Leslie J. Hagin is NACDL's Legislative Director, and was previously counsel to the House Judiciary Committee. Her e-mail address is NACDLlegis@aol.com.
Election Year Heats Up
It's starting to look like the congressional election year that it is. This November, voters will decide which party should be the majority in both the House and the Senate. The "Tough on Crime," Trounce-the-Constitution campaign season has kicked off. We need to kick back.
Help your legislators, local opinion leaders, and fellow citizens/ constituents understand the dangers of unchecked governmental powers. Explain to them how it is better politics, and more patriotic, to be tough on law enforcement excesses, not on the Bill of Rights.
Below is an update on the top issues of the season -- in both House and Senate -- as well as a guide to actions that we need for you to take.
House of Representatives
Hyde's Forfeiture Reform Versus McCollum's"Money Laundering" Forfeiture Expansion
House Judiciary Crime Subcommittee Chairman Bill McCollum (R-FL) is helping DOJ thwart the efforts of full committee chairman Henry Hyde (R-IL) to move his Manager's Amendment to H.R. 1965 -- the True Civil Asset Forfeiture Reform Bill. (See May Legislationcolumn .) A few weeks ago, McCollum introduced a new DOJ-drafted forfeiture expanding bill, falsely labeled a "money laundering" measure. The bill is H.R. 3745."Money laundering" is just a handy vehicle for broadening the forfeiture laws. This bill would radically expand the money laundering forfeiture statutes, which are already the most overbroad and abused in DOJ's arsenal. And this would greatly expand the scope of the government's forfeiture powers, both criminal and civil. In fact, the bill is not even a criminal forfeiture bill. It is predominantly comprised of expanded civil forfeiture provisions.
For example, without even consulting the federal judiciary, let alone going through the normal rule-changing procedure of Judicial Conference consideration and recommendation, the bill makes several significant evidentiary and discovery rule changes, to increase government powers. These changes grant the government unique, unfair litigation advantages -- e.g., to assert unbounded discovery demands for information from banks and citizens in civil asset forfeiture cases, completely without the oversight and control of the courts. It would also broaden the government's wiretap powers to cover more alleged IRS reporting and structuring violations. This could have ruinous consequences for the attorney-client relationship, as well as the financial advisor-client relationship which Congress just created as part of its IRS reform legislation (to rein in IRS enforcement abuses).
The issues in the McCollum bill are the same ones already addressed and rejected by the leaders of the full House Judiciary Committee. They rejected the government's forfeiture expanding agenda in returning to the Hyde Manager's Amendment, which would actually reform the asset forfeiture laws. Still, taxpayer-funded DOJ lobbyists remain busy enlisting local police chiefs to wage war against the Hyde Manager's Amendment. This latest bill is but a rear-attack piece in the Department's campaign to defeat reform; and instead move its own wishlist of expanded powers -- to summarily take still more private property from innocent Americans with even greater impunity.
Federal Prosecutor Ethics,
Independent Oversight
Representative Joseph M. McDade (R-PA), the senior Republican in the House, is championing a much-needed measure to overturn the infamous Thornburgh Memorandum/Reno Regulation. The bill is H.R. 3396. It would clarify that DOJ is not self-empowered (by its own regulations) to exempt its attorneys from the ethical and judicial rules by which all other lawyers must abide. They cannot engage in ex parte interrogations of citizens, including corporate citizens, known to be represented by counsel. The bill clarifies that federal prosecutors are not "above the law," but are subject to independent oversight and sanctions for misconduct. In just a few weeks, the legislation has garnered around 100 co-sponsors, from both parties.Take Action!
We need you to educate your Representatives on the need to rein in federal prosecutorial excesses. Urge them to: (1) support the Hyde Manager's Amendment to H.R. 1965, to reform the civil asset forfeiture laws; (2) by the same token, oppose the McCollum bill, H.R. 3745, which would expand the already overbroad asset forfeiture laws and increase abuses; and (3) support the McDade bill, H.R. 3396, to make DOJ lawyers abide by the rules of ethics.Do this by calling the House Switchboard Operator, at (202) 225-3121, to be connected to the office of your Representative; and ask to speak with the person who handles crime policy. Set up a meeting to discuss these matters with your Representative when he or she is in the home district. This should be quite often between now and the November elections.
Senate
Juvenile Injustice
The pending Juvenile Injustice Bill, S.10, could be brought to a Senate vote in June. S.10 would give federal prosecutors new, unreviewable discretion to prosecute as an "adult" in federal court anyone at least 14 years old, for any alleged violation of the 3000 plus crimes in the U.S. Code -- no matter how non-violent. In other words, it creates Special Federal Juvenile Prosecutors, with super-judicial powers not unlike those of an Independent Counsel. (Note, too, the bill's title, the "Violent and Repeat Offender Act" is false labeling; it is limited to neither violent nor repeat offenses.) It also provides for common-area mixing -- physically, and through sight and sound -- of youths and adult inmates in adult facilities.S.10 is a waste of scarce tax dollars. It turns federal courts into run of the mill "juvie courts," and creates a whole new, unwieldy federal juvenile crime bureaucracy, less efficient than the state systems with their far greater expertise. Studies also show it to be counter-productive juvenile crime policy. This rigid prescription for adult treatment of juveniles, and jail and prison mixing of youths and adult inmates, not only substantially increases rape and suicide rates among kids, but also exacerbates recidivism rates. Studies show that those who survive such experiences are much more likely to commit crimes, sooner and more violently, than if they had been treated in a manner more appropriate to their age and rehabilitation potential.
For these reasons, among others, the bill is opposed by everyone from the President of the National District Attorneys Association, William L. Murphy, the Chair of the ABA Criminal Justice Section, Ronald Goldstock, and the Chief Justice of the United States Supreme Court, William Rehnquist, to the Children's Defense Fund, just to name a few. Because of such widespread opposition, the bill is being tinkered with behind closed doors by its primary sponsors, Judiciary Committee Chair Orrin Hatch (R-UT), and Juvenile Crime Subcommit-tee Chair Jeff Sessions (R-AL). They are desperate to give their party some "tough crime bill" on which to campaign.
However, all of the major concerns remain. The bill remains unfixed. And it is in fact so fundamentally flawed as to be unfixable. The whole bill must be scrapped.
Victims' Rights Amendment
Several Senators, from both parties, have introduced a re-drafted VRA. The new version is S.J. Res. 44. A largely unnoticed hearing was held a week or so ago.All of our concerns about this measure remain. It would sabotage the rights of the accused. And it would overwhelm the ability of the state and federal courts to administer criminal justice, by turning every criminal proceeding into multi-party bedlam. S.J.Res. 44 even enshrines a right to counsel for all victims, to more fully litigate their participatory entitlements at all pre-trial and trial proceedings.
This latest version of the VRA is still widely opposed -- e.g., by NOW-LDF, the National Network to End Domestic Violence, several prosecutors, judges, and hundreds of law professors. Even DOJ has expressed concerns that this version would harm the rights of the accused. Senate Judiciary Committee Chairman Hatch has also voiced reservations, concerning the unworkability of the measure.
Nonetheless, Judiciary Committee sponsors are trying to bypass the proper procedure of having the committee's Subcommittee on the Constitution consider the measure before moving it to a full committee vote. They are trying to hurry it out of the Judiciary Committee to get a quick Senate floor vote, just in time for campaigning.
Crack/Powder Cocaine Sentencing --
Two Wrongs Make a Right?
A new bill has been introduced to lower the level of powder cocaine needed to trigger the irrational mandatory minimum sentences applied to crack cocaine offenses. This new prison-construction bill is S.2033. Previous Legislation columns and the website contain information about its predecessor, S. 260. The sound reasons to oppose S. 260 are the same reasons to oppose S. 2033.Raising already harsh powder sentencing levels is no "answer" to the problem of racist and irrational crack cocaine sentences. Two wrongs do not make a right. Congress should follow the well-considered, fair and cost-effective advice of the U.S. Sentencing Commission, the Drug Czar and the federal judiciary: lower current crack sentences to be at least closer to the powder sentence levels.
Take Action!
Call the Senate Switchboard Operator, at (202) 224-3121, to be connected to your Senators. Ask to speak with the persons handling crime policy, and weigh in against S.10, S.J. Res. 44 and S. 2033. Set up a meeting with your Senators at home and personally explain to them why they should oppose each of these ill-considered measures.Turn Up the Heat at Home
This is a critical time for you to act upon your responsibility as a specially informed citizen in our great constitutional democracy. Take action on the issues addressed above. Contact the Legislation section of NACDL's website, or myself, should you need any more specifics or backup.Don't forget that the most effective way to make an impact is face-to-face meetings in the home districts. Your legislators are coming home often now -- almost every weekend. But also weigh in and follow up with your legislators' Washington offices, through the above phone numbers.
Finally, remember that the climate is significantly different now from recent election years. Congress just passed IRS overhaul legislation to curb enforcement abuses. Increasingly, calls are being made by diverse individuals, citizen and constituency groups, and in the media and on Capitol Hill (across party lines), to rein in prosecutorial excesses. These include calls for grand jury and forfeiture reform, in particular.
Whatever you do, refuse to do nothing!