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 22 of 51)
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MENTALITY THAT IS NOW BEING USED ON THE CRIMINALS IN
PHILADELPHIA BECAUSE OF THE PRISON CAP. WE'RE ONLY GOING TO
ARREST YOU FIVE MORE TIMES OR SIX OR SEVEN. THAT IS OF COURSE,
IF YOU DON'T KILL, MAME OR RAPE SOMEONE IN THE MEANTIME.

I HAVE TWO BROTHERS. BUD, IS RETIRED ON A DISABILITY PENSION
FROM THE POLICE DEPARTMENT AND MIKE IS A LIEUTENANT IN A
PATROL DISTRICT. MY BROTHER-IN-LAW, BOB WAS ALSO A POLICE
OFFICER. HE WAS SHOT IN THE LINE OF DUTY AND CAME VERY CLOSE
TO LOSING HIS LIFE WHEN HE ATTEMPTED TO ARREST TWO MALES
WHO HAD JUST ROBBED A BAR AND ITS PATRONS.



250



MY SON DANIEL BOYLE GRADUATED FROM THE POLICE ACADEMY IN
JUNE 1 990 AND WAS ASSIGNED TO PATROL IN A HIGH CRIME DISTRICT.
ON FEBRUARY 4TH 1991 ABOUT 2:40 A.M. DANNY OBSERVED A VEHICLE
TFIAVELING THE WRONG WAY ON A ONE WAY STREET. DAN STOPPED
THE VEHICLE, WHICH HAD BEEN STOLEN EARLIER THAT EVENING. THE
DRIVER JUMPED FROM THE AUTO AND IMMEDIATELY BEGAN FIRING A
9MM SEMI-AUTOMATIC HANDGUN AT DANNY. ONE OF THE MANY SHOTS
FIRED STRUCK DANNY IN THE RIGHT TEMPLE. DESPITE HIS WOUNDS,
HE WAS ABLE TO ASSIST FELLOW OFFICERS BY GIVING A DESCRIPTION
OF HIS ASSAILANT AND THE DIRECTION OF ESCAPE. IN SPITE OF ALL
THE HEROIC EFFORTS OF FELLOW OFFICERS, DOCTORS AND NURSES,
DANNY DIED ON FEBRUARY 6TH 1991. DANNY WAS 21 YEARS OLD AND
SERVED PROUDLY FOR ONE YEAR AND ONE DAY.

THE FOLLOWING FEBRUARY 1992, THE TRIAL WAS CONDUCTED FOR
DANNY'S KILLER. HE WAS TRIED BY A JURY, CONVICTED OF FIRST
DEGREE MURDER AND SENTENCED BY THAT SAME JURY TO THE
DEATH PENALTY. AT THE CONCLUSION OF THE TRIAL. THE PRESIDING
JUDGE STATED IN OPEN COURT AND FOR THE RECORD, THAT THIS
SENSELESS MURDER SHOULD NEVER HAVE HAPPENED. DANNY'S
KILLER HAD BEEN ARRESTED AND RELEASED WITHOUT POSTING ANY
TYPE OF BOND. HE IGNORED TWO BENCH WARRANTS AND WAS FREE
TO COMMIT WHATEVER CRIME HE CHOSE. INCLUDING THE MURDER OF
DAN. DANN'Y DEATH WAS A DIRECT RESULT OF THE PRISON CAP.

EVERY POLICE OFFICER ACCEPTS THE RISKS WHEN THEY PIN ON THE
BADGE. WE ARE FORCING OUR POLICE TO PUT THEMSELVES IN
DANGER TIME AND TIME AGAIN. BY THE VERY FACT THAT THEY MUST
ARREST AND REARREST THE SAME CRIMINALS. THE SAME CRIMINALS
ARE JUST RETURNED TO THE STREETS TO COMMIT YET MORE CRIMES
AND IGNORE JUDICIAL PROCEEDINGS.

AS A CAREER MEMBER OF THE LAW ENFORCEMENT COMMUNITY, I
KNOW FIRST HAND OF THE PROBLEMS WE FACE. IN LATE MARCH OF
LAST YEAR I ARRESTED A MALE FOR BURGLARY. HE HAD BEEN



251



ARRESTED IN EARLY MARCH FOR THE SAME CRIME AT THE SAME
LOCATION. THIS INDIVIDUAL HAD TEN OUTSTANDING BENCH
WARRANTS. HE HAD BEEN RELEASED NINE TIMES WITHOUT POSTING
BOND, BECAUSE OF THE PRISON CAP. REMEMBER THE STORY OF THE
PARENTS WHO WERE ONLY GOING TO TELL THEIR CHILDREN FIVE
MORE TIMES. WHEN WE DO THAT IN THE CRIMINAL JUSTICE SYSTEM
THE RESULTS ARE OFTEN DEADLY.

YES, THE PRISON CAP WORKS. IT WORKS FOR THE CRIMINALS WHO
KNOW THE SYSTEM BETTER THAN THOSE OF US WHO WORK IN THE
JUSTICE SYSTEM, IT WORKS FOR THE DRUG DEALERS WHO KNOW THE
LIMIT THEY CAN CARRY WITHOUT POSTING BOND OR GOING TO COURT.
IT WORKS TO THE BENEFIT OF EVERY CRIMINAL WHO CAN COMMIT ANY
CRIME THEY WISH WITHOUT FEAR OF BAIL OR JAIL.

BUT WHAT OF THE HONEST, LAWABIDING CITIZENS OF PHILADELPHIA?
THEY HAVE BEEN VICTIMIZED AND HELD HOSTAGE BY THE PRISON CAP
LONG ENOUGH. CAN ANYONE EXPLAIN TO THE FAMILIES OF THE OVER
100 MURDER VICTIMS WHY THEIR LOVED ONES HAD TO DIE? CAN
ANYONE EXPLAIN TO THE OTHER 6,000 VICTIMS OF RAPE, ROBBERY,
BURGLARY. ASSAULT AND OTHER CRIMES THAT THE PRISON CAP IS
WORKING? CAN ANYONE EXPLAIN TO ME AND MY FAMILY WHY DANNY
HAD TO DIE?

LADIES AND GENTLEMEN, I BEG YOU TO HELP US RESTORE SOME
SANITY TO THE CRIMINAL JUSTICE SYSTEM IN PHILADELPHIA, HELP US
TO PUT A STOP TO THIS MADNESS. THANK YOU.



I



252

Mr. McCOLLUM. Ms. Abraham, we know you have only a little
while with us. We would like your testimony. If there is time for
questions, we will take those before we go on to Mr. Bronstein.

STATEMENT OF LYNNE ABRAHAM, DISTRICT ATTORNEY,
PHILADELPHIA, PA

Ms. Abraham. I thank the Chair.

Chairman McCollum and others, after listening to Detective
Boyle's statements, he knows that I am supposed to be in front of
the FOP tonight, but I have called Philadelphia and told the FOP
that since I am with Pat Boyle and Mrs. Boyle that they will just
have to wait. So I have decided to stay the course, as the saying
goes, and submit myself to questions.

Mr. McCollum. Very good. We are pleased to hear that. We will
proceed normally.

Ms. Abraham. If I could ask the Chair and members of the com-
mittee, rather than read my statement, I have prepared some re-
marks. And if I could, I have edited them somewhat. But rather
than read them, I would appreciate if they would be admitted to
the record.

Mr. McCollum. Yes. I may say that for all three witnesses, if
you have written statements, they will be included in the record
and summaries are much more appropriate. And being relatively
brief will help all of us.

Ms. Abraham. And they have been previously submitted to the
committee. And I thank the committee and the Chair for being so
gracious for inviting me.

You will notice that there is a fourth party sitting beside me. She
is Sarah Vandenbraak, S-A-R-A-H, V-A-N-D-E-N-B-R-A-A-K,
the chief of my civil appeals division in the city of Philadelphia,
and she has been handling all of the prison litigation since 1986,
so that if there are substantive questions of the committee which
I am unable to answer or I — if I defer to her, I would appreciate
the responsibility being passed on to her.

I come to the committee in the unique perspective of a prosecutor
who has the experience of being a small-time prosecutor, 5 V2 years,
as a very young woman in a profession that was previously occu-
pied only by men.

And then I had the UQJque experience of being elected to the ju-
diciary and then leaving the bench because I decided that I could
serve my city and its people better by being its district attorney,
as opposed to being a jurist.

But I do have the experience of handling thousands and thou-
sands of cases, from the most minor kinds of cases up to and in-
cluding the imposition of the death penalty. I have not only tried
cases to a verdict as a lawyer and sought and received the death
penalty, and I have also imposed the death penalty.

And I have the same experience that my colleague Bob Macy has
in that in the almost 25 years that I have been a member of the
bench and the prosecution, not one of the defendants in any of our
cases has ever been put to death in Pennsylvania because of a se-
ries of extraordinary happenings, most notably the unwillingness of
most of our Governors to sign death warrants.



253

I am not here to talk about the death penalty today, but I
thought that the committee might be interested in hearing that
perspective that in Philadelphia and in Pennsylvania all across the
Commonwealth, it is similar, if not worse, than Oklahoma.

I think that we must take an unwaivering view of today's pro-
ceedings, and I know the committee is aware of this, that no mat-
ter how many billions or trillions or quintillions that any crime bill
is about to put before the public that it is immaterial how much
money is in a crime bill if the States do not have the capacity to
incarcerate violent and repeat offenders. While we do make a lot
of the figures that we have heard of — about a million people who
are incarcerated in county jails, State prisons and the like all
across this country — there are at least three and a half times as
many more people on probation and parole. And of the people in
our facilities and our prisons and lockups and jails, most of them
serve only a small fraction of their time before they are released
to the general community.

In Philadelphia we have, as in other States, a particularly egre-
gious problem and that is with our prison cap, which has been on-
going, in effect since 1988 but with the emphasis added that it
started in 1986. And if I could make one small plea in the writeup
of this committee, I might also ask that the committee consider
when talking about how prosecutors can help and be law fighters
and law enforcers, I think it is especially important that this com-
mittee consider prosecutors as people capable of seeking independ-
ent financing from the grants, and I think there is a real signifi-
cant reason for this.

First of all, prosecutors are frequently in competition with police
chiefs, mayors, and other law enforcement agencies in the city, and
we frequently get swamped, overrun, if you will, by the well-mean-
ing and probably important activities that law enforcement agen-
cies other than our own get. We are always on the end of the line.

In addition to that, it frequently happens that prosecutors are at
odds with county commissioners, mayors, and others who are in
competition for these much-needed funds. For example, the Vio-
lence Against Women Act is a particular place, for example, where
prosecutors can make independent requests for funding, so I would
ask the committee, please consider that and not lump us together
with just law enforcement, although we are happy to be considered
law enforcement officers.

The people who suffer the most by things like the prison cap are
not the judges and not even the prosecutors frequently, and cer-
tainly not the lawyers for the criminals, but the people who suffer
the most are the ordinary, working people, and the poor people
whom we all serve.

I know that the 103d Congress thought that when it adjourned
it had not done anything on health care and it hadn't achieved a
lot of reforms. But indeed in our prisons, there are whole programs
involving guaranteed health care, guaranteed dental care, all kinds
of programs for physical fitness, for housing and for everything else
because of the extraordinary explosion in prison litigation and occa-
sioned frequently in the guise of a lawsuit attempting to attack the
prison cap.



254

Prison cap litigation is frequently used to gain other advantages,
not only alleviating the overcrowding that is alleged but there are
other things that are a byproduct of those litigations. I think the
interesting thing for me is that Professor Dilulio, whom you will
hear in another capacity tomorrow, has called activist Federal
judges who are taking over our prisons and supplanting Congress
and the executive branch are the sovereigns of the cell block, and
with his assessment, I wholeheartedly agree.

I think that our unwavering eye should fix upon people like De-
tective Boyle here whose family and thousands of others have suf-
fered the consequences of 8 years of releases under our prison cap.
In Philadelphia, in particular, there has never been a finding by
any court at any time of any constitutional violation. The previous
mayor of Philadelphia folded under the pressure of the very intense
pressure put upon him by the Federal judge administering the cap,
and as a result of that, a Federal charge-based release system re-
placed our State bail system. And in addition to that, crimes that
have always been considered as violent were not violent any longer.

For example, stalking or carjacking, or drug dealing with a load-
ed Uzi submachinegun. Just consider, if you will, ladies and gentle-
men, that in Philadelphia today, and for the past 8 years, any per-
son, as long as they don't use a firearm or a knife but, for example,
as we have in Philadelphia, people using broken glass bottles,
going up to motorists and putting broken bottles at their throat
and commandeering their car, carjacking it, that is an offense, if
that person is arrested, all that person need do is sign hi^ or her
name and promise to appear and that person can just disappear.
Just think about our cities and towns all over this country where
drug dealers can stand on the corner and in Philadelphia, in par-
ticular, with loaded firearms, that is not considered a violent of-
fense.

The likelihood of flight, the person's past criminal record, the
number of failures to appear have been considered irrelevant by
this litigation. And as a matter of fact, in one of the cases, as the
previous witness indicated, the previous sheriff, we have a number
of cases but only one that I will cite.

We have a defendant who has six open drug possession and sales
cases. He has 12 prior failures to appear, at least 4 prior drug con-
victions, has been a fugitive innumerable times, and when he was
arrested recently he was put out on the prison cap. And as you can
see, the district attorney has objected and we put — this is what we
are reduced to, putting a rubber stamp on a piece of paper saying
that we object.

In the past 18 months, 9,732 crimes have been committed by re-
leased defendants because of the prison cap, including 79 murders,
one of whom was Officer Danny Boyle, but there have been many,
many others, as well. As a matter of fact, if you read the front page
of the Washington Post this morning, that is mirrored in a story,
"On the Beat A Deadly Disrespect: D.C. Officers See Gun Attacks
As A New Level of Unprovoked Aggression." People on the street
have a new level of intolerance of an3d;hing that is going to stand
in their way of committing crime, including police officers, and
they — it is well known that police officers are killed at the rate of
six a month in this country, almost all of them by firearm violence.



255

In addition to the 79 murders in the past 18 months, there have
been 959 robberies, 2,215 drug deaHng charges frequently in the
neighborhoods of our African-American, Latino, and poor working-
class white people, 90 rapes, 1,113 assaults.

In our airport, you might as well consider Philadelphia Inter-
national Airport as get-out-of-j ail-free land, because the only way
you will be arrested and incarcerated for coming into Philadelphia
is if you come with more than 50 pounds of marijuana, or if you
have extraordinarily large amounts of crack cocaine and heroin.
Otherwise what the drug couriers do, they know about our prison
cap limitations and the amount of drugs that are permitted to come
into Philadelphia without bail and they bring slightly less than
that amount. If they are arrested, they go to the courthouse and
they are permitted to sign their own bond, walk right out of the
courthouse, get back to international airport and are never seen
again.

The financial losses, which the committee previously addressed a
little while ago, are incalculable. Hundreds and hundreds of mil-
lions of dollars are lost to victims of crime and witnesses of crime.
And in addition to that in Philadelphia, failures to appear at trial
have just about skyrocketed. Over 50,000 bench warrants presently
exist in Philadelphia alone, and in the last 15 months alone, 27,000
new bench warrants were issued for people who had previously
failed to appear in bench warrant status.

In relation to specific crimes, few are arrested in Philadelphia for
dealing drugs. And these crimes frequently afflict our poorest and
most needy neighborhoods. Seventy-six percent of drug defendants
never show up for trial. In addition, for burglary, which has never
been a nonviolent crime, and indeed a burglary case is one of the
aggravating circumstances for which someone who kills someone
during the perpetration of a burglary can get the death sentence,
74 percent of our burglary defendants never show up for court. And
for our theft defendants, almost 70 percent of our theft defendants
never show up for court. So what in a sense prison cap litigation
has done is decriminalized crime, and it is certainly something that
we have had to deal with for an extraordinarily long period of time.

The national rate for fugitives, for example, for aggravated as-
sault without the cap is only 3 percent. And for drug dealers, it is
only 26 percent. So we are three or four times greater than the na-
tional average for failing to appear.

In Philadelphia, the Federal judge, who has taken over the func-
tion of the legislature, and the executive has control over 225 mil-
lion dollars' worth of bonds to build a new prison and a new court-
house, and indeed the Federal judge is on the bond indenture itself
so that every construction change order, where the flagpole goes,
what furniture will go into the courtrooms, how much wattage the
light bulbs will be, where the art work will be placed, is all within
the control of the Federal judge.

In addition, what the prison litigation has done in Philadelphia
is something that this Congress would never tolerate, that is, the
103d Congress binding the 104th Congress. In a sense what has
happened is our previous mayor has bound the present mayor of
Philadelphia and all future mayors so long as this prison cap is in
effect. And, indeed, even though the Supreme Court of the United



256

States has intervened in a way and allowed for flexibility in prison
cap orders, the way that the opponents of flexibility have done it,
including my colleague to my left, is that they deliberately place
language in prison cap litigation and in prison cap orders so that
the Riifo case decided by the Supreme Court will be irrelevant and
has immovable, unchanging ways in which to block any kind of
modification of prison cap orders.

In addition to that and most egregiously — this goes back to what
I said to the Chair and the committee a few moments ago about
the particular effect on prosecutors, is that in litigation such as
this, the district attorney of Philadelphia has absolutely no stand-
ing. It is between the lawyers for the prisoners and the mayor of
the city of Philadelphia with everybody else being deemed irrele-
vant.

I have been to the U.S. Supreme Court at least twice attempting
to gain access to the court so I could at least put up some kind of
arguable claim about the effect that this is having on Philadelphia
and have been denied both times because of the way in which pris-
on litigation goes.

I certainly do not support inhumane conditions for prisoners. We
are not living in foreign countries where we abuse or want to bru-
talize our prisoners. But I don't want to have health clubs for
them, either. I think that it is interesting, that total effect of prison
litigation is not only has it killed our system but it has killed our
faith in the system. It has undermined our confidence in the way
in which we govern ourselves and has thoroughly thrown the so-
called justice system into chaos. In fact, there are jokes about
workmen needing to fix the jail cells because the revolving door has
been broken. The confidence of our citizens has been greatly eroded
in the so-called criminal justice system, which is more criminal
than justice.

I support the Canady-Geren bill, and I indeed support many of
the activities that this Congress has engaged in because I see the
extraordinary calculus of what has happened in my city and across
my country because of prison caps. What I can tell you about Phila-
delphia can be told in almost every State of the Union where a
prison cap has been imposed. It is a tragedy. It shouldn't be per-
mitted to continue and I think that the STOP Act is probably one
of the most significant acts that this Congress can address in such
critical times as these, and I thank the committee and will submit
myself to questioning.

[The prepared statement of Ms. Abraham follows:]



257

Prepared Statement of Lynne Abraham, District Attorney, Philadelphia, PA
Good Afternoon.

I am Lynne Abraham, the District Attorney of Philadelphia. I
am delighted that the Subcommittee on Crime invited me to speak
today.

While Congress has before it a number of federal issues that
are critically important to prosecutors, I would like to focus on
the question of what the federal government can do to help states
run their own criminal justice systems in order to ensure justice
for both for the victims of crime and those who commit crimes.
Unfortunately, the federal government, and, in particular, the
federal courts, often with all good intentions, has intruded itself
unnecessarily into the state criminal justice systems and
completely undermined their integrity and their ability to dispense
justice.

Since the day I took office as District Attorney nearly four
years ago, I have been trying to get rid of a prison cap that is
cutting the heart out of the Philadelphia criminal justice system
and that has convinced our residents that crime pays big-time.
After inmates in our local prisons complained about the prison
conditions, a federal judge who made absolutely no finding of any
unconstitutionality began overseeing what has now become an eight-
year-old program of releases to keep the prison population down to
what she considers an appropriate level.

In this federal lawsuit there has never been a trial or any
finding that the conditions in the Philadelphia prisons were
unconstitutional. In fact, just last month, a different federal



258



judge specifically found that the conditions in even Philadelphia's
very oldest and most decrepit facility — Holmesburg — were still
constitutional. But the prior mayoral administration did not even
try to fight this prison conditions lawsuit — it simply folded its
cards and agreed, under pressure from the federal judge, to enter
two consent decrees providing for the ongoing release of huge
numbers of inmates.

These two consent decrees mandate federally ordered releases
of criminal defendants awaiting trial. Instead of individualized
bail review, where Philadelphia judges would consider all of the
factors relating to a defendant's dangerousness and risk of flight,
we have a "charged-based" system for determining who may enter the
prisons. In other words, the only question asked is "what is the
defendant charged with today?" If the defendant is charged with
what the federal judge calls non-violent crimes, he cannot go to
jail no matter how dangerous he is and no matter how obvious it is
that he will flee and will not show up for his trial. If he is
charged with one of the so-called non-violent crimes of stalking,
car jacking, robbery with a baseball bat, burglary, drug dealing,
vehicular homicide, manslaughter, terroristic threats, gun charges,
he cannot be detained pretrial no matter how many times he fails to
appear in court. In this absurd system a drug dealer carrying a
loaded Uzi is deemed "non-violent". The defendant's prior
convictions, his history of failing to appear for court, his mental
health history, his ties to the community, and his drug or alcohol
dependency are completely deemed irrelevant under these federal



259



decrees.

Unfortunately, criminal defendants know the system and know
that Philadelphia judges no longer have any power to compel a
defendant to appear for his trial. The federal interference with
our state bail system has been catastrophic:

** Before the federal prison cap began, Philadelphia had
approximately 18,000 outstanding bench warrants (that is,
arrest warrants issued when a defendant fails to show up for
trial and becomes a fugitive). Now, we have almost 50,000
bench warrants and virtually no one out on the streets looking
for these fugitives. Why bother — if arrested, they will all
be released again to the streets because of the cap.

** In just the last eighteen months, thousands of defendants
who were on the street because of the prison cap have been
arrested for 9,732 new crimes, including:

► 79 murders

►• 959 robberies

*■ 2,215 drug dealing charges

► 701 burglaries
*■ 2,748 thefts

*■ 90 rapes

*■ 1113 assaults.

** In the last eighteen months alone, over 27,000 new bench

3



260



warrants for misdemeanor and felony charges were issued for
defendants released under the prison cap. This represented
63% of all new bench warrants issued in 1993 and 74% of all
new bench warrants issued for the first six months of 1994.

** The rate of failure to appear in court is higher for
prison cap defendants than for defendants released under our
traditional state court bail programs. A 1992 study
established the following failure to appear rates:

*■ drug dealing 76%

»• burglary 74%

► theft 69%
By contrast, the failure to appear rate for aggravated assault
— a crime for which defendants cannot be released under the
prison cap — was just 3%. The fugitive rate nationally for
defendants charged with drug dealing in 2 6% in a year. Thus,
in Philadelphia, our rate of 7 6% is three times higher than
the national rate.

But these statistics do not reflect the incalculable losses to
our community caused by criminals confident in their belief that



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 22 of 51)