June 10, 1991

INMODUMON

Congress is considering two major anti-crime packages. One package, sponsored by the Bush Administration, was introduced in the Senate by StromThurmond, the South Carolina Republican, as S.635 and in the House as H.R. 1400 by GOP Leader Robert Michel of Illinois. The second package consists of two bills, S. 15 and S.618, introduced in the Senate by Joseph Biden, the Delaware Democrat who chairs the Senate Judiciary Committee. Of the two, the Bush package is better - mainly because it is realistic about what the federal government can do about street crime all across America. The Biden package, by contrast, while containing some promising proposals, increases federal intrusion into local law enforcement. All this will do is spend huge sums of money and expand the federal bureaucracy, while actually making it more difficult for local police and prosecutors to capture and convict criminals. Until recent decades, crimes such as murder, assault and robbery, and most of what are known as street crimes, were dealt with by the states and localities in which they occurred, under state and local laws. Consistently and wisely the United States has rejected the need for a national police force to deal with such matters. Instead, the federal government has focused mainly on interstate crimes, on keeping national crime statistics and on helping local law enforcement officials keep up with the latest crime prevention techniques. Not until the -late 1960s did the federal government become deeply involved in local crime issues. Since then, billions of federal dollars

I Washingfon Post, April 29,1991, A6.

Americans face two distinct views on the crime Problem. One, offered by Bush, focuses on the concept that laws must be reformed to ensure that the guilty go to jail. Ile other, offered by Biden, holds that America must spend much more federal money fighting crime and increase the police power of the national government. The Bush vision is clearly preferable.

STATE VERSUS FEDERAL ROLES IN CREVHNAL JUSTICE

Until the late 1960s, America's states and localities had virtually exclusive responsibility for fighting violent street crime. The reasons for this are clear. Criminals are arrested by local police. They are indicted under state and local laws. They are tried in state or county courts. And they are sentenced to serve time in state or county prisons. Ile federal government traditionally has concerned itself only with interstate crimes or crimes involving international activities and to provide certain assistance for local law enforcement officials. These activities have included: * Fighting foreign drug cartels and organized crime groups like the Mafia. 4 Compiling and disseminating research, statistics and other information such as the number of crimes committed in each jurisdiction in America; * Providing information and limited training to local law enforcement officials in advanced crime fighting techniques. * Collecting and maintaining a nationwide file of criminal records and fingerprints. 4 Researching and developing scientific and technological advances such as improved uses of "genetic fingerprinting" to identify suspects. Not until Lyndon Johnson's 1968 Omnibus Crime and Safe Streets Act did the federal government significantly intervene in local crime. This Act had broad support in Washington and among big-city mayors and police chiefs. After the Act was passed, the mayors, predictably alert for revenue sources other than from their own taxpayers, continued to pressure Congress for more anti-crime aid. Through subsequent amendments to the Act, Congress vastly increased the amount of federal money devoted to local crime problems. In addition to money, Congress also has approved using federal manpower to fight local crime. Example: the 1988 Omnibiis Anti-Drug Act made possession of any amount of an illegal drug a federal crime. The result: Thousands of street level drug-dealers have been arrested by federal agents. Despite this increased federal assistance, violent crime rates jumped throughout the 1970s. They did so also in the 1980s, although at a slower rate than before. Thus, federal intervention in local crime has had little

discernible impact aside from confusing the issue over ultimate responsibility for attacking the problem.

THE BUSH ANTI-CRIME PACKAGE

The Bush Administration has drafted and supports legislation that closes loopholes in the federal system. It does not attempt the kind of grand crime-fighting strategy that likely would make matters worse. Many of the changes will affect only federal criminal procedures and thus will have little impact on street crime. Measures in the Bush package include: * * Reform of Habeas Corpus. The Bush bill would reform the habeas corpus system. Habeas corpus generally refers to the right of individuals, guaranteed by Article I, Section 9 of the U.S. Constitution, not to be detained without being charged with a crime. The Bush bill does not deal with this constitutional aspect of the right, but instead with what experts call the statutory right of habeas corpus, enacted in 1867 and expanded since by federal judges. Ile statutory habeas corpus allows state prisoners to petition federal courts for a review of their cases after they have exhausted state remedies. Lawyers for death row inmates in particular have made substantial use of this as a device to postpone executions. Other inmates have inundated federal courts with pleas to overturn sentences; typically these inmates argue that, at their trials, they lacked effective counsel or that their trial procedurally was flawed. With few exceptions, these petitions raise frivolous issues and are dismissed in federal court - but only after they consume enormous amounts of court time. Last year alone, some 11,000 habeas corpus petitions were made by state prisoners to federal courts. Declares former Supreme Court Justice Lewis Powell, "I know of no other system of justice structured in a way that assures no end to the litigation of a criminal conviction. rms] system is viewed with disbelief by lawyers and judges in other countries. The Bush package would help reduce this tidal wave of petitions by setting, in most cases, a time limit for federal habeas corpus application of one year after the state prisoner exhausted his or her state remedies. The bill, in addition, would require federal judges whenever possible to uphold state court decisions. This provision also would apply to petitions involving most death penalty cases.

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3 Weeks v. United States, 232 US. 383 (1914). 4 United States v. Leon, 468 U.S. 897 (1984).

Expansion of the federal death penalty. The federal death penalty now can be imposed for espionage, treason, and murder involving certain federal crimes. The Supreme Court has ruled however that for the death penalty to be enforced, aggravating and mitigating factors in a crime, spelled out in statutory laws, must be taken into account. Aggravating factors would include committing the offense in an especially heinous, depraved and cruel manner. Nfitigating factorl can involve good conduct in jail or seriously dimini hed mental capacity. The Bush bill would codify a set of mitigating and aggravating factors, provide for a special hearing to determine whether a sentence of death is justified, and establish an appeals process. This meets Supreme Court standards, and would make the death penalty enforceable. Bush also would make 30 currently non-capital federal crimes subject to the death penalty. These include kidnapping where a death results, murder during a hostage taking and terrorist murders of American nationals abroad. * * The "Brady Bill." The so-called "Brady Bill" refers to H.R.7, introduced by Representative Edward Feighan, the Ohio Democrat, and recently passed by the House, and is named after Ronald Reagan's former press secretary James Brady who was wounded in the 1981 attempt on the President's life. This bill would require a seven-day waiting period on handgun purchases. During this period, gun sellers would give the prospective buyer's name to the police, who would have the option of checking to determine, among other things, if the buyer had a criminal record, a record of mental illness, a history of drug addiction, or dishonorable discharge from the armed services. Although not originally part of his anti-crime plan, Bush has indicated that he will sign the Brady Bill if it is included in the broader legislation. Despite what appears to be the Brady Bill's broad emotional appeal to Americans, it is doubtful whether it would have any significant impact. Some 17 states already have similar or even more stringent laws and these have not reduced crimes committed with guns. Other provisions of the Bush package would: * * Increase the penalties for firearms violations. The package would increase from five to ten years the mandatory federal penalty for using a semi-automatic firearm during a violent felony; provide a mandatory five-year penalty for possession of a firearm by individuals previously convicted of a violent felony or serious drug offense; and, prohibit gun magazines that allow firing over 15 rounds without reloading.

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6 See, Billie S. Erwin and Lawrence A. Bennett, "New Dimensions in Probation: Georgia's Intensive Probation Supervision," National Institute of Justice, 1987.

Violence Against Women Act. To reduce violence against women, despite statistics that confirm that men are far more likely than women to be the victims of violence, Biden has introduced Tle Safe Homes for Women Act. It states that, "Any person who travels or causes another... to travel across state lines or in interstate commerce with the intent to injure an i ' partner" and who does injure that person can be jailed for up to 20 years. This bill's price tag is almost $560 million a year, spent mainly on grants to states, Indian tribes, cities, and other localities "to develop effective law enforcement and prosecution strategies to combat violence against women." This includes training police and prosecutors to identify crimes against women, such as sexual assault and domestic violence; and developing training and expanding units in police departments and prosecutors' offices that specifically target violent crimes against women. Up to $100 million each year would be spent in areas of "high intensity crime" against women. Another $190 million a year would be used for general grants to the states, and $10 million would be authorized to combat crime against women in the Indian tribes. The bill explicitly makes wife-beating a federal crime for any person who travels across state lines and "does an act that injures his or her spouse or intimate partner." Biden thus implies that the FBI should become involved in what hitherto has been a matter for local police. When added to laws that already involve the federal government in local law enforcement, such as those laws aimed at arresting street drug dealers, -this continues the trend of replacing the local cop with federal law enforcement officers. Among other provisions of the Biden package: # # Establish new task forces and commissions and require agencies to file ten new reports to Congress. Among the new reports would be those that 1) would measure whether banning assault weapons reduces violence and drug trafficking; 2) would track the progress of the proposed Police Corps along with a separate, special report which would recommend whether to expand the program; 3) would review the efficiency of traditional criminal justice approaches to preventing crime and violence through findings of the Commission on Crime and Violence, and the findings of the National Commission on Violent Crime Against Women, which would evaluate the adequacy of current efforts to reduce the rate of violent crimes against women; and, 4) would identify problems of record keeping of criminal complaints involving domestic violence.

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8 S. 618, Chapter 177, section 2922 (a).

EVALUATING THE BIODEN PACKAGE

The Biden bills will cost taxpayers almost $4 billion a year. Yet there is little indication that this spending significantly would reduce violent crime. Example: Of the $1 billion meant for state and local law enforcement, New York City's share would probably place no more than two additional policemen on the street per shift, per precinct. The other spending provisions also are unlikely to reduce crime rates noticeably. The drug prisons will hold only 12,000. The boot camps for young, first-time offenders will hold only a maximum of 3,000 inmates. The Biden package thus would do little to ease prison overcrowding. It is estimated, for example, that the states need an extra 500,000 spaces for prisoners. As bad, the Biden package ignores a key proposal to help states with overcrowded prisons: H.R. 1001 sponsored by Representative Henry Hyde, the Illinois Republican, would change the federal tax code to allow tax exempt state bonds issued to finance private prisons. Biden failed to include a similar measure which would combat the high cost of constructing and maintaining new facilities. In contrast to most of the Biden package, the proposal for a ROTC-like program to train 20,000 police annually has merit. College educated police tend to set higher standards for themselves. No new funds, however, need to be spent on this ROM The $430 million annual cost of the program should be paid with money currently available in the Department of Education budget. Biden's legislation is not the major assault on America's crime problem that he claims; it is not even a minor assault. If his real goal is to encourage experimentation, then he should leave this to the states, which traditionally have been America's best laboratories of social experiment. Biden's package, moreover, errs seriously in increasing federal involvement in the fight against violent street crime. Fighting crime - like collecting garbage, fire-fighting or lighting streets - is a state and local responsibility. Entangling the federal government in the battle against street crime muddies the lines of responsibility and creates confusion over which officials should be held accountable for the local crime situation. If citizens want another policeman on their block, they should not have to call their Congressman, who might then try to prod a lethargic federal bureaucracy.

HOW THE STATES CAN FTGHT CRIME

Crime is the ultimate local problem. Often attacker and victim come from the same neighborhood, and almost always from the same city or county. Localities, moreover, fight crime differently. This leads to experiments that reveal what works and what does not.

Ile antidote to violent street crime lies in the hands of state and local officials and the voters who elect them. States and localities can hire more judges, prosecutors and public defenders; can appoint and elect judges who will enforce the law rather than bend the state constitutions to favor criminals; and can hire private firms to build and manage their prisons. The federal government, of course, has a role in fighting crime. It can keep interstate criminal records such as photographs and fingerprints, maintain nationwide crime statistics, continue to research high technology police methods, and handle such interstate problems as organized crime. But, the day-to-day police work, prosecutions and imprisonments must be left to local authorities. Washington-based officials know this. 71ey thus should stop misleading voters by claiming that the federal government can have a big impact on violent street crime. Of the two major crime packages being considered by Congress, the Bush version is the better. It makes reasonable proposals to ensure that the guilty go to jail, and once in jail, restrains convicts from jamming the federal courts with frivolous habeas corpus petitions. Furthermore, the Bush package does not inject the federal government significantly into local problems. By contrast, the Biden package assumes that Washington can solve America's crime problems if only the federal government spends enough money. It unduly would expand, moreover, the role of federal law enforcement in local crime fighting - something that if done on a small scale will have little impact, and if done on a large scale, can threaten civil liberties. And the Biden package actually takes a racial quota approach to death penalty executions.

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