from the pages of March 1995

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 Federal Crime Bill

By Paul Wright

 

On September 13, 1994, Bill Clinton signed the final version of the crime bill into law. The same week congress passed the crime bill it also passed the “Bank Reform Bill.” Included in this law is a provision which will prevent the government from pursuing negligence cases against the individuals who caused the collapse of the savings and loan industry (mainly by looting the institutions they were entrusted to run or that they owned). Thus, it is apparent that “crime” isn't the issue, the issue is who steals what from whom. The mood of congress was accurately captured by Senator Joe Biden, an admitted plagiarist, who said “If someone came to the floor and said we should barb wire the ankles of anyone who jaywalks, I think it would pass.”

Officially titled the “Violent Crime Control and Law Enforcement Act of 1994,” the final version of the bill is 120 pages long. It contains many administrative amendments to existing laws, clarifications, etc. in addition to its substantive portions.

 

Prison Crowding

In an amendment sponsored by Senator Jesse Helms and passed without debate by both houses of Congress, the bill seeks to limit the power of federal courts to impose remedies in prison overcrowding suits where constitutional violations result. “A federal court shall not hold prison or jail crowding unconstitutional under the 8th amendment except to the extent that an individual plaintiff/inmate proves that the crowding causes the infliction of cruel and unusual punishment of that inmate.” Federal courts are forbidden to place population caps on jail or prison, as an injunction, unless “crowding is inflicting cruel and unusual punishment on particular identified prisoners.” These requirements do not prevent federal courts from ordering improved medical or health care or imposing civil contempt fines and damages.

With regards to consent decrees limiting prison and jail populations, the bill states that such decrees shall be subject to reopening at prison officials' request no less than every two years. The law applies to all consent decrees in effect and litigation pending at the time of passage. The law contains a sunset provision whereby it is automatically repealed five years after enactment. In practice, laws with sunset provisions are routinely extended by Congress when they are about to expire.

It does not appear that this law will have much impact on prison overcrowding litigation. Since the Supreme Court's 1991 decision in Wilson v. Seiter, few if any courts have been able or willing to find an 8th amendment violation resulting from prison overcrowding. Again, the law appears to codify existing law and practices into legislation. The obvious attempt is to allow the massive overcrowding of prisons with no form of relief.

The law also requires that any new or proposed federal legislation imposing criminal penalties be accompanied by a “Prison Impact Assessment.” The attorney general and sentencing guidelines commission must provide a report stating what impact such laws will have on prison, probation and post-prison supervision populations and how much these changes will cost in terms of prison construction, etc.

 

Pell Grants

This law abolished Pell grants for prisoners. The federal Pell Grant was created in 1965 by Senator Claiborne Pell, D-RI, to aid low income students for college. The 1965 bill stated that no qualifying low income persons would be excluded, prisoners were specifically mentioned in the bill and were intended to be included in the grant program. Media hypsters insinuated that prisoners were taking advantage of the opportunity for Pell Grants because of an oversight in the original Pell Grant Bill that failed to specifically exclude them.

The $6.3 billion program is considered a quasi-entitlement, says the U.S. Department of Education, and receives whatever funding is necessary for grants to all income eligible persons. Of that $6.3 billion in the most recent fiscal year, a total of $35 million was allotted for prisoners. Most of that amount was in the form of federal aid paid not directly to individual prisoners, but in the form of payments to state programs designed to provide educational services to their prison inmates. The $35 million allotted to prisoners represents less than six tenths of 1 percent of the $6.3 billion total. Political rhetoric has propelled the myth that the money wasted on prisoner Pell Grants will now be used to provide assistance to more worthy recipients in the community. The truth of the matter is that the $35 million saved won't stay in the education budget. It will be retained by the U.S. Treasury (presumably to help pay for the $9.8 billion earmarked for construction of more prisons).

Forty percent of all state prisoners are unable to read. Only 25 to 30 percent have high school diplomas when they enter prison. By contrast, in the general population, 85 percent of all men aged 20 to 29 have high school diplomas. Some prisoners earn high school equivalency certificates and move on to prison college courses. The Texas prison system did a study this year of prisoners released between September 1990 and August 1991 and found a direct correlation between education levels and recidivism rates. The report stated a recidivism rate of only 13.7 percent for prisoners who had associate's degrees, and 5.6 percent for those with bachelor's degrees. No prisoners who earned a master's degree returned to prison.

Money for State Prisons: The bill allocates nearly $8 billion dollars for use as matching grants to states to build and operate prisons, called “Violent Offender Incarceration Grants.” The money comes with a lot of strings attached. The federal government will only provide up to 75 percent of the money, the states have to come up with the rest. To be eligible, the state must have laws similar to federal law requiring that prisoners serve at least 85 percent of the sentence imposed by the court.

For states with determinate sentencing systems this will be easy enough to comply with, states with indeterminate sentencing systems will likely have to change their sentencing systems in order to comply and be eligible for the funds. The money can be used to build, operate, expand or modify prisons so long as it is designed to ensure “that prison cell space is available for the confinement of violent offenders.”

As most state prisoners are serving time for drug or property crimes there will not be much impact on prison populations until the sentencing of such offenders is changed. The money runs out in the year 2000. So states who use the money to build new prisons or expand existing ones will find themselves stuck with the operating costs and more than likely, a much higher prison population than if they had foregone the money.

States getting the money must enact policies, within 18 months after the law was signed, “to determine the veteran status of inmates and to ensure that incarcerated veterans receive the veteran's benefits to which they are entitled.”

 

Aliens

In recent months several states (California, Florida, Texas, New Jersey and Arizona) have sued the federal government for the cost of imprisoning illegal aliens who commit crimes in those states. The states claim that if the federal government, i.e. the Border Patrol and INS, did a better job patrolling the nation's borders this would not be a problem. Congress provided $1.8 billion dollars to reimburse states who incarcerate illegal aliens in their state prison systems. The law also allows states to turn such aliens over to the federal government for incarceration.

 

Drug Testing & Treatment

Federal courts are required to establish a program so that all offenders on post prison supervision and probation are subject to drug testing after release. In cases where imprisonment may result from a positive result or the defendant denies drug use, an accurate confirmation test must be used.

The Bureau of Prisons (BOP) was ordered to establish substance abuse treatment programs within facilities so that by 1997 all prisoners eligible for the program, i.e. those with substance abuse problems, can receive treatment. Priority for treatment is established by proximity to release. The program requires not less than 50 percent of eligible prisoners receive treatment by the end of fiscal year 1995. Prisoners convicted of non-violent offenses may have up to one year reduced from their sentences by the BOP upon completing the program. Over $100 million was allotted for this program. The programs must last between 6 and 12 months and be “in residential treatment facilities set apart from the general prison population.”

The bill also allots $270 million for state prison systems to establish a similar substance abuse treatment program. States must put up at least 25 percent of the money, the feds can supply the rest.

 

Family Unity Project

Criminal defendants sentenced to terms of less than seven years who are the primary caregiver of children under seven years of age can be permitted to serve their sentences, with their children, in community correctional facilities. The law allocates money to both the states and BOP to establish the project in an attempt to alleviate the effects that incarceration has on small children and family relationships.

 

Release Notification

Five days before federal prisoners are released from custody the BOP is required to give written notice of the release to the top law enforcement officer of the state and local jurisdiction where the ex-prisoner will be residing. The BOP will also provide them with any address changes. The law applies to prisoners convicted of drug or violent crimes.

 

Prison Job Training

The attorney general was instructed to establish an Office of Correctional Job Training and Placement within the Justice Department. The goal is to “encourage and support job training programs, and job placement programs, that provide services to incarcerated persons or ex-offenders.” It will essentially act as a clearinghouse for information on prison employment, i.e. slave labor, provide technical and special assistance to state prison systems.

 

DNA Database

$40 million was allocated for the attorney general to distribute to states in order to standardize and improve the quality of DNA identification labs and systems. More money will go to establish a DNA index, to be maintained by the FBI, listing DNA samples of convicts, from crime scenes and unidentified human remains. This will help to better organize the massive DNA database that is already in existence with the DNA samples of military personnel, children, etc.

 

Death Penalty & Punishment

Federal prisoners serving life sentences can be killed by the government now if they are convicted of murder while in prison; federal prisoners who escape and kill someone; kill a prison guard if the guard is transporting the defendant between states or if the prisoner is also serving a federal sentence. Killing BOP guards also qualifies for the death penalty.

Congress ordered the Sentencing Guidelines Commission to increase the penalties for those convicted of using or smuggling illegal drugs in federal prisons. It also prohibits probation for anyone convicted of smuggling drugs into prison.

 

Police and Repression

According to the Department of Justice, in 1992 state and local police agencies employed 841,099 full-time police and civilian personnel with an additional 90,000 part time employees. This number doesn't include prison employees nor federal law enforcement agencies. The crime bill seeks to increase the number of uniformed police by more than 10 percent. The bill allots almost $10 billion dollars for states to use to hire more cops.

The money will be distributed according to a complex grant formula whereby the federal government only funds up to 75 percent of the cost of hiring a new cop for the first year and that money decreases each year until it ends in the year 2000. Whether cities faced with decreasing tax bases and increasing expenses will be able to afford to hire more police will remain to be seen. The bill also emphasizes that police departments should hire military troops who have been discharged as a result of military force reductions.

Large chunks of money were allocated for the hiring of more federal law enforcement agents, mainly with the Border patrol and Immigration and Naturalization Service, but also with the FBI, DEA and all branches of the treasury police, i.e. BATF, Customs, IRS, Secret Service, etc. The judiciary and federal prosecutors also received more money. All told the sum is almost $1.3 billion dollars. This is money in addition to these agencies' normal authorized budgets and in addition to the funds allocated specifically for the hiring of more federal agents.

 

Three Strikes

The centerpiece of Clinton's crime bill is the “3 Strikes You're Out” provision. The federal law provides that anyone convicted of a serious violent felony in federal court shall be sentenced to a mandatory term of life imprisonment if: “the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States of two or more serious violent felonies; or one or more serious violent felony and one or more serious drug offenses, and each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.”

Thus, separate trips through the courts are not required for a defendant to be three striked, it can happen in one proceeding for subsequent offenses. Felonies that will not qualify as “strikes” under this law are robberies where no weapon or threat of a weapon was used and did not result in death or serious bodily injury; and arson if it did not pose a threat to human life. The law does not apply to crimes committed on Indian reservations.

Sentences can be overturned if a prior conviction, which served as the basis for the three strikes sentence, is overturned by a state or federal court. The law allows three strike defendants to be released from prison if they meet the following criteria: are at least 70 years old and have served at least 30 continuous years in prison and the Director of the BOP determines that the person is not a danger to the community or anyone else.

 

Computers

The crime bill makes it a misdemeanor to transmit computer viruses that damage or cause damage to any computers, programs or if the person intends that such damage occur. It also allows for civil lawsuits to be filed by the allegedly damaged party against the originator of the virus.

For it to be a federal crime the activity must have an interstate commerce nexus, which means that any virus transmitted electronically will qualify as a crime while those implanted at the computer site will not.

 

“Terrorism”

The statute of limitations for “terrorist” crimes was extended to eight years and the penalties were increased. Counterfeiting US currency abroad was criminalized. A new law criminalizes “Providing material support to terrorists.” This is defined as any person in the US who “provides material support or resources or conceals or disguises the nature, location, source or ownership of material support or resources knowing or intending that they are to be used in preparation for or in carrying out a violation” of various criminal offenses or for the concealment and escape of such activities. Material support is defined as: “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, but does not include humanitarian assistance to persons not directly involved in such violations.”

The law provides for the prompt deportation of aliens convicted of felonies and speeds up the deportation process for non criminal aliens whose applications for asylum have been denied. It permits the attorney general to grant US citizenship to foreign citizens who are willing to inform on criminals, “terrorists” or otherwise help US “national security.” It also increases the penalties for passport and visa violations.

 

Sex Offender Registration

The law orders states to establish the registration of all sex offenders convicted of crimes against minors or who are “sexually violent predators.” States must establish a registration system for sex offenders within three years of enactment. While the federal government can't order states to carry out federal mandates, in this case it will withhold 10 percent of the funds non-complying states would otherwise receive under 1968 Crime Control Act.

 

Increased Penalties

The crime bill doubles or otherwise increases the penalties for a wide range of offenses, including: theft of artwork, virtually all crimes involving firearms and explosives, hate crimes, civil rights violations, assaults on members of Congress, diplomats, and other federal employees, arson, trafficking in counterfeit goods, introducing non-indigenous species to Hawaii, mailing animals or plants that are illegally taken. It also criminalizes the trade, barter, or sale of the Congressional Medal of Honor.

 

Mandatory Minimums

The last several years have seen a lot of activism and criticism of mandatory minimums. These laws fix a penalty against defendants convicted of possessing specified quantities of drugs or weapons. The result has been long sentences for first time offenders and minor drug offenders.

The crime bill allows a judge to disregard a mandatory minimum and go by sentencing guidelines if the defendant meets certain criteria: they don't have more than one criminal history point; did not use violence or threats of violence; the offense did not result in death or injury to any person; the defendant was not an organizer of the offense nor part of a continuing criminal enterprise and at the time of sentencing has “provided to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct...” that the defendant has no information to provide can't be used to defeat this section. Unfortunately, the law is not retroactive to persons already convicted. It applies only to sentences imposed on or after the 10th day the law was signed.

 

Crimes Against Women

Because federal laws only apply to crimes committed on federal property or those where there is an inter-state commerce connection it is unlikely this law will apply to many defendants except for crimes committed on Indian and military reservations, etc. The law makes restitution mandatory for all defendants convicted of a federal sex offense; punishments are to be enhanced by the Sentencing Guidelines Commission; crossing state lines to commit domestic violence is made a federal crime as is interstate violation of a state court protective order. Grants are made to encourage states to develop mandatory arrest policies for those accused of domestic violence.

A section of the law of interest to women prisoners in particular is the “Civil Rights for Women” section. It allows women to sue, in federal court, for money damages, “A person (including a person who acts under color of any statute, ordinance, regulation custom, or usage of any state) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) [that is the right to be free from gender motivated crimes of violence] shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief.” It also authorizes attorney fees for prevailing plaintiffs. A female plaintiff can sue under this act whether or not the act resulted in criminal charges. Specifically exempted are “random acts of violence unrelated to gender.”

Grants are provided to train and educate court personnel in state and federal courts in gender related issues such as rape, sexual assault, domestic violence, etc.

Money is also allocated for creating a federal database of stalker and domestic violence defendants. Funds will also go to battered women's shelters, domestic violence programs, etc.

 

Evidentiary Rules

The Federal rules of Evidence, which govern the admissibility and use of evidence in federal civil and criminal proceedings, have been amended and added to. Rule 412 was modified to ban the introduction of evidence, in cases involving sexual misconduct, of the alleged victim's sexual predisposition and other sexual behavior. Rule 413 is created which allows evidence to be introduced against defendants in sex offense cases concerning the defendant's commission of other sex offenses, whether or not the alleged offense resulted in any criminal charges or a conviction. In other words, this will allow virtually any type of allegation to be made against a certain class of defendants even if they were never charged, much less convicted of the offense. Rule 414 does the same for crimes involving child molestation whether they are civil or criminal cases.

 

Children

The law increases the penalties for crimes committed by children and youths. It also requires that juveniles of 16 and 17 be tried as adults if they commit violent offenses. It also makes membership in a “criminal street gang” a federal offense and increases the penalties for crimes allegedly committed as part of such gang activity. It is readily apparent that the provisions of this law will fall mainly on minority youth.

 

Death Penalty

The federal death penalty is expanded to include about 60 new offenses punishable by death. While many commentators in the mainstream media have stated that this law will have little effect on crime or defendants, that is not the case. It substantially widens the death penalty net to sweep a wide variety of crimes, many of which are already state offenses, into its grasp. The result is going to be felt mainly by minorities when federal prosecutors decide which cases to prosecute rather than allow states to deal with.

The statute codifies the balancing test approved by the supreme court as to when the death penalty shall actually be imposed. It sets out the mitigating and aggravating factors that are to be weighed, and requires notice and a special hearing as to when the death penalty will be sought against a defendant. Special findings of fact by the fact finder are required once a death penalty verdict is returned, this will assist in appellate review of the sentence.

The law provides for appellate court review and states death sentences can't be reversed if any error is harmless, including the findings of aggravating factors. While most state death penalties require automatic supreme court review, the federal law requires no such review by the US supreme court. The marshals service is designated to carry out the death sentences imposed by the federal courts and will use the means of execution used in the state of conviction. If that state doesn't have the death penalty the court will pick a state that does. It also allows the use of state death row facilities even though the BOP is building its own death row at the federal penitentiary at Terre Haute, IN.

Since the supreme court authorized the use of the death penalty in 1976 it has held that it can only be applied in cases which involve the actual loss of life. The federal death penalty statute goes beyond this and is likely unconstitutional because it permits the death penalty against defendants convicted of drug trafficking as part of a continuing criminal enterprise, regardless of whether any loss of life has occurred. The law specifically exempts Native Americans if the sole federal jurisdiction is that the offense occurs on Indian Reservations. It also states that the mentally retarded and pregnant women can't be executed.

The offenses for which the death penalty is authorized for now are: murder by federal prisoners serving life sentences; for civil rights murders; murder of federal law enforcement officials; drive by shootings; foreign murders of U.S. nationals; rape and child molestation murders; sexual abuse resulting in death; murder by escaped prisoners; sexual exploitation of children resulting in death; murders with firearms in federal facilities; murder of state law enforcement officials assisting federal officials; murder of persons aiding federal investigations; killing federal witnesses; violence against maritime navigation if death results; violence against fixed maritime platforms [in what should be called the “teamster amendment” the law specifically bars federal prosecution if the death on a fixed maritime platform occurs “during or in relation to a labor dispute.”]; violence at international airports resulting in death, unless it is part of a labor dispute; use of weapons of mass destruction if death results, i.e. poison gas, biological or atomic weapons; alien smuggling if death results; espionage even if no death results; killing foreign officials; kidnapping, wrecking trains, robbing banks; hostage taking; murder for hire; racketeering; genocide; carjacking; air piracy; murder with explosives; mail bombings and dangerous devices; retaliatory killing of informants and witnesses; killing of court officers and jurors and first degree murder.

The Racial Justice Act (RJA) has been introduced in congress every year since 1988. It would allow death penalty defendants to introduce evidence showing that the death penalty had been administered in a racially biased manner by introducing into evidence statistics as to how the death penalty is applied.

In McLeskey v. Zant the supreme court rejected the use of statistics to show racial bias in the death penalty, the RJA would nullify that ruling. Extensive evidence exists showing that the death penalty is administered in a racially biased manner. In opposing the RJA Senator Orrin Hatch said “It would end the death penalty as we know it.”

It was again voted down by the senate. Members of the Congressional Black Caucus initially tried to pressure Clinton into pushing for the RJA but eventually capitulated as Clinton said he didn't want the RJA to “hold up” the crime bill.

 

Firearms

The only thing that came close to halting passage of the crime bill was the inclusion of the ban on “assault weapons” which was opposed by the National Rifle Association (NRA). The provisions were included and the whole bill squeaked by the senate and house. The law bans “assault weapons” and magazines with a capacity of more than 10 rounds.

It defines and bans “assault weapons” as being those detachable magazines which have two or more features such as folding stocks, pistol grips, bayonet mount, flash suppresser, is a semi-automatic version of an automatic weapon or weighs more than 50 ounces. Six hundred and fifty named weapons are exempted from the ban but they do not meet any of the above definitions and are almost entirely sporting or target weapons.

One of the interesting provisions of the gun law is that it too has a sunset provision, it is automatically repealed within 10 years of enactment. The law also orders the attorney general to conduct a study to determine what effect, if any, this law has on violent and drug trafficking crime. The weapons ban applies only to weapons made or imported in the future, those already manufactured or imported are legal and can be sold or owned. Likewise for magazines. All large capacity magazines produced after the act went into effect must have a serial number, those without a serial number are presumed produced before the ban and thus are legal.

Now that the crime bill has passed, we can wait until the next election for yet another crime bill. It is important to bear in mind that this bill only pertains to the federal government. On the state and local level similar laws are being passed for much the same reasons by the same opportunist politicians. The goal and effects remain the same: criminalize poverty and then give out harsh punishment for it.