The bill embodies the Republican approach to fighting crime: making punishments severe enough to deter criminals from committing crimes, making sure that the criminal justice system is fair and impartial for all, and making sure that local law enforcement officials (who are on the streets every day), and not Washington bureaucrats direct the distribution of federal law enforcement funds.
The bill sets mandatory sentences for crimes involving the use of firearms, authorizes $10.5 billion for state prison construction grants, establishes truth-in-sentencing guidelines, reforms the habeas corpus appeals process, allows police officers who in good faith seized incriminating evidence in violation of the "exclusionary rule" to use the evidence in court, requires that convicted criminals make restitution to their victims, and authorizes $10 billion for local law enforcement spending. Finally, in addressing one of the most pressing problems in our country today, the bill streamlines the current alien deportation system, while still allowing convicted aliens the right to judicial review and appeal .
Bill sponsors argue that this legislation strikes at the heart of our violent crime problem by deterring criminals from committing crimes in the first place, and making sure that if they do commit a crime, they serve the sentence they are given and are not able to abuse the appeals process. Supporters contend that this bill fixes a number of problems created by the recently-enacted omnibus crime bill, as well as serious problems left unaddressed by that legislation. Critics maintain that the measure concentrates too much on punishment and not enough on prevention; the way to stop crime, they argue, is not to keep filling our jails, but to keep at-risk youth from going there in the first place .
Death Penalty Provisions (Title I)
General Habeas Corpus Reform. The bill makes a number of revisions to federal and state habeas corpus processes (the process by which prisoners who have exhausted all direct appeals challenge the constitutionality of their sentences). Specifically, it places a one-year limitation on the filing of general federal habeas corpus appeals after all state remedies have been exhausted. State capital cases must be filed in a federal court within six months, and state capital prisoners who file a second or successive federal habeas appeal must receive a certificate of probable cause stating that their case has merit. Non- capital federal prisoners must file within two years. The bill also forces federal courts to consider federal habeas petitions within a certain time frame .
In addition to placing a time limit on when appeals may be made, The bill limits prisoners to one appeal unless the defendant can show by "clear and convincing evidence, that but for constitutional error, no reasonable fact finder would have found [him] guilty of the underlying offense or eligible for the death penalty."
Under current law, there are virtually no limits or restrictions on when prisoners can file habeas corpus appeals. For example, under current law, defendants can appeal anytime there is a change in the law or a new Supreme Court ruling. Bill sponsors argue that delays of up to 14 years are not uncommon, making abuse of the habeas corpus system the most significant factor in states' inability to implement credible death penalties. They also contend that current law favors the convicted criminal. For example, the recently-enacted crime legislation included a requirement that at least two lawyers be appointed to represent the defendant at every stage of the process .
Latin for "you have the body," a habeas corpus writ is used to determine whether a person is lawfully imprisoned. Originally designed as a remedy for imprisonment without trial, it is now a tool of federal and state defendants who have been convicted and exhausted all direct appeals (prisoners currently have three successive procedures to challenge a conviction or sentence: appeal, state habeas corpus and federal habeas corpus). Critics of the current habeas corpus process argue that (1) most petitions are totally lacking in merit, (2) thousands upon thousands of frivolous petitions clog the federal district court dockets each year, and (3) it allows prisoners on death row to almost indefinitely delay their punishment .
Authorization of Funds for States to Prosecute Capital Cases. Congress already provides funds for death penalty resource centers to litigate federal habeas corpus petitions for death row inmates. The bill authorizes equal funding for states to prosecute these cases. Bill sponsors argue that equal funds should be provided to both the defense and the prosecution in these cases .
Reform of Death Penalty Procedures. The bill mandates that juries be instructed to recommend a death sentence if aggravating factors (circumstances of the crime that increase the level of guilt) outweigh "mitigating factors" (circumstances that reduce the degree of moral culpability). Juries must also be instructed to avoid any "influence of sympathy, sentiment, passion, prejudice or other arbitrary factors" in their decisions .
Under the recent omnibus crime control act, the Justice Department is required to notify the court and the defendant that it intends to seek the death penalty, and it must indicate the "aggravating" factors it intends to prove as the basis for imposition of a capital sentence. The law specifically states that a jury is never required to impose a death sentence (even if it finds that aggravating factors outweigh mitigating factors), and that death penalties can never be imposed on individuals who are mentally retarded, incompetent or under 18 years of age at the time of their crime. Critics of current law argue that it (1) establishes an elaborate system of aggravating and mitigating factors, but then allows juries to ignore the evidence and make an arbitrary sentencing recommendation; (2) gives too much discretion to a judge and jury; (3) weakens current law; and (4) greatly complicates the use of any new federal death penalty .
Mandatory Minimum Sentencing for Drug Crimes (Title II)
The Comprehensive Crime Control Act of 1984 (P.L. 98-473) created the U.S. Sentencing Commission to develop and monitor sentencing guidelines to be used by federal judges when sentencing criminal defendants. Despite the commission's suggestions that mandatory minimum sentences tend to warp the guidelines system, Congress has enacted about 100 mandatory minimum sentences for a variety of federal crimes. Many federal judges have complained that these restrictions are foolish, wasteful and cruel (sometimes requiring them to impose a sentence without regard to the nature of the offense or the character and background of the offender), and that they have no deterrent effect on crime.
Supporters of mandatory sentences counter that they complement the sentencing guidelines, prevent disparity in sentencing, and ensure certainty of punishment. Mandatory minimums send a strong and unmistakable message to criminals that they will serve a set minimum sentence if they commit certain violent crimes. Mandatory minimums are also used by prosecutors to extract confessions from low-level offenders in exchange for reduced sentences. The information is then used to build cases against criminal crime bosses. Although judges object to mandatory minimums because they take away their sentencing discretion, prosecutors see them as important law enforcement tools
The bill establishes a mandatory minimum sentence of 10 years for state or federal drug or violent crimes that involve possession of a gun. Penalties increase to 20 years for a second conviction and life in prison for a third. For those who discharge a firearm with intent to injure another person, the first offense is punishable by a minimum of 20 years in prison, second offenses are punishable by a minimum of 30 years, and third violations get life in prison.
Finally, possession or use of a machine gun or other destructive device during the commission of these crimes is punishable for no less than 30 years. Second-time offenses are punishable by life in prison .
Mandatory Victim Restitution (Title III)
The bill mandates that criminals pay full restitution to their victims for damages caused as a result of the crime. (Current law allows the court to order that such restitution be made but it does not require it.) In addition, the bill allows (but does not require) the court to order restitution of any person who, as shown by a preponderance of the evidence, was harmed physically, emotionally or financially by the unlawful conduct of the defendant .
Court Responsibility. Under the bill, restitution is to reimburse the victim for necessary child care, transportation and other expenses incurred while participating in the investigation or court proceedings. The court is to determine the amount of restitution based on the victim's situation and not on the economic resources of the offender or the fact that the victim is entitled to insurance or other compensation. The court is also to set the payment schedule (e.g., a single, lump-sum payment or a partial payment at specified intervals) and method of payment (e.g., cash, return of property, or replacement of property). Limitations on Restitution Awards. Court- ordered compensation is not to affect the victim's eligibility to receive insurance awards or other compensation until such time that the court-ordered compensation fully compensates the victim for his losses. In addition, the bill stipulates that if the claimant seeks additional awards in a civil case, any new award is to be reduced by the amount of the criminal court restitution order (bill supporters argue that claimants may seek additional awards but should not be able to receive a second, full compensation).
Defendant Compliance. Compliance with the schedule of payment and other terms of the restitution order is a condition for probation, parole or any other form of release. If the defendant fails to comply with the restitution order, the court may revoke probation or parole, modify the conditions of probation or parole, hold the defendant in contempt of court, enter a restraining order or injunction against the defendant, order the sale of the defendant's property, or take any other action necessary to insure compliance with the restitution order. The victim or offender may, at any time, petition the court to modify a restitution order if the offender's economic circumstances change .
Law Enforcement Block Grants (Title IV)
The bill authorizes a total of $10 million over five years ($2 million in each of FY 1996-2000) for local governments to fund law enforcement programs. These block grants replace the police, prevention and drug courts titles of the recently-enacted crime bill. Under the bill, money may be used to (1) hire, train or employ law enforcement officers; (2) pay overtime to police officers; (3) purchase equipment and technology directly related to basic law enforcement purposes; (4) enhance school security measures (e.g., police patrols around school grounds, metal detectors, fences, closed circuit cameras, gun hotlines, etc.); (5) establish citizen neighborhood watch programs; and/or (6) fund programs that advance moral standards and the values of citizenship and involve local law enforcement officials .
To qualify for these grants, a unit of local government must show that it will (1) establish a trust fund in which block grant money is to be deposited; (2) use the money within two years; (3) spend the money in accordance with the guidelines in this section; (4) use approved accounting, audit and fiscal procedures; (5) make any requested records available to the Bureau of Justice Assistance and the comptroller of the U.S. for review; and (6) submit the required progress reports. Each state that applies is to automatically receive 0.25 percent of the funds as well as additional funds based on its number of reported violent crimes in 1993 compared to the rest of the country. States are to distribute the funds among local units of government based on their population and the number of reported violent crimes in 1993 compared to the rest of the local governmental units in the state .
If a unit of local government does not spend all of its grant money within two years of receipt, it must repay the unused portion to the Bureau of Justice Assistance within three months. The bill also stipulates that (1) this grant money is intended to supplement, not supplant, state funds; (2) grantees may not use more than 2.5 percent of their grant for administrative costs; and (3) grantees must hold one public hearing on the proposed use of their grant. The bill also sets out procedures to be used if a local government violates any portion of this title .
As noted above, The bill repeals sections of the recently-enacted crime control act that provide specific funds for drug courts, recreational programs, community justice programs and other social prevention spending. Bill sponsors argue that providing money directly to local law enforcers and letting them decide how to spend the funds (as the Taking Back Our Streets Act does) is preferable to the current law approach of authorizing specific amounts of money for programs approved by Washington bureaucrats.
Grants for Prison Construction Based on Truth-in-Sentencing(Title V) The bill authorizes $10.5 billion over six years ($232 million in FY 1995, $997.5 million in FY 1996, $1.3 billion in FY 1997, $2.5 billion in FY 1998, $2.7 billion in FY 1999 and $2.8 billion in FY 2000) for the Attorney General to make grants to states so they can build, expand and operate prisons for serious violent felons. This title replaces the prison section in the recently-enacted crime bill. The bill also authorizes the AG to make grants for states to move non- violent offenders and criminal aliens to other correctional facilities (including old military bases) to make room for violent criminals at existing prisons. Grants are to be awarded based on two formulas: a percentage that applies to all states (.40 percent) and a percentage based on population .
Fifty percent of the funds authorized under this section are designated as "general grants." To receive these funds, states must show that since 1993 (1) an increased percentage of convicted violent offenders have been sentenced to prison, (2) the state has increased the average prison time actually served in prison, and (3) the state has increased the percentage of sentences to be actually served. The other 50 percent is reserved for truth-in-sentencing incentive grants. To be eligible for these funds, states must show that they require serious violent felons to serve at least 85 percent of the sentence imposed, and require sentencing or releasing authorities to allow the defendant's victim (or the victim's family) to testify on the issue of sentencing and any post-conviction release .
The bill includes an exception for prisoners over the age of 70 years after a public hearing in which representatives of the public and the prisoner's victims have an opportunity to testify on the issue of release. It also stipulates that (1) grant money is to supplement, not supplant, state funds; (2) no more than three percent of the grant is to be used by states for administrative costs; (3) the federal share of a grant is not to exceed 75 percent of the total cost of a state proposal; and (4) any funds not spent in one year will carry over and remain available until spent .
Reform of the Exclusionary Rule (Title VI)
The Supreme Court enforces the Constitution's Fourth Amendment (which protects Americans against unreasonable searches and seizures) through the so-called exclusionary rule. The rule holds that any evidence discovered as a result of improper police action cannot be introduced in a federal or state criminal trial -- i.e. "the criminal is to go free because the constable has blundered." Critics of the rule's rigidity argue that it suppresses evidence of unquestionable reliability and leads to the acquittal of many who are obviously guilty. In 1984, the Supreme Court modified the exclusionary rule to permit the introduction of evidence that was obtained in good faith reliance on a search warrant that was later found to be invalid. However, many have called for a "good faith exemption" in cases where the police officer, acting in good faith, conducted a search or seizure without a warrant .
The bill amends current law to allow introduction of evidence obtained during a search or seizure that was conducted with the objectively reasonable belief that it was in accordance with the fourth amendment, regardless of whether a search warrant had been granted .
Prisoner Lawsuits (Title VII)
The bill directs federal courts to dismiss any frivolous or malicious action brought by an adult convicted of a crime and confined in any jail, prison or other correctional facility. The bill also requires that prisoners filing a suit include a statement of all assets in their possession so the court can require a full or partial payment of filing fees based on the prisoner's ability to pay .
Bill sponsors argue that states are forced to spend millions of dollars defending prisoner lawsuits to improve prison conditions -- many of which are frivolous. Critics of the proposal argue that it will restrict prisoners' rights to seek legitimate redress of grievances .
Deportation of Criminal Aliens (Title VIII)
This title of the bill provides for the prompt deportation of any alien without a green card who has been convicted of an aggravated felony and who is deportable. According to bill sponsors, it addresses the current problem of releasing these felons into the general population prior to finalization of deportation proceedings, since few of those released ever show up for their deportation hearings .
Definition of an Aggravated Felony. For purposes of alien felon deportation, the bill expands the definition of an aggravated felony to include any state or federal offense involving (1) firearms violations; (2) failure to appear in court for a felony carrying a sentence of two or more years; (3) demanding or receiving ransom money; (4) a RICO violation; (5) owning, controlling, managing or supervising a prostitution business; (6) treason; (7) tax evasion exceeding $200,000; and (8) certain immigration-related offenses including alien smuggling and sale of fraudulent documents. Sponsors of the bill argue that these crimes are serious enough to put a convicted alien on the fast track for deportation .
The current law definition of an aggravated felony includes murder, drug trafficking, trafficking in firearms or explosives, money laundering, terrorism, and any crime of violence carrying a prison sentence of at least five years .
Criminal Alien Deportation Proceedings. The bill allows the Attorney General to issue a final order of deportation against any alien determined to be deportable for conviction of an aggravated felony (without requiring a deportation hearing). An alien is defined as anyone who (1) was not lawfully admitted for permanent residence in the U.S. at the time that proceedings for the commission of an aggravated crime began or (2) had permanent resident status on a conditional basis at the time that proceedings for the commission of an aggravated crime began. An alien against whom a deportation order is issued may appeal for judicial review in federal court; however, the court action is limited to challenging only the defendant's identification (whether the person is who the Immigration and Naturalization Service [INS] says he is and whether he committed the aggravated felony) .
Judicial Deportations. When an alien whose conviction causes him to be deemed deportable is sentenced, a federal court may issue a judicial order of deportation if the U.S. attorney requested one prior to sentencing and the INS commissioner is in agreement. A judicial order of deportation or a denial of such order may be appealed by either party to the circuit court of appeals. A court action, however, is limited to challenging only the defendant's identification (whether the person is who the Immigration and Naturalization Service [INS] says he is and whether he committed the aggravated felony) .
If a judicial order is denied, the Attorney General may still pursue a deportation order through administrative channels .
Defenses Based on Permanent Residence. Under current law, when an alien is in deportation proceedings, he can use certain defenses to get out. One such defense is showing that he has been a permanent resident of the United States for the past seven years. The bill does not change the underlying defense, but changes the time frame in which INS can begin deportation proceedings against an alien convicted of an aggravated offense. Under current law, deportation proceedings are to begin after the alien has served five years. The bill allows INS to begin deportation proceedings when an alien is sentenced to a term of at least five years. Bill sponsors argue that this standard is more relevant for judging the seriousness of a crime since dangerous criminals may be released prematurely due to prison overcrowding, or other reasons not related to the seriousness of the crime .
Defenses Based on Withholding of Deportation. Aliens may also reverse deportation proceedings by showing that they will suffer physical harm if returned to their native country. As defined by international law, "withholding of deportation" is a higher standard of protection than asylum: if an alien can prove such a situation exists, he must be retained in the U.S. unless he poses a danger to the public. The bill clarifies current law to stipulate that aggravated felons pose a serious danger to the public and are not allowed to request or be granted this protection .
Enhanced Penalties for Failing to Deport or Reentering. Under current law, aliens who are deportable for criminal offenses, for document fraud or because they are a security risk to the U.S face up to 10 years in prison for failure to depart. Bill sponsors argue that there are no penalties for aliens who are deportable for other reasons but refuse to leave. The bill retains the current law penalty and establishes a penalty of up to four years in prison for all other deportable aliens who refuse to leave. The bill also establishes civil penalties for those who refuse to leave .
Under current law, an alien who is convicted of a felony (other than an aggravated offense), is deported and then reenters the country is subject to five years in prison and a criminal fine. The bill extends such penalties to aliens convicted of three or more misdemeanors and increases the maximum sentence to 10 years. Deported aggravated felons who re-enter the U.S. are currently subject to criminal fines and up to 15 years in prison. The bill increases the maximum prison sentence to 20 years .
Finally, under the bill, a deported alien who re-enters the U.S. cannot challenge his original deportation unless he can show that (1) all available administrative remedies were exhausted, (2) an opportunity for judicial review was denied, and (3) the deportation order was fundamentally unfair .
Criminal Alien Tracking Center. The bill directs the INS commissioner and the director of the FBI, with the heads of other agencies, to operate a criminal tracking center. The measure authorizes $14 million over four years ($5 million in FY 1994 and $2 million in each of FY 1995-98) for the center, which is to assist federal, state and local law enforcement agencies identify and locate aliens who may be subject to deportation due to conviction of an aggravated felony .
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