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

. (page 13 of 51)
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 13 of 51)
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state court are "reasonable" in order to determine whether a "new

rule" will be applied retroactively.



As a member of Congress I introduced and cosponsored legislation
which contained a "full and fair" standard of review. In my view
it would accord an appropriate level of deference to state
procedures while at the same time provide the federal courts with
the authority to review the question of whether state court
adjudications are in fact reasonable.

The critical point is that a standard of deference which upholds
reasonable state court determinations, should bo a central
element of habeas reform legislation. This is essential if we are
to realize finality as one of the principal objectives of the
law. As the court observed in W&inwright v Sykes"^ it is also
necessary if we are to make the trial on "the merits the 'main
event,' so to speak, rather than a 'tryout on the road' for what
will later be the determinative federal habeas hearing. "

9 . 489 U.S. 228 (1989).

10 . 443 U.S. 72, at 89 (1977).



153



Lungren Testimony
January 19, 1995
Page 16



Abusive Prisoner Lawsuits

In the context of H.R. 3 I would like to shift my focus from
habeas corpus to another issue facing the states which is also a
direct result of federal interference. Abusive prisoner lawsuits
present a situation where federal statutes are stretched to
absurd lengths through the misuse of the federal courts at a
significant cost to state criminal justice systems. Once again,
this is a problem that Congress must address.

In my office, we have just hired an additional 14 attorneys to
handle prisoner litigation. in all, we have 51 lawyers who do
nothing else but defend against these lawsuits full time. We
spent nearly $9 million on prisoner litigation last year.

Prisoner litigation threatens to turn the federal judicial system
into the small claims court for inmate grievances. The courts
are inundated with petty coinplaints and both the federal courts
and the federal constitution are being trivialized while every
inmate who thinks they have suffered a wrong files a complaint
seeking monetary damages for what to the rest of us would be an
inconvenience to be resolved informally or forgotten.



154



Lungren Testimony
January 19, 1995
Page 17

Under the guise of "violations of Constitutional rights," the

inmates, with time on their hands and the constant hope of

winning the 'brass ring" have no reason not to try to bring these

complaints into the federal courts. I would like to share with

you just a few examples of the types of cases we face:

- An inmate sought an injunction and damages because while being
transported by bus he was not permitted to speak to anyone other
than his seatmate.

- An inmate claimed that having to write "California Correctional
Institution" as part of his return address, was a violation of
his rights.

- A plaintiff disputed a $4.11 hold placed on his trust account
due to damaged sheets that were torn for use as a fishline.

- An inmate sued the department of corrections claiming his
rights were violated when he did not receive the five stamped
envelopes provided by the California Department of Corrections to
indigent inmates. The inmate had in fact received the envelopes
as a result of his administrative appeal, and he had unused
envelopes from the preceding month. The case ultimately went to
a jury trial where a jury found for the Department of
Corrections.



155



Lungren Testimony
January 19, 199S
Page 18



It should also be noted that the number of class action cases
filed by plaintiffs represented by the "prisoners' bar' has also
increased during the last few years. Given the substantial
number of billable hours and the virtual assurance of an awrird of
fees at che end, these cases may have more appeal than would
appear to the uninitiated.

In this regard, we have also noticed forurr. shopping by the
"prisoners' bar," Despite the random assignment of judges to
cases, the plaintiff's bar is able to check the docket for
prisoner pro se cases raising issues related to those the bar
wants to litigate and selecting case assigned to judges that are
viewed favorably. The bar then offers to represent the plaintiff
and the plaintiff's case becomes the shell for an amended class
action complaint.

I would like to note here that there is no provision for
peremptory challenges to federal judges. While a member of
Congress 1 repeatedly introduced legislation to allow one
peremptory challenge by each party.

Title VII of H.R. 3 addresses the growing problem of abusive
lawsuits. In this regard I would like to thank you Mr. Chairman
for your work on this issue and I would like to commend



156



Lungren Testimony
January 19, 1995
Page 19

Congressman Canady for his tireless leadership in attempting to
craft a legislative solution to our problem.

The language in Title VII would require exhaustion of
administrative remedies (Section 701), strengthen the hand of the
court to dismiss a case if the action fails "to state a claim
under which relief car. be granted" (Section 702), modifies the
procedures for grievance proceedings (Section 703), and provides
fcr the accounting of prisoner assets and for the partial payment
of filing fees based on the ability of the prisoner to pay
(Section 704) .

Under existing statutory language found in 28 U.S.C. Sec. 21997e,
the district court is given discretion to stay prisoner actions
under 42 U.S.C. Sec. 1983, in order to require the exhaustion of
certified administrative remedies. It is certainly reasonable to

require exhaustion before access to the federal courts is
allov/Gd. The federal judiciary should not be a vehicle for the
immediate gratification of trivial inmate complaints.

Under 28 U.S.C. Sec. 1915(d) a court may dismiss a case filed by
an individual proceeding in forma paiinerig status if 'the action
is frivolous or malicious.* This provision was enacted in
recognition that a non-paying litigant lacks the economic
incentive to refrain from filing frivolous or repetitive



157



Lung r en Testimony
January 19. 1995
Page 2

lawsuits. In Neitzke v Williams, the U.S. Supreme Court

interpreted "frivolous or malicious" as a claim which "lacks an

arguable basis either in law or in fact.***' Mandatory dismissal

at the earliest possible point in the litigation process is

necessary to save scarce public and judicial resources.

Requiring the payment of even a small filing fee would force
inmates to consider the relative value of filing a complaint.
Courts should require information from the prison regarding the
imrates trust account activity during the preceding 6 to 12
months with periodic updates regarding such activity. Some
courts do require partial filing fees and such a recjuirement has
the salutary effect of forcing the inmate to weigh the econonic
costs of the lawsuit.

As mentioned previously, it is my belief that federal law should
provide for peremptory challenges of federal judges or magistrate
judges. I might mention that we do allow such challenges under
the California Code of Civil Procedure 170.6. In the context of
abusive inmate litigation, such a change in the law would address
the problem of forum shopping by the prisoner's bar and
contribute greatly to fair and evenhanded justice.



11 . 490 U.S. 319, at 325 (19891



*ae:_cc7 ac c



158



Lungren Testiuiony
January 19, 1995
Page 21

The courts appear reluctant to dismiss cases which allege a

denial of access to the court by prison officials. This may be

cast in terms oE an alleged failure to provide adequate access to

the library or the alleged loss of unspecified legal property.

Here, as in the case with other claims, there should be a

requirement that the inmate have to show some specific injury as

a result and offer something more specific thar a generalized

statement that his library access is "inadequate" or his legal

property was "lost." My department has cases before it where the

only injury alleged is "worry" or "stress." Specifically, we

would recommend that 20 U.S.C. Sec, 1915 be amiended to specify

that a complaint may be dismissed if there is no injury or the

injury is insignificant.

Interference with the operation of state correctional facilities
is unfortunately once again a classic case where those of us on
the state level find ourselves victimized by federal policy.
Comity would seem to dictate the minimum level of intrusion
necessary to fulfill constitutional and federal statutory
concerns. Specifically, 18 U.S.C. Sec. 3626 should be amended to
limit federal courts to remedies which go no further than
required to meet federal constitutional or statutory minimum
requirements and to permit the states to seek modification of
orders which go beyond those minima based on subsequent changes
in tho law.



159



Lungren Testimony
January 19, 1995
Page 22



What is at issue here is the abuse of federal law itself. When
our experience under a federal statute is that state correctional
policies are disrupted and burdened with unnecessary costs it is
clear that something is seriously wrong. it is also clear, as
with federal statutory habeas corpus that congress must fix it.



160

Mr. McCOLLUM. Attorney General Gilmore.

STATEMENT OF JAMES S. GILMORE III, ATTORNEY GENERAL,
STATE OF VIRGINIA

Mr. GiLMORE. Mr. Chairman, members of the subcommittee, I
am pleased to be here to appear before you to testify on title V,
truth-in-sentencing grants of the Taking Back Our Streets Act of
1995.

The Commonwealth of Virginia, together with her sister States
is experiencing an unprecedented explosion in violent crime. Vir-
ginians do not feel safe and have demanded that their government
act decisively to quell this violence in their communities.

The imperative is great to reform our criminal laws and proce-
dures to better protect the law-abiding public from violence, but
legal reform is only half the battle. We have also got to increase
prison facilities in order to house the violent felons so that they
can't prey upon law-abiding citizens over and over again.

Without adequate prison resources in which to incarcerate the
dangerous felons that are so much the focus of reforms in the
State, any program to increase public safety is going to be doomed
to failure. The Commonwealth of Virginia has heard these de-
mands. We have embarked upon a legislative policy which abol-
ishes parole, provides truth in sentencing and targets violent re-
peat offenders for the stiffer penalties. It is well understood that
implementing Virginia's new law is going to involve substantial
capital cost increases for new prison construction. That is a cost
that Virginians are willing to pay to regain the liberty of their
streets and freedom from the fear of crime. The Federal Govern-
ment, in partnership, can greatly assist the Commonwealth of Vir-
ginia and other States by enacting the proposed truth-in-sentencing
grants legislation that is the subject of title V of your proposed leg-
islation.

Governor Allen and I were elected by the citizens of Virginia,
much like this 104th Congress, with a clear and explicit mandate
to address violent criminal conduct. It is in response to that man-
date that, as of January 1, 1995, Virginia has abolished parole, in-
stituted truth in sentencing and substantially increased the period
of incarceration for violent felons and has decided to pay for new
prison construction.

Now, a brief history of how these revolutionary changes in Vir-
ginia's criminal justice system came about may be helpful, I think,
to the subcommittee; and for this reason, I have provided to the
subcommittee copies of the final report of the Governor's Commis-
sion on Parole Abolition and Sentencing Reform. And copies of the
legislation enacted by the special session of the general assembly
of Virginia in 1994.

After a thorough and exhaustive analysis of the criminal justice
system within Virginia, the commission issued this final report
and, briefly, the commission found. No. 1, that although Virginia
has historically enjoyed low crime rates, as compared to the rest of
the Nation. Violent crime is almost certain to increase even more
unless we act now. This increase in criminal violence is expected
as a result of population surge in the most crime-prone, at-risk age
groups.



161

Second, violent criminals do not serve enough time in Virginia.
The most violent crime is committed by repeat offenders who have
been serving a very small fraction of their sentences before being
released back out onto the streets. For example, in Virginia an in-
dividual convicted of noncapital first degree murder, on average re-
ceived a sentence in Virginia of 35 years. But on average, that
murderer would serve about 10 years behind bars before being re-
leased on parole. Similarly, a rapist, on average, would be sen-
tenced to 9 years but would serve about 4 years.

In addition to that, there were other findings of the Commission.

Third, significantly, the commission found that longer periods of
incarceration for violent offenders will reduce the recidivism rate
and the toll in human suffering by victims. The commission esti-
mates that, under its recommendations, over a 10-year period more
than 26,000 violent crimes and more than 93,000 nonviolent crimes
will be prevented.

Fourth, Virginia's lenient parole system had contributed to the
crime surge in Virginia and contributes to the perception by the
criminals that they can beat the system.

Fifth, without truth in sentencing, Virginia had developed a mis-
leading system of punishing crime that undermined public con-
fidence in the criminal justice system, and that lack of confidence
is being expressed every day more and more by the public as the
years go on.

Under Virginia's new law, convicted criminals are required to
serve at least 85 percent of their imposed sentence, mirroring the
language in your proposed legislation. From a penological view-
point, inmates need some incentive to abide by the rules of incar-
ceration and some capability to improve themselves and return to
society as productive members of society. To accomplish this goal,
Virginia's inmates are given the opportunity to earn 4^2 good-time
days for every 30 days of incarceration. In short, as in the Federal
system, Virginia provides that inmates have the opportunity to re-
duce their sentence by up to 15 percent by following the rules and
through hard work and through training and education.

Legislation was also enacted to channel the limited resources of
the Commonwealth, similar to the intent of the truth-in-sentencing
grants legislation, to increase the length of incarceration for those
felons who commit violent crimes upon their fellow citizens.

As an example, the period of incarceration for a felon who com-
mits the crime of murder, rape, forcible sodomy, or aggravated sex-
ual battery has been increased under the new law in Virginia by
125 percent. And if the defendant is a recidivist felon, his punish-
ment is increased by 300 to 500 percent, depending on the nature
of his prior conviction.

For the crimes of voluntary manslaughter, robbery, malicious
wounding and burglary while armed with a deadly weapon, the pe-
riod of incarceration is increased by 100 or 300 or 500 percent de-
pending on the felon's criminal history. These substantial in-
creases — and this is not an exhaustive list — are based upon the fact
that three out of every four violent crimes in Virginia is committed
by a repeat offender of some stripe. If more of these career preda-
tors were behind bars, fewer Virginians would become victims of
their violence.



162

I believe that Virginia's new parole abolition and truth-in-sen-
tencing laws may serve as a model for other States and form an
important weapon in the fight against crime. And I believe that
Congress would be well advised to enact legislation to provide fund-
ing to encourage States to adopt criminal justice reform similar to
that that we have implemented in Virginia.

Now, of course, the Commonwealth of Virginia welcomes the as-
sistance of the U.S. Government in restoring safety and sanity into
the streets of our Nation. As the subcommittee deliberates on this
legislation, I would encourage you to be sensitive to the States' pri-
mary role under the Constitution in crime control and the need to
allow States flexibility in designing their programs.

So, in summary, I thank the committee for the opportunity to ap-
pear; and as attorney general for the Commonwealth of Virginia,
I, overall, wholeheartedly endorse this legislation that is before the
subcommittee, which is designed to assist and help the States to
address one, if not the most critical, issue that we face as Ameri-
cans today. And I offer the resources of my office to assist the sub-
committee in developing any further refinement of title V or any
other portions of the bill.

I thank the subcommittee.

Mr. McCOLLUM. Thank you very much, Mr. Gilmore.

[The prepared statement of Mr. Gilmore follows:]



163

Prepared Statement of James S. Gilmore III, Attorney General, State of

Virginia

Mr. Chairman - Members of the
Subcommittee - I eun pleased to appear before
you to testify on Title V - Truth in
Sentencing Grants - of the Take Back Our
Streets Act of 1995.

The Commonwealth of Virginia, together
with her sister states, is experiencing an
unprecedented explosion in violent crime.
Virginians do not feel safe and have demanded
that their government act decisively to quell
the violence in their communities. The
imperative is great to reform our criminal
laws and procedure to better protect the law-
abiding public from violence. Yet, legal
reform is only half the battle. We must also
increase prison facilities to house those



164

violent felons, so they cannot prey upon law-
abiding citizens. Without adequate prison
resources in which to incapacitate dangerous
felons, any program to increase public safety
is doomed to failure.

The Commonwealth has heard these demands
and has embarked upon a legislative policy
which abolishes parole, provides truth- in-
sentencing, and targets violent and repeat
offenders for stiff er penalties. It is well
understood that implementing Virginia's new
law will involve substantial capital cost
increases for new prison construction. It is
a cost that Virginians are willing to pay to
regain the liberty of their streets and
freedom from the fear of crime.



165

The federal government/ in partnership,
can greatly assist the Commonwealth of
Virginia and other states by enacting the
proposed "Truth in Sentencing Grants"
legislation.

Governor Allen and I were elected by the
citizens of the Commonwealth of Virginia,
much like this 104th Congress, with a clear
and explicit mandate to address violent
criminal conduct. It is in response to that
mandate that as of January 1, 1995, Virginia
has abolished parole, has instituted truth-
in- sentencing, has substantially increased
the period of incarceration for violent
felons and has decided to pay for new prison
construction .



166

A brief history of how these
revolutionary changes in Virginia's criminal
justice system came about may be informative
to the Subcommittee. For this reason, I have
provided to the Subcommittee copies of the
final report of the Governor's Commission on
Parole Abolition and Sentencing Reform and
copies of the legislation enacted by the
Special Session of the General Assembly of
1994.

After a thorough and exhaustive analysis
of the criminal justice system within
Virginia, the Commission issued its final
report. Briefly, the Commission found that:



167

1. Although Virginia has historically
enjoyed low crime rates as compared to
the rest of the nation, violent crime
is almost certain to increase even
more, unless we act now. This
increase in criminal violence is
expected as a result o£ a projected
population surge in the most crime -
prone/ at-risk age groups.

2. Violent criminals do not serve enough
time in Virginia. Most violent crime
is committed by repeat offenders who
had been serving a small fraction of
their sentences before being released
back on the street. For example, in



168

Virginia, an individual convicted of
non-capital, first degree murder on
average received a sentence of 35
years. Yet, on average that murderer
would serve only ten years behind
bars. Similarly, a rapist on average
would be sentenced to nine years, but
serve only four years .

Significantly, the Commission found
that longer periods of incarceration
for violent offenders will reduce the
recidivism rate and the toll in human
suffering. The Commission estimates
that under its recommendations, over
a ten year period, more than 26,000



16»

violent crimes and more than 93,000
non- violent crimes will be prevented.

4. Virginia's lenient parole system had
contributed to the crime surge in
Virginia and contributes to the
perception by criminals that they can
"beat the system."

5. Without truth in sentencing, Virginia
had developed a misleading system of
punishing crime that undermined public
confidence in the criminal justice
system.

Based upon the mandate of the citizens of
the Commonwealth of Virginia and the



170

extensive findings by the Governor's
Commission, the General Assembly, effective
January 1, 1995, abolished parole.

Under Virginia's new law, as under
existing federal law, convicted criminals are
required to serve at least 85% of their
imposed sentence. From a penelogical
viewpoint, inmates need some incentive to
abide by the rules of incarceration and some
encouragement to improve their capabilities
to return to society as productive members.
To accomplish this goal, Virginia's inmates
are given the opportunity to earn 4^4 days of
good time for every 3 days of incarceration.
In short, as in the federal system, Virginia
provides that inmates have the opportunity to
reduce their sentence by up to 15% by

8



171

following the rules and through hard work,
training and education.

Legislation was also enacted to channel
the limited resources of the Commonwealth,
similar to the intent of the Truth in
Sentencing Grants legislation, to increase
the length of incarceration for those felons
who coimnit violent crimes upon their fellow
citizens. As an exsmiple, the period of
incarceration for a felon who commits crime
of murder, rape, forcible sodomy or
aggravated sexual battery, has been increased
by 125% and if the defendant is a recidivist
felon, his punishment is increased by 300 or
500% dependent upon the nature of his prior
felony conviction. For the crimes of



172

voluntary manslaughter/ robbery, malicious
wounding and burglary while armed with a
deadly weapon, the period of incarceration is
increased by 100 or 300 or 500 percent,
dependent upon the felons' criminal history.
These substantial increases - and this is not
an exhaustive list- -are based upon the fact
that three out of every four violent crimes
in Virginia is committed by a repeat
offender. If more of these career predators
were behind bars, fewer Virginians would
become victims of their violence.

I believe that Virginia's new parole
abolition and truth- in- sentencing laws may
serve as a model for other states and form an
important weapon in the fight against crime.

10



173

And I believe that Congress would be well
advised to enact legislation to provide
fiinding to encourage states to adopt criminal
justice reform similar to what we have
implemented in Virginia. Of course / the
Commonwealth of Virginia welcomes the
assistance of the United States government in
restoring safety and sanity to the streets of
our nation. Yet, as the Subcommittee

deliberates on this legislation, I would
encourage it to be sensitive to the states'
primary role under the Constitution in crime
control and the need to allow states for
flexibility in designing their programs.^



wor exasiple, Seccion 504 enticled Special Rules subsection B provides for a geriatric exception dt age
TO to b« exersiacd by Che Governor oJ the respective state. This was an issue with uhxch the General ASieobly
and the Coitrdtiion wrestled . Virginia's gerlatrit provision differs from that contained within the prcpoited
l*gi»latior. Mfore this Suhcommlttee. Virginia law provides for diacristicir.ary ceriatrlc release at age 65 -i
Che innate has served . mininium of five years or at age £0 if the inmate has iTerved a mlnimuoi of ten years.
Each and every state will have to enact its own geriatric provisions or ot.ier details to deal with the



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 13 of 51)