June 7, 1993 | Backgrounder on Crime
Violent crime remains at intolerably high levels. Gang violence is spreading across the country. And juveniles are committing more and more serious crimes. At the same time, crime is becoming more ruthless and wanton. Too many Americans -- especially residents of the inner cities -- have become prisoners in their homes, behind bars and chains. It is not surprising, therefore, that the strongest support for tougher law enforcement is found among inner-city, largely minority residents. (See Robert Rector, "A Comprehensive Urban Policy: How to Fix Welfare and Revitalize America's Inner Cities," Heritage Foundation Memo to President-Elect Clinton No. 12, January 18, 1993.)
Despite this plague, a powerful bloc of liberal lawmakers in Congress prevented the passage of tough anti-crime measures proposed by the Bush Administration. If President Clinton is to launch a war on crime, he will have to overcome this resistance on Capitol Hill.
As Bill Clinton prepares his own initiatives on crime, he would be wise to examine the recommendations of the report released last year by former Attorney General William P. Barr. (For a copy of Attorney General Barr's original report, "Combatting Violent Crime: 24 Recommendations to Strengthen Criminal Justice" and its "Citizen's Checklist" of questions for state and local leaders, contact the U.S. Department of Justice Public Affairs Office at (202) 514-2007.) The report, entitled "Combatting Violent Crime," focuses on actions which can be taken at the state and local levels. President Clinton should call on governors and state legislators to act on the recommendations, and he should frame federal legislation and policies to complement the proposals.
Real Results. When the federal government works with state authorities, the combined assault on crime can yield real results. Working with local police under "Operation Triggerlock," for example, federal prosecutors were able to charge over 10,000 dangerous criminals who used firearms in the operation's first eighteen months alone (Summer 1991-Winter 1992). The average sentence for three-time felons was eighteen years without parole. In another operation, 300 FBI agents were transferred from counter-espionage to anti-gang squads in 39 cities across the country, and the federal RICO (Racketeer Influenced Corrupt Organizations) statutes were used in many cases to dismember violent gangs. Under the innovative "Operation Weed and Seed," law enforcement resources were combined with social programs at the local level to reduce crime in twenty targeted cities. And U.S. Marshals, in one ten-week period, rounded up thousands of dangerous fugitives in a massive manhunt named "Operation Gunsmoke."
The Clinton Administration should continue to assist state and local law enforcement officials in these ways. At the same time President Clinton should build upon the progress made by Presidents Ronald Reagan and George Bush in strengthening the federal criminal justice system. During the 1980s, federal legislation reformed bail laws to establish pretrial detention for dangerous offenders; sentencing guidelines were initiated to ensure firm and consistent punishment; mandatory minimum sentences were created and federal parole was abolished to bring the amount of time served closer to the amount of time imposed in criminal cases. In addition, substantial resources were invested in federal law enforcement. The number of prosecutors and federal law enforcement officials increased significantly, and President Bush doubled federal prison capacity in just three years.
Framework for States. Nevertheless, the impact of federal policy necessarily is limited, since 95 percent of crimes fall within the jurisdiction of state and local governments. But state and local law enforcement agencies, with limited resources, are under great strain to deal effectively with the increase of violence in this country. To fight violent crime on the state and local levels, Attorney General Barr made 24 recommendations in his report. Developed in partnership with a broad array of independent law enforcement officials, these recommendations are a sound framework for state and local policy makers seeking tough action on crime. And if the Clinton Administration should fail to follow through on candidate Clinton's anti-crime rhetoric, or weaken existing law enforcement programs through the appointment of liberal jurists to the federal bench, it will be all the more important for state and local officials to strengthen law enforcement in their jurisdictions.
Already there is evidence that the Clinton Administration is backing away from tougher law enforcement. President Clinton's first budget, for instance, substantially cuts resources for the Department of Justice, and emphasizes social programs at the expense of law enforcement. The Clinton Administration's budget request for federal prison construction was $155 million for FY 1994, down from the Bush Administration's FY 1993 request of $195 million, about a 20 percent cut. Clinton seeks to reduce prison construction funds to $112 million by 1998, down from a high of $1.3 billion spent by Bush in 1990 alone.
It also appears that the Administration's new crime bill will reverse many of the legislative reforms enacted during the last decade, as well as some 22 Supreme Court decisions considered favorable to law enforcement. It is thus state and local officials who likely will have to take the lead in the only real opportunity to improve America's criminal justice system.
Barr's recommendations focus on five areas:
Protecting the community from dangerous criminals;
Assuring effective deterrence and punishment of adult and young offenders;
Creating more efficient trial, appeal, and post-appeal procedures;
Improving the detection and prevention of crime; and
Enhancing the role of the victim in the criminal justice process.
Many of the Barr recommendations are modeled after effective federal statutes enacted during the last decade. President Clinton should build upon these improvements. And state officials need to take decisive measures at lower levels of government. Barr's 24 recommendations provide a foundation for such actions.
The Tide of Violent Crime in America
State officials must address a simple fact: The United States is in the grip of a violent crime wave.
As the above graph shows, the number of violent crimes has jumped dramatically in the last thirty years, over three times the rate in the 1990s than in 1960. Measuring the increase in terms of population over the same time period, the U.S. population has increased by 41 percent, while the violent crime rate has increased by more than 500 percent. As Heritage Foundation Distinguished Fellow William J. Bennett, former National Drug Control Policy Director, observes, "The rate of violent crime in the U.S. is worse than in any other industrialized country." (See William J. Bennett, The Index of Leading Cultural Indicators, published jointly by Empower America, The Heritage Foundation, and the Free Congress Foundation, Washington D.C. 1993, p. 2.)
As noted, the victims of violent crime tend to be disproportionately poor and members of racial and ethnic minorities, particularly blacks. "Given current crime rates," observes Bennett, "eight out of every ten Americans can expect to be a victim of violent crime at least once in their lives." (Ibid.)
Protecting America's Communities from Dangerous Criminals
Most of the criminal violence in American society is committed by a very small group of chronic, violent offenders -- hardened criminals who commit many violent crimes whenever they are out on the streets. They begin committing crimes as juveniles, and they go right on committing crimes as adults, even when on bail, probation, or parole.
The first duty of government is to protect its citizens. If law enforcement officials are to make any progress in reducing violent crime, their top priority must be to identify, target, and incarcerate these hard-core, chronic offenders.
The Barr report indicates ways in which state legislatures can take decisive action to protect citizens:
RECOMMENDATION #1: Give judges legal authority for pretrial detention of dangerous defendants.
Every state should grant statutory, and if necessary, state constitutional authority to its trial judges to hold, without bail, those defendants who are a danger to witnesses, victims, or the community at large -- both before trial and pending appeal.
A study by the Department of Justice's Bureau of Justice Statistics (BJS) of individuals on pretrial release in 75 of the nation's most populous counties found that 18 percent of released defendants were known to have been rearrested for the commission of a felony while on pretrial release. Two-thirds of those rearrested while on release were again released. (See Bureau of Justice Statistics, U.S. Department of Justice, Pretrial Release of Felony Defendants, 1988 (Washington, D.C.: U.S. Government Printing Office, 1991), p. 1. See also Lazar Institute, "Pretrial Release: A National Evaluation of Practices and Outcomes," prepared for the National Institute of Justice, U.S. Department of Justice, by Mary A. Toborg (October 1981), Grant No. 71-NI-AX-0038, p. 48 (reporting similar rates of pretrial rearrest).)
This revolving door justice adds significantly to crime and destroys public confidence in the criminal justice system. Law-abiding citizens understandably are reluctant to inform police of criminal activities when they know that those arrested will be back on the street in a few days, or even in a few hours. Citizens fear retaliation, intimidation, and harassment by returning criminals if they help police.
At the federal level, the Bail Reform Act of 1984 grants federal judges the authority to deny bail or pretrial release to defendants who pose a danger to specific individuals or to the community in general. (18 U.S.C. sec. 3141-56.) Under the Act, criminal defendants with serious records, including the commission of crimes while on release and those charged with serious drug felonies, are presumed to be a danger to the community and therefore unsuitable for release. The Act also creates a strong presumption that a convicted offender will remain imprisoned during any post-conviction appeal.
Pretrial detention has helped federal prosecutors cripple organized crime and drug rings. When pretrial detention is foregone, defendants have the opportunity to intimidate or harm witnesses before their trials. But when pretrial detention is enforced, dangerous defendants are put behind bars until trial, where they are unable to obstruct justice or pose a threat. Pretrial detention also increases the protection afforded to witnesses and victims of crimes.
Despite the proven effectiveness of the federal statute, and its soundness as federal constitutional law, (The Supreme Court rejected a constitutional challenge to the pretrial detention provisions of the Bail Reform Act in United States v. Salerno, 481 U.S. 739 (1987).) only a few states have effective pretrial detention provisions. In many states, pretrial detention is not currently possible because of an absolute right to bail in the state constitution. Thus where state constitutional reform is necessary to remedy this, it should be enacted.
States also should consider other key provisions of the Bail Reform Act of 1984, such as the serious penalties for jumping bail and enhanced penalties for crimes committed while on release.
In Philadelphia in 1986, for example, a judge placed a limit on the number of criminals that could be housed in the Philadelphia jail, in order to prevent overcrowding. Released because of this order were dangerous arrestees who otherwise would be held without bail or on very high bond. The result was an increase in violent crimes committed by the releasees. In the face of this crisis, the federal government stepped in to use federal pretrial detention in cooperation with state authorities. Over 600 gang members, who would have been turned loose by state judges because there was no room to hold them, were placed in federal facilities under federal law while awaiting trial. The homicide rate in Philadelphia declined as a result. (See Mike Baylson (U.S. Attorney ED-PA) and Willie Williams (Philadelphia Police Commissioner), "Here's Why Murders are Down in the City," The Philadelphia Inquirer, January 15, 1992, p. A13.)
Punishing and Deterring Violent Criminals
Imprisoning the hard-core population of chronic, violent offenders will reduce the level of violent crime in America. The reason: When these criminals are on the streets, they are victimizing citizens; when they are in prison, they are not committing crimes against the public. While liberals may question the deterrent and rehabilitative aspects of imprisonment, one thing is beyond debate: Prison incapacitates chronic, repeat offenders.
Consider the American experience of the last three decades. In the 1960s and early 1970s, incarceration rates dropped and violent crime rates skyrocketed. Conversely, when incarceration rates jumped in the 1980s, the rate of increase of crime was substantially reduced. (See Federal Bureau of Investigation, U.S. Department of Justice, Crime in the United States, Uniform Crime Reports 1959-90 (Washington, D.C.: U.S. Government Printing Office, various years); Bureau of Justice Statistics, U.S. Department of Justice, Historical Statistics on Prisoners in State and Federal Institutions, Year end 1925-86 (Washington, D.C.: U.S. Government Printing Office, 1988) and Prisoners in 1989 (Washington, D.C.: U.S. Government Printing Office, 1990).) This is all the more impressive, considering the mid-1980s "crack" drug epidemic and its associated violence.
The best way to reduce crime is to identify, prosecute, and incarcerate hard-core criminals. Study after study shows that a relatively small portion of the population is responsible for the lion's share of criminal violence in this country. For example, one California study found that 3.8 percent of a group of more than 236,000 men born in 1956 were responsible for 55.5 percent of all serious felonies committed by the study group. (These numbers are derived from Robert Tillman, "Prevalence and Incidence of Arrest among Adult Males in California," prepared for California Department of Justice, Bureau of Criminal Statistics and Special Services, Sacramento, California (1987).)
Putting chronic offenders in prison for long periods, especially upon second and third convictions, is the most effective way to reduce violent crime.
RECOMMENDATION #2: Restrict parole and increase the time actually served by violent offenders.
An axiom of effective law enforcement is that punishment should be swift, certain, and severe. Yet in too many jurisdictions, it is none of these. In fact, most violent offenders who are sent to state prison serve only a small fraction of their sentences. According to the Bureau of Justice Statistics, analysis of release practices in 36 states and the District of Columbia in 1988 shows that although violent offenders received an average sentence of seven years and eleven months imprisonment, they served an average of only two years and eleven months in prison -- or 37 percent of their imposed sentence. Overall, 51 percent of the violent offenders in the survey were discharged from prison in two years or less, and 76 percent were out in four years or less. (See Bureau of Justice Statistics, U.S. Department of Justice, National Corrections Reporting Program, 1988 (Washington, D.C.: U.S. Government Printing Office, 1992), tables 2-7 and 2-4.)
The adjacent chart shows the median sentence and time served in prison for those released for the first time on a sentence in 1988. (Ibid.)
This huge gap between the nominal sentence given and the real time served is dishonest, and it is bad policy. It is dishonest because the public -- especially victims of crime -- is often under the impression that the sentence will be served in full, when in fact no such thing happens. It is bad policy because it puts the public at risk.
There are several reasons why states should restrict parole practices. First, parole is based on the mistaken idea that the primary reason for incarceration is rehabilitation (prisoners can be released as soon as they are rehabilitated, so the argument goes), and ignores the deterrent, incapacitative, and retributive reasons for imprisonment. A clear and truthful sentence increases the certainty of punishment, and both its deterrent and incapacitative effects.
Second, in too many cases parole simply does not work. Studies of the continuing failure of parole obscure the terrible human cost to law-abiding citizens. (See, for example, Mark Vosburgh and Sean Holton, "Florida Prison Failure Churns Out Crime Before Its Time," Orlando Sentinal, August 13, 1989, p. A-12; Mark Vosburgh, "Florida's Early Releases: Flood of Rearrests May Sink Crowded Prisons," Orlando Sentinal, December 17, 1989, p. A-1; U.S. Department of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, April 1989 (NCJ-116261); U.S. Department of Justice, Bureau of Justice Statistics, Examining Recidivism February 1985 (NCJ-96501); U.S. Department of Justice, Bureau of Justice Statistics, Recidivism of Young Parolees, May 1987 (NCJ-104916).) For example, Suzanne Harrison, an eighteen-year-old honor student, three weeks from graduation, left her home in Texas with two friends, nineteen and twenty years old, on May 4, 1986. Her body was found the next day. She had been raped, beaten, and strangled. Her two companions were shot to death, and their bodies were found ten days later in a ditch.
Their killer, Jerry Walter McFadden (who calls himself "Animal"), had been convicted previously of two 1973 rapes, and sentenced to two fifteen-year sentences in the Texas Penitentiary. Paroled in 1978, he was again sentenced to fifteen years in 1981 for a crime spree in which he kidnapped, raped, and sodomized a Texas woman. Despite the fact that his record now contained three sex-related convictions and two prison terms, he was released again on parole in July 1985. McFadden's crime spree finally came to an end when he was convicted of the capital murder of Suzanne Harrison and sentenced to death in 1987. McFadden raped and killed Harrison and killed her two friends less than a year after being released on parole. This tragic example is all too common, and the cost of failed parole practices to the public safety is all too high.
Parole sometimes is used as an answer to prison overcrowding. This is hardly a reasonable justification for the premature release of violent criminals into the community. The answer to a lack of prison space is to build more prisons, not to release dangerous criminals.
Until recently, the Texas prison system was not expanding rapidly enough to house that state's criminals. Under federal court order to remain at a maximum of 95 percent of capacity, the Texas prison system responded by increasing the number of inmates released on parole. The number of felons on parole increased by 430 percent during the 1980s, (See Bureau of Justice Statistics, U.S. Department of Justice, Probation and Parole 1981 (Washington, D.C.: U.S. Government Printing Office, 1982), p. 2; Probation and Parole 1989 (Washington, D.C.: U.S. Government Printing Office, 1990), table 1.) and inmates served an average of only 62 days for each year of their sentence. (See Texas Department of Corrections, 1991 Fiscal Year Statistical Report, Summary Table 4 (1992).) As a result, reported crime rates in Texas increased 29 percent in the 1980s, according to the FBI, while they fell for the nation as a whole. (See Federal Bureau of Investigation, U.S. Department of Justice, Crime in the United States, Uniform Crime Reports, 1980, table 3 (1981) and 1989, table 5 (1990).)
States should enact "truth in sentencing." Parole should be restricted so that the sentence served more closely matches the sentence imposed. While "good behavior" incentives may be used to control prisoners, the mechanism should not exceed federal standards requiring 85 percent of sentence to be served.
RECOMMENDATION #3: Enact mandatory minimum sentences for gun offenders, armed career criminals, and repeat violent offenders.
In many states, sentences for violent crimes are too short. To many criminals, jail time is little more than a brief cost of doing business. For example, in 1988, of an estimated 100,000 persons convicted in state courts of murder, rape, robbery, and aggravated assault, some 17 percent -- or about 17,000 violent criminals -- received sentences that included no prison time at all. (See Bureau of Justice Statistics, U.S. Department of Justice, Felony Sentences in State Courts, 1988 (Washington, D.C.: U.S. Government Printing Office, 1990), p. 2.)
State legislators should enact mandatory minimum sentences for aggravated crimes of violence, and for such crimes committed by repeat offenders. Every state should follow the example of federal law, which mandates imprisonment where a firearm is used or possessed in the commission of certain serious felonies. (18 U.S.C. sec. 924 (c) (1).)
Every state should also enact laws similar to the federal armed career criminal statute, which targets repeat violent criminals who possess a gun. (18 U.S.C. sec 924 (e).) Under federal law, any person who has been convicted of three violent felonies or serious drug offenses, and who illegally possesses a firearm, is sentenced to at least fifteen years imprisonment without possibility of parole. There are graduated, lesser penalties for those who have been convicted of one or more prior felonies and illegally possess a gun.
RECOMMENDATION #4: Build more prisons.
As former Attorney General Barr says: "The choice is clear: More prisons or more crime." Building more prisons is not only the morally right thing to do, it is also economically the right thing to do. As Heritage Foundation scholar Robert Rector argues, crime is a high tax on the economic life of America's cities. (Rector, op. cit.) The cost to society of releasing violent criminals prematurely is far higher than the cost of building and operating prisons. When a violent offender is released after conviction because of insufficient prison space, all the money used to apprehend, try, and convict the criminal is wasted. And although incarcerating criminals is not cheap, the cost of not incarcerating criminals is far more expensive.
The overall cost of crime to victims -- including direct losses, pain and suffering, and risk of death -- has been estimated in the billions of dollars. (See Mark A. Cohen, "Pain, Suffering and Jury Awards: A Study of the Cost of Crime to Victims," Law and Society Review, Vol. 22 (1988), p. 539. Cohen estimated the 1984 aggregate cost of crime to victims at $92.6 billion in 1985 dollars.) And this does not include larger costs of crime to society, such as lost sales, because people are afraid to go out shopping; lost jobs, when businesses leave crime-ridden neighborhoods; and lost tax revenues, when sales, businesses, and jobs no longer exist.
A study by the Bureau of Alcohol, Tobacco and Firearms of a group of career criminals found each had committed an average of 160 crimes a year. (See Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Protecting America: The Effectiveness of the Federal Armed Career Criminal Statute (Washington, D.C.: U.S. Government Printing Office, 1992), p. 29; see also Jan M. Chaiken and Marcia R. Chaiken, Varieties of Criminal Behavior, prepared for the National Institute of Justice, U.S. Department of Justice (Rand Corp., 1982), p. 215.) A 1987 National Institute of Justice study estimated that the average societal cost per crime in the nation was slightly more than $2,300. (See National Institute of Justice, U.S. Department of Justice, Making Confinement Decisions (Washington, D.C.: U.S. Government Printing Office, 1987), p. 4.) When these costs are compounded with the multiple crimes committed by the chronic offenders mentioned above, the cost to society of not incarcerating each criminal could exceed $350,000 per year.
Despite the huge costs of not incarcerating criminals, states are reluctant to invest in prison space. In fiscal year 1990, only 2.5 percent of total expenditures by state and local governments went for corrections. And investment in new prison construction was only a small fraction of that figure, according to 1989-1990 figures on government finances from the Bureau of the Census. (See Bureau of the Census, U.S. Department of Commerce, Government Finances: 1989-90 (Washington, D.C.: U.S. Government Printing Office, 1991), p. 2.)
While there are those who argue that America is using prison space for many people who do not belong there, the truth is that 93 percent of those in prison are repeat or violent offenders (the rest are drug traffickers or burglars). (See Bureau of Justice Statistics, U.S. Department of Justice, Prisons and Prisoners in the United States (Washington, D.C.: U.S. Government Printing Office, 1992), p. 16.) In the face of the overwhelming need for more prison space, spending on corrections remains a tiny percentage of state and local budgets. States need to commit sufficient resources to building and operating prisons, or risk the continuing collapse of the criminal justice system.
RECOMMENDATION #5: Impose an effective death penalty for the most heinous crimes.
The death penalty has an important role to play in deterring and punishing the most heinous violent crimes. ( On the deterrent effects of capital punishment: see generally Stephen J. Markman and Paul G. Cassell, "Protecting the Innocent: A Response to the Bedau-Radelet Study," Stanford Law Review, Vol. 41 (1988), pp. 121, 154-56 (collecting studies that demonstrate deterrent effects of the death penalty); Stephen K. Layson, "Homicide and Deterrence: A Reexamination of the United States Time-Series Evidence," Southern Economics Journal, Vol. 52 (1985), pp. 68, 75-80 (estimating that each execution in the U.S. deters approximately eighteen murders). On its retributive effects: see, for example, Senate Committee on the Judiciary, Establishing Constitutional Procedures for the Imposition of Capital Punishment, S. Rep. No. 251, 98th Cong., 1st Sess. (1983), p. 13 ("Murder does not simply differ in magnitude from extortion or burglary or property destruction offenses; it differs in kind. Its punishment ought to also differ in kind. It must acknowledge the inviolability and dignity of innocent human life. It must, in short, be proportionate.").) But it must be a real and certain penalty to be effective. In addition to its deterrent value, capital punishment permanently removes extremely violent offenders from society. And the death penalty upholds society's goal of just retribution: It affirms the moral outrage of the community at the ruthless taking of human life and assures the victim's loved ones that society takes their loss seriously.
At the very least, states should make the death penalty an option for juries to consider in three situations:
First, it is appropriate for the killing of a law enforcement officer. This sends a clear message to violent criminals: Murdering a police officer to avoid identification or later arrest is not worth it, no matter how long a prison term the criminal faces.
Second, it is appropriate for those who kill while also committing serious felonies. In the California case of People v. Love, (366 P.2d 33, 41-42 (Cal. 1961).) a collection of convicts' statements from police files and other sources indicates that their decisions to use toy guns during felonies, not to use firearms to resist arrest, and not to kill hostages were motivated by fear of the death penalty. The death penalty raises the stakes for these criminals, and therefore helps protect the victims of their crimes.
Third, it is appropriate for killing while in prison. Many criminals already serving life sentences in jail feel they have little to lose by killing a correctional officer or fellow inmate. The death penalty introduces a new level of punishment.
RECOMMENDATION #6: Require prisoners to work or perform community service to defray the costs of their imprisonment.
Taxpayers pay for a prisoner's room and board, health care, and all other expenses. In return, able-bodied prisoners should be required to do something useful for the taxpayers, such as maintaining prison property. Restrictions on this practice should be applied only where there is a significant risk of taking jobs away from law-abiding American workers.
There are many benefits associated with prison work. The Federal Bureau of Prisons recently published preliminary findings from its Post Release Employment Project (PREP), which compared federal convicts who received training and work in prison with a control group which did not. The study's preliminary findings offer strong support for prison labor programs: Inmates who worked in prison were less likely to engage in prison misconduct, less likely to commit crimes after release, and significantly more likely to be gainfully employed one year after release. (See Federal Bureau of Prisons, U.S. Department of Justice, Post Release Employment Project, Preliminary Findings (Washington, D.C.: U.S. Government Printing Office, 1991), pp. 6, 10-11.)
States should enact laws or promulgate regulations requiring all able-bodied felons in prison to perform some labor useful to the public. State legislators also should enact laws making a certain percentage of the cost of each prisoner's incarceration part of a mandatory fine imposed as part of sentence. Proceeds from both of these should be used to defray correctional costs.
RECOMMENDATION #7: Impose drug testing throughout the criminal justice process.
Violence is a way of life for those who use and distribute drugs. More than a third of state prisoners serving time for a violent crime said they were under the influence of drugs at the time the offense occurred. (See Bureau of Justice Statistics, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics, 1988 (Washington, D.C.: U.S. Government Printing Office, 1988), p. 624.)
States should impose drug testing on those arrested for certain felonies. This would enable judges to decide more appropriately the conditions for pretrial release and sentencing after conviction. Random drug testing in prison also would help cut use in prisons and discourage the smuggling of drugs into prisons. In addition, periodic drug tests generally should be required of prisoners on supervised release after conviction for a serious felony, and the use of drugs during probation or parole should result in automatic revocation of release status. Finally, where possible, the cost of these drug tests should be offset by a fee imposed on those tested.
RECOMMENDATION #8: Seize assets to fight crime and to supplement law enforcement resources.
Asset forfeiture is a one-two punch in the fight against crime. First, it strips criminals of their ill-gotten gains -- it assures them that crime does not pay. And second, it reinvests those assets as funding for law enforcement programs. In fiscal year 1991 alone, the U.S. Department of Justice deposited $643.6 million into the Asset Forfeiture Fund and shared $266.8 million in cash and $21.2 million in property with state and local law enforcement organizations as a result of joint operations. (Executive Office for Asset Forfeiture, Office of the Deputy Attorney General, U.S. Department of Justice, Annual Report of the Department of Justice Asset Forfeiture Fund, Fiscal Year 1991 (Washington, D.C.: U.S. Government Printing Office, 1992), pp. 53, 55.)
States can use this sanction in addition to criminal prosecution in drug trafficking and certain violent crime cases. Still, asset forfeiture laws should also be applied constitutionally, with proper regard for due process protections. To assist states in doing so, the Department of Justice, with the National District Attorneys Association and the National Association of Attorneys General, has developed a Model Asset Seizure and Forfeiture Act which contains a comprehensive set of recommendations for states.
Punishing and Deterring Young Criminals
Juvenile crime has risen rapidly over the last two decades, especially violent offenses. The real answer to this problem lies outside the criminal justice system. As Heritage Foundation scholar Robert Rector demonstrates, it is the basic institutions of society -- family, schools, churches, and neighborhood groups -- that instill values and mold children into good citizens. (Rector, op. cit.) Only when these institutions once again intervene effectively in shaping the lives of young Americans will juvenile crime be cut substantially.
Still, law enforcement has a key role. State legislators and officials need to distinguish between categories of juvenile offenders. The vast majority of juvenile offenders have only one or two brushes with the law and straighten out as they mature. But there is a smaller group of chronic hardened juvenile offenders, who commit most of the violent juvenile crime. Unfortunately, juveniles are the fastest growing group of violent offenders. As the following graph shows, the arrest rates of juveniles for violent crime have increased significantly in recent years, particularly since 1985. (Bennett, op. cit., p. 4.) And the increase in juvenile crimes is responsible for a large share of the general increase in violent crime. (See Federal Bureau of Investigation, U.S. Department of Justice, Age-Specific Arrest Rates and Race-Specific Arrest Rates for Selected Offenses, 1965-89 (Washington, D.C.: U.S. Government Printing Office, 1990), pp. 31, 73, 213.)
RECOMMENDATION #9: Toughen juvenile sanctions to deter nonviolent first-time offenders from a life of crime.
In the case of the first, larger group of juvenile offenders, the goal of policy makers and law enforcement officials is to prevent these youths from becoming chronic offenders. The best way to do this is to impose tough sanctions that are carefully tailored to the offender and are meant to instill the values of discipline and responsibility. Excessive leniency, on the other hand, wastes the opportunity to turn the young person around, and instead puts him or her on the conveyor belt to becoming a career criminal. The juvenile does not get the message that crime does not pay when he or she is not penalized for committing a crime. Tough but fair sanctions can stop the all-too-common pipeline from juvenile offender to adult criminal.
To this end, state officials should develop a range of sanctions for nonviolent first-time juvenile offenders, with the emphasis on instilling discipline and responsibility in a tough but fair manner. To be effective, these sanctions should include institutional settings, including "boot camps" and highly structured community service programs, as an alternative to probation. And the use of these structured sanctions must be for a period long enough to bring about a change in the pattern of behavior.
RECOMMENDATION #10: Target the small group of chronic violent juvenile offenders and treat them as adults.
One of the worst statistics from the 1980s is the sharp increase in the number of juveniles arrested for murder: It rose by 60 percent between 1981 and 1990, according to the FBI. The corresponding adult increase was 5.2 percent. In 1990, more than a third of all murders in America were committed by people under the age of 21. (See Federal Bureau of Investigation, U.S. Department of Justice, Crime in the United States, Uniform Crime Reports, 1990 (Washington, D.C.: U.S. Government Printing Office, 1991), tables 27 and 36.) The growth of violent juvenile gangs and the tendency of drug rings to use young teens as drug couriers, enforcers, and even "hit men" have contributed to this alarming trend. There is an attitude of "Let the kid do it" among criminals on the street, because of the leniency of many state juvenile justice systems.
For example, in 1988 a fourteen-year-old drug runner in the District of Columbia shot and killed three people on the same day. The drug dealer for whom the juvenile worked was convicted of felony murder, but the juvenile served only 26 months in juvenile detention for the killings. He was back out on the streets taunting local police before his seventeenth birthday. (See "D.J.," Washington Post editorial, July 31, 1991, p. A20.)
State criminal justice officers must realize that some youthful offenders are simply hardened criminals who happen to be young. The challenge for state officials is to identify this small group of hard- core offenders and treat them as adults -- which may require some reform of existing procedures.
State legislators should ensure, for example, that their legal systems permit the discretionary waiver or certification of juveniles into adult court in appropriate circumstances. One approach would be to create a legislative presumption that any juvenile age fourteen or older who commits certain crimes of violence (murder, rape, kidnaping, armed robbery, for example) will be tried as an adult. The presumption could be rebutted by showing mitigating factors that argue otherwise.
But where violence is involved, a firearm is used, or multiple offenses have occurred, the youth has already -- through his own willful criminal conduct -- left the intended focus of the juvenile justice system.
RECOMMENDATION #11: Allow judges to use juvenile offense records in adult sentencing.
Many seemingly first-time adult offenders in this country were chronic offenders as juveniles, yet evidence of their crimes may not be available or may be considered legally irrelevant to sentencing for adult crimes. The Bureau of Justice Statistics estimates that 38 percent of convicted murderers in state prison in 1986 had a prior juvenile conviction; and 13 percent of those had no adult record, only juvenile ones. (The figures are similar for other violent crimes. For example, 54 percent of state prisoners convicted of robbery as adults had a juvenile record -- 15 percent had only prior juvenile convictions. These figures are based on the raw data underlying the BJS Special Report, Profile of State Prison Inmates, 1986 (Washington, D.C.: U.S. Government Printing Office, 1988).) While it is commendable to forgive a youthful indiscretion and not penalize an otherwise law- abiding adult with a criminal record, that is hardly reasonable when a juvenile offender continues a life of crime into adulthood.
To address this problem, the FBI now includes juvenile criminal history information from the states in the national criminal records system, and states are urged to forward records of serious offenses to the FBI. So that this is possible, state officials should review their expungement and confidentiality statutes affecting juvenile offenses. State laws, moreover, should allow for the fingerprinting of juveniles convicted of serious crimes, and career criminal statutes should provide that juvenile convictions for serious drug and violent crimes be considered relevant factors in the sentencing of adults.
Promoting Fair and Speedy Trials and Streamlining the Appeals Process
While it is essential for state officials to increase the certainty and severity of punishment, it is equally important to ensure its swiftness and finality. The key to this is the ability of the criminal justice system to seek and find the truth. Several steps would help achieve this, substantially enhancing the efficiency of state criminal justice systems and the deterrent effect of their punishments.
RECOMMENDATION #12: Enforce speedy trial laws.
Victims of crime and members of society at large want to see justice done and criminals removed quickly from society. Defendants have an interest in clearing their good names if innocent, or in beginning to serve their sentences if guilty. All sides have an interest in determining the facts while evidence and the recollections of witnesses are still fresh.
Despite the clear common interest in speedy trials, and despite the fact that some form of speedy trial law exists in 45 states, (See Bureau of Justice Statistics, U.S. Department of Justice, Prosecution of Felony Arrests, 1981 (Washington, D.C.: U.S. Government Printing Office, 1986), table 30.) delays in prosecution still pervade many state systems. In fact, a 1988 study of felony convictions in 300 counties across America found that the average time between arrest and sentencing was 208 days -- even longer in violent felony and drug trafficking cases. (See Bureau of Justice Statistics, U.S. Department of Justice, Felony Sentences in State Courts, 1988 (Washington, D.C.: U.S. Government Printing Office, 1990), p. 7.)
These delays benefit no one but the guilty -- and cause particular anguish and even danger to the victims of violent crime awaiting the trial proceedings. Many docket-management techniques are available to clerks and other state officials to help states ensure criminal trials take place at the earliest possible date. They should be used more aggressively.
RECOMMENDATION #13: Reform the rules of evidence to secure the truth in criminal trials.
The cost of keeping probative evidence away from juries in criminal cases is very high, and can result in the release of guilty criminals to further victimize the innocent. State officials should review their evidentiary rules to ensure that they promote the search for truth.
State laws also should allow for admission of evidence seized by officers acting with an objectively reasonable belief that they are complying with the law. State legislators can, for example, ensure by statute that whenever police officers act in good faith, but make a technical error of law or fact, the evidence should nevertheless be admitted in court. (In recent years, the Supreme Court has identified a number of situations where it has declined to apply the exclusionary rule to enforce the Fourth Amendment; primary among these is the 1984 case of U.S. v. Leon.) Colorado, for example, has enacted a good faith exception to the exclusionary rule for both warrant and warrantless cases. In some states, however, this may require a constitutional amendment.
State officials also should review evidence rules governing the use of prior convictions or acts. There are two settings in which this is particularly important. The first is in the impeachment of a defendant who takes the stand. Traditionally, any past conviction for a felony or a crime involving dishonesty was admissible to impeach the credibility of the witness. Now, Federal Rule of Evidence 609 imposes a general ten-year time limit on admissible convictions and requires a special determination by the judge that the probative value of a defendant's prior felonies outweighs any prejudicial effect.
At a minimum, state evidence codes should be no more restrictive than Rule 609. Allowing the admission of all convictions involving felonies and crimes involving dishonesty against all witnesses (including a defendant) would be even better.
Second, many state evidence rules limit the use of past criminal conduct of the defendant as evidence of guilt. Evidence that the defendant has committed the same type of crime in the past is particularly probative in sex crime cases, such as rape and child molesting, where it shows common modus operandi or other relevant factors. Studies suggest that recidivism runs high among a substantial percentage of sex offenders, (See, for example, Bureau of Justice Statistics, U.S. Department of Justice, Special Report, Recidivism of Prisoners Released in 1983 (Washington, D.C.: U.S. Government Printing Office, 1989), table 10.) and such information may be key to an informed evaluation of the credibility of the defendant's denial and the victim's allegations. In such cases, often the only eyewitness is the victim, who carries the burden of proof in the trial. State legislators should provide clear statutory authority for the admission of evidence of past sex offenses whenever the charge is sexual assault or child molestation.
RECOMMENDATION #14: Reform state habeas corpus procedures and end repetitive challenges by convicted criminals.
In recent years, the writ of habeas corpus has been transformed from a monument of individual liberty, protecting individuals from imprisonment without trial, into a device used by prisoners to reexamine endlessly the issues decided by a full trial, and often even after unsuccessful appeals. The result: a sapping of judicial resources, a diminishing of punishment, and a continuing torment of victims of violent crime.
State officials should thoroughly review their habeas corpus laws to deter frivolous litigation and to close loopholes that can be abused. Four specific reforms would help improve many state laws:
States should allow only truly collateral claims to be raised in state habeas corpus cases. Any claim that was or could have been brought forward in a prisoner's direct appeals should be barred explicitly from habeas proceedings.
States should adopt explicit time limits for the filing of habeas corpus petitions (as there are for other categories of cases, from tort suits to contract claims), beginning from the time the petitioner has concluded his direct appeals.
States should bar successive habeas corpus petitions, except where sufficient cause is shown for previous failure to raise the claim and the claim, if proved, would address the prisoner's factual guilt.
States should adopt the retroactivity standard of the 1988 Supreme Court case Teague v. Lane, (489 U.S. 288 (1989)) which provides that changes in the law after trial and appeal will not apply retroactively unless they prohibit a particular crime or sentence, or greatly improve the truth-seeking function of the trial.
Detecting and Preventing Crime
Police and prosecutors in this country are in general doing an excellent job. But their efforts are often frustrated by a cumbersome and bureaucratic system that does not give them the tools they need to get the job done. These tools include proper equipment, better training, and the appropriate legal authority to apprehend and convict violent offenders. Law enforcement is not just another line item in the state budget -- it is the first duty of government. State legislators should realize that something is wrong if this is not reflected in budgetary priorities.
RECOMMENDATION #15: Invest in quality law enforcement personnel and coordinate social welfare programs with law enforcement resources.
Members of the police force today are often outgunned by drug traffickers and gangs, who have access to high-powered weapons and ordnance. The police need top quality equipment. States should make sure their officers have adequate firepower and should make body armor available to every officer. Use of body armor should be mandatory for officers charged with the execution of arrest and search warrants.
Prosecutors likewise deserve and require adequate tools. In the face of increasingly complex cases involving money laundering, racketeering, search and seizure, and intricate drug distribution rings, specialized training is often needed but not always available. Likewise, state judges and clerks of court, handling ever-larger criminal caseloads, need adequate support staff and equipment for case management.
State officials should in addition coordinate law enforcement resources with other public expenditures. While it is true that law enforcement cannot do the job alone, it is also true that social programs cannot succeed without effective law enforcement. (For a comprehensive strategy of social and welfare reforms, coupled with a law enforcement program, see Rector, op. cit.) What good is it to build the finest schools, only to have them taken over by gangs? What good are costly improvements in public housing, if units then are converted into crack houses for drug dealers? Community revitalization efforts must be combined with tough law enforcement to successfully reduce violence and improve the lives of those held in its grip. (See Carl F. Horowitz, "An Empowerment Strategy for Eliminating Neighborhood Crime," Heritage Foundation Backgrounder No. 814, March 5, 1991.) The "Weed and Seed" concept, a model program begun by the Department of Justice in 1991, does just this. Federal, state, and local law enforcement agencies pool their resources to "weed out" targeted street gangs and drug dealers. Social programs can then take root in the crime-free area, "seeding in" opportunity and hope for residents. Between the two elements, community policing acts as a bridge, so that police and community groups can build a productive relationship to help prevent crime from resurfacing in the neighborhood.
RECOMMENDATION #16: Computerize criminal history records in a reliable, accurate, and timely fashion.
Quick access to accurate criminal history records is important for two reasons: First, criminal history records are necessary in deciding pretrial detention issues. A past record of violence or failure to appear is crucial information to a judge deciding whether to detain a defendant. Second, reliable criminal history records are the key to effective career criminal statutes, important for general sentencing purposes, and vital for resource planning in the justice system. Also, a criminal records data base is the foundation for a point-of-sale check prior to firearms purchases.
Many states have serious problems with delays and backlogs in reporting the final disposition of cases. These delays can mean a three-month lag, or longer, between the end of the trial and the entry of the data. To help alleviate this problem, the Department of Justice set aside $27 million in 1992 to be made available to the states over three fiscal years to upgrade the quality of their criminal history records systems. In addition, since late 1992, all states must dedicate at least five percent of federal formula grants from the Department of Justice to improve their criminal history records (at present levels this would total more than $21 million in additional federal dollars each year).
RECOMMENDATION #17: Give prosecutors statutory authority to tighten up and target the rules for immunity from prosecution.
Offering immunity selectively often is the only way of breaking into drug enterprises, violent gangs, and sophisticated organized crime operations. Accomplices and lower-level gang members often are the only eyewitnesses to suspected crimes by superiors in a criminal organization.
Prosecutors also often must grant immunity to witnesses in order to prevent them from asserting their Fifth Amendment right against self-incrimination. Federal prosecutors have the choice of granting two types of immunity: "Use" immunity prohibits the government from using the compelled testimony, either directly or indirectly, to build a case against a witness. It is possible, however, to prosecute based on other independently gathered evidence. "Transactional" immunity protects an immunized witness from prosecution for any criminal transaction mentioned in the compelled testimony. Prosecution is barred by transactional immunity even where independent evidence of criminality is discovered.
Right now, state laws are a hodgepodge on the subject of immunity. Despite the fact that the United States Supreme Court has held that "use" immunity is constitutionally sufficient, several states still provide only for transactional immunity, which eliminates forever the opportunity to prosecute these witnesses even if the evidence of their crimes was gathered independently of their testimony. In addition, several states provide for automatic transactional immunity to all grand jury witnesses.
State immunity laws should be comparable to the federal immunity statute (18 U.S.C. sec. 6002.) -- prosecutors should be granted the authority to request immunity and to decide whether it should be use or transactional. Otherwise, investigations can be thwarted, and clever witnesses can literally get away with murder. (See New York State District Attorneys Association, "The Case for a New Immunity Law in New York" (1988), p. 6.)
RECOMMENDATION #18: Allow the use of sophisticated electronic surveillance technology.
With the advent of large-scale illegal drug trafficking and organized crime cases, especially those involving Asian gangs and Cosa Nostra families, electronic surveillance of suspects is essential. The leaders of these organizations often are able to avoid direct involvement in crimes while planning and coordinating increasingly sophisticated criminal activity over the phone. Electronic surveillance can build an extremely effective case by using the criminal's own words, while also avoiding the risks of using undercover agents or informants.
One way to penetrate sophisticated criminal networks electronically is to use a "pen register," a device which records the outgoing numbers dialed from a telephone. The United States Supreme Court has held that the use of a pen register is not a search within the meaning of the Fourth Amendment, and thus neither probable cause nor a warrant is needed to use one. (See Smith v. Maryland, 442 U.S. 735 (1979).)
Conversely, a trap-and-trace device, like Caller ID, reveals the phone number of all incoming calls to a particular number. In order to use such a device, federal law requires police application to a court and a showing that the information obtained from its use will be relevant to an ongoing criminal investigation. (18 U.S.C. sec. 3121-27.) The statute, while creating a legal obligation for phone companies, landlords, and others to assist police in the installation of these devices, also provides protection for law enforcement officers and telephone companies from civil and criminal liability for actions taken under the statute.
Currently, some fifteen states make no provision for court- ordered electronic surveillance. Others, such as California, have weak electronic surveillance laws. Others require warrants and probable cause.
State legislators should review these laws to ensure that statutory authority exists for electronic surveillance, pen registers, and trap-and-trace devices. Statutory and constitutional change should be made where needed.
Assuring Victims' Rights
Criminal justice serves a twofold purpose: to bring criminals to justice, and to bring justice to victims. One way to make sure that appropriate weight is given to victims' rights is to codify and enforce a "Victims' Bill of Rights." Congress did just this in the Victims' Rights and Restitution Act of 1990 and urged the states to follow suit. Victims of a crime have the right to be protected from further violence, to expect restitution from financial loss, and to participate in the criminal justice process. And the criminal justice system should do all it can to lessen the pain of victims and victim- witnesses.
Potential victims of crime also have the right to protection. Victims of stalkers, for instance, should not have to wait until they are attacked to have effective recourse. State legislators should enact stalking laws that make it a crime to harass or follow a person if it puts the victim in fear of death or serious injury. If a restraining order is in effect at the time of an attack, an enhanced penalty should be considered.
RECOMMENDATION #19: Give victims a hearing and consideration at sentencing.
In most states, defendants have the right to address the court after conviction and before sentencing -- to tell their story and to ask for mercy. State officials should provide the victim with a similar right to inform the court about the impact of the crime on his or her life before a sentence is given. The right should be extended to victims' families in capital cases. Likewise, parole statutes should provide that the impact of early release on victims or their survivors be a consideration bearing on early release decisions or other discretionary actions of the parole authority.
The victim also should have a right to be present at all public court proceedings related to the crime, which is often the most traumatic thing that has ever happened to that person. Victims deserve the right to watch the criminal justice system address the wrong done to them.
RECOMMENDATION #20: Help victim-witnesses with case coordinators.
Victim-witness coordinators are an important link between victims of crime and the criminal justice system, keeping victims apprised of developments in the case, informing them of possibilities of restitution, and notifying them of the release status of the offender. Victim-witness coordinators should be made more aware of the state programs funded through the Victims of Crime Act, and such services offered by programs for victim compensation and assistance, counseling, and even shelter for battered women.
RECOMMENDATION #21: Assure restitution, adequate compensation, and assistance for victims of crime.
While every state has some type of victim restitution law, not all are well enforced. Effective mechanisms for collecting fines and restitution payments must exist, so that victims are relieved of the humiliating task of having to chase down the offender personally to obtain recompense for their injuries.
State officials should also make sure that any profits a criminal makes directly or indirectly from his crimes -- including from book and movie deals -- are made available to the victim for restitution. Where possible, states also should provide for reasonable compensation for victim-witnesses, including payment for travel and loss of work time, and assistance with day care and similar costs of giving testimony.
RECOMMENDATION #22: Adopt rules to protect victim-witnesses from courtroom intimidation and harassment.
Every state should enact two evidentiary protections for complaining witnesses. The first is the rape-shield law. A good model is Federal Rule of Evidence 412, which makes reputation or opinion evidence concerning the past sexual behavior of the alleged victim inadmissible in the trial for sex crimes. Admission of such evidence violates the victim's privacy, increases the trauma of the trial, and discourages victims from coming forward in the first place.
Second, every state should protect child witnesses from traumatic confrontations with their alleged abusers. In the 1990 case of Craig v. Maryland, the Supreme Court noted that placing a child witness in proximity to an alleged abuser or molester may do serious psychological damage, and may overwhelm the child so much that he cannot accurately testify to events.
The Maryland statute, upheld by the Supreme Court in Craig, provides a useful model. If the trial judge deems it necessary, the child's testimony is taken by closed-circuit television with only the attorneys and, if necessary, a guardian present.
RECOMMENDATION #23: Require HIV testing of sex offenders before trial.
Because of the AIDS epidemic, sex crimes have become even more terrifying and traumatic for victims. At the request of the victim, states should provide for mandatory HIV testing of defendants in sexual offense cases before trial, in order to reduce the uncertainty victims must endure. Test results should be available to the victim and to the court in a way that safeguards the victim's confidentiality. Also, at the request of the victim, defendants should be tested again periodically, consistent with the latency period of the HIV virus. Most important of all, states should provide enhanced penalties for HIV-positive offenders who commit sexual offenses in the knowledge that they may transmit the virus to the victim.
RECOMMENDATION #24: Notify victims of all criminal justice proceedings and the release status of the offender.
Many victims of crime understandably fear that they will be victimized again by the same offender after his release. Victims should be told of any change in a convicted criminal's status, such as enrollment in work-release programs, weekend furlough, or community incarceration. States should also ensure that adequate protective measures be taken before release, where there is a legitimate fear of more victimization.
On the federal level, President Clinton should use the power of his office to continue the federal effort against crime. In so doing, he should build upon the progress of his predecessors, Presidents Reagan and Bush, in strengthening the criminal justice system.
At the same time, state legislators and judicial officials can and should take concrete steps to make America safer. Concerned citizens, victims of crime, and law enforcement leaders are working to strengthen the criminal justice system. Law-abiding citizens, however, are asking if their state and local public safety laws are as effective as those of the federal government and the more rigorous states. They want police and prosecutors to have the tools they need to combat gangs, drug dealers, and chronic violent offenders. They want states to ensure that dangerous criminals are in prison, not in their neighborhood. And they want victims of crime to have the same say as the criminals do in the system. The recommendations of the Barr report provide a sound foundation for making the fundamental changes necessary to protect the safety of all Americans.
Mary Kate Cary is former Deputy Director of the Office of Policy and Communications at the Department of Justice. She is currently a Director of the First Freedom Coalition, which seeks to strengthen the American criminal justice system.