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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some additional information to the committee on that. We in Vir-
ginia have a geriatric release proposal as part of our overall pro-
gram at age 65. This contains 70. We can also discuss what is ap-
propriate there. But I am happy to submit additional information
to the committee.

Mr. Barr. OK. That would be useful I know to me and I would
hope the rest of the committee.

[Information not received by time of printing.]

Mr. Lungren, returning to the issue that you spent most of your
initial period of time on and that is habeas reform, in your opinion,
should the periods of limitation be different for persons convicted
in State and Federal courts as they presently are in the H.R. 3 lan-
guage or should those periods of limitation be identical?

Mr. Lungren. I don't have any difficulty with the limitations
that are in the present bill right now.

What I have talked about before in terms of the different treat-
ment that one receives from a State court consideration versus Dis-
trict of Columbia was the standard of review, not time; that is, Dis-


trict of Columbia trial courts get a differential treatment of full and
fair, approximately, and State courts do not get that same treat-
ment. So that is where I saw a differential treatment that made
a real difference as far as I was concerned.

Mr. Barr. ok. I agree with you that that is the more important
aspect of it. If I could, in conclusion, just ask each one of the attor-
neys general to comment briefly on the topic that we haven't
touched on today thus far but I suspect you have — both of you have
opinions on and that is title VI of the bill, the exclusionary rule re-
form. Could you give me briefly your opinions on those provisions
of this legislation?

Mr. LuNGREN. I support it. I carried that legislation in 1980,
1982, 1984 and people have to understand what it is. It says basi-
cally that a court reviews to see whether or not there was a good
faith determination by the law enforcement officer at the time. The
U.S. Supreme Court has allowed that in warrant cases. This would
extend it to warrantless cases, as well.

It is not an excuse for police to break down the door because
there would be an after-the-fact judicial determination as to wheth-
er or not the police officer, at the time he made the judgment,
made a reasonable determination of the constitutional require-
ments at that time. I think it is very important.

Mr. Barr. Mr. Gilmore.

Mr. Gilmore. I think one of the concerns that we are tr5dng to
address here and that we hope to address in the future is the con-
cern of individual citizens' overconfidence in their Government. The
exclusionary rule weaves into that fabric because historically it has
been seen as a way of using a technicality to allow sometimes the
most heinous criminals to go free to prey upon other people.

The good faith exclusion, with a good faith exception to the exclu-
sionary rule, I think you begin to recognize that the purposes of the
criminal justice system are being taken care of If the police are
conducting themselves in a way to do their jobs in good faith and
are not trying to violate the law, then ultimately I think the citi-
zenry believe that the trial process ought to be a quest for truth
and for justice, and I believe that revisions along those lines would
restore people's faith in government.

Mr. Barr. Thank you both, and I yield back the balance of my
time, Mr. Chairman.

Mr. SCHIFF. Gentlemen, I would like to take 1 more minute of
your time. I have to apologize in advance, I did not hear all of your
testimony. I was required on the House floor to speak concerning
a bill on unfunded mandates, which is perhaps another issue attor-
neys general would be interested in. But I would like to ask about
the proposals to reduce good time credit that allows the early re-
lease of those convicted and sentenced to prison through the crimi-
nal justice system.

I very much favor what has been labeled truth in sentencing,
that those convicted of crimes, especially violent crimes and sen-
tenced to prison, should serve at least 85 percent of whatever sen-
tence that is. It is my understanding, Mr. Gilmore, that the Com-
monwealth of Virginia is currently moving in that direction. Could
you please elaborate on what is happening in Virginia?


Mr. GiLMORE. Congressman, we are. The provisions that we have
put in in fact do incorporate truth-in-sentencing and that 85 per-
cent is the period of time that is expected to be served. It is, I
think, a very forward-looking proposal in that it not only injects
truth into the system, as I discussed with the other Congressmen,
but in addition to that, the time off that can be obtained, now up
to 15 percent in Virginia, which mirrors exactly your proposals
here, needs to be earned. Something productive and positive has
got to be done in order to obtain that time off. Education, work,
something useful where the person, in fact, gains the self-dignity
and self-worth that we believe is so important to any notion of re-

So we are, first of all, incapacitating violent criminals so that
they don't prey on other victims. We are injecting truth into the
system to restore citizens' confidence in the criminal justice system,
and we believe that our more progressive approach of requiring
worker education is something that, in fact, inures to the benefit
of the prisoners.

Mr. SCHIFF. Attorney General Lungren, would you like to com-
ment on that?

Mr. Lungren. Be happy to.

As one of my favorite political scientists. Yogi Berra, once said,
it is deja vu all over again. I carried the bill in 1984 that brought
truth in sentencing to the Federal level and in fact I coined the
phrase when we were trying to figure out some sort of short sen-
tence or short term that we could use to explain to people what we
were doing.

We have moved in California only part of the way. I sponsored
legislation to have the 85-percent rule prevail for all felons. What
we have right now is the result of legislation signed by the Gov-
ernor last October, November, is truth-in-sentencing, 85-percent
rule for serious or violent felons only. I think it ought to extend to
all felonies.

Mr. SCHIFF. Let me say I agree that truth-in-sentencing should
apply to all those who are convicted and sentenced to prison. This
does not say every convicted criminal has to be sent to prison, but
those who are should serve the term. I regret to say my State of
New Mexico I think is at the bottom on this issue because our
State gives up to 50 percent off for convicted murderers and other
violent criminals. So I am pleased to hear of the movements in
your States and hope my State will emulate you.

I would like to yield the balance of my time to the gentleman
from North Carolina, Mr. Heineman.

Mr. Heineman. Thank you, Mr. Chairman. I would like to ad-
dress this question to each of you attorneys general. In the bill
H.R. 3, it makes a provision for prison construction and it ties that
into a 3-year limitation for the States to get up to speed to incor-
porate a truth-in-sentencing law or the truth-in-sentencing process.

Is 3 years long enough, or would the process itself take longer
to receive Federal moniey for prison construction and abide by that
stipulation that you need to be in place on truth-in-sentencing?

Mr. GiLMORE. Well, we moved fast in Virginia. Within the first
year, the Governor called a special session. He announced it at the
very early part of his term. He called a special session after about


6 or 7 months. After due time for deliberation in the community
and in our legislature was afforded, the — a study and commission
worked through that year and came forward with a very forward-
looking approach. So we were able to move fast in Virginia and
that is our experience. We certainly think that the faster that these
things are — come into play, the more victims will be saved.

Mr. LuNGREN. For California, it shouldn't be a problem because
we have a legislature that meets every year. That may be a prob-
lem for other circumstances. But in terms of the ability to do that,
there are some States that only meet once every 2 years. It might
be difficult for them. Again, it would be of a major assist if we got
some funding in terms of our prison expansion program.

I might say a way in which you could add to that would be to
have the Federal Government take its responsibility for Federal
prisoners. In the area of immigration, there is a reluctance on the
part of the Justice Department to proceed against people who have
committed crimes in our State who are here illegally. I have writ-
ten the Attorney General to inform her that we have identified
1,223 ex-felons in California who committed felonies, were con-
victed, were sentenced, who served their time, were turned over to
the Immigration and Naturalization Service, were formally de-
ported and they are back in California. And the reason I know?
They report to their parole officer on a regular basis. They are
more afraid of not reporting to their parole officer than they are of
being found by the Feds.

Now, there are 1,223 ex-felons who, upon returning to California,
have violated Federal law and could be put away from between 10
to 12 years because — if they had — were convicted of violent crimes
as part of their history, and yet, we can't get any action. And I will
tell you, that sends a message out on the street. Most illegal aliens
are not committing crimes. But there is a small, but not insignifi-
cant, percentage that is, and the message out there is the Federal
Government doesn't take that seriously. So while you are looking
at helping us with prisons, if you could try and throw a bone to
the Justice Department to do the job they are supposed to be doing,
that would help us, too.

Mr. Heineman. Thank you.

Ms. LOFGREN. Would the gentleman yield?

Mr. SCHIFF. It is my time. I will yield such time as I have left
to the lady from California.

Ms. LoFGREN. Thank you. On the issue of immigration, one of
the questions that has often been raised to me and I am wonder-
ing, Mr. Lungren, what you think, is why we wait to deport indi-
viduals until after they finished their sentences and whether in
nonviolent felony cases the deportation ought to proceed the service
of the time. What is your reaction?

Mr. Lungren. You don't want the Immigration and Naturaliza-
tion Service interfering with what a State determines to be the
time, the sentence that someone ought to serve. If States want to
have some sort of system where for nonviolent offenders they allow
them serve a short period of time and then turn them over to INS,
they can do that. You then have to have the INS to respond.

Where I think people make an error is assuming that if you
would send them to another — you know, you happen to be here ille-


gaily, you commit a crime. Instead of serving your sentence, you
are immediately deported. You don't want to give people a free ride
to commit crimes here. At the same time, we do have a treaty with
a number of states — a number of countries, including Mexico,
where if they accept the prisoner, we can send the prisoner down
to Mexico to serve their time, but it requires the voluntary partici-
pation of the prisoner. Some people want to get rid of that. I am
not sure how we could ever get rid of that when you have Federal
judges looking legitimately at the Federal constitution.

So we need a better working relationship with the Immigration
and Naturalization Service and to take seriously the problem that
some of these people are creating for our criminal justice system.
I think if they focus some of their activity on those individuals,
they would be doing a greater benefit to those of us in the States
that see the impact on the criminal justice system of that relatively
small number of illegal aliens but who are growing in numbers in
our prison system, in our county jail system and in our criminal
justice system throughout.

Ms. LOFGREN. If I can just follow out. Many local jurisdictions
give sheriffs parole to, say, someone who has done petty theft with
a prior and they are, of course, doing local time as a felon if they
will agree to leave. So I think there is room, and I understand the
role of sentencing. But I would like to explore further the option
in specific cases of deportation prior to sort of

Mr. LUNGREN. Providing, we can find out that they are not here

Mr. SCHIFF. I hate to interrupt on such an important subject, but
in the interest of other panels who are waiting, I would like to
thank again both the attorney general from California and the at-
torney general from Virginia for testifying before our subcommit-

And I would like to welcome our next panel to assume the wit-
ness chairs. Our next panel will provide perspectives on local law

First, we have Victor Ashe, the mayor of Knoxville, TN, since
1988 and the president of the U.S. Council of Mayors. Mayor Ashe
was elected to the State legislature at the age of 23 where he
served for 15 years prior to becoming mayor. He is no stranger to
Washington, DC, having been honored to serve on several Presi-
dential Commissions.

Our next witness after that is Mr. Robert Macy, the district at-
torney of Oklahoma City, OK, since 1980. He is the past president
of the National District Attorneys Association and served on the
Executive Working Group of the U.S. Department of Justice. Mr.
Macy has been one of the Nation's leading death penalty prosecu-
tors over the last decade.

Our final witness on this panel will be Mr. Carl Peed, sheriff of
Fairfax County, VA. Having served in that position since 1990, he
was previously chief deputy sheriff for 10 years and was from 1970
to 1972 a member of the Presidential Honor Guard, U.S. Army.

Gentlemen, welcome to the panel. And I would remind you your
written statements, without objection, would be made a part of the
record, so I would ask you to summarize so the Members could get
to questions as soon as possible.


We will begin by recognizing Mr. Ashe.


Mr. ASHE. Thank you very much, Congressman, members of the
Subcommittee on Crime. I am Victor Ashe, the mayor of Knoxville,
TN, and president of the U.S. Conference of Mayors. I am here rep-
resenting not only the conference but also the National League of
Cities today, which one of your Members used to serve on our
board of directors not very long ago, the lady from Texas.

I want to compliment you on your approach. The bill that is
pending before you, H.R. 3, in providing funds for local govern-
ments for both additional police officers and for prevention through
the law enforcement block grant.

You have crafted this legislation in what we think is a reason-
able compromise to the debate of prevention versus enforcement,
and you have done it in a way that provides local officials with
flexibility and the opportunity to design an approach to controlling
crime and violence that reflects the communities' needs, and I
think this will serve our cities well.

Just over a year ago, the Conference of Mayors brought together
mayors and police chiefs to develop a national action plan to com-
bat violent crime. This was adopted as the policy by both the Con-
ference of Mayors as well as the Major City Chiefs' Association and
calls for a balanced approach to addressing the problems of crime
and violence. It calls for flexible Federal assistance to cities to in-
crease the number of police officers engaged in community policing.
It calls for addressing the root causes of crime through a variety
of preventive measures. It calls for enhancing the various compo-
nents of our criminal justice system and for expanding our efforts
to control drug abuse and drug trafficking. That plan was the basis
of our efforts last year in our work with the Congress and the ad-
ministration on a crime bill that makes a difference for our cities.

As you know, the Conference of Mayors strongly supported this
legislation last year. But that is not to say it is a perfect bill. There
are provisions in it that we would have liked to have seen written

As a former State legislator myself, we all have to vote on pieces
of legislation where we may not have written it that way but we
have to decide whether in the final analysis it is up or down.

It was an amalgam of different legislative proposals and points
of view and we have worked hard since it was signed into law to
see it implemented. The Department of Justice has done a solid job
in getting the COPS program moving quickly. Attorney General
Reno and General Schmidt, who was here earlier today, has
worked hard to get the COPS program off the ground. What was
essentially a brand new, complex program is up and running and,
more importantly, new police officers are now in training and some
even on the streets of our cities as a result of the quick implemen-
tation of the program.

The law enforcement block grant included in H.R. 3, however,
builds upon and, in our opinion, improves upon last year's law. It
provides local governments with direct funding through a formula-
based allocation which they can use to hire and train new police


officers and support personnel, pay overtime to existing officers and
support personnel, secure equipment and technology related to law
enforcement, enhance school security, and establish crime preven-
tion programs. Those are decisions that will be made at the local

In Knoxville, Chief Phil Keith, our police chief, and I, working
with the community, would be able to design a strategy that builds
on existing efforts and combines increased enforcement and preven-
tion in a manner that responds to the needs of Knoxville. Local offi-
cials know best what those needs are and they are different in
every city, just as they are different in every State.

Local officials know if they need to hire and train new officers;
increase civilianization, for example, within their police department
so the sworn officers can spend more time out on the streets; or
purchase equipment to help link police to the citizens they serve;
or to provide increased alternatives and hope to young people in
particular that will prevent crime from occurring in the first place.

In terms of the bill that Congressman McCollum has drafted
here today, there are several comments that we would add.

We do suggest that the language relating to crime prevention ac-
tivities be made more flexible. We suggest that you drop the
phrase, "substantial participation," so — that that be dropped so
that it is clear that law enforcement officials must be involved in
any prevention activities funded, but perhaps not as intimately as
the phrase currently written would suggest.

In addition, we suggest that the reference to neighborhood
watches and citizen patrols either be dropped or greatly expand the
list of examples and the kinds of efforts that could be funded. We
think dropping the reference makes the most sense, but we would
not simply by naming those two inferentially appear to exclude oth-
ers such as the DARE Program and that type of thing. I don't think
that would be the intent of the committee.

Allocating the funds among the States on the basis of part 1 vio-
lent crimes reported to the FBI and then among cities within the
States on a basis of part 1 violent crimes and population seems like
a fair and targeted approach. We do need to make sure that it does
not penalize those communities which on their own have made
strides in reducing crimes in the last few years.

We also need to make sure the former addresses the needs of
suburban communities which are seeing significant increases in
their lower crime rates because the crime problems of the central
cities often become the crime problems as they extend out across
those borders.

Finally, we need to make sure that local governments with a
high crime rate, which are located in States which may overall
have a low crime rate are also not penalized. Obviously, no formula
is perfect and that is a tough thing to wrestle with and there are
always winners and losers. But you may want the appropriate Fed-
eral agency to do a run on the allocation system proposed in this
legislation until you can see how fairly it may actually work out
if this bill becomes law.

It is also our interpretation, at least the staff of USCM advises
me, that the funding available for costs associated with additional
police officers would be up to 5 years, not 3 years as in the current


law. If that interpretation is wrong, then I hope we can make sure
that we can work with you that the funds would be available for
the full 5 years. We would see that, if that interpretation is true,
to be a good improvement over last year's bill.

Additionally, this provision, along with the elimination, the
elimination of the matching requirement addresses the tight fiscal
conditions of our cities quite responsibly and we commend the
sponsor for that provision in the legislation.

And while we greatly appreciate the flexibility this legislation
provides to local police departments in determining their own polic-
ing strategies, we do not want to see a change in the Federal pro-
gram signal a retreat from community policing. It has worked well
in many of our communities. We are not suggesting you modify the
language in the block grant to require departments to do that, but
you may wish to consider language that would encourage that be

Let me also add that many of the research and demonstration ef-
forts related to community policing have been undertaken through
the Office of Justice Programs, in particular through the Bureau of
Officer Assistance, and they have also been helpful to our cities.
We want to make sure that those efforts are not curtailed by any
of the proposed legislation.

Our final comment may be most important of all. In section 507
of the bill which authorizes funds for truth-in-sentencing grants,
there is a restriction that no funds may be used for other purposes
authorized by this act unless the prison grants program is fully
funded by Congress. This sets a priority for prison grants ahead of
law enforcement grants.

As we see it, we do not agree with that approach. What is most
critical is making our cities safer. We believe first and foremost
that is the goal with law enforcement, and many cities are making
great strides in forming partnerships with communities that pre-
vent crimes in neighborhoods, as well.

Let's always remember that a crime prevented has no victim; it
doesn't clog our courts and it doesn't require prison space and,
clearly, that must be one of our first priorities. Obviously, prison
grants are important as well, but we cannot simply fix one end of
the justice system without looking at the other. We would suggest
that subsection (b) be dropped so that the two main funding
streams established for State and local governments through this
bill are treated fairly.

And while we would be delighted to see the Congress fund the
prison program fully, if for some reason that didn't happen, and
you never know what one body or the other might do, particularly
the other body here today, we do not want to see the rest of the
bill jeopardized if for some reason the full funding did not occur
and we would suggest that the committee look at that. As a former
State legislator myself, I understand the vagaries of the legislative
process and what is going well in one house may not go so well in
the other house, witness unfunded mandates.

And while my testimony today is focused on the law enforcement
block grant, there are other comments that I would like to make
just briefly on the bill. We are concerned that alternatives to con-
ventional incarceration facilities, such as community-based facili-


ties, cannot be funded through this bill. We suggest that you con-
sider providing them the same type of flexibility in the prison fund-
ing that this bill provides in the local law enforcement funding so
that States and localities can have the flexibility in determining
how to address their prison needs most effectively.

We are also concerned that States are no longer required to con-
sult with local governments as it develops its application for the
use of prison grants, and that there is no encouragement to the
States to share those funds with local governments that operate
correctional facilities. In Tennessee, we know oftentimes State pris-

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 16 of 51)