Jeralyn E. Merritt, Denver, CO, is a Co-Chair of the NACDL Legislative Committee along with Gerald Goldstein and Elisabeth Semel. She is a member of the NACDL Board of Directors and The Champion Advisory Board. Her e-mail address is JEM97@aol.com.
As usual, we head into the last long recess before the final weeks in this Congress with an uphill battle on our hands. But, we are stronger than ever. We have made significant headway. Help us turn the tide. We need you to take advantage of the congressional recess by contacting your Senators and Representatives while they are home for the entire month.
There are several issues to discuss with them. Here is a brief discussion of the top ones.
'Victims' Rights Amendment' (VRA)
Re-introduced a few months ago in the Senate, as S.J. Res. 44, this proposed amendment to fundamentally overhaul the criminal justice process was recently approved by the Senate Judiciary Committee (by a vote of 10-6). Originally sponsored by Senators Jon Kyl (R-AZ) and Dianne Feinstein (D-CA), it has 41 co-sponsors in the Senate, where, as a constitutional amendment, it would need a 2/3 vote for passage. There is now a threat that the Senate could rush to vote on this proposed constitutional amendment after the August recess, before an early October congressional adjournment. Don't let this happen!As discussed in detail by the July President's Column, we are not alone in opposing this ill-considered measure. Urge your Senators to oppose S.J. Res. 44. Let them know that well-reasoned opposition to the measure comes not just from the criminal defense community. Among many others, it is also opposed by Chief Justice William Rehnquist, the Judicial Conference of the United States (federal courts), the Conference of (state court) Chief Justices, the National District Attorneys Association, the National Sheriffs' Association, the NAACP, Murder Victims' Families for Reconciliation, the National Organization for Women Legal Defense Fund, the National Network to End Domestic Violence (the largest victim services organization in the country) and over 450 law professors.
Juvenile In-Justice Legislation: S. 10
Also pending in the Senate is the juvenile injustice bill discussed in previous Legislation and President's columns. For an extensive analysis of S. 10, see the President's Column, January/February 1998.As with the VRA, we are not alone in opposing this measure. For example, the President of the National District Attorneys Association and the Chair of the ABA's Criminal Justice Section have joined NACDL President Gerald Lefcourt to speak out against it. Chief Justice Rehnquist has boldly denounced it as an undue federalization of juvenile crimes that have traditionally, and for good reason, been left to the states to enforce. Use the opportunity of the August recess to urge your Senators to join in opposing this effort to grant unreviewable federal prosecutorial discretion to haul any 14-year-old kid into the federal adult system, including incarceration, even pre-trial, with adult inmates.
Two Wrongs Make a Right?
A year ago, the Clinton Administration proposed legislation calling for a reduction of the crack-powder cocaine sentencing guideline ratios from their current state of 100:1 to 10:1. The United States Sentencing Commission had already recommended equalizing the penalties.Within months, some lawmakers, including Senators Wayne Allard (R-CO), Spencer Abraham (R-MI), and Senate Judiciary Committee Chairman Orrin Hatch (R- UT), introduced bills to increase the powder cocaine penalties and guidelines by equalizing them with those of crack cocaine. S. 2033, "The Powder Cocaine Mandatory Minimum Sentencing Act of 1998," would amend the Controlled Substance Act to reduce the threshold for mandatory minimum five-year prison terms for powder cocaine offenses from 500 grams to 50 grams. The 10-year mandatory minimum threshold would be triggered by offenses involving 500 grams of powder cocaine, instead of the current 5 kilograms.
At least a dozen Senators have co-sponsored this bill calling for an increase in powder cocaine penalties while leaving crack penalties the same. Urge your Senators and Representatives to oppose any bill like S. 2033.
NACDL has long advocated the equalization of crack and powder cocaine penalties at the current powder cocaine levels. Medical and scientific experts agree that objective data fails to establish that crack is more addictive or dangerous than powder cocaine. Chemically, they are the same drug. And the judiciary and the sentencing commission have been clear about their view that the current sentencing system is unfair and that it squanders tax dollars and other scarce public resources. But the two wrongs approach to the problem, reflected in bills such as S. 2033, will not make the sentencing system right.
H.R. 3396, Citizens Protection Act of 1998: Require Ethics at DOJ!
Justice Department policy espoused in the Thornburgh Memorandum/Reno Regulation purports to self-exempt federal prosecutors from state and local federal court rules of ethical attorney conduct applicable to all lawyers. DOJ is still wielding this groundless policy against the citizenry, despite judicial rejections (most recently, by the Eighth Circuit U.S. Court of Appeals, in a case involving the McDonnell-Douglas Corporation). Rep. Joseph McDade (R-PA) has introduced H.R. 3396, to clarify that DOJ lawyers must abide by the same fundamental rules of attorney conduct as all others. The bill is simple: federal prosecutors will not be allowed to engage in ex parte interrogations of persons and corporations known to be represented by counsel. This bill will ensure that federal prosecutors are not above the law, subjecting them to independent oversight and sanctioning them for misconduct -- i.e, just like all other lawyers.Within a couple of months, this bill has secured 170 co-sponsors, from both parties, including key members of the House Republican leadership. In response to this unprecedented support, DOJ is screaming that the sky would fall if its agents were no longer able to violate fundamental attorney ethics rules in their zeal to "get" citizen targets.
We need you to urge your Representatives to stand up to the DOJ's scare tactics and reject the government's claims to absolute power. Urge them to insist upon ethical conduct by the government's lawyers, who, after all, possess the enormous power to deprive people of life, liberty and property. Urge them to help Mr. McDade promptly move this much-needed, long-overdue measure into law.
Do Something!
Over the past several years, we have seen that we do make a difference. We have learned that grassroots, home-district interaction with our legislators is the most effective and easy way for us to engage in the important outreach we must undertake. To truly move the nation toward criminal justice policies that are effective and sensitive to our constitutional heritage of individual rights and freedoms, you must come to view consistent outreach in your community and with your legislators as central to criminal defense practice.August affords an excellent opportunity to begin your personal commitment to help bring about criminal justice policy that makes sense. During this month-long recess, meet your Representative and your Senators. Call their local or Washington offices to set up a meeting with them while they are home. You may call the House Switchboard operator, at (202) 225-3121, to be connected to the Washington office of your Representative. Call the Senate Switchboard operator, at (202) 224-3121, to be connected to the Washington office of your Senators.
Do a little or do a lot -- but please, do something! Contact Leslie Hagin at the NACDL home office for any back-up and support you may need, including any materials referenced in this article.