Minor and miscellaneous bills : hearing before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 1241, H.R. 1533, H.R. 1552, H.R. 2359, and H.R. 2360, September 28, 1995 (Volume Pt. 2) online

and I hope that we can swiftly move this bill to passage.

Mr. Heineman, Thank you, Mrs. Lowey.

Is there a perceived problem with State statutes relative to this
t3:pe of vandalism?

Mrs. Lowey. Yes.

It is not consistent, and in our judgment, these veterans have
made the great sacrifices for our country. It seems to me that they
should fall imder the rubric of the Federal statutes rather than be
subject to the State statutes.

Mr. Heeneman. Are you aware whether there are any States in
this country that do not have vandalism statutes that would apply
to this, at the local level?

Mrs. Lowey. There are some vandalism statutes, but we feel that
defacement of a monument to veterans on the local level should be
taken every bit as seriously as defacement to a national monument.
This bill would make it a Federal offense to deface a local monu-
ment that is a monument to our Nation's veterans who fought in
the U.S. Armed Forces.

Mr. Heineman. Well, as a veteran myself and having put 3 years
in the Marine Corps a long time ago, I certainly thank you for your
efforts.

Mr. Barr, do you have a comment?

Mr. Barr. No.

As a member of the Veterans' Committee, I am very aware of
this problem and I am very supportive of this important legislation
and appreciate the Congresswoman bringing it forward.

Mrs. Lowey. Thank you, Mr. Barr.

Mr. Heineman. Ms. Lofgren.

Ms. Lofgren. I would just like to thank the Congresswoman as
well for attending to this and representing her constituents so
amply in matter.

Mrs. Lowey. Thank you very much.

Mr. Heineman. Mr. Chabot from Ohio.

Mr. Chabot. I also would like to thank the Congresswoman for
our excellent work in this area.

Mrs. Lowey. Thank you so much.



108

Thank you so much, Mr. Chairman, and thank you, Mr, Chair-
man, for cosponsoring the bill, I appreciate your calling this hear-
ing.

Mr. McCoLLUM [presiding]. You are welcome.

Mrs. LowEY. Thank you very much.

Mr. McCoLLUM. It is a good bill and we are very supportive of
it. At least I am, and I don't know how many people up here but
I suspect you earned some good points here today.

Mrs. LoWEY. Thank you very much.

Mr. McCoLLUM. Mr. Heineman has not been recognized yet to
discuss his bill which is before the committee. He has been gra-
cious enough to Chair for a little while while I slipped out a little
while and he has been patient listening to several of the colleagues
that he and I shared, all of us do, who came before us this morn-
ing.

I think before we bring the Justice Department witness up we
should hear from Mr. Heineman and let him catch his breath but
wear his other hat as a sponsor of a bill today.

Mr. Heineman, you are recognized.

Mr. Heineman. Thank you, Mr. Chairman.

Let me say that I am appreciative that you and the subcommit-
tee scheduled this hearing today and included H.R. 2650. That is
the mandatory Federal Prison Drug Treatment Act.

I introduced H.R. 2650 to restore equi'^y in the way the Federal
Bureau of Prisons administers its very successful drug treatment
program. Instead of rewarding prison drug addicts at the expense
of other nonaddicted inmates, the mandatory Federal Prison Drug
Treatment Act provides a proper incentive to recovering addicts to
get treatment without providing them with an advantage over
other inmates who have not been addicted to narcotics.

On June 8, 1995, this subcommittee held a hearing concerning
the Federal Bureau of Prisons. At that hearing, Kathleen Hawk,
the Director of the Federal Bureau of Prisons, testified that cur-
rently the Bureau of Prisons can allow a drug abuser out of prison
a year earlier than their clean counterpart simply by completing a
drug treatment program.

This inequity is not based on past criminal history. Rather, these
unequal sentencings are a result of one inmate's drug addiction.

Unfortunately, as now constituted, the Bureau of Prisons can re-
ward a drug addict by taking a year off her sentence or his sen-
tence after completion of a drug treatment program. This is poor
policy, as well as simply unfair.

The Sentencing Reform Act of 1984 abolished parole in Federal
prison. Thus, inmates served the entirety of their sentences, re-
duced only by credit for satisfactory behavior, good time,

H.R. 2650 requires that drug addicts complete the drug treat-
ment program before they can receive f.ny good time credits which
have accrued. The mandatory Federal Prison Drug Treatment Act
preserves drug treatment programs in Federal prisons while pro-
viding a better incentive for addicts to get clean.

Thank you, again, for the opportunity to discuss this simple yet
important legislation. I look forward to hearing from the Depart-
ment of Justice.

Thank you, Mr. Chairman.



109

Mr. McCoLLUM, Thank you, Mr. Heineman,

I wanted to ask one or two quick questions, if I could. How would
the bill affect the way good time accrues in the Federal prison? Can
you tell us that?

Mr. Heineman. This bill — this bill shouldn't affect that.

Mr. McCoLLUM. OK.

Mr. Heineman. It should be left up to the Bureau of Prisons.

Mr. McCOLLUM. Would it in any way affect the availability of
drug treatment in prisons?

Mr. Heineman. No, it should not. This shouldn't affect that at
all.

Mr. McCoLLUM. OK

Well, I just was concerned about it because there has been some
comment we heard, I guess indirectly from the Bureau of Prisons,
and we will ask when the witness comes up here in a moment, but
I don't believe, for whatever reason, the Justice Department has in
their written testimony not commented on your bill as opposed to
all the others we submitted to them for comment. So that is why
I asked those questions. But thank you.

Does anybody else have a question of Mr. Heineman?

I know he is sitting up here but he certainly is a witness as well
today.

So does anyone else have a question of him on his bill?

Ms. Lofgren. I

Mr. McCoLLUM. Ms. Lofgren.

Ms. Lofgren. I read the bill and I guess I am still trying to un-
derstand how this would work and how it would change from exist-
ing law.

And perhaps I can ask Mr. Heineman to indulge me by explain-
ing it once again.

Mr. Heineman. Sure.

Ms. Lofgren. In very practical terms how this would work.

Mr. Heineman. Sure.

Right at this present time, and we testified to this at a previous
Crime Committee hearing, if myself and Mr. Barr were to go out
and commit a crime together, be arrested together, be convicted to-
gether and be sentenced together to the same length of time and
I were a drug addict, and we both were sentenced, and I took a
drug treatment program in the Federal Bureau of Prisons, I would
be eligible to get early release because I was an addict and com-
pleted a program; whereas my colleague, Mr. Barr, and I apologize
for using you in this analogy, would have to complete his sentence.
Mr. Barr would have to complete his complete sentence, less good
time. This, in effect, would reward.

My bill would put a stop to rewarding drug addicts because they
were drug addicts, and this would give them the same ability for
good time, but not to take advantage of the good time until they
complete that drug treatment program.

Ms. Lofgren. I see.

Thank you very much.

Mr. McCoLLUM. Thank you.

I think that is a good explanation, Mr. Heineman.



35-554 0-96-5



110

I believe the bill is a good bill. We have had really some equity
problems in this area without any question, but we will get a
chance to talk to the Justice Department in just a minute.

As a matter of fact, I am going to introduce our next witness,
who is from there. We have just had a bell to go vote but we have
got 15 minutes and probably at least a good 10 minutes, so I would
like to get started, if I could, with our witness.

Kevin Di Gregory is a Deputy Assistant Attorney Greneral in the
Criminal Division of the U.S. Department of Justice. He has spent
his entire legal career as a trial prosecutor beginning in 1979, in
the district attorney's office in his native Pittsburgh, PA.

Just prior to coming to the Justice Department he served as
Janet Reno's Chief Assistant for Major Crimes in Miami, FL, so I
can welcome as a Floridian, I can claim you anyway.

His current responsibilities include serving as a Department rep-
resentative on the Executive Working Group for Federal, State,
and Local Prosecutors. The group was established in 1980, to pro-
mote cooperation among all law enforcement agencies.

Mr. Di Gregory supervises two of the Criminal Division's litigat-
ing sections, General Litigation and Legal Advice Section and the
Child Exploitation and Obscenity Section. In addition, he has
worked closely with the Terrorism and Violent Crime Section in the
development and implementation of the Attorney General's Na-
tional Anti-Violence Initiative.

Mr. Di Gregory, we welcome you here today. Your entire state-
ment, obviously, will be put in the record without objection. And
you may proceed to summarize it or to read whatever portion of it
you wish to on these bills today. We just greatly appreciate the
Justice Department's comments on this series of bills.

STATEMENT OF KEVIN V. DI GREGORY, DEPUTY ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT
OF JUSTICE

Mr. Di Gregory. Thank you.

Good morning, Mr. Chairman. Thank you for allowing me to be
here.

Mr. Heineman, Mr. Barr, good morning to you.

I am pleased to be here to respond to your request for the De-
partment of Justice's views on a number of bills presently before
the subcommittee.

What I would like to do is provide a short summary of our views
and then answer any questions you may have.

The Department has also provided a letter containing a more de-
tailed discussion of each bill that I ask, Mr. Chairman, be inserted
into the record.

Mr. McCoLLUM. Without objection.

[The information follows:]



Ill




U. S. Department of Justice
Office of Legislative Affairs



Office of die Assuont ABDmcy CenenI Woihinglon, P.C. 20530



March 6, 1996

The Honorable Bill McCollum
Chairman

Subcommittee on Crime
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

I am pleased to respond to your request for the Department
of Justice's views on a number of bills the Subcommittee will
soon consider. Our views are provided below.

H.R. 1143 - Retaliation against Witneaaea

This bill would amend 18 U.S. C. § 1513, relating to
retaliating against a witness, by providing that if the
retaliation occurred because of attendance at or testimony in a
criminal case, the maximum term of imprisonment for the offense
shall be the higher of that other-wise provided by law or the
maximum term that could have been imposed for any offense charged
in such case. The Department supports this penalty enhancement,
which is clearly and rationally designed to deter the commission
of this type of offense. As a technical matter, it would appear
that this amendment ought to be designated subsection (d) rather
than subsection (c) .

H.R. 1144 - Witness Tampering

This bill would amend IB U.S. C. § 1512, relating to witness
tampering, by providing that if the offense under this section
occurs in connection with a trial of a criminal case, the maximum
term of imprisonment which may be imposed for the offense shall
be the higher of that otherwise provided by law or the maximum
rerrn that could have been imposed for any offense charged in such
case. The Department supports this penalty enhancement, which
again seems rationally designed to deter such tampering offenses.



112



R.R. 114S - Jury Tai^ering

This bill would amend 18 U.S.C. § 1503, relating to jury
tampering, by providing that if the offense under this section
occurs in connection with a trial of a criminal case, the maximum
term of imprisonment which may be imposed for the offense shall
be the higher of that otherwise provided by law or the meiximum
term that could have been imposed for any offense charged in such
case. The Department supports this penalty enhancejment , for the
reason given in connection with the discussion of H.R. 1144.

H.R. 2092 - The Private Security Officer Quality Assurance Act

We applaud the goal of this bill, enhancing the oversight
and regulation of private security officers. However, we have
several concerns about the background check provisions and the
intended scope of the term "private security officer."

Section 3 permits an association of employers of private
security guards to conduct criminal history record checks
directly with the Federal Bureau of Investigation. We believe
this proposal is unnecessary. FBI criminal history record checks
are currently conducted for prospective security guards, private
patrolmen, and watchmen pursuant to Pub. L. 92-544 in the 34
states which have enacted appropriate enabling legislation.

Any procedure that would bypass the initial fingerprint
check through state criminal record systems is an inefficient use
the FBI and other law enforcement resources. The state
authorities handing the applicant fingerprint card should forward
to the FBI only those cards for which no disqualifying record or
substantive information is identified at the state or local
level. The identification of such information obviates the need
for a national check, thus resulting in the savings of time and
expense attributable to redundant FBI processing.

It should be noted that an individual's criminal history
record at the state level often contains arraste and dispositions
that are never reported to the FBI. Further, some state laws
prohibit the dissemination of certain nondisqualifying criminal
history data - such as non- convict ion data or arrest entries for
which no disposition has been reported - to state and local
agencies making licensing and employment decisions.

Section 4 of the bill expresses a sense of the Congress that
the states should enact statutes requiring employer licensee for
security services, registration permits with background
requirements, and detailed training prerequisites . Also
advocated are provisions for recognition of out-of-state
licenses, certain employee rights, and the state creation of
advisory boards. We have several observations and suggestions
related to this section and Section 5 (definitions) .



113



Throughout the proposal "private security officers" are
dealt with as a relatively identifiable and fungible category of
employees. However, variations in state laws, assigned duties,
and employment status create a wide range of such employees, many
of whom resemble office receptionists or mid-level office
managers while others are virtual police officers with limited
jurisdiction.

"Private security officer" has a much narrower meaning in
the law enforcement community than is established by the proposed
legislative definition. That proposed definition of a "private
security officer" would seemingly include many office
receptionists, tavern "bouncers," parking lot attendants, transit
and airline gate personnel, ticket-takers at virtually any
facility, non-police park rangers, pool life guards, theater
ushers, and fire alarm technicians. The definition
unintentionally may even reach certain members of the news
media - who may perform the observation or reporting of unlawful
activity, full or part time, for consideration as an independent
contractor, or as an employee with a primary duty to perform
those tasks . Even some Federal Government employees are
seemingly within the scope of that definition, if they perform
any of the security and safety functions identified and are not
sworn police officers or active duty military personnel. We do
not believe that the Federal Government should urge the states to
regulate the training, qualifications, and other employment
aspects of various categories of federal employees.

While the findings initially suggest that the primary
problem which the legislation seeks to address involves private
shopping mall and other facility security officers and the
inability of the public to distinguish such private officers from
sworn public police officers, this proposal exceeds that
scenario. Even in that narrow area, the states seem qualified to
identify any problem and address it. as many jurisdictions
already have by mandating large shoulder patches with distinctive
markings or other uniform labeling which clarifies an employee's
private sector status .

We have 'concerns about the perceived need for homogeneous
training. Job responsibilities, levels of oversight, exposure to
the public, and state-granted powers vary to such a degree that.
in our view, no specific minimal training requirements could meet
the needs of some security officer assignments without
substantially exceeding the level required for others.

The level of specificity of proposed requirements may prove
to be both insufficiently flexible and nevertheless inaccurately
precise. For example, advocating that a 70% marksmanship score
be adopted as a requirement by all states seems rather precise,
yet. since no standard for the form of test which should yield
that score is provided, the number is insignificant if testing



114



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and scoring procedures vary widely. Similarly, prohibiting the
"unreasonable limitation" of the right of an involuntarily
terminated employee to seek svibsequent security officer
employment may prove to be so vague that it does not afford
additional protection if state labor laws are inadequate, yet it
inadvertently could encourage the hiring of unqualified personnel
already terminated for cause from a similar position.

H.R. 2137 - Megan's Law

H.R. 2137 would require the release of relevant information
to protect the public from child molesters and other sexually
violent offenders . The Department of Justice supports the
enactment of this legislation.

The Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act provides a financial incentive
for states to establish effective registration systems for
released child molesters and other sexually violent offenders.
States that fail to establish conforming registration systems
will be subject to a 10% reduction of formula Byrne Grant
funding, and resulting surplus funds will be reallocated to
states that are in compliance. The current provisions of the
Jacob Wetterling Act permit, but do not require, states to
release relevant registration information that is necessary to
protect the public concerning persons required to register.

H.R. 2137 would make the disclosure of registration
information necessary to protect the public mandatory rather than
permissive under the Act's standards. The Department of Justice
supports this refonr. Where a state has information through its
registration system concerning a child molester or other sexually
violent criminal who poses a continuing danger to others, the
state should not withhold this information from persons who need
it for the security of themselves and their families. A number
of states already provide for community notification or other
forms of disclosure in appropriate circumstances, and the change
in the Jacob Wetterling provisions proposed in H.R. 2137 would
encourage additional states to adopt such measures.

In the Department's proposed guidelines for the Jacob
Wetterling Act (60 Fed. Reg. 18617, April 12. 1995) , we have
explained that the Act accords states discretion concerning the
standards and procedures to be applied in determining whether a
registering offender constitutes a danger to the public, and
concerning the nature and extent of disclosure necessary to
protect the public from such an offender. H.R. 2137 makes the
"public safety" disclosure provision of the Act mandatory -
changing "may" to "shall" - but does not otherwise change the
language of this provision.



115



Hence, states will need to provide for such disclosure
following the enactment of H.R. 2137 to comply with the Act, but
they will retain discretion concerning specific standards and
procedures and the nature and extent of disclosure in
implementing this requirement. For example. New Jersey's multi-
tiered system for classifying offenders based on risk and making
varying degrees of disclosure on the basis of that classification
would be consistent with the "public safety" disclosure provision
of the Jacob Wetterling Act ae amended by H.R. 213 7.

In addition to endorsing the particular change proposed in
H.R. 2137, we recommend an additional amendment to the provision
of the Jacob Wetterling Act relating to the release of
information. Section 1701D1 (d) of the Jacob Wetterling Act
provides that information collected under state registration
programs "shall be treated as private data, " subject to three
exceptions - disclosure to law enforcement agencies for law
enforcement purposes, disclosure to government agencies
conducting confidential background checks, and disclosure for
public safety reasons (as discussed above) .

The requirement that registration information generally be
treated as private data is not necessary or helpful in realizing
the objectives of the Jacob Wetterling Act, and it imposes a
limitation on the states that did not exist prior to the
enactment of the Jacob Wetterling Act. We see no reason why
states should not generally be free to make their own decisions
concerning the extent to which registration data should or should
not be treated as private data, as they have been in the past.

We accordingly recommend deletion of the provision that
information collected under state registration systems ie
generally to be treated as private data. This change, together
with the change proposed in H.R. 2137, could be implemented by
revising subsection (d) of § 170101 of the Violent Crime Control
and Law Enforcement Act of 1994 to read as follows:

"(d) RELEASE OF INFORMATION. - (1) The information
collected under a State registration program may be disclosed for
any purpose permitted under the laws of the State .

"(2) The designated State law enforcement agency
and any local law enforcement agency authorized by the
State agency shall release relevant information
collected under the registration program that is
necessary to protect the public concerning a specific
person required to register under this osction,
provided, that this paragraph shall not be construed to
require the disclosure of the identity of a victim of
an offense that requires registration under this
section . "



116



- 6 -

Beyond the notification issue raised by H.R. 2137,
diecussion with the states indicates that some of the more
detailed prescription in the registration provisions of the Jacob
Wetterling Act may impede some state compliance, though that
level of detail may be \inneceesary to realize the essential
objectives of the Act. We would be pleased to work with
interested members of Congress to strengthen the Act by
addressing legitimate concerns regarding impediments to effective
state implementation.

Finally, we believe that in conjunction with our efforts "to
encourage and strengthen state -based registration systems under
the Jacob Wetterling Act, we should consider developing
additional forme of federal assistance for the states that would
complement and magnify the benefits of the Act.

On at least one front, such assistance already is being
provided. The FBI has developed a powerful tool known as CODIS
to assist states in investigating and solving crimes involving
biological evidence, including particularly serial and stranger
sexual assaults. CODIS (short for "Combined DNA Index System")
permits DNA examiners in crime laboratories to exchange forensic
DNA data on an intrastate level, and will enable states to
exchange DNA records among themselves through the national CODIS
system. In the Final Guidelines implementing the Jacob
Wetterling Act, which we plan to publish in the near future, we
encourage states to collect DNA samples from registering sex
offenders to be typed and stored in state DNA databases, and to
participate in CODIS.

In addition, we are exploring a modification to the National
Crime Information Center, which is operated by the FBI, that
would provide further assistance to law enforcement in this area.
Under existing law and administrative arrangements, the
information on sex offenders that is provided by the FBI is
generally limited to "rap sheet" information, and does not
include residence address information for the offenders. The
Jacob Wetterling Act contemplates that states will have central
registration authorities that administer their sex offender