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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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 15 of 51)
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we can do that.

And frankly, maybe it is only in Congress where we can easily
say it is only 3.5 percent of the people we are going to save and
not 127,000 people. To me, that is pretty important.

By the way, the study done by the Rand Corp. in the 1980's was
a survey done of California, Texas, and I think it was Michigan,
over 2,000 inmates in which they filled out a survey. The average
inmate admitted to committing 187 to 287 crimes per year and 10
percent of them admitted to committing as many as 600 per year.
There have been at least three national studies that have shown
between 5 and 7 percent of all criminals commit between 50 and
70 percent of all crime.



183

In Orange County, on a juvenile study called the 8-percent solu-
tion, an initial study showed that 8 percent of all juveniles commit-
ted 50 percent of all offenses. In other words, a very small number
of people commit an inordinate amount of crime. That is what
"three strikes and you're out" is all about and that is what truth
in sentencing is all about.

Mr. Bryant of Tennessee. Do each of you agree that this bill, as
proposed, fairly protects the rights of inmates on death row and
others, while at the same time providing society with a proper bal-
ance of retribution and deterrence? Do both of you agree or dis-
agree on that?

Mr. LUNGREN. The essential protections of the rights of the in-
mates are still there. It is inordinate delay, successive petition, the
abuse of the petition that even Federal judges that talked about
that, we are trying to reform.

Mr. GiLMORE. I would concur with that.

Mr. Buyer [presiding]. Thank you. The gentleman's time has ex-
pired.

The Chair will yield itself 1 minute for a particular question on
followup with regard to habeas corpus. Earlier, the question with
regard to postconviction relief, you have a unitary system in Cali-
fornia.

Mr. LuNGREN. Right, but you have postconviction relief. What
happens is, the California Supreme Court can look at both at the
same time, can look at the direct appeal and can look at the peti-
tion for a writ of habeas corpus, the collateral appeal. It is an effi-
cient process. We think it has worked well in California. It is effi-
cient because the court is going to be examining the transcript in
both events and when you see the massive transcripts that come
out of a capital case, you understand that.

Now, I don't say that every State ought to have that. All I am
saying is that under the Federal system — and whatever you do,
please continue to allow unitary review and perhaps even look at
it as a possibility for the Federal system.

Mr. Buyer. The Chair recognizes Ms. Lofgren.

Ms. Lofgren. For the attorney general of California, I am inter-
ested in your views on the proposed elimination of drug court and
the weakening of prevention language.

I am sure you are aware of the study conducted by Grovernor Wil-
son in October, a year-long study, October 1991 to September 1992,
that indicated — at least according to his study — that for expendi-
ture of $209 million in drug treatment, $1.5 billion in expense was
avoided in terms of crime expense, both victims as well as prosecu-
tion.

What is your view of this bill's change in drug treatment and
prevention in light of Governor Wilson's study?

Mr. LuNGREN. I am for prevention and punishment. I don't think
you have to be for one or the other. But I would say that every
State differs and every community differs and the greatest flexibil-
ity ought to be granted to the States to determine how much they
want to spend and in what priorities.

I believe in drug courts. I think they work on a — a very close
friend of mine is going to be just heading up the new drug court
in Orange County, CA. If I had a magic wand, one of the things



184

that I would require is that everybody be tested upon arrest, and
if they show any substance abuse that part of whatever sentence
they receive include drug assessment and drug treatments, and if
they can afford to pay for it, they would be required to pay for it.
That would not be in lieu of their other punishment. It would be
in addition to the punishment.

Ms. LOFGREN. So you would say it would be your recommenda-
tion, even if there is flexibility, there should be wide recommenda-
tion?

Mr. LUNGREN. My recommendation would be I would use the
block grants.

Ms. LOFGREN. You would use the block grants if you had your
druthers, as least in part for drug courts and drug treatment and
the like?

Mr. LuNGREN. I would. I would. But another State may not.

Ms. LOFGREN. I am wondering. I am from California and I want
to know

Mr. LuNGREN. Yes; I am just concerned about a mandate on
some States where it may not make sense. I think it would make
sense in our communities.

Ms. LoFGREN. I am interested also in your comments on abusive
lawsuits by inmates and that we could keep the money if we could
just relieve you from that expensive bother.

How would that help district attorneys in their prosecution if in
fact

Mr. LuNGREN. What I am sa3dng is that we prosecute cases, too,
and in California we do every appeal, every appeal from the time
that the DA finishes.

Ms. LOFGREN. But the local DA's still need additional money.

Mr. LuNGREN. If you have extra money lying around in Washing-
ton, send it to us.

Ms. LOFGREN. I am concerned that

Mr. LuNGREN. I am serious about that.

Ms. LOFGREN. I am not sure there are big piles.

Mr. LuNGREN. We can spend it very well.

Ms. LoFGREN. I have a concern that if we — ^you know, it is great
to arrest people, but if we lack the capacity for effective prosecution
and defense, things get bogged down and don't yield the results.

Another question, I was on the board of supervisors in Santa
Clara County for many years, and we were defendants in an in-
mates' rights lawsuit for 8 years that was a fairly chaotic and at
one point recently were ordered to buy exercise equipment for the
nuestra familia

Mr. LuNGREN. Right.

Ms. LoFGREN. You are familiar with that case, I know. The issue,
however, all of those rulings were based on California require-
ments. None of them were based on Federal rules, and especially
the board of correction standards in California that require very
precise measurements on how hot is the food and all of that sort
of thing.

What are you doing in California to relieve local governments
from — from arcane and sometimes ridiculous measures?

Mr. LuNGREN. Well, I supported repeal of the inmate bill of
rights. You recall that



185

Ms. LOFGREN. I knew that.

Mr. LUNGREN [continuing]. Governor Brown signed it into law.
But having said that, during the whole debate on that, I was very
honest in telling people that if we got rid of the inmate bill of
rights, it would take probably out of 1,000 cases, we would prob-
ably go down in 960 because the bulk of our cases are in Federal
court now. They are not in State court. They are not based on State
action. They are Federal actions.

I have gotten 1,100 cases in Federal court this year filed by these
prisoners. So they are finding that it is the Federal system that is
causing us our problems. And in most cases where you have tem-
perature requirements and so forth, that is as a result of a pre-
vious Federal court decision.

The previous administration was about the business of working
with States to dissolve consent decrees after the problem that the
consent decree had been directed at had been solved, recognizing
that, in fact, the Federal Government has an obligation to ensure
that unconstitutional deprivations of rights are not taking place,
but beyond that they ought to get out of the business.

Ms. LoFGREN. Well, I just say I think there does need to be some
remediation in this area. I don't disagree. But based on, you know,
Santa Clara County is the fourth biggest county in California, and
what has bedeviled us is the State rules, not the Federal rules. All
the cases have been filed in State courts and have consumed enor-
mous amounts of local money in terms of defense and frivolous re-
sponses.

At this point, I would like to 3deld the balance of my time to Mr.
Scott for some followup questions.

Mr. Scott. Thank you very much, Mr. Chairman.

I just wanted to make a comment because the attorney general
from California suggested a casual attitude about reducing crime
just 3 V2. percent. I would point out that it is not a question of how
much you can reduce crime but where you are going to put your
resources to the best good. We have studies that show that Head
Start reduces crime, saves more money than it costs. Job Corps re-
duces crime, saves more money than it costs, the Virginia CARES
Program has been studied, reduces recidivism 25 percent, saves
more money than it costs. The question is. Where are we going to
spend our money to get the best bang for the buck? If you could
spend a fraction of the money and reduce crime a lot more, then
that is where we ought to put our money.

And my question would be what do you tell the victims that you
did not invest in the — in the programs that save more money than
they cost, reduce crime and you allowed these crimes to happen?
That is our challenge, to use the money as effectively as possible
and get the most crime reduction.

Mr. LuNGREN. I understand that, Mr. Scott. I would just suggest,
though, when we have a limited amount of resources, it is not a
very good answer to a victim to say, I am sorry, we used that to
prevent crime 10 years from now. I have yet to meet a single victim
who dialed 911 and said. Can you tell me whether or not the per-
petrator went to Head Start? They usually say help, and help
means catch that person, bind up my wounds, and put them away
forever.



186

Mr. Scott. Last year we were told

Mr. Buyer [presiding]. The gentlelady's time has expired, Mr.
Scott. The Chair now recognizes Mr. Chabot.

Mr. Chabot. Thank you, Mr. Chairman.

A significant number of crimes are committed by people who are
either out on parole or probation or on pretrial release. In Cin-
cinnati, where I am from, for 8 to 10 years or so, we were unable
to double cell in our community because of a Federal court decision
a long time ago.

When I came to the county commission, I proposed that we take
that case back to court. We fought it in court, and lo and behold,
the court ruled in our favor. We were allowed to double cell. We
were able to put about 400 prisoners behind bars by double celling
them without building a new jail. We saved about $25 million.

My question is. Do you agree that many past Federal court deci-
sions on overcrowding, which have significantly caused prisoners to
be released onto our streets and perhaps kept the levels of pris-
oners at a lower level than they otherwise would be, has had an
adverse impact on communities' abilities to reduce crime? In other
words, have Federal court decisions unfortunately resulted in more
crime on our streets?

Mr. GiLMORE. We believe that those are substantial concerns. We
think that the Congress ought to be prepared to look at any — any
reforms that can, in fact, be made if they are founded upon Federal
statutes.

In Virginia, our focus has been to balance out the expenditures
that are going to be necessary in order to keep people safer in Vir-
ginia. We looked at the — as I said to the chairman earlier, we
looked at the amount of money that was going to be necessary any-
way to build and found that it was about $600 million in Virginia,
and we found that if we expended about another $250 million we
could, in fact, implement this much more progressive and forward-
looking program, which is designed to protect victims and to take
violent criminals off the street so that we can protect individual
citizens.

The beauty of the proposal that is before you is that this is an
opportunity for the Congress to work in partnership with all the 50
States in order to encourage States to, in fact, move ahead to truth-
in-sentencing, which it restores confidence in people into their gov-
ernment and also and get violent criminals off the streets.

I think it is a very forward-looking approach and that is why I
came from Richmond today to support it.

Mr. LUNGREN. Congressman Chabot, I would just say there are
examples of penal institutions that didn't meet the standards and
there was an appropriate place for someone to come in. The Fed-
eral Government did that in some circumstances. But they have
gone far beyond that in too many cases and we still have consent
decrees in existence that really don't deal with any deprivation of
right but rather an inclination or an attitude or an opinion as to
how you ought to do things.

That is why I was very pleased in the Bush administration the
last 2 years when they began working with localities and States in
dissolving those consent decrees where, in fact, any deprivation had
been removed.



187

And what I think we need here is the Federal Government to
maintain some responsibility but also — I know this is a word not
often heard, but exercise some humility. I mean, recognize that
maybe they don't know everything and that in some cases — and I
would like Federal courts to do that, as well.

There are problems out there. Yes; there are. And there have
been overcrowding problems that may have amounted to unconsti-
tutional deprivations, but not every overcrowding circumstance
does.

On the other hand, those of us in public life who have the ability
to put things before the voters have the obligation to say if you are
going to put people in prison, it is going to cost money. We ought
to have the guts to say it is going to cost money. We ought to have
the guts to go and get that money, as well.

Mr. Chabot. Thank you. One final question. Relative to the de-
terrent effect of the death penalty, capital punishment in this coun-
try. There are reasonable people, I would assume, and people of
good will that argue both sides of the death penalty. I am a strong
advocate for the death penalty, personally. I believe when one ar-
gues whether the death penalty is a deterrent or not, you have to
look at the length of death-penalty appeals in this country and the
fact that right now it may take 8, 9, 10 years. In John Wayne
Gacy's case, 16 years for the death penalty to be carried out.

I personally believe that it should be a much shorter death-pen-
alty appeals process. I would prefer 1 year, 2 years maximum
through both the State and the Federal prisons, but that is perhaps
to be argued on another day.

Do you believe that the deterrent value of the death penalty is
affected by the length of the death-penalty appeals process? Would
we have a stronger deterrent effect if we could reduce the time?
You commit a crime, you go to trial, you are found guilty, receive
the death penalty. If you knew that you were going to receive that
death penalty in 1 year or 2 years, would that make a difference?
It would be now

Mr. LUNGREN. I think so. I think so. Also, to have it carried out.
We have had the death penalty carried out twice in 27 years in
California. Not only is there a long time but it is not applied very
often. It is tough to tell someone there is a deterrent when it is
never carried out.

Mr. GiLMORE. My experience, both as attorney general of Vir-
ginia and also when I was a county prosecutor, is that the duration
of time that it takes definitely does impede the deterrent value. It
is still a statement of a moral value of the victim and I think that
is very, very important. But the length of time is a problem. After
12 years, the family still remembers but it is hard to sensitize the
community that what is being done is justice, which in the end
serves all the citizens.

Mr. Chabot. I agree with both of you, obviously, and I believe
that we would be going a long way toward reducing the number of
murders in this country if we had a death penalty that really
meant something in all those States that enacted the death pen-
alty. It is ridiculous to have people on death row for 10, 12, 15
years. Thank you.



188

Mr. Buyer. The gentleman's time has expired. The Chair now
recognizes Ms. Jackson Lee for 5 minutes.

Ms. Jackson Lee. Mr. Chair, thank you very much, and I think
I started this morning again raising up the specter of crimefighting
and the importance, if you will, of making sure that that is the col-
lective effort of all of us.

Mr. Lungren, you mentioned a comment and you mentioned you
didn't want to laugh about any of this and I agree with you totally.
I think all of us come here for a very serious matter. And we have
come particularly to work on behalf of law-abiding citizens and to
assure a sense of fairness and justice, as you mentioned.

I would hope that the crimefighting approach is a truthful
crimefighting approach so that we can get the best attack on some-
thing that has been on the minds of Americans for a number of
years.

The difficulty I have, if we look at the last election, some 63 per-
cent of the persons in this country did not vote. So it certainly is
important that we reflect in our deliberations the idea of attempt-
ing to represent all of the citizens.

I am delighted to have in the audience a former district court
judge from the city of Houston, Judge Ruben Guerrero, who ably
rendered justice but rendered it very swiftly, and I think that is
important as it relates to responding to the needs of victims, but
as well emphasizing what justice is and what fairness is.

If I could just explore with you, Mr. Lungren, a little bit more
on your, I think, relaying in your testimony comments about ha-
beas corpus to try and find out what your objection is to that proc-
ess, whether it deals more with it is too long, it is too expensive,
or is it that you object to just the entire idea? How is your pitch
on that issue?

Mr. Lungren. Well, I believe that one has a right to a direct ap-
peal, one has a right to a collateral appeal. I believe with the rec-
ommendation of the Powell Commission that we ought to take a
one-bite-at-the-apple approach in terms of the collateral-appeal
process and that it ought to be timely made.

You always have the protection that if there is a claim of a con-
stitutional deprivation and an innocence that that would overcome
any time limits. But outside of that limitation, it seems to me very,
very fair to say that you have a period of time in which you bundle
all of your claims together with respect to collateral attack on your
conviction and/or sentence.

Even with that, we would be giving death-row inmates far great-
er procedural protection than any other criminal defendant re-
ceives. Even with that, we would already have allowed that defend-
ant to be the beneficiary of a bifurcated trial, which is not man-
dated in other crimes, although some States have it in other crime
situations, and you would have a standard of review in terms of
competency of counsel that is equal to and in most cases probably
higher than any other defendant of any other type of crime.

So I have no problem whatsoever with giving those rights and
the protection of those rights to even those who commit the most
egregious of crimes. What I have a problem with is successive peti-
tions, lack of timeliness and the ability to forestall the final execu-



189

tion by procedural — procedural gamesmanship that really doesn't
go to the question of guilt or innocence.

Ms. Jackson Lee You would not, then — ^you are not here argu-
ing, then, to put the Federal courts out of business, nor are you
suggesting

Mr. LUNGREN. No.

Ms. Jackson Lee [continuing]. That you want to remove from
the Federal courts the right to review constitutional claims.

I know that some — looking at some of your past legislation — I
understand you are a former Member — and it was brought to my
attention, had the opportunity to review some of that, that some
of your legislation may have seemed that way. But you are not ar-
guing that point or the right for them to look at constitutiongil
claims.

Mr. LuNGREN. Anybody that saw it that way, they were wearing
glasses that weren't fitted correctly.

Ms. Jackson Lee. Well, I am glad to hear that. I wanted to just
explore further this whole idea. There is a bill that was introduced
in the Senate that mentioned a provision that will require the Fed-
eral courts to defer to State courts, and I am not sure whether or
not that is the kind of bill that you would want. Part of some of
the information that I have looked at is having you acknowledge
that you would want a full and fair provision, which I don't think
is in H.R. 3.

Mr. Lungren. Correct.

Ms. Jackson Lee. Would that be the kind of bill that you are
asking for that the Senate has?

Mr. Lungren. Full and fair? Sure.

Ms. Jackson Lee. No. Contains a provision that requires the
Federal courts to defer to State courts.

Mr. Lungren. Well, that is a type of deference. It doesn't mean
you never look. It says you defer to the State courts if they have
granted a full and fair exposition of the issue. Or another way of
looking at it is that you defer as long as the decision made by the
State court is within a reasonable standard. Not the particular de-
cision you may have made as a Federal judge, because it goes to
the question of a substitute judge or a Monday-morning quarter-
backing judge. And what I tried to suggest is when the Federal
Government — when the Federal judiciary imposes itself, it is im-
posing itself in an extraordinary way and it ought to understand
it is an extraordinary way. If, in fact, we can't trust State courts,
then let's get rid of the premise and let's just go to a full Federal
trial court system of all criminal cases.

Ms. Jackson Lee. I don't hear you saying that. I appreciate you
explaining. I hear you saying they can work together and that
there needs to be a process that recognizes the Federal courts and
recognizes State courts.

I want to yield some time to my colleague, Mr. Scott. Let me con-
clude by simply also asking you a question.

I don't want to bog down the State courts. I don't want to see
the process of the Federal courts prevent the kind of response that
we all want, which includes fairness but as well includes a recogni-
tion of crime victims. At the same time, however, you have an ABA
study that talks about competent counsel across this Nation in



190

terms of some of the indigent cases. Do you think that is also a
remedy that we should look to, a provision that talks about insist-
ing upon competent counsel so that we cannot attribute or contrib-
ute, rather, than to bogging down the courts because of that issue?

Mr. LUNGREN. The question is whether or not the Federal Gov-
ernment ought to mandate a mechanism for determining com-
petency of counsel. That is, the Federal Government establishing a
mandate, as they did in the initial version of the crime bill of 2
years ago that says you must have two counsel, you must establish
standards, it must be done by a certain date. If it is not done by
that date as far as the system is concerned, you lose any deference
to the courts in terms of fact determination.

Ms. Jackson Lee. Let me yield 10 seconds to my colleague.

Mr. SCHIFF [presiding]. I have to say that the lady's time has ex-
pired, and I recognize now the gentleman from Georgia, Mr. Barr.

Mr. Barr. Thank you, Mr. Chairman.

I would like to thank both distinguished attorneys general for
being here. I think that the points they have made are very well
reasoned, borne of tremendous experience, both out in the field and
in the arena that we find ourselves in up here in Washington. And
I think that they have added a great deal to the debate. I have just
a couple of specific questions.

Mr. Gilmore, with regard to the truth-in-sentencing provisions of
the bill that you have discussed and obviously have looked at in
great length, I would draw your attention to section 504, which
makes special provisions for States which have indeterminate sen-
tencing policies and ask you if that is a wise provision to leave in
the bill as sort of a safety valve or whether removing it would
make the overall truth-in-sentencing goal in this bill a little better.

Mr. Gilmore. I have evaluated it. I have got some concerns
about the inclusion of the indeterminate sentencing simply be-
cause, of coursQ, if you set a standard that says that by a particular
10 percent of the national average you will become self-fulfilling;
if everyone comes up to that same average, then they are not any
longer in compliance.

I am concerned about that. We can discuss that. I can submit



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 15 of 51)