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 3 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 3 of 51)
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21 than 30 years.

22 "(B) A person who has been convicted under this sub-

23 section and who, during and in relation to a crime of vio-

24 lence or drug trafficking crime (including a crime of vio-

25 lence or drug trafficking crime that provides for an en-

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1 hanced punishment if committed by the use of a deadly

2 or dangerous weapon or device) for which the person may

3 be prosecuted in a court of the United States —

4 "(i) knowingly carries a firearm, shall, in addi-

5 tion to the sentence imposed for the serious violent

6 felony or serious drug offense, be sentenced to im-

7 prisonment for not less than 10 years;

8 "(ii) knowingly uses a firearm, shall, in addition

9 to the sentence imposed for the serious violent felony

10 or serious drug offense, be sentenced to imprison-

1 1 ment for not less than 20 years; or

12 "(iii) discharges a firearm with the intent to in-

13 jure another person, shall, in addition to the sen-

14 tence imposed for the serious violent felony or seri-

15 ous drug offense, be sentenced to imprisonment for

16 not less than 20 years;

17 except that, if the firearm is a machinegun or destructive

18 device or is equipped with a firearm silencer or firearm

19 muffler, the person shall, in addition to the sentence im-

20 posed for the serious violent felony or serious drug offense,

21 be sentenced to imprisonment for not less than 30 years.

22 "(ii) A person who has been convicted under this sub-

23 section and who, during and in relation to a serious violent

24 felony or serious drug offense (including a serious violent

25 felony or serious drug offense that provides for an en-

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1 hanced punishment if committed by the use of a deadly

2 or dangerous weapon or device) for which the person may

3 be prosecuted in a court of any State —

4 "(I) knowingly carries a firearm, shall, in addi-

5 tion to the sentence imposed for the serious violent

6 felony or serious drug offense, be sentenced to im-

7 prisonment for not less than 10 years;

8 "(11) knowingly uses a firearm, shall, in addi-

9 tion to the sentence imposed for the serious violent

10 felony or serious drug offense, be sentenced to im-

1 1 prisonment for not less than 20 years; or

12 "(III) discharges a firearm with the intent to

13 injure another person, shall, in addition to the sen-

14 tence imposed for the serious violent felony or seri-

15 ous drug offense, be sentenced to imprisonment for

16 not less than 30 years;

17 except that if the firearm is a machinegun or destructive

18 device or is equipped with a firearm silencer or firearm

19 muffler, the person shall, in addition to the sentence im-

20 posed for the serious violent felony or serious drug offense,

21 be sentenced to life imprisonment.

22 "(3) (A) Notwithstanding any other provision of law,

23 the court shall not impose a probationary sentence on any

24 person convicted of a violation of this subsection, nor shall

25 a term of imprisonment imposed under this subsection run

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1 concurrently with any other term of imprisonment includ-

2 ing that imposed for the serious violent felony, serious

3 drug offense, crime of violence, or drug trafficking crime

4 in which the firearm was used.

5 "(B) No person sentenced under this subsection shall

6 be released for any reason whatsoever during a term of

7 imprisonment imposed under this subsection.

8 "(4) As used in this subsection:

9 "(A) The term 'serious violent felony' means —

10 "(i) a crime of violence; or

11 "(ii) a serious violent felony (as defined in

12 section 3559(c)(2)(F)).

13 "(B) The term 'serious drug offense' means —

14 "(i) a drug trafficking crime;

15 "(ii) an offense that is punishable under

16 section 401(b)(1)(B) or section 408 of the Con-

17 trolled Substances Act (21 U.S.C.

18 841(b)(1)(B), 848), or section 1010(b)(1)(A) of

19 the Controlled Substances Import and Export

20 Act (21 U.S.C. 960(b)(1)(A)); or

21 "(III) an offense under State law that, had

22 the offense been prosecuted in a court of the

23 United States, would have been punishable

24 under section 401(b)(1)(B) or section 408 of

25 the Controlled Substances Act (21 U.S.C.

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1 841(b)(1)(B), 848), or section 1010(b)(1)(A) of

2 the Controlled Substances Import and Export

3 Act (21 U.S.C. 960(b)(1)(A)).

4 "(C) The term 'crime of violence' means an of-

5 fense that is a felony and —

6 "(i) has as an element the use, attempted

7 use, or threatened use of physical force against

8 the person or property of another; or

9 "(ii) that by its nature, involves a substan-

10 tial risk that physical force against the person

11 or property of another may be used in the

1 2 course of committing the offense.

13 "(D) The term 'drug trafficking crime' means

14 any felony punishable under the Controlled Sub-

15 stances Act (21 U.S.C. 801 et seq.), the Controlled

16 Substances Import and Export Act (21 U.S.C. 951

17 et seq.), or the Maritime Drug Law Enforcement

18 Act (46 U.S.C. App. 1901 et seq.).".

19 TITLE in— MANDATORY VICTIM

20 RESTITUTION

21 SEC. 301. MANDATORY RESTITUTION AND OTHER PROVI-

22 SIONS.

23 (a) Order of Restitution. — Section 3663 of title

24 18, United States Code, is amended —

25 (1) in subsection (a) —

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1 (A) by striking "may order" and inserting

2 "shall order"; and

3 (B) by adding at the end the following new

4 paragraph:

5 "(4) In addition to ordering restitution of the victim

6 of the offense of which a defendant is convicted, a court

7 may order restitution of any person who, as shown by a

8 preponderance of evidence, was harmed physically, emo-

9 tionally, or pecuniarily, by unlawful conduct of the defend-

10 ant during —

11 "(A) the criminal episode during which the of-

12 fense occurred; or

13 "(B) the course of a scheme, conspiracy, or pat-

14 tern of unlawful activity related to the offense.";

15 (2) in subsection (b)(1)(B) by striking "imprac-

16 tical" and inserting "impracticable";

17 (3) in subsection (b)(2) by inserting "emotional

18 or" after "resulting in";

19 (4) in subsection (b) —

20 (A) by striking "and" at the end of para-

21 graph (4);

22 (B) by redesignating paragraph (5) as

23 paragraph (6); and

24 (C) by inserting after paragraph (4) the

25 following new paragraph:

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1 "(5) in any case, reimburse the victim for nec-

2 essary child care, transportation, and other expenses

3 related to participation in the investigation or pros-

4 ecution of the offense or attendance at proceedings

5 related to the offense; and".

6 (5) in subsection (e) by striking "If the court

7 decides to order restitution under this section, the"

8 and inserting "The";

9 (6) by striking subsections (d), (e), (f), (g), and

10 (h);

11 (7) by redesignating subsection (i) as subsection

12 (m); and

13 (8) by inserting after subsection (c) the follow-

14 ing:

15 "(d)(1) The court shall order restitution to a victim

16 in the full amount of the victim's losses as determined by

17 the court and without consideration of —

18 "(A) the economic circumstances of the of-

19 fender; or

20 "(B) the fact that a victim has received or is

21 entitled to receive compensation with respect to a

22 loss from insurance or any other source.

23 "(2) Upon determination of the amount of restitution

24 owed to each victim, the court shall specify in the restitu-



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1 tion order the manner in which and the schedule according

2 to which the restitution is to be paid, in consideration of —

3 "(A) the financial resources and other assets of

4 the offender;

5 "(B) projected earnings and other income of

6 the offender; and

7 "(C) any financial obligations of the offender,

8 including obligations to dependents.

9 "(3) A restitution order may direct the offender to

10 make a single, lump-sum payment, partial payment at

11 specified intervals, or such in-kind payments as may be

12 agreeable to the victim and the offender.

13 "(4) An in-kind payment described in paragraph (3)

14 may be in the form of —

15 "(A) return of property;

16 "(B) replacement of property; or

17 "(C) services rendered to the victim or to a per-

18 son or organization other than the victim.

19 "(e) When the court finds that more than 1 offender

20 has contributed to the loss of a victim, the court may make

21 each offender hable for payment of the full amount of res-

22 titution or may apportion liability among the offenders to

23 reflect the level of contribution and economic cir-

24 cumstances of each offender.



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1 "(f) When the court finds that more than 1 victim

2 has sustained a loss requiring restitution by an offender,

3 the court shall order full restitution of each victim but may

4 provide for different payment schedules to reflect the eco-

5 nomic circumstances of each victim.

6 "(g)(1) If the victim has received or is entitled to re-

7 ceive compensation with respect to a loss from insurance

8 or any other source, the court shall order that restitution

9 be paid to the person who provided or is obligated to pro-

10 vide the compensation, but the restitution order shall pro-

1 1 vide that all restitution of victims required by the order

12 be paid to the victims before any restitution is paid to

1 3 such a provider of compensation.

14 "(2) The issuance of a restitution order shall not af-

15 feet the entitlement of a victim to receive compensation

16 with respect to a loss from insurance or any other source

17 until the pajnnents actually received by the victim under

18 the restitution order fully compensate the victim for the

19 loss, at which time a person that has provided compensa-

20 tion to the victim shall be entitled to receive any pajnnents

21 remaining to be paid under the restitution order.

22 "(3) Any amount paid to a victim under an order of

23 restitution shall be set off against any amount later recov-

24 ered as compensatory damages by the victim in —

25 "(A) any Federal civil proceeding; and

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1 "(B) any State civil proceeding, to the extent

2 provided by the law of the State.

3 "(h) A restitution order shall provide that —

4 "(1) all fines, penalties, costs, restitution pay-

5 ments and other forms of transfers of money or

6 property made pursuant to the sentence of the court

7 shall be made by the offender to an entity des-

8 ignated by the Director of the Administrative Office

9 of the United States Courts for accounting and pay-

10 ment by the entity in accordance with this sub-

1 1 section;

12 "(2) the entity designated by the Director of

13 the Administrative Office of the United States

14 Courts shall —

15 "(A) log all transfers in a manner that

16 tracks the offender's obligations and the cur-

17 rent status in meeting those obUgations, unless,

18 after efforts have been made to enforce the res-

19 titution order and it appears that compliance

20 cannot be obtained, the court determines that

21 continued recordkeeping under this subpara-

22 graph would not be useful;

23 "(B) notify the court and the interested

24 parties when an offender is 90 days in arrears

25 in meeting those obligations; and

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1 "(3) the offender shall advise the entity des-

2 ignated by the Director of the Administrative Office

3 of the United States Courts of any change in the of-

4 fender's address during the term of the restitution

5 order.

6 "(i) A restitution order shall constitute a lien against

7 all property of the offender and may be recorded in any

8 Federal or State office for the recording of liens against

9 real or personal property.

10 "(j) CompUance with the schedule of payment and

1 1 other terms of a restitution order shall be a condition of

12 any probation, parole, or other form of release of an of-

13 fender. If a defendant fails to comply with a restitution

14 order, the court may revoke probation or a term of super-

15 vised release, modify the term or conditions of probation

16 or a term of supervised release, hold the defendant in con-

17 tempt of court, enter a restraining order or injunction,

1 8 order the sale of property of the defendant, accept a per-

19 formance bond, or take any other action necessary to ob-

20 tain compliance with the restitution order. In determining

21 what action to take, the court shall consider the defend-

22 ant's employment status, earning ability, financial re-

23 sources, the willfulness in failing to comply with the res-

24 titution order, and any other circumstances that may have



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1 a bearing on the defendant's ability to comply with the

2 restitution order.

3 "(k) An order of restitution may be enforced —

4 "(1) by the United States—

5 "(A) in the manner provided for the coUec-

6 tion and payment of fines in subchapter (B) of

7 chapter 229 of this title; or

8 "(B) in the same manner as a judgment in

9 a civil action; and

10 "(2) by a victim named in the order to receive

11 the restitution, in the same manner as a judgment

12 in a civil action.

13 "(1) A victim or the offender may petition the court

14 at any time to modify a restitution order as appropriate

15 in view of a change in the economic circumstances of the

16 offender.".

17 (b) Procedure for Issuing Order op Restitu-

18 TION. — Section 3664 of title 18, United States Code, is

19 amended —

20 (1) by striking subsection (a);

21 (2) by redesignating subsections (b), (c), (d),

22 and (e) as subsections (a), (b), (c), and (d);

23 (3) by amending subsection (a), as redesignated

24 by paragraph (2), to read as follows:



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1 "(a) The court may order the probation service of the

2 court to obtain information pertaining to the amount of

3 loss sustained by any victim as a result of the offense,

4 the financial resources of the defendant, the financial

5 needs and earning ability of the defendant and the defend-

6 ant's dependents, and such other factors as the court

7 deems appropriate. The probation service of the court

8 shall include the information collected in the report of

9 presentence investigation or in a separate report, as the

10 court directs."; and

11 (4) by adding at the end thereof the following

12 new subsection:

13 "(e) The court may refer any issue arising in connec-

14 tion with a proposed order of restitution to a magistrate

15 or special master for proposed findings of fact and rec-

16 ommendations as to disposition, subject to a de novo de-

17 termination of the issue by the court.".

18 TITLE IV— LAW ENFORCEMENT

19 BLOCK GRANTS

20 SEC. 401. BLOCK GRANT PROGRAM.

21 Title I of the Violent Crime Control and Law En-

22 forcement Act of 1994 is amended to read as follows:



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1 "TITLE I— LAW ENFORCEMENT

2 BLOCK GRANTS

3 "SEC. 101. PAYMENTS TO LOCAL GOVERNMENTS.

4 "(a) Payment and Use. —

5 "(1) Payment. — The Director of the Bureau of

6 Justice Assistance, shall pay to each unit of local

7 government which qualifies for a payment under this

8 title an amount equal to the sum of any amounts al-

9 located to such unit under this title for each pay-

10 ment period. The Director shall pay such amount

1 1 from amounts appropriated to carry out this title.

12 "(2) Use. — ^Amounts paid to a unit of local

13 government under this section shall be used by the

14 unit for reducing crime and improving public safety,

15 including but not limited to, one or more of the fol-

16 lowing purposes:

17 "(A)(i) hiring, training, and employing on

18 a continuing basis new, additional law enforce-

19 ment officers and necessary support personnel;

20 "(ii) paying overtime to presently employed

21 law enforcement officers and necessary support

22 personnel for the purpose of increasing the

23 number of hours worked by such personnel; and



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1 "(iii) procuring equipment, technology, and

2 other material directly related to basic law en-

3 forcement functions.

4 "(B) Enhancing school security measures

5 by—

6 "(i) providing increased law enforce-

7 ment patrols in and around schools, wheth-

8 er through the hiring of additional law en-

9 forcement officers or paying overtime to

10 presently employed officers;

11 "(ii) purchasing law enforcement

12 equipment necessary to carry out normal

13 law enforcement functions in and around

14 schools;

15 "(iii) equipping schools with metal de-

16 tectors, fences, closed circuit cameras, and

17 other physical safety measures; and

18 "(iv) gun hotlines designed to facili-

19 tate the reporting of weapons possession

20 by students and other individuals in and

21 around schools.

22 "(C) Establishing crime prevention pro-

23 grams that are organized, supervised by, or in-

24 volve substantial participation of law enforce-

25 ment officials and that are intended to discour-

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1 age, disrupt, or interfere with the commission

2 of criminal activity, including neighborhood

3 watches and citizen patrols.

4 "(b) Timing of Payments. — The Director shall pay

5 each unit of local government that has submitted an appli-

6 cation under this title not later than —

7 "(1) 90 days after the date that the amount is

8 available, or

9 "(2) the first day of the payment period if the

10 unit of local government has provided the Director

11 with the assurances required by section 103(d),

12 whichever is later.

13 "(c) Adjustments. —

14 "(1) In general. — Subject to paragraph (2),

15 the Director shall adjust a payment under this title

16 to a unit of local government to the extent that a

17 prior payment to the unit of local government was

18 more or less than the amount required to be paid.

19 "(2) Considerations. — The Director may in-

20 crease or decrease under this subsection a payment

21 to a unit of local government only if the Director de-

22 termines the need for the increase or decrease, or if

23 the unit requests the increase or decrease, not later

24 than one year after the end of the payment period

25 for which a payment was made.

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1 "(d) Reservation for Adjustment. — The Direc-

2 tor may reserve a percentage of not more than two percent

3 of the amount under this section for a payment period

4 for all units of local government in a State if the Director

5 considers the reserve is necessary to ensure the availability

6 of sufficient amounts to pay adjustments after the final

7 allocation of amounts among the units of local government

8 in the State.

9 "(e) Repayment of Unexpended Amounts. —

10 "(1) Repayment required. — ^A unit of local

1 1 government shall repay to the Director, by not later

12 than 27 months after receipt of funds fi-om the Di-

13 rector, any amount that is —

14 "(A) paid to the unit fi-om amounts appro-

15 priated under the authority of this section; and

16 "(B) not expended by the unit vnthin two

17 years after receipt of such funds from the Di-

1 8 rector.

19 "(2) Penalty for failure to repay. — If the

20 amount required to be repaid is not repaid, the Di-

21 rector shall reduce payment in future payment peri-

22 ods accordingly.

23 "(3) Deposit of amounts repaid. — ^Amounts

24 received by the Director as repayments under this



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1 subsection shall be deposited in a designated fund

2 for future payments to units of local government.

3 "(f) NONSUPPLANTING REQUIREMENT. — Funds

4 made available under this title to units of local government

5 shall not be used to supplant State or local funds, but

6 shall be used to increase the amount of funds that would,

7 in the absence of funds under this title, be made available

8 from State or local sources.

9 *«£€. 102. AUTHORIZATION OF APPROPRIATIONS.

10 "(a) Authorization of Appropriations. — There

1 1 are authorized to be appropriated to carry out this title —

12 "(1) $2,000,000,000 for fiscal year 1996;

13 "(2) $2,000,000,000 for fiscal year 1997;

14 "(3) $2,000,000,000 for fiscal year 1998;

15 "(4) $2,000,000,000 for fiscal year 1999; and

16 "(5) $2,000,000,000 for fiscal year 2000.

17 "(b) Administrative Costs. — Not more than 2.5

18 percent of the amount authorized to be appropriated

19 under subsection (a) for each of the fiscal years 1995

20 through 2000 shall be available to the Director for admin-

21 istrative costs to carry out the purposes of this title. Such

22 sums are to remain available until expended.

23 "(c) Availability. — The amounts authorized to be

24 appropriated under subsection (a) shall remain available

25 until expended.

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1 "SEC. 103. QUALIFICATION FOR PAYMENT.

2 "(a) In General. — The Director shall issue re^la-

3 tions establishing procedures under which an unit of local

4 government is required to provide notice to the Director

5 regarding the proposed use of assistance under this title.

6 "(b) General Requirements for Qualifica-

7 TION. — ^An unit of local government qualifies for a pay-

8 ment under this title for a payment period only if the unit

9 submits an application to the Director and establishes, to

10 the satisfaction of the Director, that — ^

11 "(1) the unit of local government will establish

12 a trust fund in which the government will deposit all

13 payments received under this title;

14 "(2) the unit of local government will use

15 amounts in the trust fund (including interest) dur-

16 ing a period not to exceed two years from the date

17 the first grant payment is made to the government;

18 "(3) the unit of local government will expend

19 the payments received in accordance with the laws

20 and procedures that are applicable to the expendi-

21 ture of revenues of the unit of government;

22 "(4) the unit of local government will use ac-

23 counting, audit, and fiscal procedures that conform

24 to guidelines which shall be prescribed by the Direc-

25 tor after consultation with the Comptroller General

26 and as applicable, amounts received under this title

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1 shall be audited in compliance with the Single Audit

2 Act of 1984;

3 "(5) after reasonable notice from the Director

4 or the Comptroller General to the unit of govem-

5 ment, the unit of local government will make avail-

6 able to the Director and the Comptroller General,

7 with the right to inspect, records that the Director

8 reasonably requires to review compliance with this

9 title or that the Comptroller General reasonably re-

10 quires to review compliance and operation;

11 "(6) a designated official of the unit of local

12 government shall make reports the Director reason-

13 ably requires, in addition to the annual reports re-

14 quired under this title; and

15 "(7) the unit of local government will spend the

16 funds only for the purposes set forth in section

17 101(a)(2).

18 "(c) Review by Governors. — ^A unit of local gov-

19 ernment shall give the chief executive officer of the State

20 in which the government is located an opportunity for re-

21 view and comment before establishing compliance with

22 subsection (d).

23 "(d) Sanctions for Noncompliance. —

24 "(1) In general. — If the Director determines

25 that a unit of local government has not complied

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1 substantially with the requirements or regulations

2 prescribed under subsection (b), the Director shall

3 notify the unit of local government that if the unit

4 of local government does not take corrective action

5 within 60 days of such notice, the Director will with-

6 hold additional payments to the unit of local govem-

7 ment for the current and future payment periods

8 until the Director is satisfied that the- unit of local

9 government —

10 "(A) has taken the appropriate corrective

11 action; and

12 "(B) will comply with the requirements

13 and regulations prescribed under subsection (b).

14 "(2) Notice. — Before giving notice under para-

15 graph (1), the Director shall give the chief executive
.16 officer of the unit of local government reasonable no-

17 tice and an opportunity for comment.

1 8 "SEC. 104. ALLOCATION AND DISTRIBUTION OF FUNDS.



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 3 of 51)