoners grew by 139 percent. Today the odds of a black man being in prison in this country are almost five times greater than they would be if he were living in South Africa. Yet this massive lock-'em-up campaign did nothing to reduce violent crime. In fact, between 1986 and 1991, violent crime increased 23 percent, according to the FBI.

With ever-growing evidence of the failure of the wars on crime and drugs, there has been growing support for a more productive crime-fighting approach. Some 850 prominent Americans (142 Southerners) in-


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cluding governors, prosecutors, judges, state legislators, and corrections officials signed a Campaign for an Effective Crime Policy manifesto last year urging a greater emphasis on crime prevention, sentencing reform, use of alternatives to incarceration, and drug treatment.

Many people hardly known for their liberal views urged changes in the conduct of the war on drugs. In a June 1993 speech, Chief Justice William Rehnquist complained about Congress making a wide variety of drug offenses into federal crimes, leading to the "near transformation of some federal courts into what might be called national narcotics courts." Senator Orrin Hatch (R-Utah) and Representative Henry Hyde (R-Ill.) both called for reform of mandatory minimum sentences which force judges to sentence drug offenders to lengthy prison terms without any consideration of the mitigating or aggravating circumstances. In the federal Bureau of Prisons, where the inmate population has tripled since 1980, nonviolent drug offenders with little or no record of previous offenses constitute over one-fifth of the prison population and serve on average nearly six years before release. Sentencing practices in many states follow the federal example. A 1985 Georgia law requires a life sentence for a second drug-distribution offense. A state parole board study found that seventy-five percent of those sentenced under this draconian law sold drugs valued at $100 or less.

Racial Disparities in Sentencing

Last spring a series by writer Dennis Cauchon in USA Today focused on the discriminatory impact of sharply contrasting penalties for crimes involving different forms of the same drug—crack and powder cocaine. Sentences for crack-related offenses are 100 times more severe than penalties for powder cocaine. Under federal law simple possession of over two grams of crack (the weight of two pennies) is a felony which guarantees an automatic five years imprisonment for a first offender. A 1992 study found that 91.3 percent of those sentenced for federal crack offenses were African American.

The U.S. Sentencing Commission has documented racial disparity in the imposition of federal mandatory minimum sentences. Confirming several earlier in-depth studies, a General Accounting Office (GAO) review has found a "pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty." Nearly half of the federal prison population is


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black although African Americans comprise only 12 percent of the nation's population.

With the Clinton Administration came hope that the public debate about crime might change. Most encouraging for those favoring a new crime-fighting approach were the appointments of former Atlanta, Houston, and New York Police Chief Lee Brown as Drug Czar, and Miami prosecutor Janet Reno as Attorney General. While, unlike Surgeon General Jocelyn Elders, Brown wrongly rejects any consideration of a fundamental shift in drug policy, he clearly cares about what happens in our devastated cities. In addition to working for more effective and more available drug treatment, Brown says "we also need to look at what fuels drug use among hard core drug users. It is that truly insidious cohort of poverty, hopelessness, and a lack of opportunity for too many of our citizens." Attorney General Reno quickly attracted national attention for her view that, "if we start talking about [crime] in common sense terms, if we start putting our dollars where our mouths are and start using common sense approaches that balance punishment and prevention, we can make a difference."

As last fall rolled around and Congress began to think about crime legislation, things looked promising. Perhaps it was possible to have crime legislation that did more good than harm; perhaps it might be possible to undo some of the vast damage caused by the law and order wars.

Then during the November elections, the national media again discovered the crime issue, reporting that in several local races get-tough candidates won because of their crime-fighting positions. The polls showed that crime was a priority issue to many Americans.

In fact, polls do consistently show that if Americans are asked if we should be tough on crime, most of us say yes. However, they also consistently show that if asked which will do more to reduce crime: more police, more prisons, more jobs, or better education—most Americans vote for crime prevention over police and prisons.

Unfortunately, the Senate took up crime legislation right after the November elections and passed an omnibus crime bill worse than those enacted during the law and order days of the 1980s.

The same Senate that earlier in the year killed President Clinton's stimulus package which would have provided $16 billion to address the urgent needs of the cities, turned around and passed a crime bill with a price tag of more than $22 billion, $15 billion of which will go for prisons and more police.

The Senate bill promised to help states by building ten regional prisons which could be used to house state prisoners. But to be eligible for the program, a state would have to change its sentencing laws, greatly increasing the amount of time served by all state prisoners, and it would have to jail before trial persons charged with violent crimes. One estimate predicts that these new state penalty and sentencing mandates will lead to another doubling of the nation's prison population over the next ten years.

A centerpiece of the Senate bill is the largest-ever expansion of the federal death penalty to include more than fifty offenses. There is a broad anti-gang provision making it a federal crime to belong to a group of five or more persons who, either individually or as a group, commit two defined crimes within ten years. This provision feeds the out-of-control gang hysteria which brands all African American and Latino young men in poor communities as gang members. A Los Angeles computerized gang file lists 47 percent of the county's young black men although nearly half of those listed have no arrest record.

The bill provides a breathtaking expansion of the federalization of crime by adopting an amendment by Senator Alfonse D'Amato (D-N.Y.) making a federal offense of almost any state crime committed with a gun—some 200,000 cases a year. The bill includes not one, but two broad "three-time-loser" provisions requiring a sentence of life without parole for offenders who have committed serious drug offenses or violent offenses against persons or property. This provision was incorporated following the passage of a "three-time-loser" law in Washington State a few days before in a referendum campaign funded by the National Rifle Association. An amendment Senator Jesse Helms (R-N.C.) added to the bill would make it virtually impossible to attack unconstitutional conditions in prisons.

Not all the worst provisions come from the likes of Senators Helms and D'Amato. Senator Carol Moseley Braun (D-Ill.) put in a provision requiring that juveniles aged thirteen or older be tried as adults when charged with several federal violent offenses.

Not everything was bad. The bill mandates drug treatment for prisoners and probationers, and provides $900 million for "Drug Court" programs to handle nonviolent offenders who can be placed on probation. It bans the manufacture, sale, and possession of nineteen assault weapons. It also pays needed attention to the problem of violence against women, although some of the enhanced penalties and pretrial detention requirements are both wrong and counterproductive. And it provides limited funding for things like after-school academic, athletic, and counselling programs. But the prevention-minded programs are drops in the bucket compared to both the $15 billion for police and prisons, and to the enormous needs. And all of the bad clearly outweighed the little


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good. Yet only four Senators—Democrats Simon (Ill.) and Feingold (Wis.), joined by Republicans Hatfield (Ore.) and Durenberger (Minn.), who oppose the death penalty—voted against the Senate bill. Not only had reform efforts largely failed, but the Senate crime bill was a stunning setback.

Congressional leaders of both parties celebrated passage of the legislation. President Clinton left the crafting of a crime bill up to Senate leaders, choosing to work on other issues. He seemed to just want passage of a crime bill, it didn't much matter what it contained. He urged the House to act quickly.

As word of what was actually in the Senate bill spread, opposition grew—not just from the ACLU and defense lawyers. During a meeting of the chief justices of the nation's state supreme courts, Minnesota Supreme Court Chief Justice A.M. "Sandy" Keith said, "This is the worst crime bill we've ever seen." A resolution adopted by the group said the bill would waste resources and hinder effective state and local law enforcement.

Southern Black Caucus Members Shift Debate

Things were moving differently in the House. Early last fall members of the Legislative Black Caucus and the Hispanic Caucus, led by congressmen Craig Washington of Houston, Robert Scott of Newport News, Mel Watt of Charlotte, and Xavier Becerra of Los Angeles demanded a different approach and took two important steps. First, Congressman Washington introduced an "alternative" crime bill, HR 3315, filled with sensible crime control measures, needed reforms, and a real emphasis on crime prevention. Then caucus members met with Judiciary Committee Chairman Jack Brooks of Beaumont, Texas, urging him not to act on a major omnibus crime bill, but instead to proceed more deliberatively. Because of the growing clout of the two caucuses in the House and perhaps because he is tired of all the political pandering about crime, as so many other members privately are, Brooks agreed. Instead of an omnibus bill, the House in the fall reauthorized Lee Brown's office, passed the Violence Against Women Act, and approved a bill to place more police on the streets.

After passage of the Senate's omnibus bill President Clinton began to get more involved, using his January "State of the Union" speech to push for swift passage of a crime bill and, to the apparent surprise of his Justice Department, announce support for "three strikes and you're out." But black and Hispanic caucus members insisted that the House not act quickly and not simply take up the Senate bill as the President seemed to be urging.

Also in January, Jesse Jackson's National Rainbow Coalition held a well-publicized seminar on crime and the Black Caucus conducted a hearing on their alternative crime bill. Groups like the NAACP and the Children's Defense Fund joined the ACLU and the ABA in calling for new directions at the hearing. Louisiana State Senator Charles Jones testified for the National Black Caucus of State Legislators describing the Senate bill as "an unsound investment of taxpayer dollars." Attacking the provisions to force states to greatly increase the amount of time served by state prisoners in return for placing a few state prisoners in federal regional prisons, Johnson pointed out that states will have to spend an estimated $20 for every $1 of federal assistance they receive through the program. "Understand what this means," Johnson said, "$20 less for education, healthcare, and job training." Also in January, ABA President William Ide, an Atlanta attorney, chaired an ABA national "Summit on Crime and Violence" bringing together criminal justice leaders to discuss more productive crime fighting approaches.

As a result of all this, House Democratic leaders rejected calls to quickly pass the Senate bill and instead scheduled a series of hearings including an unusual two-day discussion of Congressman Washington's alternative bill. At that hearing, Galveston, Texas, County Commissioner Wayne Johnson, a former state and county prosecutor who serves on the state NAACP board, opposed the Senate bill's provisions forcing states to increase time served by state prisoners, pointing out that Texas is already building so many new prisons it soon will have the largest single prison system in the world. In addition, Commissioner Johnson said, "as a person who was known as 'maximum Wayne' in my felony prosecuting days, I am here to tell you that 'Three Strikes, and You're Out' is good politics—but dumb law. Cookie-cutter justice just does not work."

Urging support for the Washington alternative bill, Jesse Jackson denounced the Senate crime bill saying, "We have a mock-tough Senate crime bill, filled with bumper-sticker gimmicks that will waste money and have no effect on crime." By this point House crime subcommittee chair Charles Schumer of New York, who had previously been a major obstacle to any reform, was saying "We must attack crime both at its roots and in its fruits."

Finally, after almost three months of deliberation the House passed its own crime bill on April 21. Included are some of the same terrible provisions as in the Senate bill, such as the huge expansion of the federal death penalty including offenses in which no one is killed. The Justice Department urged a narrowly drawn "three strikes" provision with only serious violent offenses counting as a


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strike. But the House, like the Senate, included serious drug offenses as a strike. The House did include a provision to allow federal prison officials to seek the release of a three-strikes inmate who has served at least thirty years and reached the age of seventy. Carol Moseley-Braun's requirement that violent thirteen-year-olds be tried as adults was changed into a provision permitting such adult trials in some circumstances. The House authorized $13.5 billion for prisons, more than doubling the Senate amount. But the House approach only encourages rather than requires states to increase time served by state prisoners—permitting states to create more prison space for violent offenders by establishing alternatives to incarceration to get minor non-violent offenders out of prison cells.

Also adopted was a "safety valve" broader than the


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Senate provision to exclude minor, first offender, nonviolent drug offenders from mandatory minimum sentences—a provision which may affect the sentences of several thousand current federal inmates. The House unanimously voted to ask the U.S. Sentencing Commission to recommend new similar penalties for the crack and powder forms of cocaine.

At the same time, like the Senate, the House voted to prohibit prisoners from receiving federal Pell Grant assistance to get a college education while in prison. Outdoing the Senate in such mean-spiritedness, the House banned weight-lifting in federal prisons. Only 22 House Members voted no on that one.

The House voted only $3.45 billion for new police instead of the $9 billion authorized by the Senate for some 100,000 new police over the next five years.

The big battles in the House were over the death penalty. A motion to replace death penalties with life in prison failed 111 to 314. A reform proposed by the Judiciary Committee would require death-sentenced inmates to raise claims of Constitutional rights violations within a year of a final state appeal ruling, but also would require states to provide competent lawyers for indigent defendants and permit additional habeas petitions based on new evidence or new rules of law. Opponents claimed the judiciary proposal was a trick to kill the death penalty. After strident opposition from Republicans using a letter of opposition signed by thirty-three state attorney generals, sensible habeas corpus reform failed in spite of courageous support from Congressmen Butler Derrick of South Carolina, Greg Laughlin of Texas, and Mike Synar of Oklahoma.

The Black Caucus then put its collective foot down, insisting that the House Democratic leadership support the Racial Justice Act, to permit death-sentenced prisoners to use statistical evidence of racial bias to challenge their death sentences. Majority Leader Richard Gephardt (D-Mo.) made an impassioned plea for the bill even though it was opposed by the White House, which also had opposed habeas reform. After a bitter fight the Racial Justice Act passed with House Speaker Tom Foley casting the deciding vote. And along with that victory, the House voted for $2.45 billion for rehabilitation programs and $6.7 billion for a crime prevention package including community crime prevention, midnight sports programs, drug courts, and a jobs program targeted at high-crime neighborhoods. " [sic] On May 5, after intense lobbying by the administration, the House passed a separate ban on assault weapons similar to that in the Senate crime bill by a vote of 216 to 214.

A joint Senate/House conference committee is fashioning the two versions into a final crime bill which is expected to be on the President's desk by early summer. In conference, a major fight is expected over the House-passed Racial Justice Act. The other big fight will be over how much funding will remain for prevention programs.

Democratic congressional leaders claim the crime bill is a "balanced one" that is both "smart and tough." But the modest reforms in the bill come with the terrible price of several very destructive provisions. Weighing that, Congressmen Washington, Scott, Watt, and eleven other Black Caucus members voted against final passage of the House bill.

Several members of Congress who played key roles pushing for this year's reforms are leaving Capitol Hill. California's Don Edwards (D), the Civil and Constitutional Rights Subcommittee chair who has led civil rights and civil liberties fights for many years, is retiring, as is more moderate Congressman William Hughes (D-N.J.), who in recent years became a significant voice of reason. And Congressman Craig Washington, who played such a critical and effective leadership role, lost his re-election primary battle, apparently because he cast "anti-Texas" votes against NASA, NAFTA, and the super-collider project.

Congressman Washington's impact may be best reflected in a speech House Majority Leader Gephardt gave a few days before the House vote. He said, "Sometimes, when we haul out the tough-sounding slogans, it makes it easier to duck the tough choices .... If we were really tough on crime, we'd do more to stop it from happening in the first place .... If we attack the root causes of crime, and make sure we have tough, no-nonsense law enforcement at the same time—we'll make our streets safer, and our families more secure."

At this point it is difficult to predict what the final crime bill will look like. With the extremely controversial Racial Justice Act in the House version and the ban on assault weapons passed by both houses, it is possible that no bill will be finally passed as happened during the last Congress. Or, before final passage the conference committee might delete the Racial Justice Act and cut back the larger prevention package in favor of more prisons.

But even if that worst case happens, the few reforms and the beginnings of an emphasis on prevention in the crime bill illustrate that it may be possible to move towards a new more productive attack on crime. It will take courageous political leadership from the administration and from other members of Congress to aid those in the black and Hispanic caucuses who are trying to lead the way.

For information on the Campaign for an Effective Crime Policy write to them at: 918 F St., NW #501, Washington, DC 20004

Gene Guerrero is the field director of the American Civil Liberties Union's legislative office in Washington, D. C.