United States. Congress. House. Committee on the J.

Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

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have been appropriated for fiscal year 1995?

Mr. Schmidt. Well, nothing has been appropriated for — ^you are
talking about actual appropriation. Clearly, nothing has been ap-
propriated for fiscal 1995. There is a trust fund set up — I am sorry,
fiscal 1995. $1.3 billion is in the current fiscal year for the COPS
Program.

Mr. Coble. And leaving how much for the next 2 years?

Mr. Schmidt. Well, there is a total of $8.8 billion authorized
under the COPS Program over the 6-year period.

Mr. Coble. $8.8 billion. OK. And how much for 1995?

Mr. Schmidt. $1.3 billion.

Mr. Coble. Thank you very much.

One final question to extend what the gentleman from Indiana
was discussing regarding the playing of politics. And politics is
practiced in this town, as we all know, Mr. Schmidt, wildly and
sometimes indiscreetly by — Republicans and Democrats alike are
guilty of it, if practicing politics is an art for which guilt should be
assessed.

Let me put a hypothetical to you. Assume for the sake of illustra-
tion that Congressman A voted against the crime bill, and he rep-
resents municipality B which has expressed interest in receiving a
grant. In no way would municipality B's Congressman vote against
the bill. That would not have been considered, I take it, from what
you said earlier.

Mr. Schmidt. That is correct.

Mr. Coble. I have no further questions, Mr. Chairman. I thank
you.

Mr. McCOLLUM. Thank you, Mr. Coble.

Ms. Jackson Lee.

Ms. Jackson Lee. Mr. Chairman, thank you very much.

Mr. Schmidt, I started out this morning claiming the role of a
crime fighter and also acknowledging that the idea of being strong
on crime is not one that belongs to one party over another. Simi-
larly, not to have attributed to Democrats of being soft on crime.



128

I would have hoped that the 1994 bill — and maybe you had —
maybe we didn't allow your creative pen — it could have been called
something like the clean sweep bill to sweep all the criminals off
the street, and it might have gotten the attention that it deserved
for what it tried and did do.

But I was noting on the 100,000 police program, you recall were
suggesting — not in a negative manner — about decisions of local ju-
risdictions. I think I heard you more clearly speaking to the co-
operation between the Federal Government and local jurisdictions
and the idea of the partnership helps to emphasize and ensure that
the dollars given to local jurisdictions will, in fact, be used for
crime.

I think it should be noted — or crime prevention and crime elimi-
nation. It should be noted, on the law enforcement part of it, my
mayor in the city of Houston offered and has received a creative
aspect which talked about overtime for officers. So that they may
not be new officers, but you can use existing expanded time on the
street. Let me have a comment on that as a productive way of
using those dollars.

Mr. Schmidt. Well, it is a useful point in that the statute re-
quires that 85 percent of the money be spent to put additional cops
into communities, but we are allowed to use a portion of that in
ways that don't actually involve hiring new police if a community
can demonstrate that spending the money for something else will
free up resources in order to allow them to put cops on the street,
and the example given was if you have sworn officers currently
performing civilian functions and you want to go out and hire civil-
ians in order to allow those sworn officers to go out to the street.

So there is that flexibility in the statute to deal with particular
situations where people have, you know, defensible plans and credi-
ble plans that will result in putting new officers out on the street
without actually having to hire additional officers.

Ms. Jackson Lee. And, ultimately, you have the result of adding
to the crimefighting.

Let me conclude very briefly by saying that, in hearing you say
about the cooperation between local and Federal Government, we
can then look to those dollars going for the programs of violence
against women, the drug courts that are so much needed in my
community and that have not had the resources to do so. And then
the issue that I raised earlier, potentially in working on a national
network or national focus on child molestation.

What I saw in the 1994 bill is that it gives the opportunity for
those issues to be responded to, which as I understand — you need
to tell me. You have traveled around and you have had local juris-
dictions come in and make presentations. They seem to be sa5dng
that they want these dollars to do just those things and not put
watering systems on golf courses? I haven't heard that. Is that
what they are asking us for? Those kinds of preventive measures
or crimefighting measures?

Mr. Schmidt. The answer to that is yes. You have to look at each
program. But certainly the ones that you mentioned in each case
have people around the country who are very eager and prepared
to apply and use those funds, I think, in the way that Congress ex-
pected them to be used.



129

Ms. Jackson Lee. And a signal would be unclear if we did other-
wise?

Mr. Schmidt. Well, if you back away from those programs there
are going to be a lot of people around this country who have
thought and believed that there was something concrete and real
that was coming in those areas.

Violence against women might be the strongest example because
I think there is a real, almost a level of excitement around the
country about the prospect in every State of having a comprehen-
sive approach to it. So if you go and talk to someone who is run-
ning a program of assistance for victims of violence, for example,
of domestic violence, they are excited not only about the prospect
they may get some money for themselves but also about the pros-
pect that the police are going to have a program in place which will
give them a place to turn early on in that cycle so that they don't
have to let things drift to possibly more serious stages.

And they are excited about the prospect that the battered wom-
en's shelter is going to get money at all. It is not just the money
for them but the fact that there is a comprehensive program going
forward.

That case may be particularly strong where there is an expecta-
tion that has been built up that there is going to be a serious effort
to deal with that problem.

Ms. Jackson Lee. Thank you. Thank you, Mr. Chairman.

Mr. McCOLLUM. Thank you.

We have a vote on now on the rule on the unfunded mandates
bill. And Mr. Schmidt, the Associate Attorney General, needs to get
back to his duties.

We have the two States attorneys general coming up as our next
panel. And, without objection — I know it does impose somewhat of
a restriction on some of our Members — I would very much like to
let this witness go and when we return have the two State attorney
generals back here.

Mrs. Schroeder. Reserving my right to object. Would it be okay
to, first of all, put on the record if we have alternative hearings?
I am running between this and armed services, so I will not object
to this, but I would like to have it known that I am tr3dng to be
here as much as I can. And could we put questions in the record?

Mr. McCOLLUM. Absolutely. Questions could be submitted for the
record for each of our panels today. And that would be particularly
appropriate for the Justice Department. Without any other objec-
tions that would be the case.

We will be in recess for about 10 minutes. And we are going to
continue with the next panel.

[Recess.]

Mr. McCoLLUM. The subcommittee is called to order, if I could
at this time.

We have a very distinguished panel of witnesses this afternoon,
and we have been holding them for a little bit longer than I would
like and I know they would. And it gives me pleasure to bring for-
ward two State attorneys general: from California, Dan Lungren;
and from the State of Virginia, Jim Gilmore.



130

Come on up, and I will give you proper introductions, and we will
get the hearing under way, which we have been long overdue in
doing here.

Let me, first of all, introduce Attorney General Dan Lungren
here. Dan Lungren is the 29th attorney general from the State of
California. Dan was recently reelected for a second term as Califor-
nia's chief law enforcement officer. He is a good friend of this sub-
committee, having served as a Member of this House and the Judi-
ciary Committee for 10 years. He is best known for his help in the
passage of the Crime Prevention and Control Act of 1984. We are
pleased to have Dan here with us today.

Then we have Jim Gilmore from the Commonwealth of Virginia.
Mr. Gilmore began his service as Virginia's 38th attorney general
last year. He has amassed an impressive law enforcement record
while serving as the chief prosecutor for Henrico County, VA. He
tried 13 murder cases and secured the convictions in all 13 cases.

And before we actually introduce them to make their comments,
Congressman Scott, by all means.

Mr. Scott. Thank you, I am sure Attorney General Gilmore
would like me to reflect his prior service as the Henrico County

Mr. McCOLLUM. Henrico. I didn't pronounce that correctly.

Mr. Scott. He was recently elected and has served a little over
a year as the Commonwealth's attorney. He was in private practice
for 10 years and a University of Virginia Law School graduate. I
am delighted to welcome Attorney General Gilmore to the panel
and look forward to his comments.

Mr. McCOLLUM. I thank you very much.

At this point, I am going to recognize Attorney General Lungren
and Attorney General Gilmore. They may summarize their state-
ments, and we will place their full statements in the record.

Mr. Lungren.

STATEMENT OF DANIEL E. LUNGREN, ATTORNEY GENERAL,
STATE OF CALIFORNIA

Mr. Lungren. Mr. Chairman, I have submitted my entire state-
ment, and so I will attempt to summarize it.

First of all, I would like to thank you for the opportunity to ap-
pear before you here. It is a lot of fun to come before a committee
and subcommittee on which I was a member for 10 years.

And I particularly recall the success we had with the Com-
prehensive Crime Control Act in 1984. That core bill contained
many things, including truth-in-sentencing provisions, which I
know are now being emulated in Virginia and other States. In Cali-
fornia, we have made a start on that, and we need to do more.

I would like to commend you, Mr. Chairman, for your leadership
in attempting to construct some Federal incentives for us to en-
courage the States to take such action in their own jurisdictions as
well.

However, in addition to the core bill that we had in 1984, I — at
that time, I was privileged to sponsor legislation on behalf of the
Reagan administration that dealt with the good-faith exception to
the exclusionary rule as well as reform of the habeas corpus proce-
dures. And it is with respect to the habeas section of H.R. 3 that
I would like to address myself



131

First of all, I might say that I certainly enjoyed the 10 years I
served in the Congress. It was a great pleasure. It was a good deal
of fun, and I think we did things while we were here. But in the
4 years plus that I have been attorney general it has given me an
opportunity to view things at a slightly different level, particularly
in the area of criminal justice.

While we in Washington do hear from our constituencies and
while we try and reflect as best we can on that which we hear from
our constituencies, in the office of attorney general I think you
probably hear a little more directly in the area of criminal justice.
You hear the cries of the victims. You hear the cries of the victims*
families.

And certainly one aspect of the message that you hear, and I
think one aspect of the message that was heard in November, is
that Washington may not always know best. As much as we have
tremendous talent here and we are trying to do good, I think at
times we make a mistake of trying to create a cookie-cutter model
for all places dealing with problems that may have some
similarities. This is particularly relevant with respect to the oper-
ation of State criminal justice systems.

I would like to focus the attention of my remarks on Federal ha-
beas interference with effective sanctions in the States as well as
the problem of prisoner litigation. I would like to emphasize at the
outset that my comments are not meant as a blanket criticism of
the Federal judiciary. Rather, the source of our difficulty really lies
with the inadequacy of present law. You can't blame judges for
doing what they are allowed to do under the law.

When people in ask me why in the State of California we have
had such a problem dealing with the death penalty, it is easy to
tell them that in 1980's we had a problem with the California Su-
preme Court. We had an historic event in which three members of
the California Supreme Court were basically tossed out of office —
the first time in our history.

As a result of the actions of the voters and by appointment of two
Governors, we have a reconstitution of that court, a re-review of
our death penalty statutes, and an affirmance of most of the death
penalty convictions and sentences that we received.

So why do we not have a death penalty carried out in California
today? At least, why do we not have it carried out more than twice
in the last 27 years? The answer simply lies with the Federal
courts.

So rather than shrug my shoulders when people ask me why
can't this law be carried out when presumably it is constitutional —
that is, the Supreme Court has said it is constitutional and so has
the State supreme court — I have to say that the reason it has not
been carried out is the interference that one finds in the Federal
judiciary, primarily through the writ of habeas corpus. That is why
it is so important.

We can do all we want in our State — and we do — to fight violent
crime. But the answer lies in Washington, DC, with respect to ha-
beas corpus reform if, in fact, the death penalty is going to be a
reality in our State and other States, and if, in fact, it is going to
have an effective deterrence as well as the appropriate effect as a
just punishment for the worst of our crimes.



132

So let me address, first of all, general habeas reform. I think any
effort undertaken by the Congress would be incomplete unless it
addresses general habeas corpus reform.

The problem of delay in noncapital cases is no less a problem
than it is in capital litigation. So let me just touch on some of the
key elements necessary. I have more detail in my prepared text
that I have submitted to the committee.

No. 1, a time limitation for the filing of State prisoner petitions
in Federal court. No. 2, a standard for the granting of certificates
for probable cause of appeal which requires a substantial showing
of denial of a Federal right. The reason for that is that the Federal
courts are not just a substitute for the State courts. There is no
reason to believe that because the Federal courts review these last
that they necessarily review these best. That is not what the writ
of habeas corpus is all about.

And, by the way, I hasten to add we are not talking about the
historic writ. We are not talking about the constitutional writ. We
are not talking about the writ that you use with a capital G and
a capital W. We are not talking about the writ that was suspended
by M)raham Lincoln.

The reason I mentioned that is because when I testified several
years ago a Federal judge got up and talked about tampering with
the Constitution. We are talking about a statutory writ that was
established by the Congress of the United States and, therefore,
subject to revision by the Congress of the United States.

The third area that I would talk about is authority for Federal
courts to dismiss frivolous claims, even if available State remedies
have not been exhausted. And the reason I say that is that, while
I believe in the rule of exhaustion, if on its face it is a frivolous
claim then the Federal courts ought to have the authority to dis-
miss it at that time rather than send it back to the State courts
and not dismiss it until State remedies have been exhausted.

So I wholeheartedly endorse those general reform provisions that
are contained in H.R. 3 and am somewhat pleased that they are
similar to provisions that I sponsored while a member of the House
Judiciary Committee.

As I mentioned, an effective death penalty is only going to be-
come a reality if in fact we have reform of the Federal system. As
the Powell Commission report stated in 1989, the relatively small
number of executions as well as the delay in cases where an execu-
tion has occurred makes clear that the present system of collateral
review operates to frustrate the law of 37 States. That was the
Commission that was chaired by former Justice Powell.

I think that is a fairly simple statement, and it tells us where
we are.

As a matter of fact, one of the first things that I had to deal with
as attorney general of the State of California was the Robert Alton
Harris case, the first case that was at a point in the Federal judici-
ary where an execution might be carried out. A brutal case.

A man who had previously killed, gotten out after 6 years, de-
spite a torture murder of an individual, was out exactly 6 months
when he decided to do a holdup with a brother. At that point in
time, he believed he needed a getaway car; and so he found two
kids, two teenagers, that were parked across the street from a Jack



133

in the Box in San Diego, CA, having just purchased two ham-
burgers.

He forced them to go to a remote area and then killed both of
the young men — 16 years of age. Particularly gruesome was the
second murder where he had a young boy pleading for his life and
having Robert Alton Harris tell him, nobody can help you now. Die
like a man.

After blowing the brains away of the second boy, he calmly ate
the remains of the hamburger that that boy had purchased and
laughed about the fact that his brother couldn't bring himself to do
that. He was convicted and sentenced in 1981 and for 13 years ba-
sically held the system at bay.

During the process, in the consideration of one of his habeas peti-
tions, one of the Federal judges in the ninth circuit was moved to
say that this case is a textbook example of the abuse of habeas cor-
pus which must be dealt with and indicated that the Congress was
looking at it at that very time.

As I say, in the Congress I dealt with this issue at arm's length.
As attorney general I dealt with it close up where I had to be at
San Quentin the night of the execution and be there with the par-
ents of the dead boys and talk to one of the mothers that night as
four times — four times between 6 p.m. one night and 6 a.m. the
next night — four separate Federal-State orders were put into effect
that went up to the U.S. Supreme Court. We dealt with every sin-
gle one of them. We were successful. It was historic. It has never
been done before; and, hopefully, it will never be done again.

And the Supreme Court issued an order which said that jurisdic-
tion in this case with respect to any stays is no longer available
to any Federal court except the U.S. Supreme Court.

On the occasion of the second stay order I went to the mother
because I felt it was my obligation to tell her how the system
works, the system I was party to creating as a Member of Con-
gress. And I explained to her that the second stay order had just
gone into effect basically on the same terms as the previous stay
order which had been overturned by the Supreme Court about 2
hours before. And when I explained to her that we were ready to
act and we would in fact be successful, she looked at me and said,
oh, I get it. It is like a chess game.

Now those words were like a cold blast of winter's air at me, and
I thought for a moment what should I say to her. And I said, you
know, it shouldn't be a game at all. It should be about justice.

And that is what we are here about. It is a question of justice
rather than gamesmanship. There is no reason to explain to the
mother of a dead victim why our system allows someone to go up
to the U.S. Supreme Court four times, basically on the same issue,
with a total of 10 separate Federal judges issuing the four stay or-
ders, most of them never having been a part of the 3-judge panel
that dealt with the case in the first place. And that is what we are
talking about in terms of reform.

We need to look at, first of all, what the Federal court standard
of review is. In other words, what review should be available on
Federal habeas corpus following the State trial, the State appeal,
the State collateral proceedings and cert review by the U.S. Su-
preme Court?



134

Because one of the real costs of habeas corpus review in current
States is the lack of finality. Absent finality, the criminal law loses
much of its deterrent effect. And the court in McClesky v. Zant
noted this. Finality has a particular importance in a Federal sys-
tem.

And reexamination of State convictions on Federal habeas corpus
review frustrated both the State's sovereign power to punish of-
fenders and the good-faith attempt to honor constitutional rights.
Our Federal system recognizes the independent power of a State to
articulate societal norms through criminal law, but the power of a
State to pass laws means little if the State cannot enforce them.

Now, being from California, maybe I can explain it this way:
What makes Judge Malcolm Lucas, when he took off" the robe as
a district court Federal judge and assumed the position and there-
fore took on the robe as the chief justice of the California Supreme
Court, what makes him less capable of dealing with constitutional
issues? What makes him less faithful to the precepts of the Con-
stitution? What makes every other Federal judge presumptively
more supportive of constitutional rights? To ask the question I
think is to answer it.

What we are saying is, What kind of review should be allowed?
It seems to me we should accord an appropriate level of deference
to State procedures. And that, in fact, is what Teague v. Lane basi-
cally told us.

But I happen to think we have to go to the standard of full and
fair. And I know that is not in the current bill. I would ask you
to examine that. And I would ask every Member sitting here why
has the Congress established a statutory level of review that gives
the District of Columbia trial judges greater deference than it gives
to the trial judges in Los Angeles? Or Oklahoma City?

They don't use the word full and fair, but go back and look at
the language that the Congress has given for the level of review
on a writ for someone trying to overturn their conviction or sen-
tence in the District of Columbia, and you will find that it really
amounts to full and fair.

And what we in the States are saying is, under the Constitution
we are sovereign States. Why do we not have granted to us the
same level of consideration, of respect for our system, as in fact is
granted to the District of Columbia?

It seems to me that there is no answer there. This standard has
been reviewed by appellate courts. That is the standard established
by Congress and given to them and has been approved.

So it just seems to me that when you are looking at the stand-
ard, full and fair would take us back to where we ought to be. I
know it is not in this bill. I think this bill does have some better
aspects to it than current law, but it seems to me, ultimately, that
we need to get to that point.

Limitations on successive petitions are absolutely necessary. We
need to be earnest in our treatment of that. And I have spoken at
some length in terms of my printed testimony with respect to those
matters.

Let me turn now to abusive prisoner lawsuits. There are prisoner
lawsuits that are justifiable. There is no doubt about it. But 1,100



135

of them filed per year now in the State of Cahfornia? One thousand
one hundred Federal prisoner lawsuits?

I now as Attorney General of the State of California have 51 at-
torneys who do nothing else but respond to prisoner lawsuits — 51.
I am hiring more. I spend nearly $ 10 million a year just responding
to prisoner lawsuits.

And what are they?

An inmate who claimed that having to write the California Cor-
rectional Institution as part of his return address was a violation
of his constitutional right.

An inmate sought an injunction and damages because while
being transported by bus he was not permitted to speak to anyone



Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 11 of 51)