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 5 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 5 of 51)
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1 tomey General may grant in the Attorney General's

2 discretion.".

3 (b) Limit on Judicial Review. — Subsection (d) of

4 section 106 of the Immigration and Nationality Act (8

5 U.S.C. 1105a), as added by section 130004(b) of the Vio-

6 lent Crime Control and Law Enforcement Act of 1994

7 (Public Law 103-322), is amended to read as follows:

8 "(d) Notwithstanding subsection (c), a petition for

9 review or for habeas corpus on behalf of an alien described

10 in section 242A(c) may only challenge whether the ahen

11 is in fact an alien described in such section, and no court

12 shall have jurisdiction to review any other issue.".

13 (c) Presumption of Deportability. — Section

14 242A of the Immigration and Nationality Act (8 U.S.C.

15 1252a) is amended by inserting after subsection (b) the

16 following new subsection:

17 "(c) Presumption of Deportability. — ^An ahen

18 convicted of an aggravated felony shall be conclusively pre-

19 sumed to be deportable from the United States.".

20 (d) Effective Date. — The amendments made by

21 this section shall apply to all ahens against whom deporta-

22 tion proceedings are initiated after the date of the enact-

23 ment of this Act.



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1 SEC. 803. RESTRICTING DEFENSES TO DEPORTATION FOR

2 CERTAIN CRIMINAL ALIENS.

3 (a) Defenses Based on Seven Years of Perma-

4 nent Residence. — The last sentence of section 212(c)

5 of the Immigration and Nationahty Act (8 U.S.C.

6 1182(e)) is amended by striking "has served for such fel-

7 ony or felonies" and all that follows through the period

8 and inserting "has been sentenced for such felony or felo-

9 nies to a term of imprisonment of at least 5 years, if the

10 time for appealing such conviction or sentence has expired

1 1 and the sentence has become final.".

12 (b) Defenses Based on Withholding of Depor-

13 tation.— Section 243(h)(2) of such Act (8 U.S.C.

14 1253(h)(2)) is amended—

15 (1) by striking "or" at the end of subparagraph

16 (C),

17 (2) by inserting "or" at the end of subpara-

18 graph (D), and

19 (3) by striking the final sentence and inserting

20 the following new subparagraph:

21 "(E) the ahen has been convicted of an ag-

22 gravated felony.".



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1 SEC. 804. LIMITATION ON COLLATERAL ATTACKS ON UN-

2 DERLYING DEPORTATION ORDER

3 (a) In General. — Section 276 of the Immigration

4 and Nationality Act (8 U.S.C. 1326) is amended by add-

5 ing at the end the following new subsection:

6 "(c) In a criminal proceeding under this section, an

7 alien may not challenge the validity of the deportation

8 order described in subsection (a)(1) or subsection (b) un-

9 less ':he iwit^n demonstrates that —

10 "(1) the alien exhausted any administrative

11 remedies that may have been available to seek relief

12 against the order;

13 "(2) the deportation proceedings at which the

14 order was issued improperly deprived the alien of the

15 opportunity for judicial review; and

16 "(3) the entry of the order was fundamentally

17 unfair.".

18 (b) Effective Date. — The amendment made by

19 subsection (a) shall apply to criminal proceedings initiated

20 after the date of the enactment of this Act.

2 1 SEC. 805. CRIMINAL ALIEN TRACKING CENTER.

22 Section 130002(a) of the Violent Crime Control and

23 Law Enforcement Act of 1994 (Public Law 103-312) is

24 amended to read as follows:

25 "(a) Operation and Purpose. — The Commissioner

26 of Immigration and Naturalization, with the cooperation

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1 of the Director of the Federal Bureau of Investigation and

2 the heads of other agencies, shall, under the authority of

3 section 242(a)(3)(A) of the Immigration and Nationality

4 Act (8 U.S.C. 1252(a)(3)(A)), operate a criminal ahen

5 tracking center. The criminal alien tracking center shall

6 be used to assist Federal, State, and local law enforcement

7 agencies in identifying and locating aliens who may be

8 subject to deportation by reason of their conviction of ag-

9 gravated felonies.".

10 SEC. 806. MISCEIXANEOUS PROVISIONS.

11 (a) Use of Electronic and Telephonic Media

12 IN Deportation Hearings. — The second sentence of

13 section 242(b) of the Immigration and Nationality Act (8

14 U.S.C. 1252(b)) is amended by inserting before the period

15 the following: "; except that nothing in this subsection

16 shall preclude the Attorney General from authorizing pro-

17 ceedings by electronic or telephonic media (with the con-

18 sent of the alien) or, where waived or agreed to by the

19 parties, in the absence of the ahen".

20 (b) Codification. —

21 (1) Section 242(i) of such Act (8 U.S.C.

22 1252 (i)) is amended by adding at the end the follow-

23 ing: "Nothing in this subsection shall be construed

24 to create any substantive or procedural right or ben-

25 efit that is legally enforceable by any party against

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1 the United States or its agencies or officers or any

2 other person.".

3 (2) Section 225 of the Immigration Technical

4 Amendments Act of 1994 (PubUc Law 103-416) is

5 amended by striking "and nothing in" and all that

6 follows through "1252(i))".

7 (3) The amendments made by this subsection

8 shall take effect as if included in the enactment of

9 the Immigration Technical Amendments Act of 1994

10 (Public Law 103-416).

11 SEC. 807. CONSTRUCTION OF EXPEDITED DEPORTATION

12 REQUIREMENTS.

13 No amendment made by this title shall be construed

14 to create any substantive or procedural right or benefit

15 that is legally enforceable by any party against the United

16 States or its agencies or officers or any other person.

17 TITLE IX— AMENDMENTS TO VIO-

18 LENT CRIME CONTROL AND

19 LAW ENFORCEMENT ACT

20 SEC. 901. PRISONS.

21 Subtitle A of title II of the Violent Crime Control

22 and Law Enforcement Act of 1994 is repealed.

23 SEC. 902. CRIME PREVENTION.

24 Subtitles A through S and subtitle X of title III of

25 the Violent Crime Control and Law Enforcement Act of

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1 1994 are repealed and the provisions of law amended by

2 such subtitles shall read as if the amendments made by

3 such subtitles had not been enacted.



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SUMMARY OF H.R. 3
THE TAKING BACK OUR STREETS ACT OF 1995

Prepared by the Staff of the Subcommittee on Crime

Title I — Effective Death Penalty

This title reforms laws affecting the death penalty to
ensure that death penalties are imposed in appropriate cases and
carried out after a limited, but fair, review process.

Subtitle A. Habeas Corpus Reform.

This subtitle reforms the habeas corpus procedure, under
which federal courts review state and federal convictions and
sentences to determine whether they are contrary to the
Constitution and laws of the United States. Subtitle A
incorporates the recommendations of a blue ribbon commission
established by Chief Justice Rehnquist in 1988 and chaired by
retired Associate Justice Lewis Powell.

In an effort to end the problem of years of multiple
habeas corpus proceedings filed by prisoners, Chapter 1 of the
subtitle establishes a one-year period of limitation for filing a
habeas corpus proceeding by persons who have been convicted of a
state crime. This one year period runs from the later of the date
when a person exhausts his or her state court remedies, the end of
any period when the person was prevented from filing a habeas
corpus petition by a state's actions, the date on which any new
right is recognized by the Supreme Court, or the date by which the
facts underlying the person's claims could have been discovered.
This chapter also establishes a similar two-year period of
limitations for persons sentenced for federal crimes.

Chapter 2 outlines special habeas corpus procedures which
states may elect to use in capital cases. These procedures would
help ensure that capital defendants are given competent counsel in
post-conviction proceedings. If states enact these provisions, the
time in which a habeas corpus petition must be filed following the
exhaustion of state court appeals is reduced to 180 days.

Chapter 2 also provides that executions are stayed while
a habeas corpus petition is pending but limits the granting of
further stays if the petition is denied by the district court and
court of appeals. The prisoner is not entitled to a stay if he or
she fails to file timely the original petition or any notice of
appeal to a court of appeals. Additionally, chapter 2 requires
federal district courts to decide habeas corpus petitions within 60
days from the date of any hearing on the petition. It also



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requires courts of appeal to decide an appeal from the decision of
the district court within 90 days after the last brief in the case
was filed or was due to have been filed with the court of appeals.

Chapter 3 requires the federal ccvernnent to make grants
to the states to help pay for their cost in defending habeas corpus
litigation in capital cases. This funding is to be equal to the
amount appropriated to capital resource centers, which are
organizations that assist prisoners in filing habeas corpus
petitions.

Subtitle B. Death Penalty Procedures.

This subtitle would modify existing law to ensure that a
death sentence is imposed in certain cases where the death penalty
is an appropriate punishment. Under current law the jury in a
capital case is given the discretion to i-pose the death penalty,
life imprisonment, or some lesser penalry. The jury is given
complete discretion in imposing sentence regardless of the facts
that the jury finds were proven at trial.

Under this subtitle, juries would be required to impose
a sentence of death in cases where the jury determines that
aggravating factors outweigh mitigating factors or where at least
one aggravating factor exists but no mitigating factors exist. If
the jury does not find that these conditions exist, however, they
are prohibited from imposing the death sentence. In every case,
the jury (or the court if there is no jury) will decide whether
aggravating factors and mitigating factors exist and, if so,
whether one set of factors outweighs the other. Only once they
have made that determination would the act's death penalty
procedure apply.

Some critics of the present law which allows the jury
unfettered discretion believe that it violates the Supreme Court's
holding in Furman v. Georgia . 408 U.S. 238 (1972) where the Court
struck down the death penalty throughout the United States as it
was then being imposed. It did so due, in part, to the fact that
juries were not given sufficient guidance in imposing the death
penalty. This subtitle would remedy that potential problem.

State court procedures identical to those which would be
enacted under H.R. 3 have been upheld by the Supreme Court in at
least two prior cases. Bills that would have enacted these
provisions were passed in the 102d and 103d Congresses.

Title ZI — Deterring Gun Crimes

This title establishes a new federal crime for the use of
a firearm during or in relation to a state serious violent felony
or a serious drug trafficking offense. The penalties for this



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offense include mandatory minimum sentences of five years in prison
for carrying the firearm, ten years for using it, and twenty years
for discharging it with an intent to injure. A second conviction
of this crime carries penalties of ten, twenty and thirty years in
prison respectively. If the firearm is a machinegun, destructive
device, or is equipped with a silencer, the penalty for the first
conviction, regardless of the way in which the firearm was
employed, is thirty years, and a second conviction brings a
sentence of life in prison.

This title contains an exception for individuals who
carry, use or discharge a firearm in defense of person or property
during the course of a crine committed by another person, unless
the individual engaged in criminal conduct that gave rise to the
criminal conduct of such other person.

Title II also includes a statement of the intent of
Congress that this new offense should be used to supplement but not
supplant the efforts of state and local prosecutors in prosecuting
serious violent felonies and serious drug trafficking offenses.
Moreover, the Attorney General is directed to give due deference to
the interests of state and local prosecutors with regard to the
prosecution of a person under state law.

Current federal law contains a crime for carrying or
using a firearm during or in relation to a federal violent crime or
drug trafficking offense. This title conforms this crime to the
proposed new offense with regard to both criminal acts and
penalties.

Title III — Mandatory Victim Restitution

Under current law a court has the discretion to order the
offender to make restitution to the victim, but is not required to
do so. Title III mandates that criminals pay full restitution to
their victims for all damages caused as a result of the crime.

In addition to requiring that the court order restitution
to the victim, the court is given the discretion to order
restitution of any person — not just the crime victim — who was
harmed physically, emotionally or financially by the criminal's
unlawful conduct. Such restitution is to include all expenses
incurred by the victim while participating in the legal proceedings
(e.g., child care and transportation).

The court is to determine the amount of restitution based
on the full amount of a victim's losses and not the offender's
economic status. Moreover, in determining the amount of
restitution the court is not to consider the victim's right to
other compensation such as insurance.



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Court-ordered restitution is not to affect the victim's
eligibility for insurance until such court-ordered restitution has
fully compensated the victim. If a victim seeks additional
compensation through a civil action, any new award is to be reduced
by the amount of the first criminal restitution order.

Title III establishes compliance with the court-
prescribed schedule of restitution payments as a condition for
probation or parole. The victim or offender may petition the court
to modify a restitution order at any time.

Title IV — Law Enforcement Block Grants

Title IV establishes a block grant program for units of
local government to assist them in their efforts to improve public
safety. The Title replaces Title I (Public Safety and Policing) of
the Violent Crime Control and Law Enforcement Act of 1994 (the
"1994 Crime Act") .

Section 101 authorizes the Director of the Bureau of
Justice Assistance (the "BJA") to make grants directly to units of
local government for reducing crime and improving public safety.
The use of grant funds includes, but is not limited to, three
purposes: (1) hiring, training, and equipping law enforcement
officers and support personnel; (2) enhancing school security
measures through increased law enforcement school patrols and
physical safety measures; and (3) establishing crime prevention
programs involving law enforcement officials and intended to
discourage the commission of crime. This section also requires
that grant funds supplement and not supplant state or local funds.

It is important to note that units of local government
may use Section 101 funds for purposes other than the above three,
so long as they are used to reduce crime and improve public safety.

Section 102 authorizes $10 billion for law enforcement
block grants over five years. $2 billion is to be distributed in
each of Fiscal Years 1996 through 2000.

Under section 103 units of local government must submit
an application to BJA ensuring the following: (1) A trust fund will
be established for the deposit of grant funds; (2) Funds will be
used within two years of receipt; (3) Funds will be expended
consistent with applicable local revenue procedures; (4) Approved
accounting procedures will be used; (5) Records will be available
for review; (6) Progress reports will be made; (7) Funds will be
used consistent with the purposes identified in Section 101. Units
of local government can apply for funds each fiscal year.

Section 104 provides that each year $2 billion is divided
among the fifty states for distribution directly to units of local



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government. The funding amount set aside a state's units of local
government is determined by the number of violent crimes in that
state compared to the rest of the country, plus .25% of the total
appropriation (i.e., $5,000,000). The funding amount available to
a unit of local government is based on its population and the
number of violent crimes reported by that unit compared to the
number of violent crimes reported by all units within that same
state.

If a unit of local government receives less than $5,000
for the one year payment period, those funds are transferred to the
state's Governor who is to equitably distribute them among that
state's units of local government.

Title V - Truth in Sentencing Grants

This title replaces Title II - the state prison grant
provisions - of the 1994 Crime Act. It is intended to increase
significantly the total amount of funding for state prison grants
(from $8 to $10.5 billion over five years) and the incentives in
last year's bill for the states to curtail early parole for violent
criminals.

Section 501 authorizes the Attorney General to provide
grants to eligible states and regional organizations of states to
build, expand and operate correctional facilities for the purpose
of incapacitating serious violent criminals. Grants may also be
used to build, expand and operate facilities, including facilities
on military bases, for nonviolent offenders if such efforts are
designed to free up existing prison space for violent criminals.

Section 502 establishes the first of two grant categories
for state prisons. Half of the total funds available each year
under this title are to be general grants for states that are
making progress in punishing violent criminals. States will be
eligible for a grant in this category if they have, since 1993:
(1) increased the percentage of convicted violent offenders
sentenced to prison; (2) increased the average time served in
prison by violent offenders; and (3) increased the percentage of
sentence to be actually served by such criminals.

Section 503 establishes the second of the two grant
programs. Half of the total funds available each year are reserved
for this funding category. States must enact truth-in-sentencing
laws which require serious violent felons to serve not less than
85% of the sentence imposed. Implementation of such laws must take
place within three years after a state applies for funding. States
must also enact laws requiring notification of victims or families
of victims concerning the release of offenders and afford such
victims an opportunity to be heard.



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Section 504 makes special provision for states which have
indeterminate sentencing policies. Such states can qualify for
funds if the average time served for violent crimes exceeds by 10
percent or more the national average of time served for such
offenses.

Section 505 establishes the formula for disbursing the
funds to the states, with no state receiving less than $500,000 per
year. Section 506 establishes the procedures that states must
follow to ensure proper fiscal management of all funds. Section
507 authorizes $10.5 billion for Fiscal Years 1995 through 2000 to
carry out this title, beginning with $232,000,000 for FY 95, and
increasing each year to a maximum of $2,753,100,000 for Fiscal Year
2000. None of the funds are to supplant state funds, and the
federal share of any proposal funded under this provision is not to
exceed 7 5 percent.

Title VI — Exclusionary Rule Reform

Title VI of H.R. 3 provides for an exception to the
exclusionary rule when law enforcement officers obtain improperly
obtain evidence yet do so in the objectively reasonable belief that
their actions comply with the protections of the fourth amendment
to the Constitution. That amendment guarantees that the people
have a right to be secure against "unreasonable" searches and
seizures of their persons, houses, papers, and effects. When
evidence or testimony in criminal matters is found by the court to
have been gathered in a manner that violates the fourth amendment
guarantee the court applies the so-called "exclusionary rule" to
prohibit the use of that evidence or testimony at any trial of the
accused.

In 1984, the United States Supreme Court held in United
States v. Leon . 468 U.S. 897 (1984) that evidence gathered pursuant
to a search warrant that was later held to be invalid could
nevertheless be used at trial if the prosecution demonstrated that
the law enforcement officials who gathered the evidence pursuant to
that warrant did so under an objectively reasonable belief that the
warrant was valid. The Court's holding in this case has come to be
known as the "good faith" exception to the exclusionary rule. The
Court's stated rationale for creating this exception was that as
the exclusionary rule is intended to deter law enforcement
officials from acting in ways that are contrary to the
Constitution, there is no reason for that rule to apply to evidence
gathered by law enforcement officials who believe they are, in
fact, acting properly.

This title would legislatively expand the "good faith"
exception to situations where law enforcement officials gather
evidence without a warrant, yet still have an objectively
reasonable belief that they are acting properly. Bills which would



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have accomplished this were passed by the House in the 101st and
102d Congress, in both cases by wide margins.

Title VII — Stopping Abusive Prisoner Lawsuits

Title VII places certain restrictions on the ability of
detained persons to challenge the constitutionality of their
confinement.

The title amends the Civil Rights of Institutionalized
Persons Act ("CRIPA") in three ways. CRIPA authorizes the Attorney
General to initiate civil actions on behalf of persons detained in
jails, prisons or pretrial facilities when the Attorney General
believes that their constitutional rights are being violated.

Section 701 amends CRIPA by requiring that all available
administrative remedies be exhausted prior to a civil action being
initiated on behalf of an inmate. Under CRIPA, courts were given
the discretion of allowing for the exhaustion of administrative
remedies, but were not required to do so. Under H.R. 3, that
discretion is eliminated.

Section 702 amends CRIPA by adding the requirement that
the court, on its own motion or another's motion, dismiss any
inmate suit if it fails to state a legitimate claim of a
constitutional violation for which relief can be granted, or if the
suit is frivolous or malicious.

CRIPA requires the Attorney General to promulgate minimum
standards of acceptable prison conditions to be used in resolving
CRIPA grievances. It further requires that such standards be
developed with the advice of inmates. Section 703 eliminates the
requirement that prisoners contribute to the development of those
standards.

In addition to amending CRIPA, this title also amends the
statute that authorizes Proceedings in Forma Pauperis. Under that
statute, a court may authorize the prosecution or defense of a
civil or criminal action without cost for any person unable to pay,
and may appoint an attorney to provide counsel at no cost. The
statute gives the court discretion to dismiss the case if the
allegation of poverty was untrue or if the action was frivolous or
malicious. Section 704 removes that discretion and requires the
court to dismiss the case if the allegation of poverty is untrue,
if the action is frivolous or malicious, or if the action fails to
state a legitimate claim.



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Title VIII — Further Streeunlining Deportation of Criminal Aliens

Title VIII makes several amendments tc the Immigration
and Nationality Act (the "INA") and other immigration laws in order
to deal with the problem of aliens who commit serious crimes while
they are present in the United States. In some cases, the
provisions in this title add to or modify related provisions
enacted by the 1994 Crime Act or the Immigration and Nationality
Technical Corrections Act of 1994 (the "1994 Immigration Act") .

Section 801 would add certain crimes to the definition of
"aggravated felony." Aliens who commit aggravated felonies can be
deported from the country. Section 801 would add to 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 5 of 51)